Subjects of International Law

(Prepared by Sharif Mollah, 3rd Batch, Department of law,BSMRSTU)

What is Subject of international law?
Subjects of International law means different entities which possess international personality. Or we can also say
that those entities whose rights, duties, and obligations come under the International law and these entities have
the power to confer these rights, duties and international obligations through the international claim. Subjects of
International law does not mean different types of international law. It simply means the entities which have rights
and power conferred in International law.Basically, a subject of international law is an individual,body or entity,
recognised or accepted as being capable of possessing and exercising rights and duties under international law.

Earlier this topic i.e. Subjects of International law is not so much debatable but after LPG policy came up in 1991,
this topic heated up and becomes so much debatable in International Organizations and the simple reason behind
this is that earlier only States were included or qualified for international personality but in the current scenario,
many other entities other than the state is qualified for the international personality.

There are mainly 5 subjects of International law i.e.1) States,2) International Organizations, 3)Non-State entities,
4)Individuals,5) Corporation.

All these are explained below:-

1.State:-States are considered as the original and major subject of International law and their legal personality
derived from the international system structure. And one good thing is that all the states enjoy equal rights and
international legal personalities. 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.

2.International Organisation:- The International organization is mainly concerned with the rights,
duties of each state and due to which the International organization lays down rules which every state observes
and follows.International Organizations are an association of different states which are formed with the help of a
treaty or agreement between different nations and its function goes beyond the states and deals with the conflict
of nations. With the establishment and rise of international organizations in the early 19th century, the legal status
of international organizations in International law is questioned. But, the status of international organizations is
determined to be a convention among the states.

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.
3.Non-State entities:- Non-State entities are those types of entities that are not registered as an
independent state and also not have a legal status like the states have. The Non-State entities have a special type
of personality in International law.

As they have not been registered as an independent state yet the Non-State entities have the right to participate in
international conferences and in every treaty. But one thing more that differs it from the states is that the Non-
State entities the rights and duties of Non-State entities are not similar to the state and their functions and power
were also limited as compared to the state. Non-State entities existed for a particular function and this reason is
considered for the limitation of rights and duties of Non-State entities. These entities fall into different categories
i.e. Member of the Composed States or federal states, Insurgents and Belligerents, National Liberation
movements, International territories.

4.Individual:- 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.

Individuals are always the main concern of International law and the growth of positivist theories of law darkens
the concern for human beings but in the 20th century again the International law became concerned for the
individuals. During the Second world war, the trend which up comes in international law had been towards
blaming or attaching direct responsibilities to the individuals for crimes committed against the peace and security.

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:

a)Individuals have rights in international law.

b) Individuals have duties/obligations in international law.

c)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

5.Corporation:- Sovereignty is the classic concept underlying the system of international law among nation-
states today. As a legal person incorporated in one of those nation-states, corporations seek to avoid international
liability for their actions by claiming they are not subjects of international law, only states are. However, for the
modern multinational corporation doing business all over the world, national boundaries are meaningless.
Consequently, such rigid concepts should not be dismissed when it is to the company’s advantage yet
simultaneously used to shield them from criminal liability. The 1948 Genocide Convention diplomatic notes are
ambivalent about including corporations in the term “person” as used in that treaty; consequently, a legal path is
open for an international court to find them to be so.

A multinational corporation owns and controls other corporate entities in at least one country aside from the place
of incorporation; therefore, a multinational corporation is established in more than one nation. The main difficulty
that many authors have raised before, is the multinational corporations’ accountability and governance gap caused
by the absence of corporate regulation in international law. Multinational corporations are subject to the domestic
laws of the different countries in which they operate, and they must comply with the obligations issued by that
state legislation.

Even though traditionally only states were subjects of international law, some authors affirm today that other
organizations, such as corporations are considered international persons for limited and functional purposes
because states can create private organizations such as corporations under domestic law. Recent interpretations of
international human rights law, international humanitarian law, and international trade law such as the North
American Free Trade Agreement (NAFTA) Chapter 11 actions and the new United States-Mexico-Canada
Agreement have been inclusive of corporations as subjects of international law alongside certain individuals.

Theory of the subject of international law

REALIST THEORY(state) :-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.
FICTIONAL THEORY(individual):-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.

FUNCTIONAL THEORY:-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.