Who is a subject of international law?

 

NB: The aim of this post is to simplify an area of international law that may be confusing to students of international law. This is not comprehensive and you are encouraged to read further. Textbooks accessible online include Dixon and Shaw..

INTRODUCTION

Some questions that are relevant to the study of international law include who can create international law; who has rights, duties, and powers under international law (or international legal personality); and who is regulated (governed), directly or indirectly, by international law.

International legal persons – also called subjects of international law – are capable of possessing, exercising and/or enforcing varied degrees of rights and duties under international law. They may also contribute to the creation of international law.

International legal persons can be broadly categorized as States and non-State actors (see below). As opposed to these subjects, there are also other “participants” of international law, who cannot directly claim and exercise their rights, except through States (for example, private companies), and those who influence the development of international law even if they are not subjects (for example, groups that influence the creation of international anti-terrorism treaties).

States , at a conceptual level, have equal rights and duties under international law by virtue of the principle of sovereign equality.  Others – non-State subjects – have degrees of rights and duties that vary amongst their different categories (for example, individuals as opposed to international organizations), and within their own category (for example, different international organizations have different rights and duties).

Dixon – “A subject of international law is a body or entity recognized or accepted  as being capable, or as in fact being capable, of possessing and exercising  international law rights and duties (p. 116).”

CATEGORIZATION OF SUBJECTS OF INTERNATIONAL LAW

STATES

The moment an entity becomes a State (see criteria for statehood), it becomes an international legal person and acquires international legal personality. States are the original subjects of international law – i.e. international law was created to regulate relations between States.

NON-STATE ACTORS

Non-State actors with international legal personality include individuals, armed groups involved in conflicts (see here, here and here), and international organizations (see here for the UN and here for the EU).

While it can be confusing, some laws, for example, international humanitarian law, imposes obligations on all parties to a conflict (even if that party is also considered as a terrorist group by one or more States) and provides certain protections for individuals, irrespective of their ideologies or atrocities committed. For example, it is prohibited to torture or kill an individual in detention, whoever that individual maybe. Armed groups also have obligations under international humanitarian law to protect those detained in their custody.

There is still some debate on whether international non-governmental organizations, ad-hoc coalitions made of States during an armed conflict (as opposed to individual States), and multinational companies are, or should also be considered as, subjects of international law.

INTERNATIONAL ORGANIZATIONS

An international organization is defined as “an organization (1) established by a treaty or other instrument (2) governed by international law and (3) possessing its own international legal personality.  International organizations (4) may include as members, in addition to States, other entities.” (A. 2 (a) Articles on the responsibility of international organizations). The United Nations and the World Trade Organization are examples of international organizations. 

 

 

NATURE OF LEGAL PERSONALITY

It is possible to say that States have original personality and non-State actors have derived personality. This is because States become international persons the moment they are States. Other subjects derive their personality through other means – for example, for organizations, the extent of their rights and duties under international law may be described in their constitutions/charters/treaties that establish the organization.

WHAT IS THE SCOPE OF RIGHTS AND DUTIES OF SUBJECTS?

The rights, powers, and duties of different subjects change according to their status and functions. For example, an individual has the right of freedom from torture under international law. States have a duty under international law not to torture individuals or to send them to a country where there is a likelihood of that person being tortured. This right exists under treaty law, for example, under the International Covenant on Civil and Political Rights and under customary international law. The Convention against Torture and Cruel, Inhuman and Degrading Treatment places obligations on States not to torture and to extradite or prosecute those who commit torture. 

Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under international law. For example, this means that a subject of international law may be able to:

(1) bring claims before international and national courts and tribunals to enforce their rights.

(2) have the ability or power to come into agreements that are binding under international law (for example, treaties).

(3) enjoy immunity from the jurisdiction of foreign courts (for example, diplomatic immunity).

(4) be subject to obligations under international law (for example, obligations under international humanitarian law).

Remember that all subjects of international law do not have the same rights, duties and capacities. For an example, a diplomat has immunity before foreign courts because he is an agent of the sending State. See blog posts and media articles on the US- India diplomatic/ consular incident involving Devyani Khobragade here, here and hereOne State can bring a claim against another State before the International Court of Justice to enforce the rights of that State or on behalf of individuals. An individual on his own can’t bring a claim against a State before the ICJ. In other words, States have all the capacities mentioned above and individuals have only a few.

