McRae Ch2 (Without ALJ and the Last Case)

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Roan Salanga Public International Law Page | 1

CONVENTION ON RIGHTS AND DUTIES OF STATES (MONTEVIDEO)

Art. 1. The State as a person of international law should possess:1. Permanent population2. Defined territory3. Government4. Capacity to enter into relations with other states

HYDE (INTERNATIONAL LAW)

A State or person of international law must possess the following qualifications:1. There must be people sufficient in numbers to maintain and

perpetuate itself2. There must be fixed territory which the inhabitants occupy3. There must be organized government exercising in fact supremacy

therein4. There must be an assertion of right through governmental agencies to

enter into relations with the outside worldthe possession and use ofthe right to enter into foreign relations

5. The inhabitants of the territory must have attained a degree ofcivilization

those principles of law which by common assent governthe members of the international society in their relations with each

other

CASE CONCERNING RIGHTS OF NATIONALS OF THE US IN MOROCCO

It is not disputed by the French Government that Morocco, even under theProtectorate, has retained its personality as a State in international law.

US can, therefore, not only recognize French Courts in Morocco, but also giveup, in the French Zone, the enjoyment of all privileges following fromcapitulations, without thereby losing this advantage.

ADMISSION TO LEAGUE OF LIECHTENSTEIN

The Government of the Principality of Liechtenstein has been recognized dejure by many States and it possesses a stable Government and fixed frontiers.

Juridically, the Principality of Liechtenstein is a sovereign State, but by reasonof her limited area, small population, and her geographical position, she haschosen to depute to others some of the attributes of sovereignty.

We are of the opinion that the Principality of Liechtenstein could not dischargeall the international obligations which would be imposed on her by theCovenant. Hence, it was denied admission to the League of Nations.

STATEMENT OF FOREIGN SECRETARY OF GREAT BRITAIN

It is international law which defines the conditions under which a governmentshould be recognized de jure or de facto, and it is a matter of judgment ineach particular case whether a regime fulfills the conditions.

De facto governmentnew regime has in fact effective control over most of theStates territory and that this control seems likely to continue.

De jure governmentnew regime should not merely have effective control overmost of the States territory, but that it should in fact be firmly estab lished.

Recognition should be accorded when the conditions specified by internationallaw are in fact fulfilled and that recognition should not be given when theseconditions are not fulfilled.

It sets up an international legal standard for recognition, it contains 3 rules:1. Conditions which any regime must satisfy in order to be recognized as

the government of a State are prescribed by international law2. These conditions are that the regime has effective control over most of

the States territory and that its control seems likely to continue

3.

If and only if these conditions are satisfied, it should, as a matter ofinternational obligation, be recognized as a government

The question whether a particular regime satisfies the conditions prescribed isnot one of fact but a matter of judgment.

Here lies the difference between the attitude of UK and US to recognition. TheUS regards the margin as a wide one into which moral factors may enter.

SENATE RESOLUTION 205

When US recognizes a foreign government and exchanges diplomatic

representatives with it, this does not of itself imply that US approves of theform, ideology, or policy of that foreign government.

CANADIAN PRACTICE ON THE RECOGNITION OF STATES

Effective controlthis involves a decision as to whether an authority, claimingto be the government of a particular State, is in fact entitled to be regarded asrepresenting that State on the international plane.

1. Ability to exercise effective control2. Reasonable prospect of permanency3. Over the area which it claims to govern4. Support from the people of such territory


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Political Considerationsit is a policy decision to determine, on the merits andcircumstances of each case, whether the legal conditions for recognition arefulfilled. Granting of recognition by the Canadian Government to anothergovernment is not viewed as signifying approval of the policies of thatgovernment, or for that matter, of the political philosophy of that governmentor of the manner in which it came into power.

Timing of Recognitiona key factor is that it ought not to be effected tooearly, inasmuch as this might in itself tend to constitute interference in the

internal affairs of a sovereign state. So long as the lawful government has areasonable prospect of reasserting its authority, recognition would constitute aviolation of the non-intervention principle as set out in Art. 2[7] of UN Charter.

