Subjects of International Law – in
opposition to self-styled princes
Subjects of International Law – in opposition to self-styled princes
International law did not generate with Grotius, along with the earlier works of Francisco de Vitoria and Alberico Gentili, Grotius laid the foundations for international law, based on natural law. It is thought that Hugo Grotius was not the first to formulate the international society doctrine, but he was one of the first to define expressly the idea of one society of states, governed not by force or warfare but by actual laws and mutual agreement to enforce those laws. As Hedley Bull (Hugo Grotius and International Relations, 1992) declared: "The idea of international society which Grotius propounded was given concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual father of this first general peace settlement of modern times. The originators of modern international law, commencing with Grotius, did not wholeheartedly adopt the ways and views of Machiavelli. To the contrary, many of them reacted to Machiavelli’s strict separation of morality and politics.
According to David J. Bederman, “Grotius has earned the title ‘father of international law’.” Countering Machiavelli’s “evil” principle of “reason of state” was one of Grotius’ primary objects in his major opus, De Jure Belli ac Pacis (1625). From the middle of the sixteenth century until the French Revolution, Machiavelliism represented a powerful current in intellectual life.
Niccolò Machiavelli (1469-1527) is considered a founder of modern political science. Machiavelli was a politician, diplomat, and writer. He was neither a jurist nor a lawyer. Nonetheless, through his widely-read a significant influence on the evolution of international law. As Shirley V. Scott has written, “A mere glance through several mainstream journals, including The International and Comparative Law Quarterly and the European Journal of International Relations, suffices to demonstrate that linking politics and law is an accepted mainstream activity in both disciplines (though this is less apparent in the policy-oriented Foreign Affairs). Thus, the political theory in Machiavelli’s writings, in particular “The Prince”, had much to say about the evolution of international law as we know it. Machiavelli, whether admired or despised, was instrumental in affecting the thinking and writing of many scholars and diplomats who succeeded him. Machiavelli and these successors inspired the philosophers and jurists who did have a direct effect on the evolution of the law of nations.
This Florentine statesman and writer of the late fifteenth and early sixteenth centuries has been vilified by many, praised by others, but ignored by few. Today, after five hundred years of scholarly debate and not-so-scholarly polemic, he remains the subject of intense scrutiny and controversy.
Machiavelli and The Prince are considered important today because the modern approach to political science began with Machiavelli and continued with Thomas Hobbes, writing in England a century later. Machiavelli is often counted as the first modern political scientist, searching for natural explanations of how things function without references to Nature or God. Like Aristotle and Plato, Machiavelli was familiar with compact city-states created by humans. He searched the “laws” that governed the founding and operation of a successful state. He believed he found them in history and the very nature of humans.
Machiavelli lived during the height of the Italian Renaissance. In the years preceding his writings, Western Europe, especially Italy, was undergoing dramatic political and cultural changes. Feudalism was dying. Commercial activity was on the rise. The medieval concept of unity was losing grounds to an individualistic humanism. Before examining Machiavelli’s role in the dramatic changes that took place, it is instructive to resume the analysis of the role that those thinkers who succeeded the Greeks had on western thought.
Today’s international law is the law of a global international society, and this society came into existence around the end of the nineteenth century. What existed before were regional normative systems, each of which claimed universal validity based on each system’s particular view of humanity and of the world. The Sinocentric system was a hierarchical system of international relations that prevailed in East Asia before the adoption of the Westphalian system in modern times, Islamocentric (Centered on or overemphasizing Islam and/or Muslims), and Eurocentric (centered on Europe or the Europeans) systems were leading examples. With the subjugation of competing powers in other civilizations by colonizing European powers, European international law became the global standard.
Subjects of International Law can be described as those persons or entities who possess international personality. i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level. Throughout the 19th century, only States qualified as subjects of international law. After, the Second World War, more and more new actors emerged such now includes non-state actors, such as individuals, non-governmental organizations (NGOs), and multinational corporations (MNCs). This expansion reflects the extent to which states have, in the development of international society, created new tools (e.g., IGOs) and crafted new public-private partnerships with NGOs and MNCs as part of international cooperation.
