To understand the concept of subjects of international law, we first have to understand what international law is. The term ‘subject of international law’ means the entities that have legal personality are capable of doing duties, capable of having certain rights in the international legal system. The expressions “International Law” and “the Law of Nations” are synonymous and are equivalent terms. Earlier, International Law was known by the name of “Law of Nations”. In Queen v. Keyn, Lord Coleridge, C.J., defined International Law in the following words: “The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another.”
The subjects of international laws are identified only by its legal personality. Now, what is legal personality? Legal personality means a person who has rights and duties related to law. It can be a human being, an organization, an institution, or any corporate body. One of the famous definitions of subjects of international law was given by Starke, that is-
- An entity that has rights and duties under international law.
- An entity that holds procedural privileges “of prosecuting” a claim under international tribunal.
- An entity that possesses any interest for which provision is made by law.
In municipal law, the legal personality is limited to individuals, companies, and public corporations, whereas, the subjects of international law are wider. They are more as compared to municipal law. Oppenheim said in one of his definitions of an international person that a person who possesses legal personality in international laws, meaning a person who has personality in international law and relates to international law, that person is subject to enjoy rights and has duty and powers in the international law. It is their capacity to possess rights and duties, directly or indirectly, throughout different nations or from nation to nation.
To know the subject that lies under international law, jurists have made some theories to decide whether a subject’s legal personality possesses international law or not.
Theories of Subject of International Law-
Different jurists had different opinions because of which different theories came about. The popular theories of the subject of international law are-
According to this theory, the subjects of international law are the nation-states. The followers of the realist theory rely upon the reasoning that states are the only entities that possess the legal personality of International Law. Therefore, only nation-states are the subjects of International Law. The realist theory states that an individual is not an entity that possesses the rights of a legal personality under International Law. Hence, it does not come under International Law subjects. It also states that the nations possess rights and owe duties towards each other under International Law. Realist theory considers that the nation-states are the ultimate subjects of International Law.
The fictional theory is the theory of International Law which supports the individual as a subject of International Law. The reasoning behind this theory is that of the individual’s existence of the state. Therefore, International Law should have individuals as their sole subject. The fictional theory is opposite to the realist theory. However, both the theories have made up for the conduct of human beings and their good will. The followers of this theory state that actually, the states are the fiction for the individuals composing them. Because of this statement, the name of this theory is fictional theory.
This theory was criticized by Kelsen. His view is that the primary concern of International Law is the states and not the individuals as International Law has always been described by the rights and duties of the states by functioning of the treaties.
The functional theory is a theory of a new approach. Realist theory and fictional theory consist of only one subject under International Law, but functional theory tends to meet both theories. According to functional theory, neither states nor individuals are subjects but they both are the subjects of international law in modern society. This clearly states that in modern International law, individual and nation-states consist of certain rights and duties under International Law. For example, the human rights of individuals are the subject of international law and nation-states also have a duty to protect it. This theory also increases the scope of International Law by providing it more subjects.
Different subjects consist of different legal personalities under International Law. Let us study all the subjects of International Law briefly.
Subjects of International Law
Following are the subjects of International Law-
State means a country that is considered as an organized political community controlled by a government. An entity before becoming a state has to be recognized by other states. After recognition, a nation-state becomes a part of International Law and its basic subject. International Law prevails for the states of this universe. The main legal personality that states consist of, are the rights and duties towards International Law. The birth of International Law was when states wanted to regulate their relations.
Non state entities
Non-state entities are the entities that do not possess the qualities of states, but become part of international law if they possess international legal personality. It can be an individual, an armed group, or an organization.
INDIVIDUALS possess the legal personality of International Law because the states came into picture. Therefore, they are the basic entities of International Law. Because of individuals, the laws come into force, a legislature made law for the individual. Hence, they are the main units of international law.
ARMED FORCE means the military of any nation-state. It is a group of soldiers who save a country from any kind of external forces. To protect the state, the armed forces have to follow International Law to maintain peace.
INTERNATIONAL ORGANIZATIONS are the organizations that are established by treaties or other instruments that are governed by International Laws and these organizations should possess international legal personality. Though these organizations work throughout different states, they have to follow International Law so that they can work legally and effectively. International organizations can be those organizations that work for all states. For example, World Health Organization, IMF EU, Red Cross, etc. Some essentials are needed to be fulfilled to come under the subject of International Law-
- The organization should either be an individual corporate entity, or it should have legal personality and rights & duties towards International Law. If an organization is capable of possessing these qualities then it can come under the subject of International Laws.
- The members as well as the organization should not be governed by municipal law. If the organization breaches any law or causes damage, then it will be governed by International Laws.
However, not all the subjects of International Law can have the same rights and duties. It can vary from subject to subject and their capabilities. Let us take an example- a diplomat has immunity before foreign courts because he is an agent of the sending state. This is a privilege enjoyed by the state and not the diplomat personally. This means that if a diplomat commits a crime, he can not be brought before a foreign court to be prosecuted.
The subject of International Laws can be determined by some essentials. Although individual and its features are not equivalent to the nation-states or international organizations, still it can be considered as a subject of International Law due to the reasons that individuals have rights in International Law, duties and obligations towards International Law and lastly, they have right to claim damages under International Law, for any damage caused to them. Nowadays, many more entities are becoming part of subjects that are in International Laws because of the treaties that are being signed by different states for the betterment of position. But there is indeed a lack of medium by which new entities can become subjects of International Laws.
- 2 Ex. D. 63, 153, 154 (1876).
- H.O. Aggarwal, International Law and Human Rights (Central Law Publications, 22nd edn., 2019).
- Subjects of International Law, available at:, https://www.legalbites.in/subjects-international-law/, (Last visited on October 10, 2020.
- Subjects of International Law, available at:https://lawexplores.com/subjects-of-international-law/ (Last visited on October 10, 2020.
BY AKANSHA ANAND FIMT- SCHOOL OF LAW, GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY, NEW DELHI.