External Controlother tests for criteria for the recognition:a. Legitimacyb. Method of revolutionary changec. Freedom from external controla test for the recognition of States,

not of government

Recognition of a government presupposes recognition of the State governed bythe recognized government. A state, in order to continue to qualify forrecognition as such, must first possess an independent government.

If it is considered in a particular case that the question is one of recognition ofa government only, that is in itself a tacit admission that the governmentconcerned is considered to be free from external control.

BRITISH PRACTICE ON THE RECOGNITION OF STATES

The British Government recognizes States in accordance with commoninternational doctrine. The policy of successive British Governments has beenthat we should make and announce a decision formally recognizing the newGovernment.

We shall continue to decide the nature of our dealings with regimes whichcome to power unconstitutionality in the light of our assessment of whetherthey are able of themselves to exercise effective control of the territory of theState concerned, and seem likely to continue to do so.

WESTERN SAHARA CASEFACTS:In 1884, Western Sahara was colonized by Spain. General Assembly in 1966indicated that decolonization of Western Sahara should occur. Spain agreed tohold a referendum under UN supervision in 1975. At this point, both Mauritaniaand Morocco made similar claims on the territory on the basis of an historic

title predating Spains colonization.

HELD:The principle of self-determination as a right of peoples, and its application forthe purpose of bringing all colonial situations to a speedy end were enunciatedin the Declaration on the Granting of Independence to Colonial Countries andPeoples.

Right to self-determinationright to freely determine their political status andfreely pursue their economic, social and cultural development.

General Assembly Resolution provided the basis for the process ofdecolonization for non-self governing territories:

1. Emergence as a sovereign independent State2. Free association with an independent Stateresult of a free and

voluntary choice by the peoples of the territory concerned expressedthrough informed and democratic processes

3. Integration with an independent Stateresult of the freely wishes ofthe territorys peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed anddemocratic processes, impartially conducted and based on universaladult suffrage

RECOGNITION OS STATES: THE COLLAPSE OF YUGOSLAVIA

Recognition of states is not a matter governed by law but a question of policy.It is today more of an optional and discretionary political act that was thoughtto be the case a year ago.

I. The Baltic StatesThe 1920 Treaty between Russia and Latvia expressly states that the formerrecognizes without reservation the independence, autonomy and sovereignty ofLatvia and forever renounces all sovereignty rights over the Latvian people andterritory.

Baltic states, like other Soviet republics, asserted their sovereignty but theirinternational status did not change as a result.

Most Western countries continued to extend de jure recognition to the 3 states,they also accepted de facto control over these territories by the USSR and,accordingly, most Western countries did not have diplomatic relations with theBaltic states.

II. Croatia and Slovenia UnrecognizedThe Republic of Croatia and Republic of Slovenia were 2 of the 6 republics ofthe SFRY.

A distinction was made between the nations of Yugoslavia and the republics

of Yugoslavia. The former being peoples like the Croats, Macedonians, Serbs


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and Slovenes without any necessary geographic connection and the latter beingthe 6 geographically defined federal units without any necessary ethnicconnection. A second distinction was made between nations andnationalities with the latter being defined as members of nations whosenative countries border on Yugoslavia. Accordingly, the Albanians of Kosovo andthe Hungarians of Vojvodina were regarded as nationalities and did not have aright of self-determination or secession under the Constitution.

In 1991, both Croatia and Slovenia declared their independence. The

Constitutional Resolution Regarding the Sovereignty and Independence of theRepublic of Croatia adopted by the Croatian Parliament based its actions 'uponthe will of the nation demonstrated at the referendum of 1991,' and arguedthat 'the SFRY no longer is acting as the constitutional-legal organized state.The Slovenian Declaration is more forthright in that it 'expects legal recognitionfrom all countries which respect the democratic principles and the right of allnations to self-determination.

