Good afternoon, ladies and gentlemen. I welcome you to our next session in our course, International
Normative Framework on Sustainable Management. And this next session, at least as far as
the recording process is concerned, almost directly follows the previous one. So there
are no further announcements that I have to make. Nothing exciting happened in that regard
in the previous minutes between the seventh session and the eighth session that I'm currently
recording, which means that we can directly start with the next subject. In the previous
two to three sessions, we have taken a closer look at the sources of the International Normative
Framework, treaty law, customary international law, general principles, and other sources. And
beginning with this session, we will take now a closer look at the subjects, so the
legally relevant actors in the international system.
Subjects of public international law, international legal personality, as it is also
referred to, is concerned with the question to whom does the International Normative Framework,
including the ones dealing with sustainable management, actually apply. And in that regard,
we have to bear in mind that in the same way as in domestic legal systems, also public international
law is determined by what can be referred to as a binary distinction between legal subjects on
the one side and legal objects on the other side. Legal objects can be, of course, the respective
object of legal regulations when it comes to property rights and other respective issues,
but legal objects cannot act in any meaningful, legally relevant way in a legal system.
That is exclusively the prerogative of legal persons, of subjects in that regard. Legal objects
are, for example, stones, plants. With regard to animals, it's already disputed. Whether they are
exclusively legal objects, there are some domestic legal orders, which include provisions like the one
enshrined in the German civil law code, that animals are not objects of law, but the provisions
on objects apply to them as far as there are no specific rules dealing with the status of animals
in that regard. So they have like a transition position in that regard, closer to legal objects,
but already on the way to potentially one day becoming legal subjects. In their own right,
obviously something that is discussed in the legal literature already for some time, especially with
regard to domestic law, not so much with regard to the international legal system. You see from that
example already that the concept of legal personality, of subject of law, is not set
in stone for eternity, but rather a concept that is progressively developing, usually on the basis
that the number of legal subjects are actually expanding in the domestic realm, and the same
applies as we will see in this part of our course, also in particular to the international legal realm.
Subjects of law, contrary to legal objects, are those actors, those entities that are capable
of possessing legal rights and or legal obligations. In the domestic legal setting,
that is primarily of course all of us as the natural subjects of law, and in addition we have
man-made artificially created other subjects of law, so-called juristic persons, legal persons,
associations, companies, actually the state itself in most countries is recognized as a legal person
in its own right so that certain property rights can be attributed to the actor in question, that
the actor in question can sue somebody in court and can be sued in court, that's something that
legal objects are obviously lacking for that matter. Any entity, any actor that is capable of
possessing rights and or obligations in a certain legal realm is considered to be a legal person
of that respective legal order, and if we take this more general definition as the starting point,
then the international legal person, so the subject of international law, are those entities
that are capable of possessing legal rights and or respective normative obligations specifically
under the public international legal realm.
Until roughly the beginning first half of the 20th century, the question who are actually
subjects of international law was relatively easy to answer because there was a kind of
numerous clauses, a close chop of international legal subjects ever since the emergence of the
modern sovereign territorial state in the middle of the 17th century. We discussed that already,
it was held that in principle only states were considered to be capable of having rights
and or obligations under international law. There had always been a very limited number of other
entities and we were briefly turned to them in the next session or the one afterwards,
in particular the Holy See and the sovereign order of Malta who were not states, who are not states,
they still exist obviously, but were nevertheless considered to be capable of having rights and
duties, but that were really only narrow exceptions that proved the general rule, that in principle
only states were subjects of international law and in particular us as individuals we were
considered for a very long time roughly until the middle of the 20th century based on the emergence
on the one side of international human rights law and on the other side the emergence of
international criminal law. Until that time we were considered to be objects of public international
law basically in the same way as stones, plants or animals for that matter because it was only
states that were able to act in an illegally relevant way in the international system.
