Who is a subject of international law?

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

  • States and non-State actors like individuals, international organizations, multinational companies and international non-government organizations are regulated by, or subjected to, international law. They are called subjects of international law.  These subjects  have international legal personality. In other words, they have certain rights and duties under international law and they can exercise these rights and duties. ✐ Do all subjects of international law have the same rights and duties? Give some examples of the rights and duties possessed by States, individuals and international organizations.

WHO IS  A SUBJECT OF INTERNATIONAL LAW?

  • A subject of international is (1) an individual, body or entity; (2) recognized or accepted; (3)  as being capable of possessing and exercising; (4) rights and duties; (5) under international law. (Dixon)
  • Subjects of international law are States and non- State actors like individuals and international organizations. Some argue that international non-governmental organizations and multinational companies also fall into the category of subjects of international law.

HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF INTERNATIONAL LAW?

  • An entity is a subject of international law if it has “international legal personality”. In other words, subjects must have rights, powers and duties under international law and they should be able to exercise those rights, powers and duties. 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 and 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 is a right under treaty law, for example, 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 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 should be able to:

(1) bring claims before international and national courts and tribunals to enforce their rights, for example, the International Court of Justice.

(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, immunity for acts of State.

(4) be subject to obligations under international law (Dixon).

  • 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 its rights. An individual on his own can’t bring a claim against a State before the ICJ. States have all the capacities mentioned above and individuals have only a few. ✐ Of the four examples that we discussed, which ones are applicable to individuals?

 

© Ruwanthika Gunaratne and Public International Law at https://ruwanthikagunaratne.wordpress.com, 2008 – present. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction to the original content.

38 comments

    1. Many authors espouse that, traditionally, the principal subjects of international law were States (some others disagree), while individuals were considered as “objects” of international law: i.e. individuals could only benefit from international law, if they acted through States. Today, we consider States, individuals, multilateral and international organisations as those entitled to direct benefits and/ or subject to duties and responsibilities under international law with the ability to enforce claims under international law. Shaw adds that public and private companies and certain groups (i.e. those engaging in terrorism) may also act with some degree of influence in the international plane, even if not all of them can be considered as subjects of international law. So, one cannot really say there are “X” number of subjects or group of subjects under international law. Each entity must be assessed based on the existence (or non-existence) of rights, duties and powers under international law, including the ability to bring claims.

      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.

  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?

  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.

  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.

  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

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