Subjects of International Law.
Author: Jatin Garg, VIPS, Delhi
In any legal system, certain entities will be regarded as possessing rights and duties enforceable at law. Thus an individual may prosecute or be prosecuted for assault and a company can sue for breach of contract. They can do this because the law recognizes them as legal persons possessing the capacity to have and to maintain certain rights, and being subject to perform specific duties.
In municipal law, individuals, limited companies, and public corporations are recognized as each possessing a distinct legal personality, the terms of which are circumscribed by the relevant legislation.
Subjects of international law.
The term subjects of international law refer to entities endowed with legal personality, capable of exercising certain rights and duties on their account under the international legal system. Personality in international law necessitates the consideration of the international system and the capacity to enforce claims.
According to Starke, the team “subject of international law” means:
- An incumbent of rights and duties under international law
- The holder of procedural privileges of prosecuting a claim before an international tribunal.
- The possessor of interests for which provision is made by international law.
Oppenheim says that an international person is one who possesses legal personality in international law meaning one who is subject of international law to enjoy rights, duties or powers established in international law to enjoy rights, duties or powers established in international law and generally, the capacity to act on the international plane either directly or indirectly through another state.
Theories regarding subjects of international law.
Jurists of the world are divided into two groups. However, some moderates try to bring about a compromise between them. The difference of opinion among jurists as to what entities are deemed to be the subjects of international law had led to the emergence of three popular theories. The sum-up of these theories can be summarized as follows:
- States alone are subjects of international law. (Realist theory)
- Individuals alone are subjects of international law. (Fictional theory)
- States, individuals, and certain non-state entities are subjects. (Functional Theory)
According to traditional positivist doctrine, states are the only subjects with which international law is concerned. This theory asserts that states alone, as sovereign political entities, are bearers of rights and duties under international law. International law regulates the conduct of states and it is stated which performs all types of international obligations under treaties and conventions. Prof.Oppenheim falls in line with the traditional view.
According to this theory, Individuals are the object of international law. The recognition of the sovereignty of each nation is the essence of international law. Individuals and non- state entities have no place in international law. The jurists of this school maintain that individuals are only incumbents of rights and duties st international law. Therefore, they are the ultimate objects of international law and not its objects.
This theory has been subjected to various criticism by jurists. It does not tell about certain rights bestowed upon the individuals and certain international offenses for which an individual may be punished.
In Reparation for injuries suffered in the services of the UN, ICJ held that Un can bring an international claim against the state for obtaining reparation when an agent of the UN suffers injury in the performance of his duties. The court by implication rejected the proposition that only states are subjects of international law.
According to exponents of this theory, it is individual beings that are subjects of international law. According to them, individuals are the ultimate subjects of international law. The state is an abstract concept and it is no more than aggregate of individuals who compose it. So in the ultimate analysis, it may be noted that the policies which are made in the international plane are for the ultimate regulation and control of individual conduct in the international scenario.
Prof. Kelson is the chief exponent of this theory and he reiterated that notion of the state is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons living in a defined territorial area. The difference between international law and state law dissolves, both laws ultimately apply to individuals and they are for the individual alone. While the former applies to them directly and the latter is applied indirectly that is through states.
Lauterpacht also opined that the claim of the states to unqualified exclusiveness in the field of international relations was tolerable at a time when the interdependence of the interest of the individual cutting across national frontiers was less obvious than they are today.
This theory regarded the state as fiction and based on the fiction that rights and duties of the state are only the duties and rights of men who compose them and therefore it is ultimately individuals who were the subjects of international law. From the purely theoretical standpoint, and in logic, Kelson,s view is undoubtedly correct. But so far as regards the practice of states is concerned, the primary concern of the international law is with the rights and duties of the states. Although from time to time, some treaties do provide that individual may have rights, for example, reference may be made to the 1965 convention on the settlement of investment disputes between states and nationals of other states. But otherwise, it is generally found that treaty provision is couched in the form of rules of conduct binding upon, or conferring rights on states.
Jurists having a moderate view criticized the extreme view given by the supporters of the above theories. If the traditional view is ignoring the status of an individual completely, the modern view is trying to assert the position of individuals aggressively. Accordingly both the views need rethinking. Neither the state exist in international context without the interference of the individuals nor the personality of an individual be expanded to that of a state.
