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..
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
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 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.
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 here. One 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.