This has changed in particular due to the progressive developments of public international
law also with regard to the realm, in particular also with regard to the issue of international
legal personality and by today it is overwhelmingly universally almost recognized that there is no
longer a numerous clauses, no longer a closely limited circle of potential international legal
persons, rather any person any human being like you and me and any human-made organization has
presumably the capacity to also become a subject of international law.
This of course gives rise to the question what actually makes an actor a subject of international
law which requirements need to be fulfilled in order for an entity to be considered not merely
an object but rather a subject of international law and in that regard we initially easily see
that capability in itself is no longer normally a very decisive factor because if all human beings
and all human-made organizations at least can potentially have the capacity to become a subject
of international law to be the addressee of international legal obligations or of international
legal entitlements rights for that matter then capability is merely excluding from the circle
of potential subjects of international law those objects that like stones, animals, plants
who are not considered to be a subject and are probably also in many cases with stones in
particular chairs, computers, microphones and others will always lack the capacity to be
addressee of rights and or obligations under law in general including public international law
and since capability is no longer the limiting factor in that regard we see ever since the
middle of the 20th century a quite intensive discussion in the international legal literature
as to other necessary prerequisites that an actor needs to fulfill in order to be considered
an international legal person. One possible factor in that regard that is sometimes discussed
is factual participation in the interactions of the international system meaning that whoever is
an influential effectually, economically, politically influential actor in the international
system should also be regarded as a subject of international law. However this approach based
so the drawing the conclusion from factual importance to being a subject of international
law is primarily dominantly rejected in international legal practice and international
legal literature in two ways. On the one side the mere fact that an actor is influential in
the international legal system is participating in the interactions taking place in the international
system is in itself not sufficient to constitute a subject of international law and on the other
side in order to become a subject of international law it is not necessary to participate in the
interactions in the international system in any meaningful way. This in particular applies of
course to all of us as human beings our factual importance with regard to the interactions in the
international system is in all honesty rather limited but nevertheless as we will see
in subsequent sessions we are today undoubtedly recognized as at least partial subject of
international law based in particular on legal entitlements granted under international human
rights law and respective obligations incumbent upon us in the realm of international criminal
law. So factual participation is neither sufficient nor even necessary in order for an
actor to become a subject of international law rather the dominant approach that we find
in the legal literature as well as in state practice is the criterion of community acceptance
or community recognition in the sense that an entity becomes a subject of international law
if it has been granted by states through state actions certain rights or obligations
under either treaty law or customary international law that is bestowed upon the respective actor
in question. That is today considered to be the central prerequisite for international legal
personality and we have to bear this in mind because we will also come back to the central
requirement when we discuss in the next main part of our course the international legal position
of private corporations in the international legal system because then we will see that this
is of central relevance in order to determine the current status of business actors in particular
also with regard to obligations under okay somebody wanted to call me again but I was
brief I call back later that's the usual interruptions that come if you record half of the day and a lot
of people want to talk to you on the phone so I think this happened already before not only
another recording not only the recording of other courses but also this one that's nothing that
should disturb us in any way so it's primarily community acceptance the granting by states of
rights or the imposition of obligations under international law may it be international
agreements treaties or may it be customary international law that is the decisive factor
when it comes to determining whether a certain entity also enjoys international legal personality
in the international normative framework and that gives rise to the distinction
between original subjects on the one side and derivative subjects of international law on the
other side original subjects are states because they are the ones who are bestowed with certain
rights and or obligations simply because they are existing and all other actors in the international
systems only become international legal persons only become subjects of international law once
the original subjects the states have decided to grant them certain rights or impose certain
obligations on them under international law so that's important to understand and from a
methodological perspective that means that if you want to inquire whether a certain actor
is indeed a subject of international law or is not a subject of international law and to what
extent an actor is recognized as a subject or is not recognized as a subject of international law
you primarily have to undertake take recourse to an empirical approach by taking a look at
