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STATES, INTERNATIONAL ORGANIZATIONS AND
INDIVIDUALS AS SUBJECTS OF INTERNATIONAL LAW
P. K. Menon*
I. Introduction
The international law of the previous centuries was to a large

extent of a formal character. It was mainly concerned with the delimi-
tation of the territory and jurisdiction of States. International Organi-
zations, as we know them today, were set up only in the nineteenth
century. The individual played only an inconspicuous part because the
international relations of the individual and his contacts across the
frontier, if ever existed, were rudimentary.
Until recently, the subjects of international law were exclusively
independent States and their numerical strength was comparatively
small. The principal purpose of international law was coexistence, that
is to keep the States peacefully apart. Its scope of activities was so
designed as to restrain and restrict State action emphasizing rights
and duties of one State to another. Relationships with other States
were mostly bilateral in nature and involved only limited aspects of
international law such as peace, alliance, navigation and national
boundaries.
During the last few decades, especially after the establishment of
the United Nations, profound changes have taken place in the scope
and content of international law. One of the most important changes
is the massive horizontal expansion of the international society com-
posed of nation States due to the sweeping wave of the decoloni-
zation process.' Another major development is the phenomenal growth
* Professor of Law and Director of International Law Programme, University of the West
Indies, Cave Hill Campus, Barbados.
1. With the sweeping wave of the decolonization process, a large number of territories
have attained independent statehood in recent years. These territories with different historical
background, religious beliefs, social culture and legal values, who were in the past no more than
'object' of international law have now become subjects of that system. For the sequence of this
development, it may be noted that in 1899, at the First Hague Peace Conference only 26 States
were represented. This number was increased to 44 in Second Hague Conference in 1907. The
League of Nations had a representation of 45 original members with an addition of five
(Afghanistan, Egypt, Ethiopia, Iraq and Turkey) who subsequently joined the Orgnization. The
United Nations, on the other hand, which was founded in 1945 with 51. original members has
already expanded to 166, and continues to expand steadily by the increasing claim of legal sovere-
ignty by the dependent territories.
THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 20
of international organizations as permanent institutions for the cooper-

ation of States. 2 A third important change is in the subject matter of
international law which is at present becoming actively concerned with
various vital topics affecting the promotion of human welfare rather
3
than the mere prevention of national warfare.
What is meant by the term "subject" of international law? Ac-
cording to text-book writers, a subject of international law is an en-
tity capable of possessing international rights and duties and endowed
with the capacity to take legal action in the international plane. Such
.an entity is commonly referred to international legal person or as
having legal personality.
Legal personality is an acknowledgement that an entity is capable
of exercising certain rights and being subject to certain duties on its
own account under a particular system of law. In municipal legal sys-
tems, the individual human being as well as certain entities such as
limited companies or public corporations are legal persons. These enti-
ties are granted a personality distinct from the individuals who create
them; hence, they can enter into legal transactions in their own name
and on their own account.
In international law, the question of international legal personality
arises in various situations, for example, to determine whether an en-
tity has the capacity to make international agreements/treaties, to
make claims for breaches of international law, to enjoy the privileges
and immunities from national jurisdictions, to be a member in an in-
ternational organization. Thus, the attribution of international legal
personality involves the capacity to perform legal acts in the inter-
national plane in distinction to legal personality within the municipal
legal system.
Traditionally, international law is defined as law applicable to re-
lations between States. States are therefore said to be the subjects of
international law; and, publicists usually proceed to examine the na-
2. International organization is a phenomenon of the multi-state system and is a character-

istic feature of the present day world society. In several of the cities of the world, new centres
of activity of international organizations have appeared on the skyline after World War 1I. In
sharp contrast to the inter-war period when not more than 20 such centres could be counted,
no less than 200 new organizations have been estabished since 1945.
3. International law today is seriously concerned with vital matters of human rights, hu-
man environment, pollution problems, terrorism, peaceful uses of nuclear energy, outer space ac-
tivities, resources of the seabed and ocean floor, health regulations, food production and distri-
bution, international monetary control and trade development et cetera. These matters, no doubt,
penetrate into manifold economic and social aspects of day-to-day human life pattern.
1992) SUBJECTS OF INTERNATIONAL LAW
ture and characteristics of the fictitious State as the only jural person.
This thesis is affirmed by the orthodox positivist doctrine. The posi-
tivist doctrine is identified with the assertion of sovereignty. Further,
according to this doctrine, States themselves can become subjects of
international law only by virtue of recognition granted by already exist-
ing States acting on the free and unfettered exercise of their dis-
cretion.
The above-mentioned traditional concept has been subject to severe
criticism and a growing opposition has arisen to challenge this con-
cept. For example, to Politis,
Formerly the sovereign State was an iron cage for its citi-
zens from which they were obliged to communicate with the
outside world, in a legal sense, through very close-set bars.
Yielding to the logic of events, the bars are beginning to open.
The cage is becoming shaky and will finally collapse. Men will
then be able to hold free and untrammelled communication with
4
each other across their respective frontiers.
This was written in the first quarter of this century. The cage
has already been broken* the old dogma has given way to new ones
in the light of ongoing rapid technological advances of global di-
mensions affecting individuals and in the creation of a multitude of
international organizations.
In this century, especially after the establishment of the United
Nations and the subsequent outgrowth of international and regional
institutions, it has become obvious that international law is no longer
centered exclusively on the rights and duties of States, but has re-
cognized the independent existence of a variety of international organi-
zations and, in a number of situations, has imposed obligations on
and granted rights to individuals. As a result of this change, in spite
of the fact that international organizations and individuals do not pos-
sess the same quality and features of States, they are increasingly be-
coming capable of asserting their rights before international tribunals.
This development is "a question of meeting satisfactorily the re-
quirements of an expanding and developing law not limited to the
niceties of international intercourse but concerned with the well-being
of the individuals as the ultimate units of human society and with
4. Politis, The New Aspects of International Law (1928) pp. 30-31. As quoted by Philip
C. Jessup, "The Subjects of a Modern Law of Nations", 45 Alichigan Law Review (1947) pp.
383 -384.
the adequacy of the instruments which serve their needs".,

After reviewing the traditional doctrine that States are subjects of
international law, this paper will attempt to discuss the broadening of
that doctrine to include other entities-international organizations and
individuals-as subjects of international law and to confer on them
legal personality even if it is limited to certain purposes.
II. The Traditional Doctrine - States as the Only Subjects

of International, Law
Until recently, an overwhelming .majority of writers on inter-

national law appear inclined to advocate that States only be recogni-
zed as legal persons, thus subjects of international law. In spite of the
growth of international organizations with the power of independent
action in the international plane and the growing importance of indi-
viduals having certain international rights and duties, the State is still
the typical subject of international law. But what is a State?
Criteria of Statehood
In the domain of municipal law, the word 'State' is commonly

used to denote an organized political society as distinct from its indi-
vidual members. The terms State and Nation are sometimes used inter-
changeably. For instance, the United Nations Organization is an organi-
zation of States. International law is a law primarily regulating the
relations between States.
In the nineteenth century, the term Nation was most often used
to describe a body of people more or less of the same race, religion,
language and historical traditions. In that sense, the Nation and State
are not necessarily identical. In fact, Nation has a more limited mean-
ing than State. For instance, the American Indian tribes have been re-
ferred to as Nations, namely Creek Nation, Iroquois Nation, Cherokee
Nation etc. To Hackworth,
The term nation, strictly speaking, is evidenced by its ety-
mology (Nasci, to be born) indicates relation of birth or origin
and implies a common race, usually characterized by community
6
of languages and customs.
5. H. Lauterpacht, "The Subject of the Law of Nations", 63 The Law Qarterly Review
(1947) p. 450.
6. G. H. Hackworth, 1 Digest of International Law. (Washington :Department of State,
1940) Chapter 2, p. 24.
The concept of "State" is the antithesis of the concept of the

empire.7 It means local sovereignty as opposed to universal dominion.8
The existence of the concept was influenced by the writings of a large
number of political philosophers including Bodiln, Ahthusius, Mac-
hiavelli, Hobbes 9 and Locke among others. It is generally ack-
nowledged that the system of States is "legislated into existence, or at
least confirmed, by the Peace of \Wcstphalia of 1648".1oi
Candidly speaking, it is difficult to give an accurate definition of
a "State" for the purpose of international law. A State has been de-
fined in various ways according to the manner or thinking of the
commentators concerned. It may be useful to overview observations
of older writers in order to have a clear idea of the characteristics of
a State.
7. See Clive Parr', "The Function of Law in the International Community" in Max Sorensen
(ed.), Manual of Public International Law, (London :Macmillan, 1968) p. 8.
8. "Broadly speaking, before the Reformation the will of the State lacked any sovereign
character. It was regarded as inherently limited by the law of God and the law of nature: any
enactment of the State contrary to the principles was inherently void of effect". Louis L. Jaffe,
judicial Aspects of Foreign Relations in Particular of the Recognition of Foreign Powers, (Cambridge :
Harvard University Press, 1933) p. 32 quoting Harold Laski : Introduction to Politics, (1931) p. 93.
Indeed, the word 'sovereignty' has undergone certain changes since it was initially designed
by its founding fathers Bodin and Hobbes. In the traditional sense, sovereignty is absolute and
indivisible. But, today no State is an absolute sovereign, it has committed itself to many limi-
tations on its sovereignty. For example, the establishment of the United Nations has shifted the
emphasis from independence to interdependence. In theory at least, the Members of the United
Nations have united their strength to maintain international peace and security and to employ
international machinery for promotion of the economic and social development of all peoples.
See P. K. Menon, "The Law of Treaties between States and International Organizations or be-
tween International Organizations with special reference to the Vienna Convention of 1986", in
65 Revue dieDroit International de Sciences Diplomatiques et Politiques (1987) p. 263.
9. "There seems to be general agreement that Thomas Hobbes originated the usage of
speaking of the "State" as "a multitude of men, united as one person by a common power" Hans
Aufricht, "Personality in International Law", 37 The American Political Science Reiiew (1943) pp.
217 -218.
7
-------------- sipranotec a-, p. 14. "(!)t has been affirmed that the Peace of Wes-
tphalia was the starting point for the development of modern international law .. It undoubt-
edly promoted the laicization of international law by divorcing it from any particular religious
background, and the extension of its scope so as to include, on a footing of equality, republican
and monarchical states - • In the spiritual field the Treaty of Westphalia was said to be "a public
act of disregard of the international authority of the Papacy". In the political field it marked
man's abandonment of the idea of a hierarchical structure of society and his option for a new
system characterized by the coexistence of a multiplicity of states, each sovereign within its terri-
tory equal to one another and free from any external earthly authority. The idea of an authority
or organization above the sovereign states is no longer". See Leo Gross, "The Peace of
Westphalia, 1648-1948", 42 The American Journal of International Laow (1984) pp. 20-41.
To the so-called father of International Law, Hugo Grotius, 1

