Chapter 2
International law is binding on a state only when it had participated in the making of that
particular obligation. Why is it then that states breach the law that they make? -->
composite structure of abstract entities such states, the state's organs that create int law
are different from the state's organs that apply law, inside the same state.
Who makes international law and its recipients. In international law (either treaty or
customary one) those who make it, states, become also the recipient of it --> it has a
participatory nature ; in domestic law the recipients of the law are not always those who
make it, the legislator --> domestic law is hierarchical, vertical.
In international law you undertake certain constrains in exchange of certain benefits.
A state is a legal person, irrespective of the change of its governments. What gives
substance to juridic personality is legal capacity.
LEGAL CAPACITY is the entitlement to carry legally relevant acts, to enter into a treaty and
create rules AND consequently become the legal subject, the recipient of the obligations
that stand by that treaty.
International legal subjects: 1)states enjoy the largest slice of international subjectivity;
2)now we also have intergovernmental organizations, the UN being one; 3)individuals and
groups of individuals (fighting for their rights --> national liberation movements --> in this
case they are temporarily entitled with legal capacity because they could win the liberation
fight, and then be transformed into a nation-state, or lose it and disappear ).
In domestic legal systems physical legal personality is regulated by clear cut law
that is limited to those who have a legal capacity (being 18 years old); someone
who is underaged has a legal capacity but it is exercised by a representative.
Then we have abstract legal personality --> corporations, companies… which is
determined by a state authority above the subjects. International law is here is
at its weakest form of expression because there is the lack of a centralised
institution and international law here lies on the legal principle of effectiveness
--> in order for a state to be a state there needs to be an effective independent
government (which exercises domestic and international sovereignty) over a
certain population and over a certain territory ; these 3 elements often create
uncertainty. Official legal recognition of a community as a nation-state is not
legally constitutive of legal personality, whenever a group of states recognized
(=this is a political statement) a community which is trying to become
independent from a state that state would have legal personality, and this is
not true (ex: China). So the principle of effectiveness is the constituent principle
of statehood as a legal personality.
RECOGNITION: It is a unilateral political act by which you recognize another state its
relevance as purely political, it is not constitutive of statehood and legal personality, only
the principle of effectives is.
In an ideal legal system the attribution of legal personality is decided by a central authority,
but international law doesn't work in this way and the UN is not the central authority that
says whether or not a state fulfils the requirements to have a legal personality; even though
in art 4 of the UN Charter we can find the requirements for a state to be admitted as a
, member, a state can be recognized as such even if it is not a UN member state, and this is
based on the principle of effectiveness (other states will respect its territorial integrity). =>
Being a member of the UN is not a requirement for statehood; many nations were states
before entering the UN.
When is comes to statehood we are in a domain which is prevailed by politics.
Law of international organizations
(pag 36…) The notion of law of international organizations may assume 2 different needs:
1)firstly it may refer to the secondary rules (rules on the rules) produced by international
organizations and 2)second it may refer to primary rules (rules of behavior, they set a
prohibition) of international organizations.
1. the rules on the establishment, the functioning and the law production of the
international organization. The secondary rules set all the mechanism that runs
the international organization and allow for the production of primary rules.
2. Primary rules are binding upon the member states, when they are not they fall
in the category of soft law instruments. When the inter org enjoys a general
scope the primary rules can encompass any subject matter (case of the UNGA's
resolutions).
Historical intro
This phenomenon is a relatively recent one, some inter org existed even before the second
WW; during the last decades of the 19th century the European states enjoyed an
unprecedented period of peace and prosperity, followed by scientific development that led
to a shift from an approach of competition to one of cooperation. This shift was mainly due
to the necessity of a more efficient management of common resources and international
trade => the first int org stood out for their scientific and technical focus, they were
established by a treaty and they had a Committee and a permanent administrative body
composed by officials; because they focused on technical issues they were short of any
political scope. Only a breaking event such as the first WW led to a speed up; already in
1920 the League of Nations was established, that was followed also by the establishment of
the first international court, the Permanent Court of International Justice. From the 1920 to
the end of the second WW the use of force was still legal to use in settling international
disputes, after the first War it was intended as the last resort. The League of Nations failed
to carry out its mission as it was unable to stop the outrages of the second WW. The end of
the second WW is traditionally marked as the moment in which the international society
turns into the international community, the economic development and the globalization
brought up an interdependence between states. And this was the perfect environment for
int org to flourish, from 60 in 1979 to about 3050 today.
How international organizations are established
An international organization can be defined as a collectivity of states established by a
treaty with a constitution and common organs having a personality distinct from that of its
member states and being a subject of international law, with its treaty making capacity. This
definition was then elaborated by the ILC in the Draft articles on the Responsibility of
International Organization (DARIO) --> within it we have art 2 letter a) which defines an
International law is binding on a state only when it had participated in the making of that
particular obligation. Why is it then that states breach the law that they make? -->
composite structure of abstract entities such states, the state's organs that create int law
are different from the state's organs that apply law, inside the same state.