international agreements and customary international law and to have to search whether
certain rights have been granted to the actors in question or whether certain obligations have been
imposed on the respective actor in question so it's primarily an empirical approach that's also
again very important to bear in mind in particular when we come later in this course to the international
legal status of corporations it's not merely logical conclusions or perceived needs to make
somebody bound by certain obligations under international law but exclusively under this
dominant doctrine today the decision by states to grant rights or to impose obligations and states
are in that regard basically free under the current state of public international law whether
to recognize an actor or not so that's a central prerequisite community acceptance granting by
states of rights and obligations i reiterate that a few more times than i usually do because that's
really an important point that you have to bear in mind for subsequent discussions there are a number
of other factors that you find at times discussed when it comes to the question whether a respective
actor is a subject of international law is not and another factor often seen as an additional
requirement to community acceptance is the ability the possibility the entitlement of
the actor in question to actually enforce their legal rights in international dispute settlement
mechanisms the enforcement perspective the enforcement requirement this has been occasionally
stipulated in the literature as a necessary prerequisite for subject of international law
and obviously the background of this perception the underlying motive is the idea that
once you are able to actually enforce the respective rights it's not so much about
obligation it's more about rights in this connection as you easily see your probably your
rights via the other international subjects in international courts or international tribunals or
quasi judicial dispute settlement mechanisms at the international plane then you are really in
a position to also implement to live up to to actually enforce your respective entitlements
however this requirement is not generally accepted and in particular the jurisprudence of the
international court of justice again has rejected this approach in the famous la grande case between
germany and the us the underlying issue was the perception expressed by the court that the
vietnam convention on consular relations grants us as individuals certain rights namely the right
to be informed that once we are arrested in another country that we have the right to contact
our respective embassy our respective general consulate to get legal political assistance
diplomatic protection something we have covered in the previous session already exercised by the home
country the court stated that this entitlement indirectly enshrined in the international
consular convention is indeed an international legal entitlement is making a subject partial
subject of international law despite the fact that the vietnam convention on consular relations
does not foresee any enforcement mechanism in that regard in the same way as many of you probably
know that also with regard to human rights law international enforcement mechanisms the possibility
to approach international judicial or whether judicial bodies in cases where you perceive your
human rights to be violated is also under current public international law rather the exception
than the rule we have certain regional human rights courts in the americas in europe for example
but we have many parts of the world where you have no possibility to invoke your human rights
before an international tribunal an international court that nevertheless is not preventing us from
being considered a subject of international law in that regard another prerequisites that you
find occasionally is the capacity to conclude treaties treaty making capacity the capacity
to become a contracting party of an international treaty obviously as we will see also in subsequent
sessions the central the most important subject of international law states international
organizations supranational organizations like the u stabilized de facto regimes we will come to
that in subsequent sessions actually enjoy the capacity to conclude treaties however many other
actors again most certainly including us as individuals cannot become contracting parties
of international agreements and nevertheless we are recognized as subjects of international law
predominantly this requirement again is thus overwhelmingly rejected as a constitutive element
it's occasionally discussed in the international league literature but the dominant the clearly
dominant and rightly held view is that the capacity to conclude international agreements with other
subjects of international law something which is in essence limited to states
certain international organizations and a limited number of other actors is not a necessary
prerequisite to be a subject of international law why is international legal personality so important
well on the one side it's of course important because it makes an entity a legally relevant
actor we see this in connection with us as human beings previously we were only objects of
international law we had no rights we had no obligations but we also had no rights under
international law that we could directly rely upon via the states and other actors so the granting
of rights is also a certain recognition that the respective actor is worthy of legal recognition by
the decisive entities which are primarily states in that regard in the international system
equally important however is the perception and that's particularly important
for our course on the international normative framework dealing with sustainable management
that international legal personality by way of imposing certain obligations to contribute
to the protection and promotion of certain global public interest concerns protecting
human rights protecting the environment promoting internationally recognized labor and social
standards is also considered to be one of the primary means to foster the implementation of