State i§ "a complete association of free men, joined together for the
enjoyment of rights and for their common interest".12 Much the same
way, Pufendorf defined the State as "a compound moral person, whose
will, international and united by the facts of a number of men is
considered the will of all, so that it is able to make use of the strength
and faculties of the individual members for the common peace of se-
curity".13 Victoria, on the other hand, gave a definition of the State
following a legalistic approach. To him,
A perfect State or community... is one which is complete in it-
self, that is, which is not a part of another community, but has
its own law and its own council and its own magistrates, such
as is the Kingdom of Castile and Aragon and the Republic of
14
Venice and the like...
To the positivist writer Vattel, "Nations or States are political
bodies, societies of men who have united together and combined their
forces, in order to procure their mutual welfare and security... ""~' The
basic criterion is that States are free and independent. The rights of a
sovereign State are
the same as those of every other State. Such is the character of
the moral persons who live together in a society established by
nature and subject to the law of Nations. To give a Nation the
right to a definite position in this great society, it need only be
11. To Oppenheim, "Grotius was not an infallible Pope." He was a child of his time and
therefore a product of his age. Although he is rightly called the father of the law of nature as
well as the law of nations, he has created neither the one nor the other. Long before Grotius,
the opinion was generally prevalent that above the positive law which had grown up by custom
or by legislation there was in existence another law which had the roots in human reason and
was therefore called the -law of nature". And likewise long before Grotius it was quite usual
to deduce from the law of nature certain rules for the intercourse of the sovereign States. Gro-
tius is nevertheless rightly considered the father and founder of both the law of nature and the
law of nations, because he focussed the results of the works of his forerunners in his own work
in such a masterly way and with such a felicitous hand that his system of the law of nature
and nations pushed the work of his forerunners in the background absolutely overshadowed it-
and became the starting point for all the future works in the same field". L. Oppenheim, "The
Science of International Law: Its Task and Method", 2 The American Journal of International
Law (1908) p. 328.
12. James Crawford, The Creation of States in International Law, (Oxford : Clarendon Press,
8
1979) p. , quoting De Jure Be/li ac Paris (1694) 1, Ch.1. Sec IV.
13. Ibid., p. 6, quoting De Jure Naturae et Gentium Libri Oto (1972) VIl, Ch. 11, Sec. 13,
para 672.
14. Ibid., quoting De Indis et de Jure Belli Relettiones (published 1696): De Jure Belli, para
7, Sec. 425-426.
15. Ibid., p. 7 quoting Le Droit des Gens (1758) 1, Introduction, Sec. 1: Ch. 1, Sec. 1.
truly sovereign and independent: it must govern itself by its

own authority and its own laws.'
Later positivist writers, possibly under the influence of Hegel
regarded statehood for the purposes of international law as something
different from independence. Making a distinction of internal sovere-
ignty from external sovereignty, Wheaton says:
The internal sovereignty of a State does not... depend upon
its recognition by other States... The external sovereignty, on the
other hand, may," require recognition by other States in order to
7
render it perfect and complete.1
Be that as it may the criteria for statehood according to the natu-
ralist and positivist schools of thought, the most authoritative and wide-
1v accepted formulation of the qualifications for the State as a person
of international law is contained in the Montevideo Convention on
Rights and Duties of States 1933.18 The Convention was adopted by
the Seventh International Conference of American States. Fifteen Latin
American States and the United States are parties to it. The Conven-
tion is accepted as reflecting, in general terms, the characteristics of
statehood at customary international law.
Article 1 of the Montevideo Convention enumerates the follow-
ing requirements of the State as a person of international law:
(a) a permanent population,
(b) a defined territory;
(c) government: and
(d) capacity to enter into relations with other States
In a similar vein, Restatement Second, Foreign Relations Law of
the United States (1965) defines State as follows:
Except as otherwise indicated, "State"... means an entity that
has a defined territory and population under the control of a
government and that engages in foreign relations.' 9
The Soviet doctrine of international law, however, points out the
absence of sovereignty among the criteria enumerated in the Monte-
video Convention. 2' Further, it is also noted that the feature of "ca-
16. Ibid., Ch. 1, Sec. 4.

17. Ibid., p. 8 quoting Elements of International Lan, (3rd ed. 1846) pp. 55-57.
18. For text of the Convention see, 165 Leaie of Nations Treatj, Series, p. 19: 28 The
American Journal of International La', Supplement (1934) p. 75.
19. As quoted by Wolfgang G. Friedmann, Oliver J. Lissitzvn and Richard C. Pugh, Cases
and Materials on International Law,, (Minnesota : West Publishing Company, 1969) p. 153.
20. David Feldman, "International Personality", 191 Recueil Des Cours (1985) Part 111.p.
pacity" is formulated in such a way that it can give a good reason

to divide States into "capable" and "incapable" and in a way the no-
tion of soverignty is thus confronted. 2' At this point, it may be ob-
served that Article 6 of the Vienna Convention on the Law of Treat-
ies states that every State possesses legal capacity to conclude treat-
ies."2 And capacity to conclude treaties is one of the principal elements
of international personality of an entity. In the Declaration on Principles
of International Law Governing Friendly Relations and Cooperation Among
States in Accordance With the Charter of the United Nations, 1971,23 it is
stressed that all States enjoy sovereign equality and each State enjoys
the rights inherent in full sovereignty..
Thus, generally speaking, State is a collective socially organized
entity: it possesses an independent international legal status. It is a
bearer of international rights and duties; it is capable of participation
in international relations; it possesses a legal capacity to conclude
treaties; it is responsible for violations of international legal norms;
24
it is capable of the defence of its legal status.
(a) Population
To constitute a State, first of all, there must be a people. A

people is an aggregate of individuals of both sexes who live together
as a community. It does not matter whether they are of the same
race, colour or creed. A community is not prevented from becoming
25
a State because it includes a minority population.
The heterogeneity of population does not by itself constitute an
impediment to statehood.2 ' As the State is one of many institutions, it
is impossible for it to coincide with all the divisions representing
various kinds of human interests. This is not to deemphasize the str-
ength of national sentiment nor the importance of national self-deter-
27
mination.
21. Ibid.
22. See P. K. Menon, "The Law of Treaties with Special Reference to the Vienna Conven-
tion of 1969", 56 Revue de Droit International de Sciences Diplomatiques et Politiques, (1978) pp.
133-156 and 213-270.
23. General Assembly Resolution 2625 (XXV), October 24, 1970. The resolution was
adopted by the General Assembly without a vote.
24. Feldman, supra note 20 at pp. 370-371.
25. Ti-Chang Chen, The International Law of Recognition, (London : Stevens & Sons, Ltd.
1951) p. 55 citing Fauchille, 1 Traite de Droit International Public, (1921) Part I, pp. 223-224.
26. Chen, ibid.
27. Ibid.
There is no minimum limit to the size of a State's population.

Nauru, for example, has less than 10,000 inhabitants. The Vatican
city has even fewer permanent residents. However, if the number of
people is very small, the viability of an entity as a State may be
questionable.
As changes are bound to occur, normal changes in the size of
population do not affect the identity of a State, for example, changes
in population through increase or decrease by births and deaths, through
emigration or immigration, even if on a very large scale. On the oth-
er hand, the total loss of population by way or natural or man-made
disaster might bring about the extinction of the State.
The rule requiring States to have a permanent population does
not relate to the nationality of that population.28 The grant of
nationality is a matter of domestic legislation and falls within the do-
main of municipal law and not international law.' Nationality is thus
dependent on statehood, but the reverse does not appear to be true.'
(b) Territory
Another characteristic of States is to have a territorial basis and
thus to enjoy the territorial sovereignty.31 Territorial sovereignty may
be described as the power of a State to exercise an exclusive auth-
ority over all persons and things within its territory. In the arbitral
award in the Island of Palmas case, Judge Max Huber said:
Independence in regard to a portion of the globe is the right
to exercise therein, to the exclusion of any other State, the fun-
ctions of a State. The development of the national organi-
zation of States during the last few centuries and as a corollary,
the development of international law, have established this prin-
ciple of the exclusive competence of the State in regard to its
own territory in such a way as to make the point of departure
in settling most questions that concern international relations.'2
28.See Crawford, supra note 12 at p. 40.
29.According to Article 1 of the Convention on Conflict of Nationality Laws, April 12, 1930,
'It is for each State to determine under its own law who are its nationals. This law shall be
recognized by other States in so far as it is consistent with international conventions, inter-
national custom, and the principles of law generally recognized with regard to nationality".
30. See Crawford, supra note 28.
31. In the Corfu Channel case, the International Court of Justice thus said: "Between inde-
pendent States respect for territorial sovereignty is an essential foundation of international re-
lations." ICJ Reports (1949) p. 35.
32. See "Island of Palmas Award", in 2 UN Reports of International Arbitral Awards, p.
The territory of a State is that portion of the earth's surface

over ;Which it exercises supreme and exclusive sovereignty. It com-
prises land territory, territorial waters, national waters and air space
over the territory as also the subsoil underneath.
Thus territory being a fundamental concept of international law,
a State cannot exist without that. The Holy See, for example, had
long been considered a subject of international law with capacity to
make treaties (concordats) and to send diplomatic representatives
(nuncios). Yet it was not regarded as a State until it achieved a
small piece of territory and became the Vatican city after the con-
clusion of the Lateran Treaty of 1929.' There is no rule prescribing
the minimum size required of the territory of a State and there are
several examples-for instance, Monaco and Nauru-of the so-called
mini-States in the present day Family of Nations.
Territorial changes, whether by increase or decrease of the area
in general does not affect the identity of a State. Under this rule fall,
for instance, the cession of a province by one State to another, the
secession of a part of the State or of a colony, constituting itself-
often by revolution or civil wava new independent State. Equally
true is with normal changes in the territory, for example, accretion or
avulsion. While they have legal effects, they do not affect the legal
identity of the State.
It is not necessary that the frontiers of a State should be clearly
fixed before it can acquire statehood. Historically, many States have
come into existence with undetermined territories. For example, in the
case of the United States of America, the land had not even been
explored, and no one knew exactly where the American claims ended
and where French, British and Spanish claims began. Yet, the exist-
ence of the United States of America was not in question before the
final boundaries were fixed.
Boundary disputes do not necessarily affect statehood. State prac-
tice and case law support this proposition.
33. The Lateran Treaty of February 11, 1929 between Italy and the Holy See reads:
Article 2: Italy recognises the sovereignty of the Holy See in the international domain
as an attribute inherent in its nature in accordance with its traditions and with the requirements
of its mission in the world...
Article 4: The exclusive sovereignty and jurisdiction of the Holy See over the city of
the Vatican which Italy recognises, implies the consequence that no interference on the part of
the Italian government may be there manifested, and that there will be no other authority than
that of the Holy See, Peaslee 3 Constitutions of Nations (3d ed. revised 1968) Part 2, pp. 1187-
1188.
Most of the new States which arose after World War 1 were
recognized before their frontiers were finally settled, although such
recognition was subject to the proviso as to the acceptance by the
State concerned of the frontiers to be laid down by the Peace Con-
ference.M Thus, while recognizing Finland, Britain said:
in recognizing the independence of Finland His Majesty's
Government do so with confidence (and) understanding that the
Finnish Government accepts the decision to be taken by the Peace
Conference on the drawing of her frontiers...35
In the post World War II period, Israel which unilaterally de-
clared its independence in May 1948, is a State whose borders have
never been settled. When the United Kingdom in 1947 withdrew from
Palestine, a territory it had administered as mandatory, the United
Nations General Assembly recommended' that Palestine should be par-
titioned into separate Arab and Jewish States subject to a provision
for economic union. This was acceptable to the Zionists but not to
the Palestine Arabs; a few months later, Israel declared itself an inde-
pendent State and was admitted to the United Nations. Supporting
Israel's admission to the World Organization, the United States rep-
resentative, Philip Jessup (later to become Judge of the International
Court of Justice) discussed the requirement of territory as follows:
One does not find in the general classic treatment of this
subject any insistence that the territory of a State must be exa-
ctly fixed by definite frontiers... The formulae in the classic
treaties somewhat vary,.., both with reason and history demon-
strate that the concept of territory does not necessarily include
precise delimitation of the boundaries of that territory. The rea-
son for the rule that one of the necessary attributes of a State is
that it shall possess territory is that one cannot contemplate a
State as a kind of disembodied spirit... (T)here must be some
portion of the earth's surface which its people inhabit and over
which its Government exercises authority. No one can deny that
the State of Israel responds to this requirement... 3
In Deutsche Continental Gas-Gesellschaft v. Polish State,' the German-
34. See H. Lauterpacht, Recognition in International Law (Cambridge: University Press,

1947) p. 30.
35. Ibid.
36. Resolution 181 (II) adopted on November 29, 1947.
37. United Nations, Security Council Official Records, 3rd year, 383rd meeting (2 December
1948).
38. 5 Annual Digest of Public International Law Cases (1929) No.5, p. 15.
Polish Mixed Arbitral Tribunal stated the rule succinctly:

In order to say that a State exists and can be recognized as
such... it is enough that... (its) territory has a sufficient consist-
ency, even though its boundaries have not yet been accurately
delimited.
And, the International Court of Justice in the North Sea Continen-
tal She/f Cases9 confirmed the rule:
There is... no rule that the land frontiers of a State must
be fully delimited and defined, and often in various places and
for long periods they are not, as is shown by the case of the
entry of Albania into the League of Nations..
(c) Government
Another requirement of statehood is a Government, "a political
organization by which relations in the community are regulated and
through which the rules are upheld"." The Government should enjoy
habitual obedience of the bulk of the population. Stated otherwise;
the community should be internally organized s6 that the Govern-
ment, the political organization, can effectively administer the res-
ponsibilities of the State. If this governing power is lacking, it is fu-
tile "for the outside world to seek to attribute rights and obligations
to the population as a State"." For example, in 1920, the Committee
of Jurists of the League of Nations reported that Finland was not a
State at the critical date for want of a settled and orderly govern-
ment. The Committee said:
for a considerable time, the conditions required for the formation
of a sovereign State did not exist. In the midst of revolution
and anarchy, certain elements essential to the existence of a
State... were lacking for a fairly considerable period... It is
therefore difficult to say on what exact date the Finnish Repu-
blic, in the legal sense of the term, actually became a definitely
constituted sovereign State. This certainly did not take place until
42
a stable political organization had been created...
After reviewing the requirement of "a Government" as one of
the criteria for Statehood, James Crawford suggests the following
39. I.C.J. Reports (1969) p. 32.

