Subject of international law
Original and derivative subjects of international law
The following subjects of international law are largely undisputed:
- Original (born) subjects of international law . They are inherently capable of international law. Differentiate between them
- Derivative (selected) subjects of international law . They derive their international legal capacity from the legal capacity of their founding subjects. These are in particular the international organizations such as the United Nations . The European Union has also had its own legal personality since the Treaty of Lisbon came into force . The international legal personality of international organizations applies only to their members and those non-members who have expressly recognized them.
Furthermore, federal states can grant their respective constituent states - which are original legal subjects in terms of constitutional law , but not in terms of international law - the power to participate in international law to a limited extent.
Peoples themselves are not subjects of international law.
Identity under international law
The meaning and purpose of establishing identity under international law, and at the same time the determining content of this term, is that the rights and obligations of the legal subject under international law are fully preserved. The question of identity when a state falls apart is as follows:
“When a state disintegrates into several sub-structures, the question arises whether one of these sub-structures is identical to the collapsed state as a whole and thus continues its international legal personality, or whether all these now independent sub-areas are new states instead. The decision of this question, which is also about whether the succession case is a mere separation / secession or a complete dismembration , is [...] of enormous practical importance. Because only in relation to the subject-identical state does the continuation of contractual and other legal relationships - albeit geographically limited to its shrunken area - appear unproblematic. "
Partial subjects of international law
De facto regimes can be recognized as partial subjects of international law, much like an international organization. “Partial” means that a de facto regime does not fully participate in the rights and obligations of international law. The right to defense is included, however, as well as responsibility for any breaches of international law. A de facto regime that fulfills the full characteristics of a state under international law thus becomes a subject of international law in the broadest sense.
Equal rights in international law
International law only recognizes subjects with equal rights, regardless of their size or the number of people they mediate. There is no overriding authority under international law. So San Marino and the United States of America, for example, stand opposite each other as equal subjects. Formally , this equality is expressed in the external design of bilateral international agreements in the alternate naming of the contracting parties ( alternat ). De facto , however, equality is relativized by political and economic power differences.
In principle, the subjects of international law are not natural persons, but corporate entities. The only exception to this is the Holy See , which according to canon law is to be equated with the person of the Pope . The special position of the Holy See in international law is a relic of times when the legal personality of the state was manifested in the person of the sovereign . According to international law, the Holy See is to be distinguished from the State of Vatican City . As a state, the Vatican is an original subject of international law and therefore does not require any recourse to historically based privileges. At the head of the state of the Vatican City is the Pope. He is free to decide whether to participate in international law as the Holy See or as a representative of the State of Vatican City; The decisive factor is the specific material in question.
Natural persons (apart from the Holy See) are not recognized by the traditional doctrine of international law as subjects of international law . Although they are assigned rights and obligations through international treaties (e.g. through the European Convention on Human Rights ), this is not sufficient to give them an equal status with recognized subjects of international law. However, there are approaches that could mean a change in this legal situation. In its LaGrand ruling of June 27, 2001 , the International Court of Justice (ICJ) expressly granted individuals partial international law subjectivity.
- Hermann Mosler: The expansion of the group of subjects of international law . In: Journal for Foreign Public Law and Völkerrecht 22 (1962), pp. 1–48 ( PDF ).
- Andreas Zimmermann : State succession in international treaties. At the same time a contribution to the possibilities and limits of international law codification. In: Contributions to Foreign Public Law and International Law , Vol. 141. Max Planck Institute for Foreign Public Law and International Law , Springer, 2000, ISBN 3-540-66140-9 .
- Knut Ipsen (Ed.): Völkerrecht . 6th edition, CH Beck, Munich 2014, ISBN 978-3-406-57294-4 .
- Henner Gött: The doctrine of subjects of international law and the development of the international legal system , article in the JuWissBlog of January 22, 2013, Young Science in Public Law e. V.
- Alfred Verdross / Bruno Simma , Universelles Völkerrecht , 3rd edition, Berlin 1984, § 375.
- Kay Hailbronner , in: Wolfgang Graf Vitzthum (Ed.), Völkerrecht , 3rd edition, Berlin 2004, 3rd section, Rn. 7 ff., 39 ff.
- Marcel Kau: The state and the individual as subjects of international law . In: Wolfgang Graf Vitzthum and Alexander Proelß (eds.): Völkerrecht. 8th edition, de Gruyter, Berlin / Boston 2019, ISBN 978-3-11-063326-9 , p. 179, Rn. 32 f. (accessed via De Gruyter Online).
- Andreas Zimmermann, State succession in international treaties. Springer, 2000, p. 62 f.
- Quoted from Andreas Zimmermann, State succession in international treaties. Springer, 2000, pp. 66-67.
- Michael Staack (Ed.), Introduction to International Politics: Study Book , 5th Edition, Oldenbourg, Munich 2012, p. 570 f. , 590 .
- Karl Doehring , Völkerrecht , 2nd, revised edition, CF Müller, Heidelberg 2004, Rn. 261 f.
- Volker Epping, in: Knut Ipsen (Ed.), Völkerrecht , 5th edition, Munich 2004, § 7.
- ICJ Reports 2001, p. 494 ( PDF ).