these community values in the international system thus if in particular based on the imposition of
certain obligations an actor is recognized as a legal subject that involves the recognition
that this actor is important for the fulfillment for the effective implementation of certain
community interest community values that this actor is also responsible for promoting these
community interests and it's against this background that i've given here you the
site by Jan Klappas who stated rightly that it is first and foremost also through subjects doctrine
so through the question who is actually a subject of international law that the international
allocation and enforcement and implementation of values take place in the global normative
framework and thus this is closely related to something that we will discuss in the next
main part of our section when we come to the international legal status of corporations here
only already from a general perspective you have to bear in mind that the question of international
legal personality is not merely a technical issue there whose practical relevance is devoid
of any greater extent but rather it is one of these central questions for any legal system
for domestic legal systems but also for the international legal order whether an actor is
a subject of international law and to what extent an actor is the respective subject of
international law based on the granting of rights or the imposition of respective obligations
the central subjects of public international law i've mentioned that already many times so it will
not come as a surprise to any of you are of course ever since the middle of the 17th century
the modern sovereign territorial states the international system is still primarily
perceived to be an interstate system states are by far the most the factually most important actors
in the international system and this is also reflected this is also mirrored in there in the
legal recognition of states as the original the born the natural subjects of international law
and in that regard subject in public international law is very different from domestic legal orders
because with what i indicated already a few minutes ago in domestic legal systems it is us
as natural persons who are the born subjects of law the original subject of law born subject in
the sense that with our existence coming into being usually as a result of birth that's why
it's born subjects of international law we are automatically bearers of certain rights
and potentially at least later also addresses of certain obligations simply because we are human
beings all other legally relevant actors in domestic law are human-made actors and thus
derivative not natural not born subjects of law including the state and sub-entities itself that
is very different in public international law in public international law one of the juridical
persons of domestic law the state is actually the born subject the natural subject of international
law and as a consequence states are once they come into existence once they are born in inverted
commas they are the most comprehensive addressee of rights and obligations under international law
they occupy the position in public international law that we as human beings occupy in the domestic
legal system so that's a very different feature of public international law compared to domestic
legal systems states are the natural the central and born subject of international law because as
we saw already they occupy a central position in the international law making and law making
processes in general but also because first and foremost also because they have a central saying
when it comes to the creation of other subjects of international law so the role that we play in
the domestic legal system it's human beings that decide that an association should be founded in
a legally relevant way that a company should be founded recognized as a juridical person under
domestic law this position is in public international law occupied by states it's states who decide
whether any other entity including us as human beings are recognized as subject of international
law and also to what extent these other entities including us as natural persons are actually
recognized as subjects of international law because it depends on how many rights are granted
to us by states and how comprehensive the obligations are that i'm post on us or other actors
corporations international organizations etc under on based on a decision made by
states in that regard so states are also the they're not only the central law making entities
but closely related since it's law making activities that make an entity a subject of
international law granting of rights and position of obligations they are also the central actor
when it comes to the creation of other subjects of international law their recognition as subject
of international law and the scope of the international legal subjectivity of these
other actors based on the extent of rights or obligations especially granted to them so states
play a central role in that regard and this will again become very important when we turn to the
question of private corporations and their status in the international normative framework
on sustainable management so that lays the groundwork for your understanding of the specific
issue from the perspective of public international law of course final point uh for this session
final slide uh for this session if the states are such an important actor in the international
system that gives rise to the question how do i know that there's a state actually what makes
an entity a state that is a born subject of international law we know this discussion from
the domestic realm with us as natural subject what makes a human being a human being where our
borderline cases intensively discussed more recently in the legal literature when it comes to
cyborgs and others other actors in that regard are they actually human beings or not and the same
applies to a quite intensive and quite controversially perceived discussion in international law
what makes a state a state what are the criteria for statehood under public international law