The body of law that governs the legal relations between or among states or nations.
To qualify as a subject under the traditional definition of international law, a state had to be sovereign: It needed a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. States within the United States, provinces, and cantons were not considered subjects of international law, because they lacked the legal authority to engage in foreign relations. In addition, individuals did not fall within the definition of subjects that enjoyed rights and obligations under international law.
A more contemporary definition expands the traditional notions of international law to confer rights and obligations on intergovernmental international organizations and even on individuals. The United Nations, for example, is an international organization that has the capacity to engage in treaty relations governed by and binding under international law with states and other international organizations. Individual responsibility under international law is particularly significant in the context of prosecuting war criminals and the development of international Human Rights.
WHO IS A SUBJECT OF
“A subject of international is (1) an individual, body or entity; (2) Recognized or accepted; (3) As being capable of possessing and exercising; (4) Rights and duties; (5) Under international law. (Dixon).
Subjects of international law are States and non- State actors like individuals and international organizations. Some argue that international non-governmental organizations and multinational companies also fall into the category of subjects of international law.
TO DETERMINE IF AN ENTITY IS A SUBJECT OF INTERNATIONAL LAW
An entity is a subject of international law if it
has “international legal personality”. In other words, subjects must have
rights, powers and duties under international law and they should be able to
exercise those rights, powers and duties. The rights, powers and duties of
different subjects change according to their status and functions. For example,
an individual has the right of freedom from torture under international law and
States have a duty under international law not to torture individuals or to
send them to a country where there is a likelihood of that person being tortured.
This right is a right under treaty law, for example, the International Covenant
on Civil and Political Rights and under customary international law. The
Convention against Torture and Cruel, Inhuman and Degrading Treatment places
obligations on States not to torture and to extradite or prosecute those who
Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under international law. For example, this means that a subject of international law should be able to:
(1) Bring claims before international and national courts and tribunals to enforce their rights, for example, the International Court of Justice.
(2) Have the ability or power to come into agreements that are binding under international law, for example, treaties:
(3) Enjoy immunity from the jurisdiction of foreign courts; for example, immunity for acts of State.
(4) Be subject to obligations under international law (Dixon).
Not all subjects of international law do not have the same rights, duties and capacities. For an example, a diplomat has immunity before foreign courts because he is an agent of the sending State. One State can bring a claim against another State before the International Court of Justice to enforce its rights. An individual on his own can’t bring a claim against a State before the ICJ. States have all the capacities mentioned above and individuals have only a few”.
Throughout history, states have been formed as a result of wars and the conquest of territories, through inheritance, through marriages between monarchical families. New states have appeared with the formation and consolidation of the bourgeoisie, as a result of the struggle for national independence. In this way arose the national unified states Italy, Germany or independent states which were formed through the breakup of Empires (the Ottoman Empire, the Habsburg monarchy). There were also formed many states through the separation of the colonies from the metropolis or dismemberment of Federated States (the USSR, Yugoslavia, Czechoslovakia).
The recognition also not equivalent to allocating a "status" of a subject of international law, so much so that today there is the Nationalist China State which maintains diplomatic relations with only a few states but which in effect is authentic subject of law, because in possession of effective sovereignty, able to exercise on the territory and peacefully accepted by the citizens residing there sovereignty is in fact an essential element of a body of international law, and is not tied to territoriality that does not however constitute an essential requirement. Sovereignty means to have valid statutes, free from outside influence and recognized by subjects.
Traditionally, States have been the only subjects or persons of International Law. However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities. Thus, international organizations become subjects or persons of International Law. Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality.
There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City.