According to moderate jurists, state, as well as individuals and certain non-state entities, are subject to international law. In the past 50 years or so, substantial changes have been made to the field of the subject of international law. There has been a proliferation of new participants in international relations. The scope of international law has widened and new entities have emerged on the international front.
So according to this theory, there are various entities which can be called as subjects of international law. Entities such as International organizations, Individuals, Nonstate entities, and states play an important role in the contemporary era and they all can be regarded as “subjects of international law”.
So far, this theory seems to be more consistent with the terms and situation of the present era and the relations which exist till now. So functional theory can be regarded as the aptest theory in this regard.
Subjects of international law.
As mentioned earlier, following are considered to be subjects of international law:
- International organizations.
The state has been since time immemorial considered to be subject of international law. Also, it can be asserted that the states are primary subjects of international law as the obligations flow from the states. It is the states which are recognized and held liable not for their acts but even for the acts committed by their citizens also. Also in terms of international trade and relations, it is the state which has the duty and power to conclude relations with the international front. For ex, in India, liberalization, and globalization of the economy was done after the positive intervention from the government.
Until the outbreak of the first world war, world affairs were to a large extent influenced by the periodic conferences held in various parts of the world. A conference could only be called into being upon the initiative of one or more of the nation. This procedure implied several delays in the resolution of the issues.
But after the first world war, the creation of the league of nations paved the way for the forthcoming change in the international organization. This can be regarded as a changing point in the history of international organizations. United Nations-led to the development of international organizations. Various NGOs came into the international field. Amnesty International, WHO, IMF, EU, Red Cross, etc. emerged.
In Reparation for injuries suffered in the service of the united nations, there were following legal issues:
- Whether the UN charter has given the organization such a position that it possesses, with its members, rights which it is entitled to ask them to respect? In other words, does the organization possess international personality?
- Whether the organization can bring an international claim against the responsible de jure or de facto government to obtain the reparation due in respect of the damage caused to the united nations?
- How is action by the UN to be reconciled with such rights as may be possessed by the state of which the victim is a national?
Answer to the first legal issue:
The organization is an international person. But this is not the same thing as saying that it is stated, which it certainly is not, or that its legal personality and rights and duties are the same as those of a state. It is a subject of international law and capable of possessing international rights and duties, and that it can maintain its rights by bringing an international claim.
Answer to second legal issue:
The damage specified in the present issue means exclusive damage caused to the interest of the organization itself, to its administrative machine, to its property and assets, and to the interests of which it is the guardian. It is clear that the organization can bring a claim for this damage. As this claim is based on the breach of international obligation on the part of the member held responsible by the organization, the member can not contend that this obligation is governed by municipal law.
Answer to third legal issue:
When the victim has a nationality, cases can occur in which the injury suffered by him may engage the interest both of his national state and organization. In such an event competition between the state’s right of diplomatic protection and the organization’s right of functional protection might arise, and this is the only case with which the court is invited to deal.
The action of the organization is based not upon his status as an agent of the organization. Therefore it does not matter whether or not the state to which the claim is addressed regards him as his own national, because the question of nationality is not pertinent to the admissibility of the claim.
Modern state practices and contemporary international law does demonstrate that individuals have become increasingly recognized as participants and subjects of international law. Though limited, individuals have international legal personality. This has occurred primarily but not exclusively through human rights law. Since the first world war, international law has continuously empowered the individual to a substantial extent.
According to Starke “interest of the individual, their fundamental rights and freedom, etc., have become a primary concern of international law under modern practice and the number of exceptional instances of individuals or non-state entities enjoying rights or becoming subject of duties directly under international law has increased”.
As a result of the modern development in international law and the UN charter, the individual has acquired status and a stature transforming him from “object of international compassion to a subject of international right”. By recognizing the fundamental rights of the individual, independent of the law of the state and imposing obligations or conferring rights directly upon him, the UN charter and various other law-making treaties have brought about a new phase in the recognition of rights of individuals to constitute him a subject of international relations.
Although the individual’s position is not equivalent to the states and international organizations, still the individual is said to have limited international legal personality due to the following reasons:
- Individuals have rights in international law.
- Individuals have duties/obligations in international law.
- Individual has a limited procedural capacity to enforce their international claims.
The individual is becoming the increasing concern of international law and many treaties are specifically aimed at the betterment of its position. But a wide gap still exists before the international law confers rights on individuals directly and without necessarily operating for this purpose through the medium and under the cover of the state.