well in principle we have at least three constitutive elements two of which we will
deal now next one and then further criteria discussed we will deal in the next session
and these three constitutive elements territory population government government sovereignty
faith in a different way have first been quite influentially identified and advocated for by
georg-jeleneck in its general theory of the state algemeine Stadtsler that was published in its
third edition in 1914 where georg-jeleneck was the first one to very influentially lay out that a
state actually comprises of at least three elements a core territory a permanent population
and an effective government the sovereign government in that sense in the final part of
this session we will deal with two of these elements namely for the territorial aspect
there can be no state without a territory there can be people a people existing and
being recognized as such without an assigned territory but they do not form a state the
people that doesn't have a territory is no state and the people that loses its territory
jesus to be a state that's unfortunately a scenario that is in certain circumstances not
too far fetched if we take a look into the future a famous example is an agreement
more recently concluded between the pacific island state of nauhu on the one side and
australia on the other that in cases sea level rises to an extent that now that the island of
nauhu becomes no longer populated the population of nauhu roughly 20 30 000 in total is entitled
to migrate and stay in australia but they no are no longer a state in that regard because they do
not have a territory that said it is sufficient to have a core defined territory boundary disputes
always exist also within europe we have certain rather neglectable but still existing boundary
disputes because we be between certain countries of western europe also so the boundaries can be
disputed but at least you have a core defined territory that's attributed to the actor in
question in order to make this actor a state size in that regard does not matter it is of no
relevance how vast this territory or how small this territory is we have countries with enormous
core territory canada for example russia the us and others are controlling vast territories as
part of their state territory on the other side we have in particulars in europe a number of so
called microstates monaco andorra san marino to certain extent liechtenstein and others the
Vatican state to which we will turn in a subsequent fashion very briefly that are tiny with regard to
their territory often no more than a few square kilometers but nevertheless that's of no relevance
this is considered to be state territory so the size doesn't matter second element and final point
for our session here is core permanent population only a territory doesn't do a territory without
people living on this territory can never be a state so Antarctica is not a state and will for
the time being not become a state because it doesn't have a permanent population actually an
extra territory regime you remember that from the objective regimes created also with regard to
Antarctica based on the Antarctic Treaty already but it's not considered to be a state because
there are no people permanently living there the origins and where we start with the final point
again same with the territory size is of no relevance in that regard there are countries in
the world you know that China India with more than a billion people and there are tiny ones
with just a few thousand people Vatican state and or San Marino some Pacific island states now
who I've mentioned already Vanuatu to Valu and others have a few 10 000 people a rather tiny
population but that doesn't matter again they are considered to be nevertheless a state also final
point the origin and composition of this population is completely irrelevant under public
international law in the 19th century we had in particular in Europe this idea of the nation state
nation being defined by certain extra legal factors cultural homogeneity religious homogeneity
common language that the respective population shares however from the perspective of public
international law all this is not necessary it doesn't matter whether the population has always
lived on this territory or has only migrated later to there that's a question of origin
and whether it's one people whether the population shares actually a common language or like in many
countries tons of different languages 10 20 30 40 languages if you consider some states in Africa
for example where you have 40 50 different languages being spoken that is all irrelevant
it's completely sufficient if you have a permanent population that is permanently capable of living
on the respective on the respective defined territory and actually stays there also in the
majority if individual people are traveling abroad that's obviously of no concern as long as there
is the core permanent population which also as I said does not necessarily have to be that large
okay ladies and gentlemen to the other criterias of statehood
we will turn in the beginning of the next session that concludes our eighth session
on the international normative framework dealing with sustainable management I hope you found it
at least mildly interesting I'm not asking for more than that I hope you're all doing continue
to do fine and I'm looking forward to be with you again for the next session that will at the
latest come out next week I probably will not take the chance to use the Pentecostal break
fixed power but rather probably upload at least one or two other sessions
also next weekend I hope you are not too overburdened by that okay ladies and gentlemen with that I
thank you for your attention looking forward being with you again I intentionally always
phrased a little bit abstract being with you because as I said already before I think we
do not see each other I cannot hear you so it's not the normal ways of communication
but being with you is maybe an appropriate catchphrase to characterize our actual current
teaching interactions in that regard thank you very much and bye bye