40. H.M. Blix, "Contemporary Aspects of Recognition", 130 Recueil Des Cours (1970),
Vol. II, p. 633.
41. Ibid.
42. League of Nations Official Journal, Special Supplement No. 3 (1920) pp. 8-9.
considerations borne out by established practice:

First, to be a State an entity must possess a government or
a system of government in general control of its territory, to the
exclusion of other entitles or claiming through or under it.
Second, international law lays down no specific requirements
as to the nature and extent of this control, except, it seems, that
it include some degree of maintenance of law and order.
Third, in applying the general principle to specific cases, the
following must be considered: ( i ) whether the statehood of
the entity is opposed under title of international law: if so, the
requirement of effectiveness is likely to become strictly applied:
(ii) whether the Government claiming authority in the putative
State, if it does not effectively control it, has obtained authority
by consent of the previous sovereign and exercises a certain de-
gree of control: (iii) in the latter case at least, the requirement
of government may be liberally construed; (iv) finally, there is
a distinction between the creation of a new State on the one
hand and the subsistence or extinction of an established State on
the other. There is normally no presumption in favour of the
status of the former, and the criteria of effective government
43
therefore tends to be applied more strictly.
Thus stated succinctly, international law is not concerned with
the form, character or power of the Government of a State and its
influence in the community of nations. Provided the State possesses a
Government capable of securing at home the observance of rightful
relations with other States, the requirements of international law are
satisfied.
The absence of a governmental authority does not necessarily de-
prive an existing State of its right to be considered as a State. Thus,
as Quincv Wright remarks, "States have frequently survived protracted
periods of non-government, civil war, anarchy and hostile occu-
pation"."
(d) Capacity
'Capacity to enter into relations with other States' referred to in

the Montevideo Convention means independence, that is "indepen-
dence in law from the authority of any other State (and hence the
43. Crawford, supra note 12 at pp. 45-46.
44. Quincy Wright, "The Status of Germany and the Peace Proclamation", 46 The Ame-
rican Journal of International Law (1952) p. 307.
capacity in law to conduct relations with other States)". *

The concept of independence implies that a State is free to adopt
any constitution it likes: is free to deal with its own citizens (either
inside or outside its territory) and aliens within its territory; is at
liberty to shape its foreign policy, join any bloc or adopt a neutral
attitude, conclude agreements with other States/international organi-
zations to suit its interests, without any intervention by other nations.
In essence, it is freedom from outside interference which constitutes
indepenedence. It may however be observed at this point that the
very idea of independent States being bound by the principles of in-
ternational law in their conduct towards each other, irrespective of
their municipal legislation, militiates against their unrestricted freedom.
"Independence" may also be described as sovereignty (suprema pot-
estas) or external soveregnt, by which is meant that the State has over
it no other authority than that of international law.4 6 It implies that
the "State must possess a power, autonomous, undelegated and dis-
tinct from all external powers"."7 That is to say, the independence
should be real and not formal.
According to the traditional view, only fully sovereign States
could be subjects of international law. That does not mean to say
that dependent States cannot be subjects of international law under
any circumstances; on the other hand, they can be subjects with a
limited capacity. According to Schwarzenberger and Brown,
They are the products of particular circumstances on which
it is difficult to generalize. In each case, the matter is governed
by the rules underlying the principles of consent, recognition and
good faith; or in other words, by treaties and, in relation to third
45. D.J. Harris, Cases and Materials on International Law, 3rd edition (London: Sweet and
Maxwell, 1983) p. 86.
46. Separate opinion of Judge Anzilotti in Austro-German Customs Union Case, Advisory
Opinion, P.C.I.J Reports, Series AIB No.41 (1931). He continued: "It follows that the legal
conception of independence has nothing to do with a State's subordination to international law
or with the numerous and constantly increasing States of de facto dependence which characterise
the relation of one country to other countries. It also follows that the restrictions upon a State's
liberty, whether arising out of ordinary international law or contractual engagements, do not as
such in the least affect its independence. As long as these restrictions do not place the State
under the legal authority of another State, the former remains an independent State however ex-
tensive and burdensome these obligations may be."
47. "According to this test, 'Manchukuo', although detached from China, was independent,
because of its subjection to the dominant control of Japan. This equally applies to such cre-
ations as Slovakia and Croatia during the Second World War." Chen, supra note 25 at p. 58.
parties, by recognition or non-recognition of the situation. 8

Colonies and protectorates and other subordinate territories have
entered in fact into all manner of international engagements. In the
process of attaining full independence from dependence, these ter-
ritories may pass through a stage of limited international personality.
Thus, the British dominions signed the Treaty of Versailles though
they were not sovereigns in the accepted sense that they were consti-
tutionally fully competent and beyond the jurisdiction of Great Bri-
tain.
The case of Holy See is sui generis. Even before the Lateran Tre-
at), constituted the sovereighty of the Vatican by -removing it extra-
territorially from Italy, the Holy See was a person in international
law. The best explanation of this was given by Hatsheek when he
wrote:
Since international law does not allow any one State to con-
trol the Pope in his character as head of the Catholic Church, he
has to be put in a position of international independence, that is,
even though he is not the head of a State... he has to be made
an independent subject of international law.49
( e) Stability
Though stability is not a requirement in accordance with the

generally accepted definition of a State as a prerequisite for state-
hood, stability "has an obvious rationale".5' Even if it is not an in-
dispensable attribute, it is "a sometimes important piece of evidence
as to the possession of these attributes".51
Without the existence of a certain measure of stability, the entity
will not be viable and able to discharge its international obligations
effectively.' It is not easy always to predict the stability of a newly-
48. Georg Schwarzenberger and E.D. Brown, A Mannual of International Law, 6th edition
(United Kingdom: Professional Books, Limited, 1976) p. 48.
49. English translation by Manning, The Outline of International Lan' (1930) p. 56. As cited
by D.P. O'Connell, 1 International Law (London: Stevens & Sons, Ltd., 1965) p. 94.
50. There have been instances where States have a brief existence. For example, "the Mali
Federation lasted only from 20 June to 20 August 1960, when it divided into two separate Sta-
tes. And British Somaliland was a State for five days, from 26 to 30 June 1960, when it uni-
ted with the former Italian Trust Territory of Somaliland to form the Somali Republic". Craw-
ford, supra note 12, at p. 72.
51. Blix, supra note 40, at p. 635.
52. Crawford, supra note 50.
53. Blix, supra note 51.
born State with certainty. Nevertheless, an objective assessment of the

following factors may help to arrive at an acceptable conclusion:
(1) Peaceful and orderly transfer of power from the mother
country;
(2) Absence of external threats:
(3) Freedom from external control*
(4) Internal stability;
(5) Popular support evidenced by a free vote:
(6) Adoption of a Constitution.'
The Effects of Recognition
Traditionally, by recognition a new State confirms its status in

the community of nations. It does not mean to say that the State is
created by recognition, the State necessarily exists prior to recognition. -
Even in the absence of recognition, it has the rights and attributes
of sovereignty, 6 but only after it has been recognized, the new State
will be able to exercise these rights vis-a-vis other States.5 1 Stated
otherwise, regular political and legal relations exist only between Sta-
tes that reciprocally recognize them.
In the contemporary inter-dependent world where constant mut-
ual intercourse between States is an inevitable necessity, recognition is
not only useful but it is also necessary. It is also a matter of great
and constantly recurring concern to Governments, international orga-
nizations, tribunals, private citizens and their legal advisers. At the
same time, the subject has suffered severely from political overtones
and-flippant political judgements; it has thus become one of the most
perplexing problems of international law. The diplomatic precedents
have been varied and misleading; the judicial decisions have been
likewise conflicting and difficult to understand in many respects.
Recognition would produce legal effects affecting the rights, power
and privileges of the recognized State at international law and under
the municipal law of States which have given it recognition. It con-
fers on the recognized State a status under both international law and
54. Ibid., pp. 635-636.

55. See L. Oppenheim, International Law, Vol. 1. ed. by H. Lautherpacht, 8th ed. (London
Longmans, Green & Co. 1958) p. 126.
56. See Laski, supra note 8.
57. To Chen, "the non-exercise of rights does not necessarily imply the lack of capa-
city...". Supra note 25 at p. 16.
municipal law. It signifies that the State which recognizes it ac-

cepts the personality of the other with concomitant rights and duties.
The State becomes a member of the international community and
subjects itself to the burden and bounty of international law. It ac-
quires the capacity to sue and to claiim immunity in the courts of
law of the recognizing State, and becoecs entitled to demand and re-
ceive possession of property situated within the jurisdiction of the
recognizing State. It also ac 1uires the capacity to enter into diplo-
matic relations with other States and to conclude treaties with them.
Also, other States become subject to various obligations under inter-
national law to the newly recognized entity, which, in turn, will be
bound by similar reciprocal obligations.
The law of recognition has escaped strict legal criteria. In prac-
tice, recognition constitutes a political determination, frequently ac-
cording to considerations of policy, or questions of mixed inter-
national law and fact. It has been delayed, refused or granted for rea-
sons not usually of legal nature.-" States decide in accordance with
their own view as to the national interests of their own country whe-
ther to recognize a foreign State or not. An examination of the legal
literature would disclose that there are two major theories of recog-
nition: the constitutive and the declaratory.
According to the constitutive theory, a State becomes an inter-
national person and a subject of international law only through recog-
nition. That means an unrecognized State has neither rights nor obli-
gations under international law and consequences of that conclusion
might be startling in the contemporary world when all the States
are inter-dependent for one thing or another.
According to the declaratory theory, recognition does not bring
into legal existence a State which did not exist before. That means, a
State may exist without being recognized. Once it exists, it has a right
to be treated as a State.
The declaratory theory is adopted by modern writersY and is sup-
58. For example, "during the first World War, recognition was accorded to Poland and
Czechoslovakia by France, Great Britain and the United States before these new political entitles
actually existed as independent Governments or States. Germany Similarly recognized Lithuania
for war purposes. De facto "provisional". "limited", or "conditional" recognitions were granted
in the instances of Estonia, Latvia, Georgia, and Armenia pending the determination of their
definite international status." Philip Marshall Brown, "The Legal Effects of Recognition," 44 The
American Journal of International Lan (1950) p. 620.
59. For example, Hall, Wagner. Fischer, Pitt Cobbett, and Brierly support the declaratrv
theory.
ported by State and arbitral practice. According to Article 3 of the

Montevideo Convention of 1933,
the political existence of the State is independent of recognition
by other States. Even before recognition the State has the right
to defend its integrity and independence, to provide for its con-
servation and prosperity, and consequently to organize itself as it
sees fit, to legislate upon its interests, administer its services, and
to define the jurisdiction and competence of its courts. The exer-
cise of these rights has no other limitation than the exercise of
the rights of other States according to international law.'
The Charter of the Organization of American States, adopted at
Bogota in 1948 incorporates the above principle among the provisions
concerning fundamental rights and duties. 1 The Institute of Inter-
national Law, in its Resolution Concerning the Recognition of New States
and New Governments adopted in 1936 stated:
.. Recognition has a declaratory effect;
the existence of a new State with all the juridical effects which
are attached to that existence, is not affected by the refusal of
recognition by one or more States."2
The Tinoco Claims Arbitration of 1923"' suggests that recognition
is simply evidence that the international law requirements are met in
a given case. In the German Polish Arbitral Tribunal of 1929 it was
observed that recognition of a State is not constitutive but merely a
declaratory act in as much as the State exists by itself and recognition
is nothing but the ascertainment of that existence.6
State practice confirms the above view in the sense that States
do not refrain from bringing claims under international law against
unrecognized States or Governments. For example, when Jewish air-
men shot down British aeroplanes over Egypt in January, 1949, the
British Government at once informed the Government of the Jewish,
which at that time Britain had not recognized, that they would de-
60. See supra note 18.

