Case concerning the military and paramilitary activities in and against Nicaragua

(NICARAGUA v. UNITED STATES OF AMERICA)

I. Study Judgment of the International Court of Justice (hereinafter referred to as ICJ) dated 27 June 1986 in case Nicaragua v. United States of America (http://www.icj-cij.org/docket/index.php?sum=367&code=nus&p1=3&p2=3&case=70&k=66&p3=5)

II. Translate into Ukrainian:

Operative part of the court's judgment, multilateral treaty, reservation, collective self-defence, subject of the case, support military and paramilitary activities, customary international law, to intervene in the affairs, to violate the sovereignty of state, internal or territorial waters, to interrupt peaceful maritime commerce, to declare a general embargo on trade, admissibility of application, legal dispute, alleged breach of the Charter, to test by cross-examination, allegations, infringement of air space, applicable law, prohibition of the use of force, right of self-defence, proportionality of the measures taken in self-defence, armed attack.

III. Translate into English:

Заборона застосування сили, право на самооборону, порушення суверенітету держави, колективна оборона, сторона у справі, заяви, стверджувань порушення Статуту, втручатись у справи, збройний напад, пропорційність заходів,що приймаються в якості самооборони, прийнятність звернення, внутрішні води, встановити ембарго на торгівлю.

IV. Translate the following:

Заява перед судом, merits of the case, право, що застосовується, allegiance, колективна самооборона, documentary material, застереження, affidavits, предмет справи, facts relevant to the dispute, резолютивна частина судового рішення, enquiry, naval base, Міжнародний суд ООН, customary international law, personal and material injury, заборона застосування сили, measures of an economic nature.

V. Answer the following questions concerning the case:

1. What actions were undertaken by the ICJ as to non-appearance of the Respondent?

2. Did the claim of the party appear well founded in fact and law?

3. What provisions of the UN Charter were applied by the ICJ?

4. What is the position of the ICJ concerning the multilateral treaty reservation made by the United States?

5. What principles of international law were violated?

6. What separate opinions were presented?

VI. In groups of three-four discuss this information and get ready to present the position of Nicaragua, United States of America and arguments of the International Court of Justice.

WRITING:

I. Give examples of cases concerning violation of fundamental principles of international law in current international relations.

II. Make a list of pros and cons of actions of international actors in the situation.

 

 

UNIT V

SUBJECTS OF INTERNATIONAL LAW

LEAD-IN

I. Answer the questions

1. What are the subjects of national law?

2. What could be the features of a subject of national law?

3. How can legal capacity be defined?

 

II. Comment on the following

1. A constitution is the arrangement of magistracies in a state. (Aristotle).

2. If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. (Thomas Jefferson).

3. Every actual State is corrupt. Good men must not obey laws too well. (Ralph Waldo Emerson).

4. The state comes into existence for the sake of life and continues to exist for the sake of good life. (Aristotle).

 

READING

I. Read the text.

LEGAL PERSONALITY IN INTERNATIONAL LAW [11]

INTRODUCTION

Legal personality is a controversial concept of international law. But it is, of course, not a concept confined to the international legal system. It represents one of the pillars of municipal law as well. […] The private law of persons therefore establishes which entities are legally relevant for a specific municipal legal system.

In international law, it also has to be determined which entities have rights and duties and act in legally relevant ways. The notion of legal personality is traditionally employed to this end, and accordingly called international personality. […] However, two peculiarities distinguish personality in international law from that in municipal law.

The first peculiarity often stated is that international personality not only denotes the quality of having rights and duties as well as certain capacities under the law, but that it also includes the competence to create the law.' This association of international personality with law-creation is an effect of there being no centralized legislator in the international legal system as opposed to municipal private law where the creation of only beneficiaries of rights actually held by their home state. A similar problem arises in the context of international human rights law when it is asserted that individuals actually are the holders of international rights without being international persons, a view which might have repercussions for the secondary obligation. In addition to these different readings of general developments in international law, there is often no agreement on the interpretation of specific pronouncements by international courts thought to be related to international personality. For example, it is disputed whether the ICJ’s affirmation of individual rights (in addition to state rights) outside the human rights context in the LaGrand and Avetia judgments implies international personality of the individual or, as has been suggested, by analogy even of other nonstate entities. Another well-known, though somewhat aged, example is the PCIJ’s opinion in Jurisdiction of the Courts of Danzig with its rather inconclusive reasoning on direct treaty rights of individuals.’ Not surprisingly, the opinion has been interpreted controversially and has been used to foster different theoretical positions on international personality.’ And even when international personality was more directly addressed, as was of course the case in Reparation for Injuries with regard to international organizations, interpretations of the criteria to be fulfilled for an international organization to become an international person differed widely. Thus, case law and practice are constantly taken into account in the debate on international personality, but their interpretation is strongly related to differing theoretical positions. Consequently, there is often no consensus on the implications of these practical developments.

Conceptions

The picture emerges that the concept of personality is present in international law but there are different substantial views on it. Five main positions can be distinguished:

(1) States-only: The first position reserves international personality exclusively to states. There are no conditions for international personality other than having acquired statehood. The corollaries of personality are synonymous with those of being a state. This position is today very rarely, if at all, explicitly advocated. But it is important in historical context and is at times still relevant for legal issues today.

(2) Recognition: The second position conceives of states as the original or primary persons of international law. However, other entities can also acquire international personality, often called derivative or secondary international persons. The mechanism through which this is possible is explicit or implicit recognition by states. Being an international person in principle entails certain fundamental international rights, duties and capacities analogous to those of states.

(3) Individualistic: The third position states a presumption for the individual as an international person in the field of so-called fundamental norms of international law. In addition, states and various other entities can be international persons if there are international norms addressing them. The consequence of personality is international responsibility. Individuals become internationally responsible for violations of fundamental international norms irrespective of whether they act in a public or private function.

(4) Formal: The fourth position declares international law an open system. There is no presumption as to whom is a legal person. International personality becomes a posteriori concept: every entity is an international person that according to general principles of interpretation is the addressee of the norms of international law. Basically, there are no consequences attached to being an international person.

(5) Actor: The fifth position, rejecting the concept of international personality as traditionally understood, stipulates a presumption that all effective actors of international relations are relevant for the international legal system. The specific rights and duties held by particular actors are determined in an international decision-making process in which the actors themselves participate depending on their effective power.

These five positions are those mainly invoked in international legal argument, that is, in doctrinal debates and in international practice. As presented here, they are condensed into what may be called ‘ideal types’. It follows that there are various modifications of these positions present in international legal reasoning. In general, however, such modifications will share - although often without explicit reference - a common basis with the pure forms as presented in this book. Thus, by examining the ‘ideal types’, there will also be new insights into the original assumptions on which the modified positions rest. Of course, these five positions to a certain extent represent different stages in the history of international law. However, notwithstanding their different historical origins, they all form part of the body of international legal argument applied today and as such are relevant in contemporary doctrine and practice.

 

II. Answer the questions.

1. How can the tern “legal personality” be defined?

2. Why is legal personality controversial concept?

3. What are the concepts of personality in international law?

4. What is the difference between legal personality and international personality (if any)?

5. What is the first (second, third, fourth, fifth) position concerning the concept of personality?