Yugoslav National Army resisted attempts by the Slovenian and Croatianauthorities to assert their independence and considerable violence occurred.The European Community assumed the principal mediation role in the conflictand in 1991, the Yugoslav parties meeting in Brioni agreed, interalia, to a 3month moratorium on the implementation of the Declarations ofIndependence.

Senator Evans identified the 4 formal criteria for the recognition of statehoodas 'permanent population, defined territory, government and a capacity toenter into relations with other states' and then added 'we look at whether thegovernment is in effective control of the territory.

Upon expiration of the 3 month moratorium, in the Declaration, 'all countries,particularly the Member States of the EC and the UN are called upon toestablish diplomatic relations with the Republic of Croatia.

III. Ukraines IndependenceUkraine had declared its sovereignty on 16 July 1990. Ukraine's Declaration ofIndependence was, however, made subject to the results of a referendum to beheld on 1 December 1991 and countries accordingly had good reason to hold offconsideration of recognition until that time.

IV. The European Community Sets New RulesThe EC Foreign Ministers meeting in Brussels issued a 'Declaration on theGuidelines on the Recognition of the New States in Eastern Europe and in theSoviet Union'. Accompanying this Declaration was a 'Declaration on Yugoslavia'.

The Declaration begins by referring to the Helsinki Final Act and the Charter ofParis, 'in particular the principle of self-determination'. It affirms the readinessof the EC countries to recognize new states 'subject to the normal standards of

international practice and the political realities in each case.

The Guidelines describe the candidates for recognition as those new stateswhich 'have constituted themselves on a democratic basis, have accepted theappropriate international obligations and have committed themselves in goodfaith to a peaceful process and to negotiations'.

The Guidelines conclude with the warning that the EC countries 'will notrecognize entities which are the result of aggression' and, cryptically, that theywould take account of the effects of recognition on neighbouring states.'

This method of requiring an application for recognition which is examined by anarbitrator and then decided upon according to a set timetable is virtuallyunprecedented in recognition practice.

V. The Demise of Soviet UnionUSSR formally ceased to exist on 21 December 1991 when the 11 CISparticipants adopted the Alma-Ata Declaration which noted that 'with theformation of the Commonwealth of Independent States the Union of the SovietSocialist Republics ceases to exist.

In relation to Russia, the term 'recognition' was therefore not used by the ECbecause these countries accepted Russia's continuity of the internationalpersonality of the Soviet Union. In the 23 December statement, the EC statedits willingness to recognize the other former Soviet republics which met itsGuidelines.

VI. Recognition of Croatia and SloveniaAll 6 Yugoslav republics responded to the invitation extended in the EC'sDeclaration on Yugoslavia but only 4 sought recognition. The 4 republics ofYugoslavia requested recognition and undertook to comply with therequirements listed in the EC's Guidelines. The requests were backed by variousrepublican constitutional and legislative documents.

The Badinter Commission held that because 'the right of self-determinationmust not involve changes to existing frontiers' the Serbian minorities are

entitled to the rights accorded to minorities (as opposed to peoples) underinternational law. Opinion 3 decided that the principle of utipossidetis hasgeneral application and thus applies to the republican borders of Yugoslavia inthe context of its current dissolution.

In 1992, basing themselves on the opinions of the Badinter Commission, the ECdecided to extend recognition to Croatia and Slovenia.

VII. Recognition of the Republic of Bosnia and HerzegovinaIn Bosnia and Herzegovina's admission to the UN, the UN Security Council hadunanimously recommended this country's membership and the GeneralAssembly had unanimously accepted the recommendation.


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However, the Badinter Commission held that although the variousconstitutional processes had been followed in the request to the EC forrecognition, the absence of a referendum on the subject meant that 'the will ofthe peoples of Bosnia-Herzegovina to constitute [the republic] as a sovereignand independent State cannot be held to have been fully established.