61. Article 9. For text of the Charter, see United Nations Treao , Series, Volume 119, p. 49
el. seq.
62. Article 1. For text of the Resolutions, see 30 The American Journal of International Law,
Supplement (1936) p. 185 et. seq.
63. For the "Tinoco Claims Arbitration", Great Britain v,. Costa Rica, see 18 The American
Journal of International Lan,, (1924) p. 147 et seq.
64. M.P. Tandon and R. Tandon, PA/s/ic International Law, Sixteenth edition (India: All-
ahabad Law Agency, 1977) p. 115.
mand compensation-
[I].International Organizations as Subjects of International Law
International organization is a characteristic feature of the present

day world society. Although we speak of international organi-
zation, strictly speaking what we are concerned is about inter-State
organization. As we have seen carlier, a nation is a social group uni-
ted by common ties of kinship, by common culture, religion and lang-
uage, while a State, on the other hand, is a social group united under
one political organization.
"Cooperative plans and experiences between politically indepen-
dent entities go far back in history, at least to ancient Greece: "' but
modern international organization as a body of permanent institution
for the cooperation of States is a comparatively new phenomenon dat-
ing only from the second half of the nineteenth century.
Generally speaking, there are four characteristic features of an in-
ternational organization. First, it is an association of States as distinct
from an association of private individuals, professional organizations
or religious groups. Second, an international organization has a con-
ventional basis, a multilateral treaty 7 which forms the constitution of
the organization. Third, the constitutive instrument will have estab-
lished organs of the institution. Fourth, the institution thus established
assumes corporate identity distinct from that of the component mem-
ber States. Authorities agree that there are four prerequisites for the
development of international organizations. They are (1) a multiplicity
65. Harris, supra note 45 at p. 125, note 84. In 1954, the United States made claims aga-
inst the unrecognized Government of the Peoples Republic for the killing of American nationals
when a commercial aircraft was shot down by a Chinese military aircraft. In 1957, the United
Kingdom claimed compensation from the unrecognised Taiwan Government for damage done to
British vessels by its forces. In 1968, the United States protested the seizure of its naval vessel
Pueblo by North Korea which the United States did not recognize. Ibid., p. 126, note 86.
66. EI-Erian, -First Report on Relations between States and Inter- Governmental Orga-
nizations" (Report to the International Law Commission by its Special Rapporteur, 1963) in 2
Yearbook of Me International Law Commission, (1963) p. 159. As quoted by Frederic L. Kirgis, Jr.,
International Organigations in Their Legal Setting, (Minnesota : West Publishing Co. 1977) p. 1.
67. The technique of multilateral treaty is an innovation of the Congress of Vienna of
1815. "Up to that time, this technique was unknown. When a peace settlement included several
States, the end result was a series of bilateral treaties between different pairs of parties. This
was the case in the Peace of Westphalia. It was also the case of the Paris Treaty of 30 May
1814 which was composed of seven separate treaties, each between France and an allied power,
although they were identical in their content. Thus, even when the content was identical, these
treaties wcrc legally separate. Ibid., p. 3.
of States; (2) existence of a substantial measure of contact between

them: (2) awareness of the problems arisen out of their coexistence:
and (4) recognition of the need to establish institutional devices for
regulating their relations with each other.
In the post World War 11 period, after the establishment of the
United Nations and its Specialized Agencies, it has become apparently
clear that States are not the only subjects of international law. State
practice has started recognizing the independent existence of a variety
of international organizations, varying both in powers and importance,
and in the extent of their membership. As a result of this, the trend
has been the growing acceptance of the view that international organi-
zations, as we shall see during the course of following discussion, are
endowed with international personality and thus they are also the sub-
jects of international law. Whereas a State possesses the totality of inter-
national rights and duties recognized by international law, the rights
and duties of an international organization will of course depend upon
its purposes and functions as specified or implied in its constituent
document and developed in practice. To one writer, international organi-
zations and States are on equal footing from the point of their legal
capacities. According to him, "international organizations, like States,
have an inherent legal capacity to perform any 'sovereign' or inter-
national act which they are in a practical position to perform. They
are in principle from a legal point of view general subjects of inter-
national law, in basically the same manner as States". 8
In accordance with Article 2, paragraph 1( i ), of the Vienna
Convention on the Law of Treaties between States and International
Organizations or between International Organizations 1986, inter-
national organization means an intergovernmental organization. 9 It ex-
cludes non-governmental organizations although it is likely that some
non-governmental institutions such as the International Committee of
the Red Cross which has important functions under. the Geneva Con-
vention on the Laws of the War conclude conventional acts similar to
those of international organizations.
In contradistinction to States, international organizations do not
68. Finn Seversted, Ojective International Personality of Intergovernmental Organizations (1963)

pp. 28-29.
69. See P.K. Menon, "The Law of Treaties between States and International Organizations
or between International Organizations with Special Reference to the Vienna Convention of
1986," 65 Revue De Droit International de Sciences Diplomatiques et Politiques, (1987) pp. 255-320;
ibid, Vol. 66 (1988) pp. 1-50.
come into existence on the basis of general international law when

certain facts are present. To be sure, there are similarities between
States and international organizations but there are at the same time
many differences. For example, the State is a sovereign entity while
an international organization is composed of sovereign States. The
State has a gencric competence in that in order to attain its common
goal, it can hind itself with other juridical bodies through political,
economic, social, cultural and technicl relationships while an inter-
national organization has a specific competence which is limited to
the goals to be attained as set forth in its Charter. The State has an
original competence, meaning that it may act with greater autonomy,
without any interference from other States whereas an international
organization has a derived competence limited to the rights granted it
by the participating States.
Further, unlike States, international organizations are not equals.
An international organization is a highly individualized entity" it is
established individually by the will of the founders and shaped sub-
sequently by the will of its members. The structure and powers of
70
each organization are entirely dominated by its constituent instrument.
This instrument has been drawn up essentially with a view to serv-
ing functions which vary from one organization to another. Thus in-
ternational organizations could not be subjected to a uniform rule and
confined within an unduly rigid framework which might hamper their
future activities.
By 1945, although there was general agreement that international
organizations were capable of possessing an international personality
distinct from that of the States which composed them, there had been
hesitation in expressly conferring full international capacity upon those
bodies. Article 104 of the United Nations Charter "is conspicuous for
its restraint on the subject".7n That Article states that
The Organization shall enjoy in the territory of each of its
Members such legal capacity as may be necessary for the exercise
of its functions and the fulfilment of its purposes.
From the history of the drafting of the above Article, it seems
70. The individual character peculiar to each organization results not only from the
character of the constituent instrument of each organization but also from the particular character"
of the practice relating to the interpretation of the constituent instrument within the meaning of
Article 31 of the 1969 Vienna Convention on the Law of Treaties.
71. H. Lauterpacht, "The Subjects of the Law of Nations", 63 The Law Quartery Review
(1947) p. 447.
72. Ibid.
"that the omission of an express reference to international personality

(upon the Organization) was not accidental"." It was a compromise
formula adopted so as to avoid any implication that the United
73
Nations was a Super-State.
Similarly, Article 105 of the Charter states that "(t)he Organi-
zation shall enjoy in the territory of each of its Members such pri-
vileges and immunities as are necessary for the fulfilment of its pur-
poses". In a similar fashion, Article 1, section 1 of the General Con-
vention on Privileges and Immunities of 1946 appears to be con-
cerned primarily with the position of the Organization under munici-
pal rather than international law. The question therefore arose as to
whether the United Nations only had personality under municipal law,
or also, to some extent, under international law. The answer was given
by the International Court of Justice in the Advisory Opinion on
Reparations for Injuries suffered in the Service of the United Nations.74
Count Folke Bernadotte, a Swedish national, while serving as
United Nations Mediator in Palestine, was killed allegedly by a pri-
vate gang of terrorists in the new city of Jerusalem on September
17, 1948. The new city was then in Israeli possession. This assassin-
ation climaxed a series of attacks resulting in the death or injury of
United Nations officials while serving the Organization. Traditionally,
the State of a person's nationality has the right under international
law to assert an international claim for damages when another State
fails to live up to certain minimum international standards as to the
person's safety. The right of an international organization to assert
such a claim had never been tested. Since the Charter of the United
Nations did not explicitly state that the Organization was a subject of
international law, possessing capacity to bring international claims for
reparation for injury, the United Nations General Assembly by Resolu-
tion 258 (l]1), adopted at its 169th Plenary Meeting on December 3,
1948, submitted certain questions involving the status and capacity of
the United Nations Organization under international law to the Inter-
national Court of Justice for an Advisory Opinion. The first question
asked of the Court is as follows:
In the event an agent of the United Nations in the perform-
73. "Itis stated in the official report of the President of the United States that 'The
Committee which discussed this matter was anxious to avoid any implication that the United
Nations will be in any sense a superstate'." Ibid., quoting The Charter of the United Nations, Hea-
rings before the Committee on Foreign Relations (1945) p. 135.
74. (1949) I.C.J. Reports, p. 174.
ance of his duties suffering injury in circumstances involving the

responsibility of a State, has the United Nations, as an Organi-
zation, the capacity to bring an international claim against the
responsible de jure or de facto government with a view to ob-
taining the reparation due in respect of the damage caused (a)
to the United Nations, (b) to the victim or to persons entitled
through him?
The subjects of law in any legal system are not necessarily identi-
cal in their nature or in the extent of their rights, and their nature
depends upon the needs of the Community. Throughout its history,
the development of international law has been influenced by the req-
uirements of international life, and the progressive increase in the col-
lective action of States has already given rise to instances of action
upon the international plane by certain entitles which are not States.
This development culminated in the establishment in June 1945 of an
international organization whose purposes and principles are specified
in the Charter of the United Nations. But to achieve these ends the
attribution of international personality is indispensable.
In the opinion of the Court, 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 the capacity to
operate upon an international plane. It is at present the supreme type
of international organization, and it could not carry out the intentions
of its founders if it was devoid of international personality. It must
be acknowledged that its Members, by entrusting certain functions to
it, with the attendant duties and responsibilities, have clothed it with
the competence required to enable those functions to be effectively
discharged.
Accordingly, the Court has come to the conclusion that the Organi-
zation is an international person. That is not the same thing as say-
ing that it is a State, which it certainly is not, or that its legal per-
sovnality on rights and duties are the same as those o: Stae J
till
less is it the same thing as saying that it is a "Super State," what-
ever that expression may mean. It does not even imply that all its
rights and duties must be upon the international plane, any more than
all the rights and duties of a State must be upon that plane. 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.
The next question is whether the sum of the international rights
of the Organization comprises the right to bring the kind of inter-

national claim described in the Request for this Opinion. That is a
claim against a State to obtain reparation in respect of the damage
caused by the injury of an agent of the Organization in the course of
the performance of his duties. Whereas a State possesses the totality
of international rights and duties recognized by international law, the
rights and duties of an entity such as the Organization must depend
upon its purposes and functions as specified or implied in its con-
stituent documents and developed in practice. The functions of the
Organization are of such a character that they could not be effectively
discharged if they involved the concurrent action, on the inter-
national plane, of fifty-eight or more Foreign Offices, and the Court
concluded that the -Members have endowed the Organization with ca-
pacity to bring international claims when necessitated by the discharge
of its functions.
The Charter does not expressly confer upon the Organization the
capacity to include, in its claim for reparation, damage caused to the
victim or to persons entitled through him. The Court must therefore
begin by enquiring whether the provisions of the Charter concerning
the functions of the Organization, and the part played by its agents
in the performance of those functions, imply for the Organization
power to afford its agents the limited protection that would consist
in the bringing of a claim on their behalf for reparation for damage
suffered in such circumstances. Under international law, the Organi-
zation must be deemed to have those powers which, though not ex-
pressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties. This
principle of law was applied by the Permanent Court of International
Justice to the International Labour Organization in its Advisory Opi-
nion No. 13 of July 23rd, 1926 (Series B., No.13, p. 18) and must
be applied to the United Nations.
The indicia of personality which the Court noted were the obli-
gations of members towards the Organization, the legal capacity and
privileges provided for in Articles 104 and 105, and its treaty-making
75
capacity.
In the past, it seems that a specific acknowledgement of the pos-
session of international legal personality to an Organization is ex-
tremely rare. Even then, following the above Opinion, it may be per-
75. D.W. Bowett, The Law of International Institutions, Fourth edition (London: Stevens &
Sons, 1982) p. 336.
missible to assume that most Organizations created by a multilateral

