CYIL 2015

JAN ONDŘEJ CYIL 6 ȍ2015Ȏ 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.com accesed 14 July 2011, para 4.

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