Subjects of International Law | Public International Law - CLAT PG PDF Download

Introduction

• Who has the authority to create international law?
• Who holds rights, duties, and powers under international law?
• Who is governed by international law, either directly or indirectly?
• According to Dixon, a subject of international law is an entity recognized as capable of possessing and exercising international law rights and duties.
• The term "subjects of international law" refers to entities with legal personality, capable of exercising certain rights and duties under the international legal system.
• Starke defines a subject of international law as an entity with rights and duties under international law, procedural privileges before international tribunals, and interests protected by international law.
• Oppenheim describes an international person as someone with legal personality in international law, enjoying rights, duties, or powers established by international law.

Theories Regarding Subjects of International Law

• According to the orthodox positivist doctrine, states are the only subjects of international law.
• According to Prof. Oppenheim, "the law of nations is primarily a law of international conduct of states and not of their citizens".
• If individuals have any right then it can be claimed only through the states.
• The Jurists of this school believes that the states are the subjects of international law, while individuals are the objects of international law.

Criticism of Realist Theory

• It is silent on the rights of the individuals and the international offences for which individuals may be punished.
• In Reparation for injuries suffered in the services of the UN case, the ICJ held "that the UN has the capacity to bring an international claim against the State for obtaining reparation when an agent of UN suffers injury."

Fictional Theory (Individuals alone are subjects of International Law)

• In this theory, Jurists believe that Individuals are the only subjects of international law as states do not have soul or capacity to form an autonomous will.
• Prof. Kelson opined that the laws ultimately apply to the individuals and are for the individuals alone.
• As per this theory, the welfare of an individual is the ultimate goal of international law.

Criticism of Fictional Theory

• The primary concern of International law is the rights and duties of the states.
• Individuals possess many rights under international law but their capacity to enforce these rights is limited.
• In most of the cases, a state files the claims for the rights of the citizens.
• In Mavrommatis Palestine Concession case (1934), the PCIJ observed that "It is an elementary principle of international law that a state is entitled to protect its subjects".

Functional Theory (States, Individuals and some non-state entities are subjects of International law)

• The jurists with a moderate view criticize both of the above theories.
• These Jurists believe that States, Individuals and certain non-state entities are subjects of international law.
• Now, Individuals got right even against the states.
• An example of this is the European Convention on Human Rights in 1950.
• Under International Covenants on Human rights 1966, it is held that individuals can claim rights directly under international law.
• In some cases, Non-state actors like Colonies and Protectorate states are treated as subjects of international law.

International Organizations as Subjects of International Law

• International organizations have become significant subjects of international law since the 20th Century.
• Examples include global organizations like the United Nations and regional organizations like the African Union.

Individuals as Subjects of International Law

• Modern state practices have acknowledged, albeit in a limited manner, that individuals possess international legal personality.
• While individuals do not have the same status as states, they have been granted legal personality due to various reasons.
• Individuals possess various rights under international law, which empower them to participate in the international legal system.
• The Universal Declaration of Human Rights (1948) grants various rights to individuals at the international level.

Conclusion

• In contemporary times, states are not the sole subjects of international law.
• While they remain the primary subjects, international organizations, individuals, and certain non-state entities have also gained subject status in international law.
• Individuals can now enforce their rights against states to some extent.
• However, a significant gap still exists between the rights of states and those of individuals.