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – 2018.

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56 comments

      1. Actually, I buy the idea of those who consider individuals as merely objects when it comes to international law. Really the question can be posed. Defining subjects of international law, they are considered as those who have, rights and duties. But I don’t think the in ours present day society individuals have rights in the international scene. The “international super state” have swallow all the rights of individuals and that explains why we have human right abuses even in the event of the application of international law. Therefore one can say states are subjects of international law simply because they are used as coverages for the implementation of international law, but on the other hand individuals are just objects who face the arm of international laws.

      2. hello Dr can we say terrorism group can be a subject of international law?
        or it can be the source of international law

        1. If an armed group (irrespective of how we politically classify the group) is a party to a conflict, then the general view is that these groups and individual members have obligations and rights under international law. See https://www.icrc.org/eng/assets/files/review/2011/irrc-882-sassoli-shany.pdf (Should the obligations of states and armed groups under international humanitarian law really be equal?) and https://www.jstor.org/stable/3663166?seq=1#page_scan_tab_contents (Binding armed opposition groups)
          On the application of human rights law, see https://www.icrc.org/eng/assets/files/other/irrc_863_clapham.pdf (Human rights obligations of non-state actors in conflict situations) and http://www.oxfordscholarship.com/view/10.1093/oso/9780198808381.001.0001/oso-9780198808381 (The Accountability of Armed Groups under Human Rights Law).

  1. A South african airways passenger aircraft is making a non-stop transit through zambian air space on a flight to london at an altitude of 30000 feet.A zambian passenger on that flight assaults a south african steward and a british passenger.Upon arrival in london the zambian passenger is taken into custody and charged for assault.Do you think the london court has jurisdiction over the case?if so why?can zambia claim jurisdiction over the matter?

    1. zambia can equally claim jurisdiction under the territorial principle of jurisdiction by virtue of its air space. secondly zambia would still claim jurisdiction under active nationality principle if permitted by its national laws like in Mexico where article 194 of its penal code provides that jurisdiction to prosecute anyone mexicans who commit crimes against foreigners and equally foreigners against mexican in any part of the world so long as that person has not been tried and only if he comes withing its national territory.
      US laws also permit punishment to American citizens who voilate american law in a foreign state

  2. please i would like to know more about legal personality of international institutions including their rights, duties and privileges, if any. Thank you for the earlier write up, it was educating

  3. Thanks Dr. for good materials would please elaborate further on how states differs from international organizations before international law

    1. Could you please tell the answer to the question or a link “Of the four examples that we discussed, which ones are applicable to individuals?”
      Iv been surfing in the internet for hours to have a clear answer for the question. By the way you are a really good teacher. I think my friends who are going to get selected to Colombo Uni are going to be really lucky, if you are going to teach them!

    1. Hi, Sorry for the late reply. Article 43(2) of Additional Protocol I states that members of the armed forces of a party to the conflict are combatants, except medical and religious personnel. Combatants, as you know, have a right to directly take part in hostilities. As you will read in the accompanying text, here, soldiers (i.e. members of the State armed forces) are considered as combatants in both international and non-international armed conflicts. Combatants, on the other hand, includes persons outside soldiers who falls within, for example, Article 43(1) of Additional Protocol I. The ICRC customary law rules refers to militia, paramilitary groups, volunteer corps and armed law enforcement agencies as forming part of the “armed forces”- when they constitute or are considered to form a part of the armed forces. See here for more. See http://www.icrc.org/customary-ihl/eng/docs/v2_cha_chapter1 and http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1 You may also wish to refer to Rule 4 of the ICRC customary law study and accompanying explanation for the definition of armed forces.http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule4

  4. Thank you for material. Please clarify, are ALL states are subjects of international law or only those which are UN member-states? Are the nations subjects to international law? Thank you advance. If you can cite from international law – it would be great.

  5. thanks alot teacher. Today i will be able to answer public international law questions.
    Just a clarification´ individuals are subject of international law in regard to comission of crimes´ does it means individuals are not subject of international law when they did commit crime?

  6. in the event of injuries suffered in the services of united nations, who has the capacity to bring claim for compensation? Is it UN or the state of the victims. Example, two indians peacekeepers were killed in south sudan in the serives of U

    1. Hi, you may be interested to read the reparations case – the summary is available here. http://www.icj-cij.org/docket/files/4/1837.pdf. The court held that both have the capacity – the State under the concept of diplomatic protection and for the UN, it is a functional protection. The court also refused to identify which one of the two would have priority in the case of a competing claim and instead suggested that the State and the UN enter into agreements in this regard.

