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1.9 Coexistence of the old and new patterns

  • Traditional Grotian model: international community based on ‘statist’ vision of IR, characterised by co-operation and regulated interaction between sovereign states, each pursuing own interests

  • Modern Kantian model: universalist or cosmopolitan outlook, sees world as international community of mankind, not just states, stresses trans-national solidarity.

  • Two co-exist as international legal system develops and changes.

2 The historical evolution of the international community

2.1 Introduction

  • Evolution of international community can be divided into four stages (see headings below).

2.2 The emergence of the present international community before the Peace of Westphalia

2.3 Stage 1: From the peace of Westphalia to the end of the First World War

2.4 Stage 2: From the First to the Second World War

2.5 Stage 3: From the UN Charter to the end of the Cold War

2.6 Stage 4: From the end of the Cold War to the present

3 States as the primary subjects of international law

3.1 Traditional and New Subjects

States are fundamental, paramount, and primary subject of international community because:

  • They control territory in a stable and permanent way

  • They exercise principal lawmaking and executive functions

  • They posses full legal capacity – ability to be vested with rights, powers and obligations.

Other international entities either exercise control over territory for a short time or not at all.

Insurgents emerge through struggle against State to which they formerly belonged:

  • International community is very unwilling to recognise them.

  • Their existence is by definition provisional – they either win and become fully-fledged States or are defeated and re-assimilated into an existing State.

States and insurgents are traditional ‘subjects’ of the international community.

New players in international community in 20th century are:

  • International organisations

  • Individuals

  • National liberation movements

All these have limited legal capacity (to have rights and obligations, to act).

3.2 Commencement of the Existence of States

There are lots of states and they all have different rules and ways of doing things.

Municipal law usually lays down rules for the birth of juridical subjects – how is it that an entity becomes legal holders and rights and duties (e.g. persons at birth, corporations).

BUT International community has no legislation laying down rules for creation of states – it’s all based on Customary Law.

Characteristics of States which come to have State personality in international system:

  1. Central structure capable of exercising effective control over a human community living in a given territory

    • Bodies endowed with powers of authority and control over human community must be original, not derived from another legal order (state) – but there were exceptions to this in times of protectorates.

  2. Territory cannot belong to any other sovereign State, and Community there can no longer owe an allegiance to outside authorities

    • International law requires effective (not just asserted) possession and control over territory.

    • There have been limited exceptions to this principle – e.g. ‘Governments in exile’ in times of war – a political motivated move based on hopes of return of control over territory. If this prospect vanishes, then other States discard their recognition of the ‘government in exile’.

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