SUBJECTS OF INTERNATIONAL LAW by Mahek Upadhayay @LexCliq

MEAINING OF “SUBJECTS OF INTERNATIONAL LAW”

In any legal system, certain entities will be regarded as possessing rights and duties enforceable at law. They are able to do so this because the law recognizes them as ‘legal personality’, possessing the capacity to have and to maintain certain rights, and being subject to perform specific duties. The term “subjects of International Law” refers to entities endowed with legal personality, capable of exercising certain rights and duties on their own account under the international legal system.

According to Starke, the term ‘subject of international law’ means:

  1. an incumbent of rights and duties under international law
  2. the holder of a procedural privileges of prosecuting a claim before an international tribunal
  3. the possessor of interests for which provision is made by international law.

Oppenheim says that an International person is one who possesses legal personality in international law meaning one who is subject of international law so as to enjoy rights, duties or powers established in international law and generally, the capacity to act on the International plane either directly or indirectly through another state.

WHO ARE UNDER SUBJECT-MATTER OF INTERNATIONAL LAW?

As to the subject of international law, jurists of the world are divided into two groups. However, some moderates tried to bring about a compromise between them as to the proper focal point of international law. However, there are some moderate jurists who tried to bring about a compromise between them as to the proper focal point of international law. These differences leads to the emergence of three popular theories as follows:

  1. States are alone are subjects of international law
  2. Individuals alone are subjects of international law
  3. States, Individuals and certain non-state entities are subjects.

REALIST THEORY (STATES ARE ALONE SUBJECTS OF INTERNATIONAL LAW)

According to the orthodox positivist doctrine, States are the only subjects with international law is concerned. This theory asserts that states alone, as sovereign political entities, are the bearers of rights and obligations under international law. Oppenheim falls in tune with the orthodox view and holds that “the laws of nations is primarily a law of international conduct of states and not of their citizens “. Article 34 of the statute of the ICJ also makes the traditional view clear and seems to accept it when it provides that only states may  be parties in cases before the court.

According to this view individuals lack any juridical personality because they possess neither rights nor duties under International Law. The jurists of this school maintains that individuals are only incumbents of rights and duties at international law. Therefore, they are the ultimate objects of international law and its subjects. Thus a distinction is kept in mind between ‘subjects’ and ‘objects’. The term ‘subjects’ has been often used to signify the ‘doers’ or the ‘actors’ directly on the amphitheatre  of the world, whereas the term ‘objects’ is used to denote the ‘focus of interest among states. Therefore it was established from this theory was that, as far as the participation in the international interactions is concerned, it is the State alone which have the exclusive right, but such participation is directed to achieving the ends and purposes which are ultimately related or traceable to individuals.

Criticism: This theory has been subjected to severe criticism by jurists. It does not tell about the certain rights bestowed upon individual and certain international offences for which individual may be punished. Right conferred upon slaves and punishment to pirates are good examples where individual is directly a subject of international law.

FICTIONAL THEORY (INDIVIDUALS ALONE ARE SUBJECTS OF INTERNATIONAL LAW)

As against the orthodox view, a sizeable juristic opinion has, throughout, been maintaining that notwithstanding the pre-eminent status of national states in international law, it is he individual human beings who, in ultimate analysis, are the subjects of international law. Prof. Kelson, the chief exponent of this theory analyzed the concept of state and held the view that the notion of a 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. Westlake also remarked that, the rights and duties of the states are only the rights and duties of men who compose them .

Thus, as per this theory, welfare of individuals is the ultimate goal of international law and therefore individual in the only subject of it.

Criticism: This theory regarded the state as a fiction and based that rights and duties of the states are only the rights and duties of men who compose them and therefore it is ultimately individuals who are the subjects of international law. In practice, international law for its major part still deals with the rights and duties of state. In practice, international law for its major part still deals with the rights and duties of states. Therefore, it would be absurd to contend that states are not the subject.

FUNCTIONAL THEORY (STATES, INDIVIDUALS AND CERTAIN NON-STATE ENTITIES ARE SUBJECTS OF INTERNATIONAL LAW)

According to moderate jurists, state as well as individuals and certain non-state entities are subjects of international law. Neither can be state exist in the sphere of international relations without individuals, nor can the personality of the individual be expanded to that of state to meet the requirements, assert its rights and fulfil obligations which the provisions of international law imposes.

This functional view is more or less substantiated on the basis of the following supporting facts:

  1. International Organizations: It is now a general consensus that international organizations are also the subjects of international law. ICJ held that, ‘UN is a subject of international law and capable of possessing rights and duties and it has capacity to maintain its rights by bringing international claims. The organization was intended to exercise and enjoy and is in fact exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality and to capacity to operate upon an international plane. it could not carry out the intentions of its founders if it was devoid of international personality.
  2. Individuals: International treaties have conferred upon individuals certain rights and have made it possible for individuals to approach international tribunals to claim the benefits as provided in international law. There are provisions for punishment, if they fail to perform their duties. It implies that they are also the legal actors or to say, international persons.
  3. Non-state Entities: Territories which have not attained full status, like colonies and protectorates, have been regulated by several law-making conventions. Article 8 of the constitution of the WHO permits the recognition of insurgents. Insurgents, who are a group of individuals, and who do not constitute a state, are granted certain rights in international law.

CONCLUSION

For promoting the growth of a body of world law transcending states, and applicable on a footing of equality to individuals, corporations, international organizations, and state.

Starke concluded the whole issue in following words:

  1. That under modern practice, the number of exceptional instances of individuals or non-state entities enjoying right or becoming subject to duties directly under international law has grown.
  2. That the doctrinal rigidity of the procedural convention precluding an individual from prosecuting a claim under international law except through the state of which he is a national, has been to some extent tempered.
  3. That the interest of the individuals, their fundamental rights and freedom, etc., have become a primary concern of international law.

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