(a) The Sovereign Order of Malta or to be more precise, the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta: The Sovereign Order of Malta was established during the Crusades as a military and medical association. It ruled Rhodes from 1309 to 1522. It was entrusted to rule Malta by the treaty with King Charles V of England in 1530. It lost its rule of Malta in 1798. In 1834 the Order established its headquarters in Rome as a humanitarian organization. The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States. Today, the Order maintains diplomatic relations with over forty States.
(b) The Holy See and the Vatican City: The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope. It is not a State in the normal sense of the word. It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City. Apart of some one thousand Church functionaries, it has no permanent population of its own. Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran Treaty. Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties.
To be a subject of international law is the state and not the natural person. In fact, people are always and only an organ of the state, and therefore are interested in international law only in the moment, for a long or for a short time, the functions related to their institutional tasks. Example: The Queen Elizabeth II is not subject of law, as a leader of a royal house or descendant of kings; but because the body of a subject of law which is the state English. The moment the sovereign decides to abdicate, would it not be more legal entity, except in the case in which it was delegated by the successor to perform any function of representation. Keep the diplomatic passport, for the queen would be only one element tied to its real dignity, as for the great of Spain where the passport was connected to their dignity. This concession, therefore, is linked to a temporary or exercise to a title; we have to do with an element which falls within the scope of the ceremonial and uses, and it doesn't mean to make a subject of international law to natural person who receives it.
The same applies to all the principles and the kings that have abdicated, for the presidents of the republic to the end of their term of office, for the abdicating of Pope Benedict XVI. Umberto II, the moment he accepted the outcome of the referendum institutional and withdrew into exile, the Shah of Persia when he preferred to leave Iran to avoid internal clashes, the Italian president Giorgio Napolitano when he finished his mandate, the ex-Benedict XVI at the moment Of his abdication, has ceased to be subjects of international law and have entered the world of the record or of the story.
In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand. Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.
The Declaration on the Rights of Indigenous Peoples (UNDRIP or DOTROIP is a non-legally-binding resolution passed by the United Nations in 2007. It delineates and defines the individual and collective rights of Indigenous peoples, including their ownership rights to cultural and ceremonial expression, identity, language, employment, health, education and other issues. It "emphasizes the rights of Indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations).
In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal personality. They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality. International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.
Self-proclaimed princes and aspirants’ heirs to thrones, also proclaim the entitlement to be "subjects of international law." The presupposition characters claim to have the choice to accredit ambassadors, bestow knighthood or title of nobility, issue passports or not to be required to pay taxes, because they consider to be under the subjects of law.
Some organizations create a false fons honorum in order to satisfy this requirement and give themselves apparent legitimacy; often, the founder or patron of a self-styled order has assumed a false title of nobility as well as supposed current or former sovereignty.
Many people are of the mistaken belief that a particular family coat of arms/crest is theirs just because their surname is the same or they come from the same country. This is not always true. For example the surname "Smith" has over 100 different coat of arms for that surname. This surname can be derived from several origins; for example the occupation of a person such a occupation of a black smith, tin smith, and silver smith and so on. Or the surname can be from the place a person came from, or even a description of a person.
The so called “claimants " are creators of fables. That they gain acceptance on the internet or edit entries in Wikipedia does not make them real. Historical fact is verified through scientific reconnaissance and solid evidence, not via “endorsement " from a self-appointed "authority" or by somebody who happens to be descended from royalty.
At one time the titles of baron were fashionable, today the invasion of titles of self-styled dukes and princes seems obstinate, and even the appearance of many pretenders with incredible fantasies of ancient vanished kingdoms, empires, duchies and marquises, claiming sovereignty having fons honorum to award titles of nobility and knighthoods about cities and places that had never been under the sovereignty of their alleged ancestors and predecessors.
Many wearers of such "Orders" rest with the assumption that the average person will have no idea what is and what is not a valid Order, and those who do know would be far too polite to start an argument in public.
