Theory and Definition of Subjects in International Law

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]
International Organization;
International Red Cross;
Holy See or Vatican;
The company as an international legal entity authority;
Warring Parties;
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]

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.

General Legal Principles and Additional Legal Sources

General Legal Principles and Additional Legal Sources
In the world practice, even though an international agreement has been ratified by law, another law is still needed to implement it in the domain of national law, for example UNCLOS 1982 which was ratified by Law no. 171985 still requires the existence of Law No.6 / 1996 concerning water. On the other hand, there are also international agreements which are ratified but are directly used as a legal basis for implementation, such as the 1961/1963 Vienna Convention on Diplomatic / Consular Relations which is ratified by Law No.1 / 1982. [5]
The status of international treaties in World is non-self-executing because international treaties that have been ratified cannot be implemented directly in national courts before implementing legislation. [6]

International customs
To be able to say that international custom is a source of law there must be the following elements:

There must be a habit that is general in nature,
The habit must be accepted as a law.
For international customs to be international sources, two elements must be fulfilled, each of which can be called a material element and a psychological factor, namely the fact that there is a general habit and the acceptance of international custom as law.

General Legal Principles
General legal principles are the legal principles that underlie the modern legal system. What is meant by the modern legal system is a positive legal system that is based on the principles and legal institutions of the Western state which for the most part are based on the principles and institutions of Roman law.

Additional Legal Sources
Court Decisions and Opinions of Leading Scholars of the Nations in the World.
Court decisions and scholars' opinions are additional sources of subsidies. This means that judicial decisions and opinions of scholars can be put forward to prove the existence of a method of international law regarding an issue based on primary sources, namely international treaties, customs and general legal principles.
The court's decisions and the opinions of the scholars themselves are not binding meaning they cannot lead to a legal method. In the judicial system according to the International Court Charter there is no known principle of a binding court decision (rule of binding precedent). Although court decisions do not have binding power, international court decisions, especially the Permanent International Court of Justice, the International Court of Justice and the Permanent Court of Arbitration have a major influence in the development of international law.
Regarding the second source of additional law, the teachings of prominent legal scholars, it can be said that research and writings conducted by prominent scholars can often be used as a guide or guide to discover what is international law, even though the teachings of the scholars themselves does not cause law. An example is the opinion of prominent legal scholars who are members of the United Nations International Law Commission.

Decisions of Equipment Bodies (Organs) of International Organizations and Institutions
The emergence of various international intergovernmental organizations both universal and regional has a major influence in the development of international law. This is due to the fact that these organizations through their equipment bodies, both the legislative, executive and judiciary bodies, have the authority to issue various decisions, which apply to the organization itself, as well as those that apply to its members, even though the decisions of the organization have not been able to said to be a source of international law.

Theories of International Law
The theory of natural law
he theory of natural law (natural law) is the oldest theory. This teaching has had a profound influence on international law since its growth. According to adherents of the teachings of natural law, international law is binding because:
International law is none other than "natural law" which is applied to the lives of nations, or in other words,
The country is bound or subject to international law in the relationship between them with each other, because international law is part of the highest law, namely natural law. [1]

Theory of Positivism
This flow bases the binding force on international law on the will of the country itself to submit to international law. According to positivists, "basically the state is the source of all law, and international law is binding because the country wants to submit to international law on its own accord". The theory of the will / will of this country also has weaknesses, namely:

They cannot satisfactorily explain how international law which depends on the will of the country can bind the states;
What if a country unilaterally cancels its intention to be bound by the law?
This theory cannot answer the question, why is a newly independent country standing in the midst of the international community already bound by international law, irrespective of whether or not to submit to the law?
This theory also cannot explain the existence of customary law which binds countries.

Modern International Law

Modern International Law
a). In the 17th and 18th centuries
The law of nations has a new name as international law. [7] This new understanding affects the content of international law itself, namely the separation of domestic and international issues. This distinction is due to the emergence of the concept of sovereignty of the Peace of Westphalia agreement aimed at ending the war between religious groups which lasted more than 30 years in Europe. [8]
There is a tendency from legal experts to put forward the rules of international law, especially in the form of treaties and customs and reduce the natural law as little as possible as a source of these principles. [9] Notable writers in the 17th and 18th centuries included: Cornelis Van Bynkershoek (1673-1743), who put forward the importance of the actual practice of states rather than natural law.
Another thought contribution theory about the rights and obligations of a neutral state. Christian Wolf (1632-1694), put forward a theory about the Civitas Maxima which as a world country includes the countries of the world. Von Martens (1714-1767), in Receuil des Traites is a collection of agreements that is still a valuable collection until now. Emmerich De Vattel (1714-1767) introduced the principle of equality between countries.