Despite such opinion, the EC countries and the US moved to recognize Bosniaand Herzegovina on 7 April 1992. The US statement noted in relation to Bosniaand Herzegovina, Croatia and Slovenia that these states 'meet the requisite

criteria for recognition' but did not spell these out.

VIII. The Political Realities in Each CaseThere have always been exceptions to the rule, but the internationalcommunity had generally come to accept the traditional criteria for statehoodas the proper means for taking decisions on recognition. The reason for this isthat these criteria provide a way of maintaining consistency as well as adefense against doubtful claims. They were found to be useful tools.

EC countries took the view that recognition should be used more as aninstrument of foreign policy rather than a formal declaration of anascertainable fact.

IX. ConditionalityIn introducing their Guidelines in relation to Eastern Europe, the EC alsodeparted from another basic understanding in relation to recognition practice.It had been thought that the setting of conditions with respect to such mattersas religious practices, the level of 'civilization' and the applicable politicalsystem were improper because they implied a value judgment about how thenew state should be organized.

The effect is that the EC has moved away from the process of recognition asthe formal acceptance of a fact to a process based on value judgments andthrough which the international community tries to create a fact.

While the EC Guidelines are stated to be 'subject to the normal standards ofinternational practice,' their application in fact has thrown doubt on therelevance of the traditional criteria for statehood. There has been widespreadrecognition of a state which has no control over 1/3 of its territory (Croatia). Acountry has been admitted to the UN while it was clear that its governmenthad no effective control over any areas including the capital city (Bosnia andHerzegovina). A putative country (Macedonia) is being denied recognitionbecause a neighbouring country objects to its name even though it meets alltraditional criteria and appears to meet the conditions set by the EC.

There is also uncertainty as to the effect of the conditionalities. The ECconsiders the conditions it has set to be factors determining recognitiondecisions. The US, on the other hand, has used the human rights and non-

proliferation conditions as a test of whether to enter into diplomatic relationswith the new states it has already recognized.

X. Questions of Secession and FrontiersThe decolonization period may be said to be characterized by 2 broadpolitical/legal considerations: (a) support for the sanctity of inherited nationalborders and the (b) unacceptability of secession.

The authorities in Belgrade have from the outset viewed the struggle for

independence by Croatia and Slovenia as a question of secession. In Zagreb andLjubljana, on the other hand, it was seen as a legitimate process of self-determination leading to the dissolution of the original state. The BadintcrCommission's Opinions 1 and 8 support the view that this was not a matter ofsecession but one of the dissolution of the federal state.

The Badinter Commission was also asked whether the internal boundaries, forexample between Croatia and Serbia, can be regarded as frontiers in terms ofpublic international law. In its opinion, such boundaries could not be changedexcept by agreement and upon independence the internal republicanboundaries become international frontiers. The Commission reached thisconclusion by the application of the principle ofuti possidetis which althoughit was 'initially applied in settling decolonization issues in America and Africa,is today recognized as a general principle.

XI. Continuity of International PersonalityBrownlie notes that 'the term "continuity'' of States is not employed with anyprecision and may be used to preface a diversity of legal problems.' Forexample, alterations of territory as such do not affect the identity of a state.But the break-up of a federation into its constituent parts is fundamentallymore than a mere change of territory. In view of the imprecision in theconcept, it is difficult to do anything other than to treat each case on itsindividual merits.

XII. Limitations on the Applicability of these PrecedentsThe first point to ask is whether recent practice should be seen asgeographically limited to Europe alone. It is certainly the case that thestatements and guidelines issued on these matters were restricted in theirheadings to the particular facts under review.

It could also be validly argued that the European stage is sui generis because ofthe particular historical circumstances in that continent. While this argumentmay be a comfort to some because it would suggest that the break-up of theSoviet Union and of Yugoslavia is a precedent only for other federal countriesof Eastern Europe such as the Czech and Slovak Federal Republic and perhapsthe Russian Federation, it is difficult to accept such a limitation.

