Introduction

Introduction to international law, subjects and sources of international law and background material.

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.

What is public 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.

 

  • Public international law  is the body of rules that is legally binding on States in their interactions with other States, individuals, organizations and other entities. It covers a  range of activities; such as, diplomatic relations, conduct of war, trade, human rights and sharing of oceanic resources. ✐ Give examples of other areas of international law.
  • Traditionally,  international law regulated interactions between States. For example, it determined how a State should treat foreign diplomats who are in its country or when a State should declare war against another State.
  • International law sets out legal obligations, responsibilities and rights of one State against another. This aspect of international law is based on sovereign equality. In other words, each State is a sovereign and each State is equal and independent of all other States. This means that when international law regulates the relations between States, it applies equally to all States.  ✐ Do you think that all States are equal in their relations with each other and international law applies equally to all States? What example would you provide to support your answer? See here for criticism of the US’ and China’s approach to international law. 
  • International law also regulates relations between States and non-State actors; for example, individuals, international organizations and multinational companies. In the case of individuals, international law gives each individual certain rights. For example, international human rights law gives the individual a right not to be tortured. This means that a government cannot torture even someone they deem a terrorist to obtain information. International law also imposes on States certain obligations and responsibilities to protect individuals. For example, when States are at war, one State cannot target and kill innocent civilians of another State.
  • It important to remember that international law is not stagnant. It is evolving. International law covers diverse subjects and has multiple fields of application. For example, we find that international law applies, inter alia, to:  initiation of wars (laws relating to use of force); conduct of war (humanitarian law); diplomatic relations (diplomatic law); trade and investment; treatment of people (human rights law); ocean resources (law of the sea); protecting the environment (environmental law),  space law, and to certain crimes (international criminal law).

Reading material

 

© 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.