Theory and Definition of Subjects in International Law
Subjects of International Law: Theory, Understanding, Development, Legal Sources
Today it appears that modern countries have recognized international law as part of national law. This view is called the "doctrine of incorporation" which originally came from the Anglo Saxon countries. The teaching that international law is seen as national law is seen in the decision of the United States Supreme Court in the case of The Paquette Habana-The Loba. [1]
Subject of International Law
However, international law is different from national law, international law is not created by a particular body as seen in national law, and there are also no specific authorities that can enforce the implementation of international legal rules. The international community does not recognize a strong central executive power as in national countries. This raises the question whether international law really is law in the real sense. [2] If so, then there are several theories that support that international law is law.
International law itself is the entire legal principles and principles that are indispensable for regulating relations or issues that cross national boundaries between States and States, States with non-State legal subjects, and legal subjects not State. each other. [3]
Without these rules it is not possible for countries to have permanent and continuous relations. In fact international law is a problem with the need for reciprocal relations between countries.
In the absence of an international legal system, the international community of countries cannot enjoy trade and commercial benefits, the exchange of ideas and routine communication as appropriate. [1] International law has international legal subjects, and there are sources from international law itself.
Seen from the framework of the process of developing international law, both regional international law and special international law are reasonable symptoms towards the realization of an international law that is truly universal and applies to all members of the international community, as well as the political economy system, nationality or its culture. But what is the historical development of international law itself?
Understanding the Subject of International Law
The subject of international law can be interpreted as the holder of rights and obligations under international law, but more than that, the subject of international law also means the holder of procedural privileges to file claims before an international tribunal, and the owner of the interests determined by legal provisions international.
As it is known that subjects of international law include: [1]
Country;
International Organization;
International Red Cross;
Holy See or Vatican;
The company as an international legal entity authority;
Warring Parties;
Individual
The most important subject of international law is the State, after that there are only other subjects such as international organizations, the international red cross, the holy throne / vatican, companies as international legal entities, authorities, warring parties and individuals. [2]
Country
International law is reviewed both historically and factually. Historically, the first thing to have been the subject of international law at the inception and growth of international law was the state.
The role of the state as a subject of international law is also increasingly dominant because the majority of international relations can give birth to principles and methods of international law carried out by countries. The traditional elements of a State are contained in Article 1 of the Montevidio (Pan American) Convention on the Rights and Duties of the State of 1933. [1] The Article reads as follows:
"The State as a person of international law should posses the following qualification:
A permanent population
A defined territory
A government; and
A capacity to enter into relations with other State. "
Among the elements of the state is actually the element of ability to enter into relations with other countries is less important, because the state may be able to stand up without the ability to enter into relations with other countries, so it is also called the non-physical element. Regarding the ability to enter into relations with other countries this has to do with the recognition of both national and international law recognizing the existence of such power and authority. [1]
The elements or requirements mentioned above are the most important in terms of international law. The characteristics above also distinguish countries from smaller units such as members of federations or protectorates who do not handle their own foreign affairs and are not recognized by other countries as independent members of the international community. Even the law itself is arguably the largest part consisting of legal relations between state and state. [2]
Weaknesses and objections to the above teachings are tried to be overcome by Triepel in his book "Volkerrecht un Landesrecht" (1899), which relies on the binding power of international law to the joint will of countries. Theories that base the binding force / effect of international law on the will / approval of the state, basically view international law as the law of treaties between countries. As for what is considered the basic principle is the principle of "pacta sunt servanda" as the basic principle of international law, especially international treaty law.
Theory of Social Reality (feit social)
Another theory which seeks to explain the binding power of international law against countries is the theory that links it to the "reality of human life", which he calls the French school. These leaders include Fauchile, Scelle, and Duguit who base their binding force on international law (as well as law in general) on "biological, social, and human life factors" which are called social facts (fait social). The basis of binding power of law (international) is found in social reality, that the binding of law is absolutely necessary for the fulfillment of human (nation) needs for community life. [2]
Rebellion and Parties to Disputes
According to the law of war, a rebellion can gain a position and rights as a party that disputes "beligerent" in certain circumstances. These rights include the right to self-determination, choosing a system and controlling the natural resources in the area.