inter-governmental agreement possess some measure of international
personality in addition to the personality within the municipal law of
the members. Let us now see the indicia or attributes of personality.
Attributes of Personality
1) Treay-Aaking Power
With regard to the treaty-making capacity of international organi-
zations, three theories can be discerned from the legal literature: (1)
the theory which denies capacity. (2) the theory which equates ca-
pacity with that of States' and (3) the theory which confers limited
capacity.7" The first two types of theories are the extremes while the
third one which is flexible in nature has more followers today.
Until recently, a large majority of Soviet writers unreservedly de-
nied the treaty-making capacity of international organizations because
they did not possess the essential requirements of States. For example,
in a standard text book on international law published by the Insti-
tute of State and Law of the Soviet Academy of Sciences, it is said:
In modern bourgeois legal writings, a number of scholars favour
the extension of a range of subjects of International Law to in-
clude international organizations and even physical persons. But
this contradicts the very essence of International Law as inter-
State law, whose purpose is to regulate the relations between
7
States on the basis of their sovereign equality. 1
The above view was widespread in Soviet legal literature up to
the middle of the 195 0s and there were a few Soviet lawyers who
continued to hold the same dogma. This "can be regarded as the
legacy of history."78 To a distinguished Soviet writer, "(t)he growing
role of international organizations and their participation in inter-
national legal relations have abundantly proved that many international
organizations possess international legal personality although in differ-
76. See Gunther Hartmann, "The Capacity of International Organizations to Conclude Treaties",
in K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention on the Low
of Treaties, (New York : Springer- Verlag, 1971) p. 131.
77. F.1.Kozhevnikov (ed.), International Law, Ogden D. transl. (Moscow: Foreign Lan-
guage Publishing House, 1960) p. 89. More Specifically, the author defines treaty as "a formal
expressed agreement between two or more States regarding the establishment, amendment or ter-
mination of their reciprocal rights and obligations", Ibid., p. 247.
78. Gregory Tunkin, "International Law in the International System", 147 Reroeil Des Cs,,-
rs (1975), Volume 4, p. 199.
ent degrees.""'
According to the second theory, the capacity to conclude treaties
belongs naturally to international organizations and is for them an in-
herent capacity. To its chief exponent, Finn Seyersted, international
organizations are different from States only from factual point of
view and not from legal point of view. He maintains 'that inter-
national organizations have the legal capacity to perform any inter-
national act, like States, unless their constituent instruments impose
limitations. According to him,
If the constitution does not define the matters with which
the Organization can deal, as is the case of the Nordic Council,
then it can deal with any matter. And if the constitution does
not preclude certain types of acts or exhaustively enumerate the
acts which the Organization must perform, as very few con-
stitutions do, then it can perform any type of acts. 0
In his study on International Organizations, 8 Hungdah Chiu con-
cludes that the treaty-making capacity of international organizations
has now been generally recognised. In a similar manner, in his report
to the Institute of International Law, Rene Dupuy recommends
Article 4: Unless the constituent instrument provides other-
wise, every international organization has the capacity to conclude
agreements in the exercise of its functions and for the achieve-
ment of its objectives."
In between the above two extreme views, most writers favour an
intermediate position according to which they consider that inter-
national organizations have limited legal capacity to conclude treaties.
This limited legal capacity can be derived from either general inter-
national law or through the constitutive instrument. For example, to
79. Ibid. He further states that "(t)he Soviet doctrine of international law is unanimous in
view that the legal personality of an international Organization is based on the constituent in-
strument". At p. 203. For more details he cites E. Shibaeva, The Legal Status of International
Organizations (Moscow: 1972) in Russian.
80. Finn Seyersted, "International Personality of Intergovernmental Organizations", 4 The
Indian Journal of International Lan, (1964) p. 55. Further, he states that" (i)t is not the conven-
tion containing the constitution of the Organization (if such a Convention exists at all) or the
intention of the contracting parties thereto which establishes the international personality of inter-
governmental organizations and determines its extent, but general international la%%.... Ibid., p. 259.
81. Hungdah Chiu, The Capacity of International Organizations to Conclude Treaties, and the
Special Legal Aspects of the Treaties so Concluded, (The Hague : Martinus Nijhoff, 1986) p. 46.
82. R.J. Dupuy, L' application des reg/es de droit international general des traite aux accords con-
c/uspar les organiZations internationales (Geneva: 1972) submitted to the Institute of International
l.aw, p. 101. As quoted in the U.N. Doc. A/CN.4/271 (15 May 1972) paragraph 39.
Seidl Hohenveldern,
Personality is established because States, for duration of their
membership, surrender a part of their sovereighty, even this is
only an infinitesimal part, which the organization correspondingly
adopts."'
To Zemanek, "general international law contains no norms govern-
ing the relations and capacity of international organizations. Hence
these norms must be created by those entities which are both subjects
as well as law creating sources of the legal system."8
According to Article 6 of the recently concluded Vienna Conven-
tion on the Law of Treaties between States and International Organi-
zations or between International Organizations, 1986,
The capacity of an international organization to conclude
8
treaties is governed by the rules of that organization. 5
With regard to the adoption of the above Article, there had been
two clear positions both in the discussions of the International Law
Commission and in the comments of Governments. One position was
that an international organization, by the very fact of its existence,
possessed capacity to conclude treaties; the other was that such ca-
pacity was determined only by the constitutional framework of the
organization in question, as laid down in its constituent instrument.
In the former case, the capacity to conclude treaties was derived from
international law; in the latter it was derived from the will of the
member States which had drawn up the constituent instrument.6
The wording of the adopted Article is the result of a compro-
83. Seidl Hohenveldern, Das Recht der Internationalen Organi ation, p. 181. As quoted b%
Hartmann, supra note 76 at p. 138.
84. "He thus views the legal system as open and closed at the same time-."The system
is closed in the sense that no entity, of its own volition, may enter the legal complex. It is
open in the sense that preexisting participants can "create" additional units. Once these entities
have joined the legal order, they may interact on the basis of legal equality with previous mem-
bers. Thie does not mean, however, thatthe newly joined entities have absolute equality - the
original member's prerogatve max stipulate !imiting cc-,;,,i tona prereq,.isotes to acceptance
within the legal system." As quoted by Hartmann, ibid., p. 139.
85. See Menon, supra, note 69. In accordance with Article 2, paragraph 1(j) "rules of the
organization" means, in paticular, the constituent instruments, decisions, and resolutions adopted
in accordance with them and established practice of the Organization.
86. See Martinez Moreno, 1277th Meeting (13 June 1974), paragraph 8. He continued to
state that 'the suggestion that international organization did not possess international personality
and hence did not possess capacity to conclude treaties was belied both by practice... and by
the advisory opinions of International Court of Justice on Reparation for Ityuries Vuffrred in the
serrice of the United Nations (l.C.J. Reports, 1949), The effect of Awards of Compensation made by
the U.N. Adidnistrati'e Tribunal (l.C.J. Reports 1954), and Certain Expenses of the United Nalions.
Article'7,paragraph 2 o the Charter (I.C.J. Reports, 1962).
mise between the two conflicting points of view. It is flexible and

neutral, in the sense that it does not prejudge the various doctrines
concerning the basis of the capacity of organizations to conclude
treaties. In essence, it has taken full account of the Advisory Opinion
of the International Court of Justice, handed down in 1949, in the
case of Reparation for Injuries Suffered in the Service of the United Nations
to the effect that
Whereas a State possesses the totality of international rights
and duties recognized by international law, the rights and duties
of an entity such as the Organization must depend upon its pur-
poses and functions as specified op implied in its constituent docu-
ments and developed in practice.
As the Commentary of the Article explains, "the Article indicates,
for the sole purpose of the regime of treaties to which international
organizations are parties, by what rules the capacity to conclude treat-
ies should be assessed... It reflects the fact that every organization
has its own distinctive legal image which is recognizable, in parti-
cular, in the individualized capacity of that Qrgarnization to conclude
international treaties."
2) Privileges and Immunities

Whereas the immunity of a State is based primarily upon the
principle of sovereign equality, the immunity of an international organi-
zation is based upon the paramount necessity of its functions. Accord-
ing to the functional necessity theory, an international organi-
zation should enjoy immunity from the jurisdiction of the Courts of
the Member States including the host State. Hence, Article 105, para-
graph 1 of the United Nations Charter provides that "The Organi-
zation shall enjoy in the territory of each of its Members such pri-
vileges and immunities as are necessary for the fulfilment of its pur-
poses." Thus, in practice, most international organizations, their pro-
perty and assets, enjoy immunity from legal process except in so far
as in any particular case they have expressly waived their immunity.'
87. I.C.J. Reports (1949) p. 180.

88. Thus, for example. Section 2 of the Convention on the Privileges and Immunities of
the United Nations of 1946 provides that "the United Nations, its property and assets, wherever
located and by whomsoever held, shall enjoy immunity from every form of legal process, except
in so far as in an\ particular case it has expressly waived its immunity". A substantially similar
provision may be found in the specialized agencies convention and in the various headquarters
agreements with countries like Canada, France, Switzerland and Itah.
International organizations do not have a territory of their own.

The headquarters of the organization are mostly leased or rented, or
at times owned by the organization; but none of them possesses inter-
nationalized headquarters, that is areas over which they have exclusive
jurisdiction. In accordance with the Headquartcrs \grcenlent, the inter-
national organization enjoys those freedoms which arc essential for the
successful performance of its functions. The principal constituent ele-
ments of such freedoms are:
Freedom to hold international mectiiugs At:1 1nV time without
seeking or securing the permission or indulgence Of a host State;
complete freedom of discussion and dccision at such meetings:
freedom of access to and from all parts of the world, irrespective
of the policies of any one State, by air at least and to the fullest
extent by land and by sea: freedom to operate telecommunication
installations not subject to national control: freedom from any
postal censorship of the host State: freedom from national con-
trol of printing operations and of the issue of publications: the
immunity of international institutions at their headquarters from
national jurisdiction; like immunity in respect of acts and omi-
ssions of their officials and employees performed in the course of
duty; the inviolability of international buildings; the freedom of
international archives from legislative, executive or judicial inspec-
tion or interference on behalf of an, one State; the exemption
of international headquarters from all forms of national taxation
and from national exchange control regulations and import res-
trictions... 9
The Headquarters Agreement would impose legal obligations on
States under international law;9 and normally, it would be necessary
for States to enact municipal legislation so as to implement these obl-
igations.
The officials of the organization enjoy immunity from legal pro-
cess in respect of their official acts. The representatives of Member
States to the organiizatiois are generally speaking accorded diplomatic
immunities and privileges. They enjoy the right to codes and to re-
ceive papers and correspondence by couriers or in sealed pouches.
89. C. Wifred Jenks, The Headquarters of International Institutions: A Stud of Their Location
and Status, (London: The Royal Institute of International Affairs, 1945) pp. 64-65.
90. See the Advisory Opinion of the International Court of Justice on the Interpretation
of the WHO/Egypt Agreement, I.C.J. Reports (1980) in which the Court held that such an
agreement could not be terminated at will but imposed mutual obligations of consultation on
the parties.
They also enjoy exemption from immigration restrictions, alien regis-

tration, and national service obligations. The host State's obligation to
afford personal protection to the representatives of Member States
(and also to officials of the organization) has been reinforced by the
1973 United Nations Convention for the Provention and Punishment
of Crimes against Internationally Protected Persons."
3) Capacity to Bring C/aims
In the Reparation case, the ICJ affirmed that the Organi-

zation is a subject of international law and capable of possessing
international rights and duties, and that it has the capacity to
9
maintain its rights by international claims. 2
And further, the Court said:
It can now be assumed that the Organization has the ca-
pacity to bring a claim on the international plane, to negotiate,
to conclude a special agreement and to prosecute a claim before
93
an international tribunal.
In Befour, Gutbrie & Co. v. United States,94 it was held that the
United Nations, as a shipper of powdered milk sent by the United
Nations International Children's Emergency Fund to European ports,
had capacity to sue a private charterer and the United States as owner
of the vessel on which the shipment was made under the Suits in
Admiralty Act, 41 Stat. 525 (1920). In International Refugee Organization
P. Republic S.S. Corp.,9 it was held that international organizations au-
thorized by statute "to institute judicial proceedings" may sue in fed-
eral courts even on claims stemming from State law although diver-
sity jurisdiction was absent. 6
The organization has also responsibility for acts of a delictual or
contractual character. If an organization can be a plaintiff on the in-
ternational plane it must also be a defendant when the situation war-
rants it. In practice, international organizations have accepted responsi-
bility for tortious acts of its officials, agents, and others acting under
their control. Administrative Tribunals, Claims Commissions, Arbi-
91. For text of the Convention see 13 International Legal Materials (1974) p. 41.
92. I.C.J. Reports (1949) p. 179.
93. Ibid., p. 181.
94. 90 F. Supp. 831 (N. D. Cal. 1950): Note, 99 U. Pa. L. Review (1951) p. 554.
95. 189 F. 2nd 858 (4th Cit. 1951).
96. See Notes, 61 Yale Law Journal (1952) p. 111: 71 Harvard Law Review (1958) pp.
1300, 1301-1306.
tration Clauses in Contracts, and even bilateral negotiations between

