States in International Law

Aristyo Rizka Darmawan, S.H.,LL.M.

Faculty of Law, Universitas Indonesia

aristioo@yahoo.com

© 2019 Aristyo Darmawan

SPIH600007

State as a Subject of International law

• State were once considered as the exclusive subjects of international law “ since the law of nations is based on the common consent of individual states, and not of individual human beings, States solely and exclusively are the subject of international law.”
• Today they are no longer the exclusive subject of the international legal system, but “primary” subject.

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Why States are the principal persons of International Law

• International law is essentially the product of relations between states;
• States alone may be parties to contentious cases before the International court of justice;
• States alone enjoy the discretion as to whether or not to espouse a claim on behalf of a national, and
• once a state does take up a claim the dispute is raised to the international level and becomes one between two states

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• At least nine academic disciplines develop theories of nationalism and nation states: political geography; international science; cultural anthropology; social philosophy; sociology, history, law, political economy and politics.
• Konsep nation lebih menyandarkan diri pada aspek normatif dan cultural, sedangkan state/negara lebih pada aspek empiris sociologis faktual.

The roots of a nation are to be found in kinship, and a nation grows by a process of differentiation and opposition – but a nation is not simply a cultural togetherness. Neither is it simply an economic togetherness. It is a political togetherness as well. It is a political togetherness concerned both with the structure and the exercise of power.

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States as Subject of International Law

• A State has the following characteristics:

(Article 1 of the Montevideo Convention on Rights and Duties of States )

• a permanent population;
• a defined territory;
• a government; and
• the capacity to enter into relations with other States.

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• Some writers also argue that a State must be fully independent and be recognized as a State by other States.

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© 2019 Aristyo Darmawan

Montevideo Convention

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• ARTICLE 2
• The federal state shall constitute a sole person in the eyes of international law.

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• ARTICLE 3
• The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

Montevideo Convention

ARTICLE 4

States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

• ARTICLE 8

No state has the right to intervene in the internal or external affairs of another.

• ARTICLE 9

The jurisdiction of states within the limits of national territory applies to all the inhabitants.

Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

Montevideo Convention

• ARTICLE 8

No state has the right to intervene in the internal or external affairs of another.

• ARTICLE 9

The jurisdiction of states within the limits of national territory applies to all the inhabitants.

Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

States as Subject of International Law

• The existence of a permanent population is naturally required and there is no specification of a minimum number of inhabitants. (Nauru/Tuvalu)

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• Defined territory required a particular territorial base to operate.
• No necessity in international law for defined and settled boundaries.

© 2019 Aristyo Darmawan

© 2019 Aristyo Darmawan

What are in your opinion the criteria that are the most difficult to apply in practice?

© 2019 Aristyo Darmawan

States as Subject of International Law

• The international legal system is a horizontal system dominated by States which are, in principle, considered sovereign and equal.

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• International law is predominately made and implemented by States

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• Only States can have sovereignty over territory.

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© 2019 Aristyo Darmawan

States as Subject of International Law

• Only States can become members of the United Nations and other international organizations.

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• Only States have access to the International Court of Justice. (?)

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© 2019 Aristyo Darmawan

Independence

• Montevideo Convention enumeration the concept of independence is represented by the requirement of capacity to enter into relations with other states.
• Gugenheim:
• State has a degree of centralization of its organs not found elsewhere
• State only has sole executive and legislative authority

Dependent States

• Foreign control of the affairs of a state may occur under a title of international law
• Consequence of a treaty of protection,
• Some other form of consent to agency
• Collective defense and sanction leading to an occupation
• E.g. Allied occupation of Germany under the Berlin Declaration of June 1945.

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Association of States

• Independent of states may enter into forms of co-operation by consent and on an equal footing.
• The basis of the cooperation may be the constitution of an international organization
• E.g. WHO, UN, EU, ASEAN
• Membership does not to affect the legal capacities and personality of member states

Willingness to observe �International Law

• In modern literature, this is not often mentioned as a criterion, however it has been subject to criticism.

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Is it mandatory to recognize a state in international law?

Pengakuan dan Dasar Normatif nya

• Dasar Normatif Pengakuan dijumpai di Montevideo Convention 1933, Pasal 3 - Psl 6.

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• Pengakuan adalah kehendak salah satu subjek hukum internasional untuk menerima keberadaan subjek hukum internasional lainnya. Kesediaan mana akan ditindak lanjuti dengan hubungan hubungan hukum antar kedua subjek yang bersangkutan

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1. Pengakuan sendiri merupakan praktek yang penuh ketidakpastian dan ambivalensi.
2. Akibat tindakan pengakuan – sekalipun ber basis lebih politis daripada legal namun melahirkan akibat hukum secara fundamental;
3. Daya laku keputusan pengadilan domestik antar 2 negara dalam konteks hukum akan berubah
4. Antara perbuatan dan proses adalah 2 hal yang perlu dibedakan

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BENTUK & CARA �memberikan Pengakuan

• Dinyatakan/dideklarasikan dalam dokumen tertulis yang memuat pernyataan resmi
• Diam diam melakukan perbuatan/ tindakan /hubungan secara informal maupun formal
• Bergabung dengan pengakuan kolektif UN

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• Bersedia berhubungan secara diplomatik dan dalam konteks komersial memberlakukan atau mengeksekusi hubungan hukum antara keduanya
• ( sifat retroaktif)

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