Many of the principles referred to in this process, such as the principle of self-

determination, the principle of uti possidetis, the proscription against the


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ducat or use of force and the insistence on disputes being settled by peacefulmeans are of universal application. Their application leading to certain resultsin Europe must run parallel to the results their application would lead to inother continents.

XIII. ConclusionsQuestion of recognition of states has become less predictable and more amatter of political discretion as a result of recent practice. The traditionalcriteria for statehood retain an uneasy existence alongside the new EC

Guidelines, which have been particularly influential in relation to therecognition of the new states emerging from the USSR and Yugoslavia.

It now seems that the 'political realities' have gained primacy over theinclinations to maintain consistency by applying accepted criteria to test thefact of statehood. This should not be seen as necessarily a negativedevelopment. The application of the traditional criteria as the test forstatehood and therefore the rationale behind recognition was largely amoral.How a government came to be in effective control over its territory was, forthe most part, not considered to be a relevant factor. The adoption ofconditions leading to recognition is an attempt to introduce a greater moraldimension. Yet the enemy of such a moral stand is inconsistency, the veryfactor which the traditional criteria tried to avoid. And mere can be fewerbetter examples of inconsistency than the continuing refusal to recognize theindependence of the former Yugoslav Republic of Macedonia even though itmeets every criterion and every condition but simply refuses to change itsname. The 'political realities' in this case seem to have more to do with internalEC politics than with the merits of the Macedonian case.

When considering a question of recognition, states will have to ask themselvesquestions about whether such an action will contribute to a peaceful resolutionof a conflict, and if the answer is in the affirmative, the traditional criteria forstatehood may well have to be finessed.

THE COMMONWEALTH OF AUSTRALIA v. THE STATE OF NEW SOUTH WALESFACTS:Commonwealth has sued the State of New South Wales for damages by acollision between a vessel belonging to the defendant and a motor-launchbelonging to the plaintiff.

The question arising from the defendants summons is whether this Court hasjurisdiction to entertain this action, without the consent of the State.

The Commonwealth maintains that there is jurisdiction and rests primarily onSec. 75 of the Constitution.

The contention urged at the Bar on behalf of the defendant was

1. That it is a sovereign State and therefore cannot be sued without itsconsent

2. That no actual consent has been given3. The jurisdiction given by the Constitution is conditioned on Parliament

Defendant contends that an Australian State is a sovereign State. Learnedcounsel placed the matter on the same plane as a foreign independent State,the representative and said that consent of the foreign State was necessary,and so of an Australian State.

HELD:Under the Parlement Bedge, as a consequence of the absolute independenceof every sovereign authority and of the international comity, each Statedeclines to exercise by means of any of its Courts any of its territorialjurisdiction over the person of any sovereign or ambassador, or over the publicproperty of any State which is destined to its public use, or over the propertyof any ambassador, though such sovereign, ambassador, or property be withinits territory.

New South Wales is not a foreign country. The Commonwealth includes thepeople of New South Wales as they are united with their fellow Australians asone people for the higher purposes of common citizenship, as created byConstitution. When the Commonwealth is present in Court as a party, thepeople of New South Wales cannot be absent. It is only where the limits of thewider citizenship end that the separateness of the people of a State as apolitical organism can exist.

THE WEEKLY REST IN INDUSTRIAL UNDERTAKINGS ACT

The Parliament of Canada has the power to implement internationalagreements amount matters that normally come within the jurisdiction ofprovincial legislatures.

The Lieutenant-Governors represent the Crown for certain purposes. But, in norespect does the L-G of a province represent the Crown in respect of relationswith foreign governments.

Provinces have no status in international law, they are not States and are notrecognized as such.

INTERNATIONAL STATUS OF SOUTH-WEST ASIAFACTS:Territory of South West Africa was one of the German overseas possession. TheTreaty of Versailles renounced all her rights and titles in favor of the PrincipalAllied and Associated Powers.