States or individuals on the one hand and the Organization on the
other afford means whereby the responsibility of the organization can
be determined.
Questions of responsibility of organizations have arisen most con-
spicuously in connection with the peace-keeping activities of the Uni-
ted Nations. 97 Responsibility for damage and personal injuries by mili-
tary forces provided by member States but acting under the authority
of the United Nations has been assumed by the United Nations. In
this regard, agreements with the Governments which contributed troops
and with the host Governments usually provide the terms of financial
responsibility and the procedures for settling particular cases.
4) Status Under Municipal Law

Constitutions of many countries make provisions for the capacity
of the organization under municipal law, either in the form of Article
104 of the U.N. Charter:
The Organization shall enjoy in the territory of each of its
Members such legal capacity as may be necessary for the exercise
of its functions and the fulfilment of its purposes.
Or of Article 39 of the I.L.O. Constitution:
The International Labour Organization shall possess juridical
personality and in particular the capacity-
(a) to contract;
(b) to acquire and dispose of immovable and movable property;
(c) to institute legal proceedings.
These provisions are generally complemented with a requirement
that the organization itself, representatives of its Members and officials
of the organization are entitled to such privileges and immunities
under municipal law as are necessary for carrying out their respective
functions. The granting of such immunities is to a great extent equi-
valent to according international legal personality as well as recog-
nition of that status.
5) General Powers
In order to determine the capacity of the organization it may be
97. Some of these complex legal and political issues were considered by the International
Court of Justice in its advisory opinion on Certain Expenses of the United Nations, I.C.J. Reports
(1962) p. 151.
useful to consider the specific powers conferred on an organization

and the type of duties it is required to perform under its consti-
tution.
To refer to the Reparations case once again, the Court said that
the United Nations "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 inter-
national personality and the capacity to operate on the international
plane,"98 and when it went on to decide that the organization did
have the power to exercise "a measure of international protection of
its agents", it based its conclusion on the "character of the functions
entrusted to the Organization", particularly the need "to entrust its
agents with important missions to be performed in disturbed parts of
the world."'
6) Express or Implied Recognition

If the constitution of an organization grants it international legal
personality with capacity, it is not open to its members to deny the
existence of that personality* their signing and ratification of the con-
stitution amounts to recognition of the independent status of the
organization created by its constitution. But what is the status of the
organization vis-a-vis non-member States? In other words, does the
personality of an organization have an objective status effective as
against States which are not members of the organization? In its con-
clusion, in the Reparation case, the Court held unanimously that the
Organization has the capacity to bring an international claim even aga-
inst a non-member State. In its reasoning, the Court stated that "the
Organization is an international person" and that "fifty States, rep-
resenting the vast majority of the members of the international com-
munity, had the power in conformity with international law, to bring
into being an entity possessing objective international personality, and
not merely personality recognised by them alone, together with capacity
to bring international claims."1 °° Objective international personality for
an organization means that third parties must treat the organization as a
101
subject of international law in any relations they have with it.
98. I.C.J. Reports (1949) p. 184.

99. Ibid., p. 183.
100. Ibid., p. 185.
101. Finn Seyersted, "Is the International Personality of Intergovernmental Organizations
Valid Vis-a-Vis Non-Members?", 4 The Indian Journal of International Lan, (1964) p. 260.
7) jurisdiction Over Organs
International organizations exercise exclusive jurisdiction over their

organs. They enact regulations which govern procedure, rights and
duties of the staff vis-a-vis the organization, and other relations within
and between the various organs of the organization. These rules present
a structural identity with municipal rules of law.
The rules of procedure of an international organization are in
many respects analogous to those of a national parliament. They, govern
the relations between members of an assembly, and between the as-
sembly, and its chairman/president and they establish certain relation-
ships of subordination to an officer or body invested with certain
powers. Similarly, the financial regulations of an organization govern-
ing the budgetary process, the authorization of expenditure, auditing
procedure et cetera present close analogies to the corresponding rules
in national constitutional and administrative systems. In brief, every
international organization has its own set of internal legal rules, just
as ever, State has its own municipal law.
The Staff Rules regulate the terms of employment and, the rights
and duties of the staff. They may also provide elaborate machinery,
including appeal boards and administrative tribunals, for the handling
of disputes between the organization and the individual staff member.
The powers given to such bodies are judicial in nature. In its
Advisory Opinion on the Effects of Awards of Compensation made Iy the
UN Administrative Tribunal, the International Court of Justice stated
that the judgement rendered by such a body is res judicata and has
binding force between the parties in the dispute. The Court further
found that the parties to the dispute were the staff member concerned
and the UN itself. Consequently, the Organization was legally bound
to carry out a judgement of the Tribunal and to pay the compen-
sation award to the staff member. The General Assembly, as an organ
of the Organization, was also bound and had to appropriate the
necessary amount of monev in the exercise of its budgetary function.
102
Thus, international organizations exercise an exclusive legislative,
administrative and judicial authority over their constitutional organs,
similar to that of States over their organs.
102. l.C.J. Reports (1954) p. 53 and 59.

8) Accreditation of Missions/Representatives
More often, States accredit permanent missions to international

organizations of which the, are members or even to organizations
of which they are not members. In certain cases, they accredit mem-
bers of their diplomatic missions to the host State to act concurrently
as permanent representatives to the organization.i0 These permanent
missions are usually accorded diplomatic privileges and immunities by
the host State.
In a more or less similar manner, certain international organizations
maintain resident representatives accredited to the governments of Mem-
ber and even non-Member States. Thus, for example, the United
Nations Development Programme maintains "Resident Representatives"
in a large number of countries. These representatives are also sometimes
accorded diplomatic privileges and immunities.
9) Other Acts
International organizations like States have convened international

conferences of plenipotentiary representatives. 4 In certain cases, they
have, in association with States, established new organizations which
have a separate international personality."0 ' They have acted as deposi-
taries of international conventions. 106 At least one organization, the Uni-
ted Nations, has "operated ships under its flag without having recourse
to the jurisdiction or international responsibility of any State".107
IV. Individuals as Subjects of International Law
In spite of the traditional doctrine that States only and exclusively

are the subjects of international law, the position of individuals in inter-
national law is becoming increasingly important in light of technological
and cultural advances of the human society. The traditional doctrine is
being modified to the extent that individual has become a subject of in-
103. The General Assembly of the United Nations in Resolution 257 (1II) acknowledged
that "since the creation of the United Nations, the practice has developed of establishing, at the
seat of the Organization, permanent missions of Member States" and recommended procedures
for such missions similar to those of diplomatic missions to States. As a matter of fact, non-
member States too maintain such missions to the United Nations.
104. See Seyersted, spra note 80 at p. 14.
105. Ibid., p.15.
106. Ibid., p. 19 .
107. Ibid.
ternational law, not having the same quality as a State but capable of
asserting his rights himself before some international tribunals although
lacking procedural capacity to bring actions in most cases. States are
still the principal subjects of international law and, international
organizations as we have seen in the previous Section, are to a lesser
extent subjects of that system. Nevertheless, there is no rule that indivi-
duals cannot have personality for certain purposes.
The concept of a direct relationship of individuals to the family
of nations has a long history. According to the classical and medieval
concepts of natural law, individuals enjoyed certain natural or human
rights which ought to be protected by the world community of man-
kind. At the same time, individuals were also bound by certain natu-
ral or human obligations which ought to be enforced by the same
community. This concept stems from the natural law approach em-
phasizing the inalienable "rights of man" and at times arises as a re-
action to the theories of State sovereignty."° In a scholarly article on
the subject, Korowicz states that "(t)he idea that international law
rules not only the intercourse of independent States but also that its
provisions are directly binding on individuals without the intermediary
of their State, is at least as old as the science of international law,
which originated in the sixteenth century".,0° Explaining this, for ex-
ample, he has referred to the writings of Grotius,1 ° Pufendorft1 ' and
Hobbes. 1 ' A century earlier, both Plutarch and Vitoria acknowledged
113
that non-State entities had internationally recognized legal rights.
In the eighteenth century, the dominant positivist philosophy has
brought about a remarkable change. The orthodox positivist doctrine
is identified with the extreme assertion of State sovereignty leading to
the thesis that only States create rules of international law, that such
108. Herbert Briggs, The Lan, of Nations: Cases, Documents, atd Notes, Second Edition
(New York: Appleton -Century -Crofts, Inc., 1952) p. 93.
109. Marek St. Korowicz., "The Problem of the International Personalitv of Individuals",
50 The American Journal of International Lan' (1956) p. 534.
110. "The human being is a center of the legal conceptions of Grotius'" He considered
the law of nations as a body of rules governing the activities of individuals in international re-
lations rether than as a body of provisions binding on States in their relation with other
States." De Jure Belli ac Pacis, L. 1., Chapter 1 and 14.
111. Pufendorf stressed the identity of the natural law binding for individuals and States.
Dejure Naturae et Gentium, L. 11. Chapter 111.
112. Hobbes also expressed a similar opinion as that of Grotius and Pufendorf. De Cire,
Imperium, Chapter XIV. Sec 4.
113. See Rosalyn Higgins, "Conceptual Thinking About the Individual in International
Law" in Falk, Kratochwil and Mendlovitz (eds.), International Law: A Contemporary Perspectire
478
(Colorado: Westview Press, 1985) p. .
rules are valid only for States and that no place is left for the indi-
vidual."' During the positivist period, "sovereign States, the predomi-
nant bearers of rights and duties under international law, have... suc-
ceeded in maintaining a practically unchallenged monopoly of ex-
clusive or concurrent jurisdiction over the individual".115
According to the positivist school, in cases in which individuals
derive benefits under international law, such benefits are enjoyed not
by virtue of a right which international law gives to the indivi-
dual but by a reason of a right appertaining to the State of which
the individual is a national.' The right is a right of the state, the
individual is only the object of that right." 7 A great number of
jurists of the positivist school have asserted that individuals are only
the objects and not subjects of the international legal system. Their
argumnt runs as follows:
Under a legal system there exists only objects and subjects.
In international law "subjects" is the term used to describe those
elements bearing, without the need for municipal intervention,
rights and responsibilities. Under the existing rules of inter-
national law there is no evidence that individuals are permitted
to be the bearers of duties and responsibilities. They are like
"boundaries", or "rivers", or "territory" or any of the other
chapter headings found in the traditional textbooks." 8
In his study on the object theory of the individual in inter-
national law, George Manner cites several assumptions on which the
theory is predicated. 9 First, the individual is not a subject of this
114. See Karl Josef Partsch, 'Individuals in International Law", in 8 Encb'opaedia of Public
Iternalioal Lan' (Amsterdam: Elsevier Science Publishers, 1985) p. 316.
115. George Schwarzenberger, "The Protection of Human Rights in British State Practice",
Current Leqal Problems (1948) p. 153. See also D. Anzilotti, Cours de Droit International (Paris:
1929) p. 143: T. Gihl, tolkra// under Fred (Stockholm: 1956): M. Siotto-Pintor, 41 Receuil des
Cours (1932-33) p. 356.
116. See Lauterpacht, supra note 5 at p. 440.
117. "Thus, while it is an established principle acted upon by international tribunals that
the alien resident within the territory of a State is entitled to be treated in accordance with a
minimum standard of civilization, the traditional theory has been that, in strict law, it is not the
alien who is thus 'entitled' but only his State. His membership of the State-his nationality-is an
essential condition of the jurisdiction of international tribunals when resorted to for the purpose
of redressing wrongs alleged to have been suffered b him. Much of the existing practice, in
the form of the rule of 'nationality of claims' and otherwise, seemed to lend support to that
view." Ibid.
118. Higgins, supra note 113.
119. George Manner, "The Object Theory of the Individual in International Law", 46 The
AI merican Journal of Interaitonal Lan, (1952) p. 428.
law because he has no rights and duties under it or that he cannot

invoke it for his protection nor violate its rules. Secondly, the indi-
vidual is a thing (object) from the. point of view of this law or that
he is benefitted or restrained by this law only to the extent that it
makes it the right or the duty of States to protect his interest or to
regulate his conduct through their domestic laws. Thirdly, the indivi-
dual has no international right or claim against States. Fourthly, only
nationals of States are objects of international law and that these per-
sons are protected as objects of this law only against countries other
than their own. Fifthly, since the term Istatus' refers to the condition
of persons, and not to that of things, nationals of States do not pos-
sess a status, but at best a position in this law and that this position
is comparable to that held by animals, ships and the like.
In recent years, however, the above theory has been refuted for
a variety of reasons. Again, it may be useful to refer to the study
made by George Manner. 20 To him, first, the theory is not only odd,
but illogical or unrealistic, and immoral because it treats an entity
which is in fact a person, which is recognized as a person by all ad-
vanced municipal legal systems, and which is the end of all law, as a
mere thing in international law. Secondly, as the persons behind the
State, individuals are not objects but the sole, the real, the indirect,
or the ultimate subjects of international law. Thirdly, the theory is
detrimental to the democratic conception of the State and to the securi-
ty, if not the very existence, of the international community. Fourth-
ly, the theory subordinates man to the State on the international plane
and in so doing, prevents the enforcement of international law against
the entity which is the sole real subject of all legal obligations. Fifth-
ly, the theory is not concordant with practice. In practice, individuals
are often the bearers of rights conferred and of duties imposed upon
them directly, indirectly, or derivately subjects of this law. Sixthly,
States max become internationally liable or responsible for inter-
nationally condemned acts of men, and by the right and practice of
states to advancc international reclamations on behalf of individuals
injured contrary to international law. Seventhly, the theory is based
not upon practice, but upon erroneous premises regarding the nature
of the state and the nature of international law. Frederick Dunn att-
acks the theory as a highly misleading "legal fossil" and a "remnant
of legal animism" adducing as evidence the unchallenged fact that in-
120. Ibid., p. 430 et seq.

