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International law and the rights and duties involved, from the historic perspective,
apply only to those entities which possess full international personality. Originally it
was only those states to which the international law applied. Statehood and international
legal personality were considered synonymous. Apart from those states that represented
the major and the least contentious legal subjects, however, there were also other
entities which in the legal doctrine enjoyed some partial legal personality. Among these
potential subjects are international organizations, transnational corporations and even
individuals. Different binding extents of rights and duties apply to these actors and
therefore their legal personality is also different. According to the Advisory Opinion
of the International Court of Justice in the case of Reparation for Injuries Suffered
in the Service of the United Nations: “the subjects of law in any legal system are not
necessarily identical in their nature or in the extent of their rights, and their nature
depends upon the needs of the community.”
31
According to J. van Essen
32
de facto
regimes possess at least some form of international legal personality and have to be
regarded as relevant legal actors in the international community.
To understand what degree of international legal personality the
de facto
regimes
possess, it is necessary to evaluate what
rights and duties
they exercise
.
Given the unclear status regarding the international legal personality of
de facto
regimes, the categorization of rights and duties of the
de facto
regimes in international
and national law is not without complications. This does not mean, however, that the
de facto
regimes do not possess any rights and duties. International law
has developed
certain basic mechanisms for insuring that the development is not left to be ruled by anarchy
.
3.1.1
De facto
regimes and the prohibition of the use and the threat of force
The question arises as to whether the prohibition of the use and the threat of use
of force refers to
de facto
regimes.
In the proposal of the declaration of the principle of international law concerning
the prohibition of the use and the threat of force several states suggested including the
application of the prohibition to all political entities, including
de facto
regimes. The
fact that the view of this group of states was excluded from the text of Article 2(4)
of the UN Charter led Corten
33
to the conclusion that no group of states has
consistently defended an extension of the notion of ‘international relations’ as an
essential element of the prohibition of the use of force.
Frowein
34
conversely argues that state practice, especially within the United
Nations, clearly proves that the
prohibition of the use of force applies to all independent
31
Reparations for Injuries Suffered in the Service of the United Nations, I.C.J. Reports 1949, paragraph 178.
Český překlad in : ŠTURMA, P. a kol.
Casebook.Výběr případů z mezinárodního práva veřejného
. 2. doplněné
vydání. Praha: Univerzita Karlova Právnická fakulta, 2010, s. 33 a násl.
32
Supra n. 26, p. 34.
33
Ibid.
34
FROWEIN, J.
De facto regime
(2009)
www.mpepil.comaccesed 14 July 2011, para 4.