b). In the 19th century
International law develops even further. Some factors that influence this development are the rise of new countries, both inside and outside the European continent, the modernization of world transportation facilities, new discoveries, especially in the field of military weaponry for war. All of this raises the need for a strict international legal system to regulate international relations.
This century also experienced the development of the rules of war and neutrality, as well as an increase in the settlement of international cases through international arbitration institutions. The practice of countries is also getting used to making treaties to regulate relations between countries. The work of legal experts, more attention on current practices and set aside the concept of natural law, although it does not leave reason and justice, especially if something is not regulated by treaties or customs. [10]

c). 20th Century and Today
International law experienced significant developments. In this century the Permanent Court of Arbitration was established at the Hague Conference of 1899 and 1907. The establishment of the Permanent Court of International Justice as an international judicial court in 1921, this court was replaced by the International Court of Justice in 1948 until now. .
Also formed an international organization whose function resembles that of world government for the purpose of peace and welfare of mankind, such as the League of Nations, which was later replaced by the United Nations. The expansion of the scope of multiulateral treaties not only in the socio-economic field but also includes the protection of fundamental rights and freedoms of individuals. International law experts focus more on practices and court decisions. [11]

Sources of International Law
International legal sources are formal and material legal sources. Formal legal sources determine what constitutes law while material sources only indicate where the law can be found. [1]

International Agreement
International treaties are one source of international law. International agreements play an important role in regulating international relations between subjects of international law in general. Compared with other sources of international law, international treaties provide more guarantees of legal certainty to the parties bound in them.
Because in its written form where the rights and obligations of the parties are clearly formulated, it will be easier to implement. [2] It can be said that in the body of international law there are international treaties. International treaties are agreements made between members of the peoples of nations and aim to have certain legal consequences. International Treaties Law held in Vienna in 1968 stated that this convention only regulates agreements between states.

It is not meant to say that only the country can participate in international agreements, but the Conference considers it necessary to regulate agreements entered into by international organizations or agencies separately. [3
In every agreement including international treaties there are principles which are used as a basis for implementation. The most fundamental principle is the principle of pacta sunt servanda, namely that the promise is binding as the law for those who make it. [4]

International Law in the 15th and 16th centuries

International Law in the 15th and 16th centuries
In medieval times or commonly referred to as the Dark Age, the natural law progressed again through transformation under the church. The role of religion dominates the secular sectors. The social system in Europe at that time consisted of several sovereign states which were feudal in nature and the Holy See.
At that time the concept of a just war emerged in accordance with Christian teachings, which aimed to take action that was not contrary to the teachings of the church. In addition, some of the works of legal experts include issues of war, such as Bartolo who wrote about reprisal actions, Honore de Bonet produced The Tree of Battles in 1380. [6]
Although in medieval international law did not experience significant development, as a result of the great influence of the teachings of the church, but countries outside the reach of the church such as in England, France, Venice, Sweden, Portugal, the seeds of the development of international law began to emerge. The treaties made by the state are more regulating wars, peace, ceasefire and alliances.
The weakening of the power of the church is characterized by secularisation efforts, such as that carried out by Martin Luther as a reformist figure in the church, and along with the formation of modern states. For example, Jean Bodin in Book Six Livers De la Republique 1576, argues that sovereignty or power for the formation of law is an absolute right for the birth of a state entity.
In the fifteenth and sixteenth centuries, there was a new world discovery, a time of scientific enlightenment and reformation which was a religious revolution which had shattered the shackles of political and spiritual unity in Europe and shook up the fundamentals of Christians in the Middle Ages.

Some international legal issues that often arise in international relations include claims for compensation that befall citizens of a country in another country, acceptance and expulsion of foreigners by a country, nationality issues, extraterritorial enforcement of several national laws, interpretation of international treaties, and the enactment of a complicated agreement that most countries apply in the fields of trade, finance, transportation, aviation, nuclear energy.
Violations of international law that result in war, disarmament and illegal arms trade. (Ibid: 18). The various problems above show that international law is still needed to overcome various problems that occur in international relations International law is expected to be able to regulate and provide legal solutions that are appropriate and fair so that they can be recognized and accepted by countries or parties to the conflict, not in conflict with national laws of a country, in an international legal system that is global in nature.

Individuals as International Law Subjects Individuals as international law subjects have been known since the outbreak of World War I on the basis of peace treaties, as chaired by Chairul Anwar as follows:
Individuals are usually involved indirectly in international law. Individual relations with international law are usually made through the country in which the individual is a citizen. Individuals are given the right to file claims arising out of the World War I Peace Treaty, at various courts established on the basis of such peace agreements. [1]
Looking at Chairul Anwar's description above shows that the individual as the subject of international law is the development of the country as the subject of international law. This is evident from the phrase "individual relations in international law usually take place through the country in which the individual is a citizen". As individuals have the right to file claims arising out of peace agreements in courts established on the basis of international treaties. The position of the individual as the subject of international law is a further development of the country as the subject of international law.