ternational law has always been concerned with interests and needs of
individuals, as well as States, and adding:
Only a relatively small proportion of the treaties entered
into since the middle of the last century have dealt with the re-
lations of States as political atoms. The great majority of them
have been concerned with the rights and interests of private in-
dividuals - with their ability to travel about freely from country to
country, to carry on trade across national boundaries with some
degree of predictability.., to be protected in matters of public
health and morals and a host of other things which are not at
all concerned with the advancement of the political interests of
States. 2 '
To Edvard Hambro, "There can be no law without human will.
Individuals have always applied international law and individuals have
always in the last resort been subject of international -law either di-
rectly (as pirates, officers, etc.) or indirectly (as citizens of the State
against which sanctions of one kind are applied)". l In his study on
"The Problem of the International Personality. of Individuals",
Korowicz 123 cites a large number of authorities who have consistently
argued three main viewpoints: (1) Both States and Individuals are
subjects of international law;' 24 (2) The Individual as the sole subject
126
of international law; 125 (3) Traditional doctrine of international law.
Lauterpacht, however, follows a cautious approach. According to him,
There is no rule of international law which precludes indi-
viduals and bodies other than States from acquiring directly rights
under customary or conventional international law and, to that
121. Frederick S. Dunn, "The International Rights of Individuals" Proceedings of theAmerican

.ociety of International Lan, (1941) pp. 14-15.
122. Edvard I. Hambro, "Individuals before International Tribunals", ibid, p. 23.
123. See supra note 109 at p. 533.
124. Numerous writers of the nineteenth century (including Hefter, Fiore, Bluntschli, Heil-
born, Martens and Kaufmann) and of this century (for example, Westlake, De Lapradelle, Le
Fur, Renard, Verdross, I'or Jennings, De Louter, Rundstein, Reeves, Bourquin, Spiropoulos,
Brierly, Jacques Dumas, Quincy Wright, Bishop, Accioly, Eustathiades, Charles Fenwick, Hyde,
Guggenheim, Oppenheim, Pallieri, Sibert, and Jessup) proclaim the international personality of
individuals as well as that of States. Ibid., pp. 534-539.
125. This category of writers try to destroy the present structure of public law by depriving
the State of its legal personality and conferring this quality exclusively on the individual. They
are, for example, Leon Duguit, Gaston Jeze, Krabbe, Nicolas Politis, Georges Scelle, Hans Kel-
sen, and James Brown Scott. Ibid., pp. 539-540.
126. Writers who belong to this group believe that States only are the subjects of inter-
national law. They include Anzilotti, Triepel, Strupp, Erich Kaufmann, Mankowski, Winiarski,
Robert Redslob, Koretskv and Levin. Ibid., pp. 541-543
extent, becoming subjects of the law of nations. The question is

largely one of ascertaining what is the intention of States-and,
generally, the practice of States-in each particular case. The con-
ferment of such rights may cover either particular rights or the
so-called fundamental rights of the individual in general." z
In the modern international law, the traditional doctrine of the
positivist school of thought has bccn criticiscd. For example, the so-
ciological school in France led I l)uguit, Sccllc and Politis not only
regarded the human being and his potcction as the object of the
whole legal order including international law, but even considered the
individual to be its exclusive subject.12 " The humanitarian ideology, es-
pecially developed after World War I "sought a counter-balance to
the power politics of sovereign States, recognizing a world com-
munity of individuals which were subjects of international law along-
side States"." z A third school of thought takes a rather cautious and
realistic approach. This approach
seeks to redefine the relationship between the individual, his State
and the international order, and derives from a trend apparent in
international practice to show greater concern for the protection
of human dignity. According to this school, corporate bodies-i.e.
States and other entities-remain the primary subjects of the inter-
national order. In exceptional cases, however, the legal capacity
of individuals to protect their own interests at the international
level and even their locus siandi before international organs, may
be recognized. 30
The Rights of Individuals
1) The Procedural Capacity of Individuals
According to the traditional rule which has found expression in

Article 34 of the Statute of the International Court of Justice lays
127. H. Lauterpacht, "The Subjects of the Law of Nations", 64 The Lan' Quarterlb, Reriewr
(1948) p. 112.
128. "States had only the function of providing a "legal machinery" for regulating the
rights and duties of collectivities of individuals". Partsch, supra note 114.
129. Ibid.
130. Ibid., pp. 315-316.
I it) THE KOREAN JOURNAL OF COMPARATIVE LAW (Vol 20
1
down that "only States may be parties in cases before the Court".13
To Lauterpacht, the importance of this provision may not be exagger-
ated as it is only a provision defining the competence of the Court
and it is "not intended to be declaratory of any general principle of
international law". :"' That provision does not prevent States, as we
shall see during the course of following discussion, from securing to
individuals access to international courts and tribunals.
(a) The Central American Court of Justice. The Court which was
created in 1907 at Cartago (Costa Rica) by the Convention of Washing-
ton of December 20, 1907, signed by Costa Rica, Guatemala, Hon-
duras, Nicaragua and El Salvador 1" appears to be the first inter-
national tribunal that recognized the procedural capacity of individuals
to bring claims against states. The Court was composed of five jud-
ges, one being appointed by each of the contracting parties. The
Convention gave individuals access to the Court to bring claims aga-
inst anv contracting State except their own, providing that local re-
medies had been exhausted and a denial of justice was shown, but re-
gardless of whether the individual's own State was willing to press
the claim. Thus, Article 2 of the Convention provided:
This Court shall also take cognizance of the questions which
individuals of one Central American country may raise against
anv of the other contracting Governments, because of the vio-
lation of treaties or conventions, and other cases of an inter-
national character: no matter whether their own Government
supports said claim or not, and provided that the remedies which
the laws of the respective country provide against such violation
shall have been exhausted or that denial of justice shall have been
shown.
Established for a period of ten years, the Court ceased to exist
131. The committee of Jurists appointed by the League of Nations to draft the Statute of
the Permanent Court of International Justice in 1920 considered the question of conferring upon
individuals the procedural capacity for action before the Court. Professors Loder an*d De Lap-
radelle supported in favour of individuals as parties before the Court, but both jurists met-with
strong opposition on this point. Thus the Statute contains the present provision which in effect
means to say that the claim of an individual may be presented to the Court only through the
channel of the State of which the individual is a national. See Korowicz, supra note 109 at pp.
534-544.
132. Lauterpacht, supra note 5 at p. 451.
133. For text of that Convention, see 2 The Anerican Journal of International Law (1908)
p. 231.
in 1918. During that period, five cases were brought by individuals

against foreign Governments, but in none did the individuals succeed.
It should, however, be noted here that the Court provided redress
only in cases where one citizen wished to sue one of the other, i.e.
foreign Central American State* but the Convention created no right
for the individual to seek redress before an international court against
his own State.
(b) The International Prize Court. The International Prize Court
is another example where individuals could have brought claims aga-
inst a foreign State. The abortive Hague Convention M of 1907"3 '
provided for the establishment of the Court. According to Article 4
of this Convention, an apeal from the decisions of national prize courts
could have been brought before the International Prize Court, not
only by the neutral State but also by private individuals injured by
the decisions of the national prize courts. According to Article 8, the
International Prize Court could have pronounced the capture of the
vessel to be null. In this case,
the Court shall order restitution of the vessel or cargo, and shall
fix, if there is occasion, the amount of the damages. If the vessel
or cargo have been sold or destroyed, the Court shall determine
the compensation to be given to the owner on this account.' :
The above Convention however, had never been ratified and
remained merely as an important example for the future.
(c) Treay of Versailles. Article 297 of the Treaty of Versailles
provided that the nationals of the Allied and Associated Powers-indi-
viduals-could bring actions against Germany before Mixed Arbitral
Tribunals established in conformity with Article 304 of the Treaty.
These private individuals were authorised to claim damages which
Germany's extraordinary war measures might have caused them. Fur-
ther, in the Tribunals created in accordance with the corresponding
articles of the peace treaties after the First World War, individual citi-
zens of the victor States were authorised to bring claims against na-
134. Scott, The Hague Conventions (191;) pp. 189-190. This Convention was signed ID' the
great majority of States represented at the Conference but it was not brought into force chiefly
for the reason that the London Declaration of 1909, which contained the substantive rules of
prize law to be applied by the Court was never brought into force.
135. As to enforcement of the decisions of the International Prize Court, the Convention
provided in Article 9: "The contracting powers undertake to submit in good faith to the decisions
of the International Prize Court and to carry them out with the least possible dela'".
tionals and Governments of the defeated States. The Tribunals dealt

with a large number of claims and functioned for about ten years.
The exceptional legal position of the individual was expressly
recognized by the Mixed Arbitral Tribunals. For example, in Lederer
v. German Government,131 the Anglo-German Mixed Tribunal said that
"(i)t would, of course, have been possible for the framers of the treaty
to have left these matters in the hands of the governments of the
Powers concerned, but they have not done so. The right to compen-
sation granted by the treaty is granted as compensation to the national
of an Allied and Associated Power". In Sigwald, Charles v. Germany,
the French-German Mixed Arbitral tribunal (1926) held that the right
granted under Article 2 9 7 (e) was an individual right belonging to
subjects of the Allied Powers, which might be put forward directly
against Germany without the interposition of the French Government.
(d) The German-Polish Convention -of 1922. The' German-Polish
Convention of May 15, 1922, otherwise known as the Upper Silesian
Convention, between Germany and Poland provided for a tribunal
which was given jurisdiction to entertain actiQns brought by nationals
of either party against their own State. Article 5 of the Convention
provided that
The question as to whether or to what extent an indemnity
for the abolition of diminution of vested rights must be paid by
the State, will be settled directly by the Arbitral Tribunal or the
complaint of the person enjoying the right.3'a
In Steiner and Gross v. Poland in 1927,39 the question arose as to
whether a citizen can sue his own State before the arbitral tribunal
and was answered affirmatively by the tribunal in its decision of March
30, 1929.40 The tribunal said that it was not proper to introduce in
Articles 4 and 5 of the Convention the rule that under international
law that citizens might not bring an action in an international court
136. In Recueil des Decisions des Tribunaux Arbitraux Mixtes (Paris: 1924) pp. 762, 768. As
quoted by Aufricht, supra note 9 at pp. 236-237.
137. In (1925-1926) Annual Digest 3 (No. 2 5 5 ). As quoted by Hans Kelsen, Principles of
International Law, Second edition (New York: Holt, Rinehart and \Winstorn, Inc., 1967) p. 224,
note 41.
138. As quoted by Korowicz, supra note 109 at p. 554. The Convention is a huge diplo-
matic document containing 606 articles in its main text, and 25 paragraphs in its final protocol,
as well as numerous annexes." and has a large bibliography. See Ibid., p. 533.
139. Annual Digest (1927-1928) Case No.188.
140. See Korowicz, snpra note 138.
against their own country."' Further, Articles 148-156 of the Conven-

