“Public International Law is that system of law which is primarily concerned with the relations between States.” It is the body of rules binding on States and international organisations in their interactions with other States, international organisations and individuals. It includes law relating to the functioning of these organisations, their diplomatic relations, conducting of war, trade etc.
Originally, it included law for regulating interactions between the state only. For example: -International Law sets out the legal obligations, responsibilities, and rights of one State against another based on sovereign equality. But, with time International Law developed to regulate relations between States and non-State actors; for example, individuals, international organizations, and multinational companies. Thus, making it an evolving branch of Law.
Concept of Legal Personality
Personality involves the examinations of certain concepts within the law such as status, capacity, competence as well as nature and extent of particular rights and duties. In any legal system, certain entities are regarded as possessing rights and duties enforceable by law. For example- an individual may prosecute or be prosecuted for assault or a company can sue for breach of contract. All of this is possible because law recognises them as legal persons, possessing certain rights and subject to certain specific duties. But not everybody or everything can be regarded as a legal person, it depends upon the scope and character of law.
Subjects of International Law
“A subject of International Law can be defined as an entity capable of possessing international rights and duties and having the capacity to protect its rights by bringing international claims”. In other words, it refers to entities endowed with legal personality. It is not necessary for an entity to become a subject of International Law to possess all rights and duties of it. Even if it is competent to perform a few acts or a single act provided by the rules of International Law, it is regarded to have possessed the capacity to become a subject of International Law.
Theories Regarding Subjects of International Law
As mentioned earlier, International Law is not stagnant and keeps on evolving with time. With the increasing scope of International Law, many other entities have been given international personality. This led to an intriguing question- whether they be treated as subjects of International Law or not? And also, if they were given the international personality then what shall be the qualification of their being the subjects of International Law. So, there are different theories addressing this debate. The most prominent theories are explained below:
States alone are subjects of International Law (REALIST THEORY)
This theory emphasises on the traditional and rather a narrow view that States alone, as sovereign political entities, irrespective of the individuals composing them, are bearers of rights and duties under International Law. They rely upon that International Law came into existence for reforming conduct of only nation States and nobody else.
Prof. Oppenheim’s believes line up with this theory, “The law of nations is primarily a law of international conduct of States and not of their citizens”.
The jurists of this school believe that States are subjects, while individuals who compose these States are objects of International Law. Individuals do not have the procedural capacity to enforce their claims in International Law and if any, it is only through the medium of the States.
Criticism: – This theory underwent severe criticism and is no longer valid with the evolution of International Law as it does not talk about certain rights bestowed upon individuals and the offences for which they can be punished under International Law. Example-Rights bestowed upon slaves, punishment to pirates etc.
In Reparation for injuries suffered in the service of the UN, the Court by implication rejected the theory that only States are subject of International Law. It was held that the UN has the capacity to bring an international claim against the State for obtaining reparation when its agent suffers injury in the performance of his duties involving responsibility of States.
Individuals alone are subjects of International Law (FICTIONAL THEORY)
Contrary to the traditional view, supporters of this theory believe that on ultimate analysis of International Law, it will be evident that only individuals are the subjects of International Law. The reason given to support this theory is that a State is an abstract concept & does not have the ability to manifest its will. A State is nothing except the aggregate of the individuals. Though the rules of International Law relate expressly to the Nation States but actually the States are the fiction for the individuals composing them.
The chief exponent of this theory, Prof. Kelson held the view that the notion of 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. He concluded that the difference between state laws and International Law stood dissolved as both laws apply to the individuals and they are for them alone. The former is binding on them directly whereas the latter bind indirectly, through States.
Prof. Westlake, “The rights and duties of the States are only the rights and duties of men who compose them.” Ultimately making individuals as subjects of International Law.
Criticism: – This theory labelled State as fiction but in practice, International Law for its major part still deals with the rights and duties of the States. Also, even though individuals possess several rights under International Law, in most cases claim on his behalf can only be brought by the States whose national he is. Thus, making the procedural capacity of the individual to enforce the observance of these rights grossly deficient.
Hence, it would not be correct to altogether exclude States from being subjects of International Law.
- States, individuals and certain non-State entities are subjects of International Law (FUNCTIONAL THEORY)
This theory broadened the scope of International Law and criticised the extreme and narrow views given by the other two theories. This theory not only clubbed the other two theories but also went a step ahead to include international organisations and certain other non-state entities as subjects of International Law. The current position of International Law, therefore, is that besides States, individuals, public international organisations and some non-state entities are subjects of International Law.
States being original subjects, their primacy in International Law is beyond any doubt. Modern International Law is created by States, primary sources being treaties and customs. Under Art 34 of the Statute of the ICJ, only States may be parties to cases before the court.
States enjoy full international personality with all its attendant rights and duties. They have that personality ab initio and ipso jure – from the moment of their birth and by virtue of law.
Oppenheim stated 4 conditions for the existence of States- People, territory, government and sovereignty.
In the Reparations Opinion (1949), the International Court stated that “A State possesses the totality of international rights and duties recognized by International Law”. Thus, highlighting the important elements that went into international personality: treaty-making power, privileges and immunities and the capacity to bring an international claim.
Individuals travelled a long way from being objects to subjects of International Law. It is a matter of fact that they have limited rights under International Law, and even more limited procedural capacity, accorded to them by States. In its development, some rights are conferred upon individuals even against States. Example- European Convention on Human Rights,1950.
3. INTERNATIONAL INSTITUTIONS/ORGANIZATIONS
International organizations are of fairly recent origin, the first probably being the Rhine Commission established after the 1815 Congress of Vienna among the riparian States to regulate navigation on the river in their common interests.
International organisations are defined as organizations developed by a treaty or other instrument governed by International Law possessing its own legal personality. Examples- World Trade Centre, United Nations etc.
Some of the rights conferred on international organizations are- Treaty making power, privileges and immunities, right to bring an international claim, protection for its agents acting in official capacity etc.
4. 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. Their functions and powers are limited because they exist for a specific function. These entities fall into different categories i.e., Member of the Composed States or federal States, Insurgents and Belligerents, National Liberation movements, international territories. Minorities and indigenous people also come under this category.
The developing character of International Law now addresses certain non-state entities, individuals and international organizations besides States as subjects of International Law, though endowed with limited rights. The interest of individuals, their fundamental rights and freedom, etc. have become a primary concern of International Law. Thus, drawing the conclusion that the use of State as a medium and screen for the application of International Law cannot now do justice to all the far-reaching aims of modern system.
This article is written by Munmun Kaur, a law student from Law Centre-I, Faculty of Law, Delhi University.
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