The most distressing of the self-styled Orders are those which assume the name and insignia and adopt the history of an internationally recognized Order of Chivalry. It points out that all the self-proclaimed princes, dukes and pretenders who attribute this qualification to themselves or designate their pretentious orders as rulers, once again demonstrate the indelicacy of general preparation, a pronounced elementary legal ignorance, superficiality that can survive only thanks to the poor people's conception of the subjects involved. Matters that are serious, important and should be strictly regulated and protected.
In fact, it can only be considered an entity that actually is a subject of international law and not the one who pretend to be. Indeed, is the principle of effectiveness, which is the consecration of a de facto state that is peacefully accepted and which do not stand against internal opposition of any significance.
To be a subject of international law is the state and not an individual.
The other pitiful and foolish phrase used in arranged sites and propaganda publications, is that the claimant is subject to Law as his ancestors did not suffer the "debellatio" and they therefore retain their International rights "." The word "debellatio" is among those used and abused just to fill a few lines with a Latin word that is always good to dazzle the ignorant; its meaning remains shadowy, variable, unclear, even for those who use it, and indeed confirms the abysmal ignorance that its users have in the world of International rights. There are states which have never been defeated and yet have ceased to exist, as the Spanish ones when the Iberian state is unified for hereditary transmission. Other government entities, such as the Order of Malta and the Holy See, despite having been violently private land on which exerted their sovereignty, however, continued to be generally considered as subjects of international law. Or subject of International Law authentic suitors, as the grandson of King Zog of Albania (Leka II), the Duke of Austria-Este, the Duke of Parma and the Grand Duke of Tuscany (example only, there are others authentic Head of a House like HRH Crown Prince Nugzar Bagrationi-Gruzinski of Georgia), although true principles, they can only exercise the rights that they are recognized as Heads of their Houses; and only in the context in which they are recognized by the laws of the States in which they exercise.
In the case of the false pretenders, apart from bestow or expel "knights" that are free to enter (often for a fee) or removal of their "orders" as a sovereign right cannot be exercised by the false grand masters. All of them are obliged to observe the laws of the States of which they are citizens or in which they reside; often they contravene these laws exhibiting spurious decorations or organizing ceremonies. But in all cases, they do nothing but go against the law, taking advantage of the good faith of others or of the fact that mayors and bishops were not aware of what happens in a church, often in remote areas.
The "awards" to which they exhibit are not derived from a State. Generally it comes to those received by similar self-styled princes, ignorant and without shame; or entities (such as some self-styled Orthodox bishop) which also are not depositaries of any International Law. Courts and scholars often attempt to draw legal conclusions from the status of entities, whether states, international organizations or corporations. Debates concerning whether corporations are “subjects” of international law and the legal conclusions that supposedly follow from this are particularly vociferous within Alien Tort Claims litigation in U.S. courts.
- Cox, Noel --- "The Continuing question of sovereignty and the Sovereign Military Order of Jerusalem, of Rhodes and of"  ALRS 10; (2006) 13 Australian International Law Journal 211-232.
- Black, Jeremy. European International Relations, 1648–1815. New York: Palgrave, 2002.
- Michael Oakeshott, "Rationalism in Politics" (1947), published in Rationalism in Politics and other essays (1962).
- Leo Strauss, "What is Political Philosophy?” published in what is Political Philosophy? And Other Studies (1959).
- Ruwanthika Gunaratne and Public International Law:
- Dr. Walid Abdulrahim Professor of Law:
- Greig, D. W., International Law, 2nd edn (Butterworths: London, 1976).
- Arangio-Ruiz, Gaetano, “On the Nature of the International Personality of the Holy See,” 29 Revue Belge de Droit International (1996).
- Ciprotti, Pio, “The Holy See: Its Function, Form, and Status in International Law,” 8 Concilium 63 (1970).
- Riley-Smith, Jonathan, The Atlas of the Crusades. Facts On File, Oxford (1991).
- Eduard A. Ivanov Faculty of Law of the National Research University Higher School of Economics (Moscow, Russia