Who makes international law and its recipients. In international law (either treaty or
customary one) those who make it, states, become also the recipient of it --> it has a
participatory nature ; in domestic law the recipients of the law are not always those who
make it, the legislator --> domestic law is hierarchical, vertical.
In international law you undertake certain constrains in exchange of certain benefits.
A state is a legal person, irrespective of the change of its governments. What gives
substance to juridic personality is legal capacity.
LEGAL CAPACITY is the entitlement to carry legally relevant acts, to enter into a treaty and
create rules AND consequently become the legal subject, the recipient of the obligations
that stand by that treaty.
International legal subjects: 1)states enjoy the largest slice of international subjectivity;
2)now we also have intergovernmental organizations, the UN being one; 3)individuals and
groups of individuals (fighting for their rights --> national liberation movements --> in this
case they are temporarily entitled with legal capacity because they could win the liberation
fight, and then be transformed into a nation-state, or lose it and disappear ).
In domestic legal systems physical legal personality is regulated by clear cut law
that is limited to those who have a legal capacity (being 18 years old); someone
who is underaged has a legal capacity but it is exercised by a representative.
Then we have abstract legal personality --> corporations, companies… which is
determined by a state authority above the subjects. International law is here is
at its weakest form of expression because there is the lack of a centralised
institution and international law here lies on the legal principle of effectiveness
--> in order for a state to be a state there needs to be an effective independent
government (which exercises domestic and international sovereignty) over a
certain population and over a certain territory ; these 3 elements often create
uncertainty. Official legal recognition of a community as a nation-state is not
legally constitutive of legal personality, whenever a group of states recognized
(=this is a political statement) a community which is trying to become
independent from a state that state would have legal personality, and this is
not true (ex: China). So the principle of effectiveness is the constituent principle
of statehood as a legal personality.
RECOGNITION: It is a unilateral political act by which you recognize another state its
relevance as purely political, it is not constitutive of statehood and legal personality, only
the principle of effectives is.
In an ideal legal system the attribution of legal personality is decided by a central authority,
but international law doesn't work in this way and the UN is not the central authority that
says whether or not a state fulfils the requirements to have a legal personality; even though
in art 4 of the UN Charter we can find the requirements for a state to be admitted as a
, member, a state can be recognized as such even if it is not a UN member state, and this is
based on the principle of effectiveness (other states will respect its territorial integrity). =>
Being a member of the UN is not a requirement for statehood; many nations were states
before entering the UN.
When is comes to statehood we are in a domain which is prevailed by politics.
Law of international organizations
(pag 36…) The notion of law of international organizations may assume 2 different needs:
1)firstly it may refer to the secondary rules (rules on the rules) produced by international
organizations and 2)second it may refer to primary rules (rules of behavior, they set a
prohibition) of international organizations.
1. the rules on the establishment, the functioning and the law production of the
international organization. The secondary rules set all the mechanism that runs
the international organization and allow for the production of primary rules.
2. Primary rules are binding upon the member states, when they are not they fall
in the category of soft law instruments. When the inter org enjoys a general
scope the primary rules can encompass any subject matter (case of the UNGA's
resolutions).
Historical intro
This phenomenon is a relatively recent one, some inter org existed even before the second
WW; during the last decades of the 19th century the European states enjoyed an
unprecedented period of peace and prosperity, followed by scientific development that led
to a shift from an approach of competition to one of cooperation. This shift was mainly due
to the necessity of a more efficient management of common resources and international
trade => the first int org stood out for their scientific and technical focus, they were
established by a treaty and they had a Committee and a permanent administrative body
composed by officials; because they focused on technical issues they were short of any
political scope. Only a breaking event such as the first WW led to a speed up; already in
1920 the League of Nations was established, that was followed also by the establishment of
the first international court, the Permanent Court of International Justice. From the 1920 to
the end of the second WW the use of force was still legal to use in settling international
disputes, after the first War it was intended as the last resort. The League of Nations failed
to carry out its mission as it was unable to stop the outrages of the second WW. The end of
the second WW is traditionally marked as the moment in which the international society
turns into the international community, the economic development and the globalization
brought up an interdependence between states. And this was the perfect environment for
int org to flourish, from 60 in 1979 to about 3050 today.
How international organizations are established
An international organization can be defined as a collectivity of states established by a
treaty with a constitution and common organs having a personality distinct from that of its
member states and being a subject of international law, with its treaty making capacity. This
definition was then elaborated by the ILC in the Draft articles on the Responsibility of
International Organization (DARIO) --> within it we have art 2 letter a) which defines an