Development of International Law

Development of International Law
Classical International Law
a). Ancient India
In ancient Indian culture there are rules and legal institutions that govern the relationship between castes, ethnic groups and kings. According to Bannerjce, the customs governing relations between kings, called the Dharma Village. Gautama Sutera and Manu laws contain royal law. The law governing relations between the kings at that time could not be said to be international law, because there was no separation from religion, social and state matters. But the writings at that time already showed the provisions governing relations between kings or kingdoms, such as the provisions governing the position of the king's emissaries and the privileges of the king's emissaries, agreements with other kingdoms, as well as the provisions of war and ways of war. [1]
b). Ancient Chinese
China introduces ethical values in the learning process for powerful groups. Establishment of a state tributary state regional power system. The formation of a union of Chinese states launched by Confucius. [2]

c). Ancient Greek
According to Vinoggradoff, at that time there were intermunicipal laws, namely customary rules that apply in relations between city states, such as provisions regarding messengers, declarations of war, slavery of prisoners of war. Intermunicipal rules are also applied to neighboring communities from city states. However, intermunicipal rules are strongly influenced by religious influences, so there is no strict separation between laws. Moral, justice and religion. [3]
The division of Greek population groups into 2 (two), namely: Greeks and non-Greeks (Barbarians). At that time also, the provisions of arbitration and trade representatives (consuls) were known. The most important contribution to international law is the concept of natural law, this concept was later developed further by the Romans.

d). Ancient Roman
In ancient Rome, the laws governing relations between kingdoms did not develop because the community of nations was an empire, the Roman Empire. The main contribution of the Romans to the development of law in general and very little to the development of international law. During this Roman period a distinction was made between Ius Naturale and Ius Gentium. Ius Gentium (community law) shows law which is a sub of natural law (Ius Naturale).
Understanding Ius Gentium can only be associated with the human world while Ius naturale (natural law) covers all phenomena of nature. The contribution of the Romans to the law in general was in the presence of the Corpus Juris Civilis, at the time of Emperor Justinian. The concepts and principles of civil law were later accepted in international law such as occupation, servitut, bona fides, pacta sunt servanda.
During the Roman reign, international law did not develop. This was due to the existence of the Holy Roman Empire (Holly Roman Empire), which did not allow the emergence of an independent nation that stood alone, and the structure of western European society that is feudal, which is inherent in the hierarchy of authority which inhibits the emergence of independent states, therefore there is no need for laws governing relations between nations. [5]

If the rebels were not able to meet the above objective requirements, then the new rebels would be in rebellion. If there is a third country that provides support or recognition, then the action is considered to be in a hurry and may be viewed as interfering in the affairs of another country.
Because in that case, it was the government that restored the peace and security of the region. On the other hand, if rebels based on objective assessment have recognized the conditions of warfare, then third countries based on subjective considerations (usually political) will give recognition to the rebelli group, which in turn, has led to its declining belligerent status. [2]

The granting of a declaration of independence to rebelli brings legal consequences for both rebelli and the country giving it recognition:
The belligerent ships were allowed to enter the ports of the countries in which they were accredited.
Belligerent can borrow funds (finance) to countries that give recognition, which will be refunded once the goal of the belligerent is achieved (a new country is formed).
Belligerent had the right to search the ships on the oceans, confiscate contraband goods and to conduct blackades. [3]
In belligerent, there is an example of a non-international conferencing that is later considered to be an international conferencing such as the "Internationalized internal armed conflict" which is a non-international armed conflict that is considered to have been internationalized since the rebel-held State recognizes the belligerent uprising

The Company As an International Legal Entity Authority

The Company As an International Legal Entity Authority
In essence, multinational companies are (national) legal entities registered in a country, so in fact multinational companies are only subjects of national law, and not subject to international law. [1]
Another case with a company which is an international legal entity is the Authority, according to the author it is a subject of international law (in a limited sense). The legal basis is regulated in article 170 of the UN convention on the Law of the Sea (KHL 1982), which determines the following:

The company is an authority that must carry out activities in the region directly, in accordance with article 153 paragraph 2 a, as well as the transportation, processing and marketing of minerals produced from the area.
The Company, in the framework of acting as an international legal entity, has the legal authority as stipulated in the statute as stipulated in annex IV. The company acts in accordance with this convention and the provisions, regulations and procedures of the Authority as well as general policies determined by the Assembly and subject to the direction and supervision of the board. The company has a head office located in the seat of the Authority.
As an International legal entity and in accordance with the Articles of Association of the company which is Annex IV KHL 1982, it has legal status, privileges, and immunity. In this regard Article 13 of the Company's Articles of Association determine;
In order for a company to carry out its functions, the status, privileges and immunities stipulated in this article must be granted to companies in the territories of the participating countries where special agreements must be entered into.
The company has the legal capacity needed to carry out its functions, and to achieve its objectives it has the capacity;
1). Enter into contracts, joint arrangements or other arrangements, including agreements with countries and international organizations.
2). Getting, renting, mastering and selling wealth, both movable and immovable.