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When territories had ceased to be under the sovereignty of the States whichformerly governed them and inhabited by peoples not yet able to assume fullmeasure of self-government, 2 principles were considered to be paramountimportance:

1. Non-annexation2. Well-being and development of such peoples form a sacred trust of

civilization

A Mandate System was created to give practical effect to these principles. A

tutelage was to be established for these peoples, and this was to beentrusted to certain advanced nations and exercised by them as mandatorieson behalf of the League.

A Mandate for the Territory of South East Africa was conferred upon HisBritannic Majesty to be exercised on his behalf by the Government of the Unionof South Africa.

The Union of South Africa was to have full power of administration andlegislation over the Territory subject to such local modifications ascircumstances may require. The Council of the League was to supervise theadministration.

The terms of this Mandate show that the creation of this new internationalinstitution did not involve any cession of territory or transfer of sovereignty tothe Union of South Africa.

CONTENTION:It is now contended on behalf of the Union Government that this Mandate haslapsed because the League has ceased to exist

HELD:Such contention was based on a misconception. The League was not amandate in the sense used in the national law of certain States. It had onlyassumed an international function of supervision and control.

The Mandate was created, in the interest of the inhabitants of the territory andof humanity in general, as an international institution with an internationalobject.

The international obligations assumed by the Union of South Africa were of 2kinds:

1. Directly related to the administration of the Territory andcorresponded to the sacred trust of civilizationgeneral obligation isto promote to the utmost the material and moral well-being and thesocial progress of the inhabitants

2. Related to the machinery for implementation linked to the supervisionand control of the League

Since their fulfillment did not depend on the existence of the League ofNations, they could not be brought to an end merely because this supervisoryorgan ceased to exist. Nor could the right of the population to have theTerritory administered in accordance with these rules depend thereon.

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY OF THE UN1. Reaffirms the provisions of the General Assembly Resolution 1514the

people of South West Africa have the inalienable right to self-

determination, freedom and independence in accordance with the Charterof UN

2. Reaffirms that South West Africa is a territory having international status3. Decides that the Mandate exercised by the Government of the Union of

South Africa is therefore terminated, that South Africa has no other rightto administer the Territory, and that South West Africa comes under thedirect responsibility of the UN

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OFSOUTH AFRICA IN NAMIBIADOCTRINE:

1. The continued presence of South Africa in Namibia being illegal, SouthAfrica is under obligation to withdraw its administration from Namibiaimmediately and thus put an end to its occupation of the Territory

2. States Members of the UN are under obligation to recognize theillegality of South Africas presence in Namibia and the invalidity of itsacts on behalf of or concerning Namibia, and to refrain from any actsand in particular any dealings with the Government of South Africaimplying recognition of the legality of, or lending support or assistanceto, such presence and administration

3. That it is incumbent upon States which are not Members of the UN togive assistance, within the scope of subparagraph (2) above, in theaction which has been taken by the UN with regard to Namibia

HISTORY:The mandates system established by Article 22 of the Covenant of the Leagueof Nations was based upon 2 principles of paramount importance: the principleof non-annexation and the principle that the well-being and development ofthe peoples concerned formed a sacred trust of civilization.

The mandatory was to observe a number of obligations, and the Council of theLeague was to see that they were fulfilled. The rights of the mandatory as suchhad their foundation in those obligations.

When the League of Nations was dissolved, the raison detre and original objectof these obligations remained. Since their fulfilment did not depend on theexistence of the League, they could not be brought to an end merely because

the supervisory organ had ceased to exist.


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HELD:Under the UN Charter, party which disowns or does not fulfil its obligationscannot be recognized as retaining the rights which it claims to derive from therelationship. Resolution 2145 determined that there had been a materialbreach of the Mandate, which South Africa had in fact disavowed.

Under the Vienna Convention on the Law of Treaties, only a material breach ofa treaty justifies termination, and such breach being defined as:

1. A repudiation of the treaty not sanctioned by the present Convention2. Violation of a provision essential to the accomplishment of the object

or purpose of the treaty

Resolution 2145 determines that both forms of material breach had occurred inthis case. South Africa has, in fact, disavowed the Mandate, and the GeneralAssembly declared, in fact, that it had repudiated it.

