Application for Revision of the Judgment of 11 July 1996 (Bosnia and Herzegovina
v.
Yugoslavia)
, ICJ Reports, 2003, p. 7.
t h e s u b j e c t s o f i n t e r nat i o na l l aw
211
The fundamental rights of states
The fundamental rights of states exist by virtue of the international legal
order, which is able, as in the case of other legal orders, to define the
characteristics of its subjects.
72
Independence
73
Perhaps the outstanding characteristic of a state is its independence, or
sovereignty. This was defined in the Draft Declaration on the Rights and
Duties of States prepared in 1949 by the International Law Commission as
the capacity of a state to provide for its own well-being and development
free from the domination of other states, providing it does not impair
or violate their legitimate rights.
74
By independence, one is referring to a
legal concept and it is no deviation from independence to be subject to the
rules of international law. Any political or economic dependence that may
in reality exist does not affect the legal independence of the state, unless
that state is formally compelled to submit to the demands of a superior
state, in which case dependent status is concerned.
A discussion on the meaning and nature of independence took place
in the
Austro-German Customs Union
case before the Permanent Court
of International Justice in 1931.
75
It concerned a proposal to create a
free trade customs union between the two German-speaking states and
whether this was incompatible with the 1919 Peace Treaties (coupled
with a subsequent protocol of 1922) pledging Austria to take no action to
compromise its independence. In the event, and in the circumstances of
the case, the Court held that the proposed union would adversely affect
Austria’s sovereignty. Judge Anzilotti noted that restrictions upon a state’s
liberty, whether arising out of customary law or treaty obligations, do not
as such affect its independence. As long as such restrictions do not place
72
See e.g. A. Kiss,
R´epertoire de la Pratique Fran¸caise en Mati`ere de Droit International Public
,
Paris, 1966, vol. II, pp. 21–50, and
Survey of International Law
, prepared by the UN
Secretary-General, A/CN.4/245.
73
Oppenheim’s International Law
, p. 382. See also N. Schrijver, ‘The Changing Nature of State
Sovereignty’, 70 BYIL, 1999, p. 65; C. Rousseau, ‘L’Ind´ependance de l’ ´Etat dans l’Ordre
International’, 73 HR, 1948 II, p. 171; H. G. Gelber,
Sovereignty Through Independence
,
The Hague, 1997; Brownlie,
Principles
, pp. 287 ff., and Nguyen Quoc Dinh
et al
.,
Droit
International Public
, p. 422.
74
Yearbook of the ILC
, 1949, p. 286. Judge Huber noted in the
Island of Palmas
case that
‘independence in regard to a portion of the globe is the right to exercise therein, to the
exclusion of any other state, the functions of a state’, 2 RIAA, pp. 829, 838 (1928); 4 AD,
p. 3.
75
PCIJ, Series A/B, No. 41, 1931; 6 AD, p. 26.
212
i n t e r nat i o na l l aw
the state under the legal authority of another state, the former maintains
its status as an independent country.
76
The Permanent Court emphasised in the
Lotus
case
77
that ‘[r]estrictions
upon the independence of states cannot therefore be presumed’. A similar
point in different circumstances was made by the International Court of
Justice in the
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