3). Become a party to the legal process.
Based on the description above, there is no doubt that the company as an international legal entity is the subject of international law. Because it has legal status (personal international law), has special rights and immunities in the territories of the participating countries, has the capacity to make contracts and agreements with international countries and organizations, and he can be a party to the legal process.

Warring Parties
War is not solely due to the statement of a party to wage war, but is more synonymous with a "rebellion" against a particular country. In the context of international law the word "rebellion" in English has three terms, namely insurrection, rebellion and revolution. Schuman gives a definition of the three terms as follows;
In general an Uprising directed towards a radical modification of the existing political or social order throughout the whole territory of a state is reffered to as a revolution, while the word rebellion is more frequently confined to efforts on the part of a portion of a state to throw off the authority of the remainder. Insurrection usually refers to smaller movements in scope and purpose than those described by the other terms. [1]
Generally translated, the revolution aims to radically overhaul a political or social structure throughout the country, rebeli is the struggle of some parts of the country to overthrow power in other regions and insurrection are broad activities and the aim is narrower than revolution and rebellion.
Based on Schuman's description above, it can be concluded that the emergence of a warring party (belligerent) in a country is preceded by an insurrection (rebellion with a small scoup), which then extends to rebellion (rebelli) and then rebelli is able to change its status to become a party war must meet the conditions (objective). [1]

International Organization

International Organization
International organizations in a broad sense basically include not only public international organizations (Public International Organizations) but also private organizations (Privat International Organizations). Such organizations include regional and sub-regional organizations. There are also organizations that are universal (organization of universal character).

Judging from its formation, international organizations have three aspects namely administration, philosophical aspects, and legal aspects:
1). Administrative aspects
Regarding the need to establish a permanent secretariat (permanent secretariat) whose location is in the territory of one of its member countries determined by agreement between the international organization and the host country (Head quarters Agreement). In addition, personnel personnel (International civil servant) are also needed [1].
From this administrative aspect the organization also needs a budget that will be shared by all members. Article 17 of the UN charter for example states that UN funding will be borne by its members in accordance with the scale of assessment (Scale of Assessment) to be determined by the UN General Assembly which according to article 18 through 2/3 votes. [1]

2). Philosophical aspects
The formation of an international organization will be influenced by the philosophies of the lives of nations in an area where the organization will be founded. For example, in the formation of the Organization of African Unity, we have also seen the history of the African nation originating from colonialism, therefore the theme taken was cooperation to free the shackles of colonialism, the issue of self-determination and national independence as well as the philosophical basis of the organization. [2]

3). Legal aspects
International organizations are formed through an agreement of three or more countries as parties. An organization is essentially a unit which according to law is separated from every other organization and will consist of one or more bodies. These bodies are a collection of various powers which are grouped under one name. For example: the General Assembly, the House of Representatives, the International Court of Justice and the secretariat are the main bodies that have their own authority but are all grouped in an organization called the United Nations. [3]

In order to be recognized in international law, international organizations must meet three conditions, namely: [4]
The existence of international agreements such as the main instrument will make the principles and objectives, structure and the way the organization works.
International organizations must have at least one body.
International organizations must be formed under international law.
In connection with the legal implications of Indonesia's involvement in international trade organizations so that government policies are certainly able to touch the interests of the wider community, it is expected to guarantee a sense of security and fairness in the world of cross-border trade. [5]

International Red Cross
The International Red Cross domiciled in Geneva (Austria) has its own place in the history of international law. It can even be said that the International Red Cross as a legal subject (in a limited sense) was born because of history; although in the end the body's existence and status was confirmed by an international treaty (convention), which is now the 1949 Geneva conventions on the protection of victims of war. Based on the 1949 Geneva Conventions, the International Red Cross has a position as a subject of international law, even with limited scope. [1]

Holy See or Vatican
The Holy See (Vatican) is an example of a subject of international law that already exists besides the state. This is a legacy / continuation of history since ancient times, when the Pope not only acted as head of the Roman church but also had worldly authority. Although only related to religious (catholic) issues, the Holy See is a legal subject in the full sense and equal position with the state.

This happened especially after the treaty was made between Italy and the Holy See at Rome to the Holy See which was subsequently formed by the Vatican state, as well as being recognized by Italy. Until now the Holy See has diplomatic representation that is equal to the diplomatic representation of a country in various important countries in the world, including in Indonesia. [1]