The general principle of law is that a right of termination on account of breachmust be presumed to exist in respect of all treaties, except as regardsprovisions relating to the protection of the human person contained in treatiesof a humanitarian character. The silence of a treaty as to the existence of suchright cannot be interpreted as implying the exclusion of such right which has itssource outside of the treaty, in general international law, and is dependent onthe occurrence of circumstances which are not normally envisaged when atreaty is concluded.

REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UNISSUE:w/n the UN has the capacity to bring an international claim in the event thatan agent of the UN, in the performance of his duties, suffered an injury incircumstances involving the responsibility of the State

HELD:Competence to bring an international claim is the capacity to resort to the

customary methods recognized by international law for the establishment,presentation and settlement of claims.

This capacity belongs to the State; a State can bring an international claimagainst another State. Such a claim takes the form of a claim between 2political entities, equal in law, similar in form and both the direct subjects ofinternational law.

When the Organization brings a claim against one of its Members, this claimwill be presented in the same manner, and regulated by the same procedure.The Organization is an international person. What it means is that it is asubject of international law and capable of possessing international rights andduties, and that it has capacity to maintain its rights by bringing international

claims. However, that is not the same thing as saying that it is a State, which it

certainly is not, or that its legal personality and rights and duties are the sameas those of a State.

LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN

First constitutional instruments of modern time s to proclaim that the naturalrights of man were part of the fundamental law of the State and that theirprotection was the reason for its existence:

1. Constitution of Virginia 17762. American Declaration of Independence3. French Declaration of the Rights of Man and of the Citizen

The sovereign State, in an exclusive and unprecedented ascendancy of power,became the unsurpassable barrier between man and the law of mankind. Thehuman being became, in the offensive, but widely current, terminology of theexperts, a mere object of international law.

Treaties of a humanitarian character were concluded for protecting theindividual in some specified spheres. But the fundamental claims of humanpersonality to equality, liberty, and freedom against the arbitrary will of theState remained outside the orbit of international law save for the precariousand controversial principle of humanitarian intervention.

EXTRACT FROM THE JUDGMENT OF THE NUREMBERG TRIBUNALISSUE:w/n an individual could be held personally responsible for executing Acts of hisState

HELD:International law imposes duties and liabilities upon individuals as well as uponstates has long been recognized. For example, crimes against international laware committed by men, not by abstract entities, and only by punishing

individuals who commit such crimes can the provisions of international law beenforced.

The principle of international law, which under certain circumstances, protectsthe representatives of a State, cannot be applied to acts which are condemnedas criminal by international law.

DISPUTE BETWEEN TEXACO OVERSEAS PETROLEUM CO. AND THEGOVERNMENT OF THE LIBYAN ARAB REPUBLIC

To say that international law governs contractual relations between a State anda foreign private party neither means that the latter is assimilated to a State

nor that the contract entered into with it is assimilated to a treaty.


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The rules of economic international law concern not only States but directlythe individuals; because economic and social progress has as its objective toassure its direct application to those concerned. The result is that individualsare directly the subjects of economic or social international law.

Legal international capacity is not solely attributable to a State and thatinternational law encompasses subjects of a diversified nature. Other subjectsenjoy only limited capacities which are assigned to specific purposes.

Unlike a State, the private person has only a limited capacity and his quality asa subject of international law does enable him only to invoke, in the field ofinternational law, the rights which he derives from the contract.

When a State recognizes its partner to such a contract as a subject ofinternational law, the private partner is recognized as a subject of only thoserights and duties, as are embodied in the contracts concerned.

In the matter of contract, the international personality and capacity of theindividual depend on the recognition granted to them by the State in its legalrelations with him.

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McRae Ch2 (Without ALJ and the Last Case)