Subjects of International Law

Background

For the smooth functioning of every society, there exists a framework of certain regulations according to which the society functions. These regulations are what is called the ‘laws’ of the society, and they confer certain rights and duties upon their subjects. In a country, the laws would govern the citizens of that country, thus making them the subjects of those laws. But when we talk about international laws, we are taking into account hundreds of countries and even non-state actors. So, it may become a little difficult to ascertain the subjects of international law.

In the infamous case of Reparation for Injuries suffered in the Service of the United Nations[1], the International Court of Justice pointed out in its advisory opinion, “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States”.

To understand the subjects of international law, we first need to look into what international law itself is.

International Law

It was Jeremy Bentham who first coined the term ‘international law’ in 1789, in his work Introduction to the Principles of Morals and Legislation. International law performs almost the same functions as the municipal law would of a country. In fact, domestic legal systems are a part of the international legal system as well. However, international law takes more of a customary approach. It is a set of rules, agreements, treaties etc that are binding between nations. They are formulated by the countries themselves in order to provide benefit to their citizens as well as the world at large.

The main function of international law is to secure peace around the world, although it does achieve one too many goals like sustainable development, maintaining humanitarian rights, settling disputes through cooperation etc. The need for a system at world level was felt so that every nation could be secure from unwanted threats of other nations and world peace and cooperation could be achieved. One of the main bodies responsible for the development and application of international law is the United Nations (UN).

According to Martin Dixon, “A subject of international law is a body or entity that is capable of possessing and exercising rights and duties under international law”. Just like a citizen is subject to the law of his country, an entity can be a subject to international law. But what are those entities? Along with countries, individuals, international organisations and multinational companies can also be said to be the subjects of international law. However, jurists over the world are divided in opinion when it comes to subjects of international law. Here, we need to examine the three main theories regarding the subjects of international law.

Theories

There are three theories concerning the subjects of international law. They are the Realist theory, the Fictional theory, and the Functional theory. Let us examine each of them one at a time.

The Realist theory states that states alone are the subjects of international law. It is a traditional positivist doctrine which asserts that states, or countries, alone are the subjects of international law. Any and all rights and duties are conferred upon states and states and only states perform the obligations under the treaties and conventions. Also, this theory regards individuals as objects under international law. Individuals, as well as non-state actors, are not the subjects of international law. Prof. L. Oppenheim subscribes to this view. According to Sean Murphy, “States remain the central actors (subjects) in the field of international law, most international law is created, interpreted, complied with, or enforced by the governments of state”.

Critics of this theory counter with the question that international law consists of treaties that define the rights of individuals as well, but this theory fails to explain that.

The Fictional theory considers only individuals as the subject of international law. Since individuals are subject to domestic laws but the state is only an abstract term, ultimately it is the individuals that are the subjects of international law. Prof. Kelson states that the state is only a technical legal term which is applicable to a group of people living in a defined territory. He suggests, “The juristic person as an entity different from the so-called natural or physical person, the human individual, is an auxiliary concept of juristic thinking, an instrument of legal theory, the purpose of which is to simplify the description of legal phenomena…The state as a juristic person is the personification of a legal order constituting a legal community…The state as a community is not a biological, psychological, or sociological unit; it is, as a legal community, a specifically juristic unity”. State laws and international laws both apply to the same subject i.e. the individual, and international law is applied directly unlike state law which is applied through the state. The state is a fictional entity under this theory. Because state is nothing but the government of that country, and the government is composed of the people, it is the individuals only that exercise the rights and duties under international law. However, it is observed that international law applies to and binds the states in general.

The Functional theory suggests that states along with individuals and non-state entities constitute the subjects of international law. Moderate jurists who subscribe to this view state that the realist and fictional theories are extreme standpoints and need rethinking. In recent years, significant changes have been made in the international legal field and it has come to be more inclusive. Apart from states, individuals and non-state actors play important roles in shaping international law. Presently, this theory seems to be the most reasonable and consistent.

Subjects of International Law

An understanding of the theories of the subjects of international law, it can be said that broadly there are three main categories of the same – individuals, states, and non-state entities.

1. Individuals

Individuals have always been a concern under international law. Although the realist theory diminishes the position of individuals as a subject, there have been instances under international law wherein responsibility has been conferred upon individuals rather than their state. The international criminal law holds individuals accountable for certain crimes. In Respublica v. De Longchamps[2], the defendant was guilty of assaulting the Consul General of France to the new United States. It was held that the defendant was guilty of the same under the law of nations. As a result, he was ordered to pay one hundred French crowns as a fine to the Commonwealth of Pennsylvania and to be imprisoned for ‘a little more than two years’.

2. States

States are the primary subjects of international law. A state is a term given to a country under international law. Every state has certain rights and obligations to fulfil. These rights are conferred upon them through treaties and agreements, to which the states are signatories. States have various roles to perform at world level. It is incumbent upon the states to maintain peace and security in the world and resolve disputes through peaceful means.

3. Non-state entities

When we talk about non-state entities, we take into account a large group of institutions which can fall under different categories, like companies, international organisations, special entities etc. According to the functional theory, these non-state actors are also subject under international law and hence they can be regulated. Non-state entities have a special personality under international law, because although they take part in the international business, they are not granted similar rights and duties as the states. In fact, their acts are much limited as compared to states. Since these entities are independent and exist to serve a particular purpose, they are kept separate from states and individuals.

For example, the Holy See and the Vatican is an international legal person, on behalf of the Roman Catholic Church, and is situated in the Vatican City. It is a unique subject of international law.

In Reparation for Injuries suffered in the Service of the United Nations[3], the advisory opinion of the International Court of Justice is worth mentioning. According to the Court, “Accordingly, the Court has come to the conclusion that the Organisation is an international person…What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.”

Apart from these, minorities and indigenous people are also considered subjects of international law. The concern for minorities came up after the first world war when the League of Nations put forward the protection of minorities in Europe. The UN Declaration on the rights of minorities is a significant step in the process of their recognition. Indigenous people are the natives of a particular place who have distinct cultures. Europeans were the first to use this term for the peoples of America when they conquered it. At present, there exist several rights for these people, like the UN Declaration on the Rights of Indigenous People, 2007, but not much development has taken place for their protection.

Conclusion

The biggest question that international law poses is that whether international law is binding upon nation-states, and if yes, then to how much extent? Some jurists are still of the opinion that international law is not really a law, because it does not originate from a law giving authority and has no sanction following it. Rather, it is only morally enforceable. Undoubtedly, enforcement of international law has its shortcomings. The very idea that a set of frameworks be imposed on such a large scale seems impractical. Although the UN and similar organisations exist to regulate international laws, it is visible from existing evidence that the UN has not been able to manage world affairs under some instances.

Nevertheless, in the era of globalisation, an international regime is inevitable. International laws bind nation-states altogether and confirm peace and security around the world. Still, a lot of work needs to be done in order to implement international law so that it can serve its ultimate purpose.

[1] I.C.J Reports 1949, p. 174.

[2] 1 U.S. (1 Dall.) 111 (1784).

[3] I.C.J Reports 1949, p. 174.

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