Subjects of International Law

As Lauferpacht observed, ‘the orthodox positivist doctrine has been explicit in the
affirmation that only states are subjects of international law.’ In recent times, however, other
entities on the international plane have appeared to assume some form of legal personality on
such stage, as clearly suggested by the statement above. To examine the correctness of this
statement, international legal personality must first be defined; then it will be seen who
among the whole range of actors on the international plane can be considered subjects of
international law under this definition.

Legal personality is crucial because the law recognises them as ‘legal persons’ possessing the
capacity to have and to maintain certain rights, and being subject to perform specific duties.
Just which persons will be entitled to what rights will depend upon the scope and character of
the law. But it is the function of the law to apportion such rights and duties to such entities as
it sees fit. Thus in international law, legal personality necessitates the consideration of the
interrelationship between rights and duties afforded under the international system.

Malcolm Shaw split the notion of legal personality into two categories - objective and
qualified personality. In the former case, the entity is subject to a wide range of international
rights and duties and it will be entitled to be accepted as an international person by any other
international person with which it is conducting relations. In other words, it will operate erga
omnes. The attainment of qualified personality, on the other hand, binding only the
consenting subject, may arise more easily and it is clear that in this respect at least theory
ought to recognise existing practice. Any legal person may accept that another entity
possesses personality in relation to itself and that determination will operate only in
personam. Shaw then asserted that international legal personality centres on the actual
attribution of rights and duties on the international plane as determined by a variety of factors
ranging from claims made to prescribed functions, rather than the capacity of the entity as
such to possess international rights and duties.

Traditionally the rights and duties of states have been cited from the Montevideo Convention
on Rights and Duties of States 1933, which served as guidelines to identifying of states as
subjects of international law. Starting with the Reparations Case in 1949, however, the
international community has moved towards a position where international organizations are
recognised as subjects of international law with associated rights and duties. In that case the
International Court of Justice (ICJ) considered whether the United Nations possess an
international legal personality so as to be able to claim reparation for the death of its
representative. It was noted that the UN Charter which established the organisation in 1945
makes no mention of the status of its legal personality. The Court held that if the United
Nations is devoid of legal personality, it would have lost its function and would therefore
cease to exist as an effective international organisation. Accordingly the ICJ recognised the
international legal personality of the United Nations, as it was a necessary implication that
such personality exists.

Following the Reparation Case, it appears that now whether an international organisation
possesses personality in international law will hinge upon its constitutional status, its actual
powers and practice. Hence the International Committee of the Red Cross, a private non-
Subjects of International Law

governmental organisation subject to Swiss law, may possess international legal personality
in accordance to the Reparation Case principles, as the organisation was granted special
functions under the 1949 Geneva Red Cross Conventions and has been accepted as being able
to enter into international agreements under international law with international persons such
as with the European Economic Community under the World Food Programme.

Unlike international organisations which are accepted on the international plane by virtue of
an associated objective legal personality, corporations and individuals remain excluded. It has
been said that the prevailing status quo is that neither individuals nor corporations are
subjects of international law and derive any meagre international legal personality from the
will of their national states, reflecting the traditional Austinian position enunciated by the
Permanent Court in the Lotus decision that ‘international law governs relations between
independent states … [which] emanate from their own free will’.

It follows that any imposition of international obligations is thus dependent upon state
consensus. For example, individuals bear responsibility for the commission of genocide,
crimes against humanity, and war crimes under Article 25 of the Statute of the International
Criminal Court. That said, it may be that individuals are objects instead of subjects of
international law, as suggested by D.J. Harris, whose most important characteristic for
international law purposes is his nationality. This can be seen in Articles 12 and 13of the
Statute, which states that the Court has jurisdiction only within states which are party to the
treaty. This view appears to be incorrect, and it is argued that personality is necessitated by
the Statute, though such personality is qualified and invoked for the individual only when
prosecuted by the Court and only if the Court has jurisdiction to do so.

Andrew Clapham argued that as long as it is admitted that individuals have rights and duties
under customary international human rights law and international humanitarian law, it must
be admitted that legal persons also have the necessary international legal personality to enjoy
some of these rights and conversely be prosecuted or held accountable for violations of their
international duties. His argument was boosted by the judgment of the International Court in
the LaGrand Case in 2001 that two individuals had the same rights under a specified treaty as
Germany, the state of nationality.

On the other hand, corporations have not been regarded traditionally as possessing
international legal personality, and as they do not bear responsibilities under international
law, in particular responsibility for human rights violations and, where applicable, violations
of international humanitarian law. Corporations are usually regulated by national laws. This
limited role is reflected in the jurisprudence of the International Court of Justice in the
Barcelona Traction Case which regards corporations as legal entities separate from their
shareholders but which are capable of being protected only by virtue of diplomatic protection,
which is not an automatic right but a discretionary power to be exercised by the state of
nationality. This position has been reaffirmed recently by the Court in the Ahmadou Sadio
Diallo Case decided in 2007.

Other non-state actors on the international plane include insurgents, belligerents and national
liberation movements. There has been disagreement to the status of such entities, but there
Subjects of International Law

are examples of successful treaty making involving these entities as party to such treaties. For
example, the Revolutionary United Front and the then government of Sierra Leone, warring
parties in a civil war, had signed the Lome Peace Accord in 1999 which had also included the
signature of a United Nations representative. Also, recent negotiations of a Gaza truce
between Israel and Hamas, a political organisation currently in control of Gaza, may also
imply that Hamas possesses such personality. Accordingly, as with individuals, these actors
possess a qualified personality, enjoying rights and bound by duties provided only in the
treaties which they are party to.

The rules providing international legal personality, however, are not crystallised and probably
never will be. Corporations may, in the future, be imposed duties under international law and
therefore assume personality. Of much interest is the development of the concept of jus
cogens, which has been given express recognition under Article 53 of the Vienna Convention
on the Law of Treaties in 1980. The existence of peremptory norms means that obligations
erga omnes, such as protection of certain human rights, will be imposed on all actors on the
international plane, and with it the association of objective legal personality.