    2. In order to succeed in the case where UN staffs have been injured in their cause of theirduty,you should consider whether you will have a locus standi and by the facts,it is the UN to brings claims to that state that breached their responsibilities.

  7. Can individuals, corporations and international organizations ever truly be subjects of international law?

  8. Hi Dr. thanks a lot for your immensely educative write ups. I enjoy the wisdom expressed in your opinions. I hope to follow more of them. Be blessed.

    1. In terms of textbooks, the standard textbooks are Brownlie (https://global.oup.com/academic/product/brownlies-principles-of-public-international-law-9780199699698?cc=lk&lang=en&), Shaw (https://www.amazon.co.uk/International-Law-Malcolm-N-Shaw/dp/1107612497/ref=dp_ob_image_bk), Oppenheim (for more advanced research http://opil.ouplaw.com/view/10.1093/law/9780582302457.001.0001/law-9780582302457), Evans (https://global.oup.com/academic/product/international-law-9780199654673?cc=lk&lang=en&). I personally find Dixon to be a very easy read and would recommend it to beginners (https://global.oup.com/academic/product/textbook-on-international-law-9780199574452?cc=lk&lang=en&). In terms of other authors, I think that depends on the area of international law that you are interested in. For example, I always like to read commentaries to various treaties. For example, Simma’s book on the UN Charter and Clapham’s book on the Geneva Conventions are very good. (https://global.oup.com/academic/product/the-charter-of-the-united-nations-9780199580156?cc=lk&lang=en& and https://books.google.lk/books/about/The_1949_Geneva_Conventions.html?id=0IGhCgAAQBAJ&redir_esc=y). Also, blogs are really useful to identify good authors who write on the subject that you are interested in. Look at the EJIL blog, Opinio Juris, Lawfare, Just Security etc.

  9. Can someone help me to comment on the fallacy that states are the only subjects of international law an exclusively

  10. This blog has been very important to me as an undergraduate in studying both law and international studies. It is well explained and structured and thank you so much for the effort you put into your work! Please keep up with updating this blog because it is a great service that you render to prospective students from around the world. You are most appreciated.

  11. i actually find this helpful. My question is, what is the meaning of “full” subjects. the whole idea s confusing to me when it comes to arguing that individuals are full subjects of international law whereas states are the ones responsible for their subjects hence them being full subjects. secondly, international law is not binding so what of those individuals that are within a coutry that is not bound by international law.

  12. am a first tear student and currently studying this introduction to law its soo helpful thank you for you amazing notes

  13. Very helpful piece.. i have a question “Why is International law now now defined as a law binding not only states but even individuals and to what extent”?

  14. Sir kindly guide me .some school of thoughts says that just state is the subject of international law but according to my opinion state represent their individual if this trough then how we can considere just state is the subject of international law

    1. It is when a State makes it clear that it chooses not to be bound by a certain provision/s or aspect/s of the treaty to which it will be a party. A useful definition of what is a reservation can be found in here (http://legal.un.org/ilc/texts/instruments/english/draft_articles/1_8_2011.pdf) from the ILC: A reservation is a “… unilateral statement formulated by a State or an international organization at the time when that State or that organization expresses its consent to be bound by a treaty, by which its author purports to limit the obligations imposed on it by the treaty, constitutes a reservation.” Under the Vienna Convention on the Law of treaties a reservation is defined as a “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” *Article 2 (d). Two examples on reservations to the ICCPR: (1) “That because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15” and (2) “Australia makes the reservation that the provision of compensation for miscarriage of justice in the circumstances contemplated in paragraph 6 of article 14 may be by administrative procedures rather than pursuant to specific legal provision.”

  15. Contiguo al muro del Panteón Oficial de la Asociación Argentina de Actores, ha ido creciendo -como si de una hiedra se tratase- una mutual anexa de figuras menores del espectáculo. La obra que llega de Broadway tiene fecha de estreno el jueves 9 de abril en el Metropolitan CITI y las entradas ya están a la venta a través de Plateanet bien ingresando al sitio desde donde también se puede acceder a material, información.

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