tion provided that "Upper Silesian minorities could file individual peti-
tions with a minorities office established by their State, which, if it
could not mediate the problem to the satisfaction of the petitioner,
was obliged to forward the petition to the President of the Upper
Silesian Mixed Commission. Individuals and representatives of the two
12
Governments then stood equally before an international tribunal". 1
The Convention is of great significance because it grants individuals
the capacity to claim their rights before an international tribunal not
only against foreign State but also against their own State.'''
(e) The Supreme Restitution Court. The Supreme Restitution Court
established pursuant to the Convention on the Settlement of Matters
Arising out of the War (World War II) and Occupation betwen the
United States, the United Kingdom and France, on the one hand, and
Germany on the other, in 1952, was given jurisdiction over claims
for the restitution of identifiable property by the victims of Nazi op-
pression and for the restitution of property seized under the Nazi
regime.' Before this Court, individuals may appear as plaintiff and
defendant."'4 Further, the Mixed Commission established in 1954 under
141. In this case "a Polish and a Czechoslovak citizen brought action against the Polish
State before the Upper Silesian Arbitral Tribunal on the basis of the German-Polish Convention
of May 15, 1922. The Polish Government contended that the Convention did not confer upon
Polish nationals a right of action against the Polish State: that it was a general principle of in-
ternational law that an individual could not invoke an international authority against his own
State: that this principle ought to be applied in regard to the interpretation of the Convention,
that any interpretation to the contrary would place the State against which such right was ac-
corded in a position worse than that of States under the regime of capitulations and that the
tribunal therefore had no jurisdiction. The Tribunal (1928) held that the Polish contention must
be rejected and that the Tribunal had jurisdiction. The Convention conferred in unequivocal terms
jurisdiction upon the Tribunal irrespective of the nationality of the claimants, and, the terms of
the Convention being clear, it was unnecessary to add to it a limitation which did not appear
from its wording. There was an additional reason for not introducing any such limitation, see-
ing that the guiding principle of this part of the Convention was the respect of private rights and
the preservation of the economic unity of Upper Silesia, and that no one of these considerations
was compatible with the exclusion of an" category of claims for the sole reason of the national-
ity of the claimant". Kelsen, supra note 137 at p. 225, note 42.
142. Ibid., at p. 225.
143. See Qunicy Wright, "The End of a Period of Transition", 31 The Almeriran Journal of
International Lan, (1937) pp. 604-613: Briggs, supra note 108 at p. 95: Korowicz. supra note
109 at p. 533.
144. Shigeru Oda, "Ths Individual in International Law" in Max Sorensen (ed.), Manual
of Public International Law, (New York: Macmillan, 1968) p. 512.
145. See United States, Treaties and Other International Agreements, Volume 6 part 4 (1955)
pp. 4411, 4460.
the Agreement on German Fxternal Debts concluded in 1953 between

twenty States (includin.g the United Kingdom, the United States and
France) on one side, :ind (;crman\ on the other, has jurisdiction over
disputes between crcdit,,rs ;nd dcltrs in respect of German external
debts.I";
(f) lihe (w,/en/oit OI the .el//emenfl t/ Inestment Disputes Between
,Sta/es and Na/iona/s )/ 0/her Slales. The Convention widelh known as
the World Bank Convention (1965),' I1 recognizing the need for grant-
ing the private foreign investor jurisdictional capacity in international
law, has established the International Centre for Settlement of Invest-
ment Disputes (the Centre). The Centre provides "facilities for con-
ciliation and arbitration of investment disputes between Contracting
States and nationals of other Contracting States in accordance with
the provisions of the Convention".4 The jurisdiction of the Centre
extends to any legal dispute arising directly out of an investment, be-
tween a Contracting State and a national of another Contracting State,
which the parties to the dispute consent in writing to submit to the
centre. When the parties have given their consent, no party may
withdraw its consent unilaterallv.
(2) "National of another Contracting State" means
(a) any natural person who had the nationality of a Con-
tracting State other than the State party to the dispute
on the date on which the parties consented to submit
such dispute to conciliation or arbitration as well as on
the date on which the request was registered..."'
Further, according to Articles 28 and 36, any national of a Con-
tracting State wishing to institute conciliation/arbitration proceedings
"shall address a request to that effect in writing to the Secretary-
General who shall send a copy of the request to the other party".
It may thus be noted that the above Centre fills a lacuna in the
international arbitration process so that private foreign investors (in-
cluding individuals) have direct access to Governments in the event
of disputes. Once consent has been given by both parties, the arbitral
process will begin and an award will be rendered. And the award is
binding on the parties."'
146. Oda, snpra note 144: United States, Treaties and Other International Agreements, Volume
4 part 1 (1953) pp. 443-463: United Nations Treat , Series. Volume 210, p. 197.
147. For text of the Convention, see International Legal laterials (1965) p. 532.
148. Article 1, paragraph 2.
149. Article 25, paragraph 1 and 2.
2) The Rights of Individuals Under Treaties

(a) Jurisdiction of the Courts of Danzig Case
The personal status of the individual is recognized in various in-
ternational treaties, and the validity of such agreements has been con-
firmed by the decisions of courts. The Advisory Opinion, given in
1928 in the case concerning the Jurisdiction of the Courts of Danzig 151
by the Permanent Court of International Justice is exceptionally im-
portant in this context. In that case, Poland contended
that the agreement between her and Danzig regulating the con-
ditions of employment of Danzig officials whom she had taken
over into her railway service, was an international treaty which cre-
ated rights and obligatins between Poland and Danzig only; that,
as that agreement had not been incorporated into Polish municipal
law, it did not create rights and obligations for individuals, that Po-
land's responsibility was limited to that owed to Danzig* and that
therefore Danzig courts, before which the officials had brought an
15
action in the matter, had no jurisdiction. 1
The Court rejected the above contention by Poland and said:
It may be readily admitted that, according to a well-estab-
lished principle of international law, the Beanitenabkoimmen, being an
international agreement, cannot, as such, create direct rights and
obligations for private individuals. But it cannot be disputed that
the very object of an international agreement, according to the in-
tention of the contracting parties, may be the adoption by the par-
ties of some definite rules creating individual rights and obligations
and enforceable by the national courts. That there is such an inten-
tion in the present case can be established by reference to the terms
53
of the Beamtenabkommen.1
The Opinion, thus, lays down that nothing can prevent the indi-
vidual from becoming the subject of international rights if States so
wish. Lauterpacht observes that the Opinion "dealt a resounding blow
to the dogma of the impenetrable barrier separating individuals from
international law."" 4 The above decision was followed in several other
cases. 155
151. PCIJ, ldisory Opinion No. 15, Series B, pp. 17-21.

152. Lauterpacht, supra note 127 at p. 98.
153. PCIJ, supra note 151 at p. 17.
154. Lauterpacht, supra note 152.
155. See the large number of cases cited, ibid., p. 99, note 10.
(b) Alinority Protection Treaties

Under the minority protection treaties concluded under the aus-
pices of the League of Nations, States assumed international legal obli-
gations to give specific rights to individuals. Examples of such treat-
ies are those entered into with Czechoslovakia, Greece, Poland, Rou-
mania and Yugoslavia. 5 " Referring to the German-Polish Convention
of May 15, 1922 concerning Upper Silesia, the Permanent Court of
International Justice said that certain articles of the Convention "be-
stow upon every national the right freely to declare according to his
conscience and on his personal responsibility that he does or does not
belong to a racial, linguistic, or religious minority, and to declare
what is the language of a pupil or child for whose education he is
legally responsible".157 This decision confirms the rights granted to
every individual national by the treaty.
The treaties concluded after World War II make no special pro-
vision for the protection of minorities except the Treaty of Peace with
Italy" and the State Treaty for the Reestablishment of an Indepen-
dent and Democratic Austria of 1955.159
3) Administrative Tribunals of International Organizations
The creation of international civil services whose members are

bound to the organization by a contractual relationship, made desir-
able the establishment of special tribunals competent to determine dis-
156. See William W. Bishop, Jr., International Law: Cases and Materials, Third Edition (Bos-
ton: Little, Brown and Company 1971) p. 470. According to the treaty provisions, all nationals
who belonged to racial, religious or linguistic minorities were assured the same treatment and
security in law and in fact as other nationals and given the right to use their own language in
private intercourse or publications or at public meetings as well as before the courts, and to es-
tablish schools and religious and charitable institutions. All these stipulations constituted obli-
gations of international concern under the guarantee of the League of Nations, and could not
be modified without the assent of the majority of the League Council.
157. P.C.I.J. Series A / B No.40 at p. 45. The Court said further that the treaty would
fail in its purpose if it were not to be considered as an established fact that persons who be-
longed de facto to such a minority must enjoy the protection which had been stipulated. See also
P.C.I.J. Series B 7, p. 20.
158. In accordance with the Treaty, the German-speaking inhabitants of Bolzano Province
are assured complete equality of rights with the Italian-speaking inhabitants. 49 United N\ations
Treal)' Series, p. 3, 184 Annex N para. 1.
159. The Treaty gives to Austrian nationals, belonging to the Slovene and Croat minori-
ties in certain specified areas, the same rights and on equal terms as all other Austrian Nationals,
217 United Nations Treaty Series, p. 223, Article 7.
putes arising from that relationship."" l Thus, for example, the United
Nations Administrative Tribunal was established in 1949 in accordance
with its Statute adopted by the General AsscmlylN on November 24,
1949. The Tribunal is competent -to hcir applications alleging non-
observance of contracts of cniployinilcii :il termls of employment of
staff members of the I'lijIed Nitimllns Sccrciariat. Application may be
made by staff ncnlcrs. Iheir Stlt'C'ssor's inI c:asC of their death, and
any other person \wh is elMLi led itorights under anN, contract or terms
of emplovmen. .\ri-iclc t . paragraph 1, of the Statute provides:
If a \cmbcr State, the Secretary -General or the person in
respect of whom a judgement has been rendered by the Tribunal
(including anyone who succeeded to that person's rights on his
death) objects to the judgement on the ground that the Tribunal
has exceeded its jurisdiction or competence or that the Tribunal
has failed to exercise jurisdiction vested in it, or has erred on a
question of law relating to the provisions of the Charter of the
United Nations, or has committed a fundamental error in pro-
cedure which has occasioned a failure of justice, such Member
State, the Secretary-General or the person concerned may... make
written application to the Committee established by paragraph 4
of this Article asking the Committee to request an advisory opinion
of the International Court of Justice on the matter.
In light of the above provision it may be said that an individual
in the capacity of a United Nations staff member or his legal repre-
sentative has procedural capacity before the Tribunal equal to that of
the organs of the United Nations.
4) The Individual and the European Community
The independent legislature, executive and judicial institutions

exercising quasi-sovereign powers established under the European
Community treaties raise up the individual to a subject of law along-
side the member States. He is now endowed with legal capacity to
enforce certain rights and protect himself against illegally imposed
obligations and sanctions. 16
In Van Gend en Loos v. Nederlandse Administratie Der Belastigen,
1
the Advocate General argued that the Community was authorized to
160. D.A. Bowett, The Lan, of International Institutions, Fourth Edition (London: Stevens
& Sons. 1982) p. 317.
161. Case No. 26/62, Common Alarket Lan, Ret'ien, (1963) p. 105.
make rules of law capable of bestowing rights and imposing obli-

gations on private individuals as well as Member States.'62 In its land-
mark judgement, the European Court said:
the Community constitutes a new legal order of international law
for the benefit of which the States have limited their sovereign
rights, albeit within limited fields, and the subjects of which
comprise not only Member States but also their nationals. Inde-
pendently of the legislation of Member States, Community law
therefore not only imposes obligations on individuals but is also
intended to confer upon them rights which become part of thier
legal heritage. These rights arise not only where they are ex-
pressly granted by the Treaty, but also by reason of obligations
which the Treaty imposes in a clearly defined way upon indi-
viduals as well as upon the Member States and the institutions
of the Community.'"
The court has declared the following provisions of the Treaty to
be directly applicable to individuals: 16'
Free MIovement of Goods [Article 9]:
Elimination of Customs Duties [Article 12, 13(2), 16]:
Elimination of Quantitative Restrictions [Article 31, 32(1), 37
(2)]:
Free Movement of Workers [Article 48];
Right of Establishment [Article 52, 53]
Services [Article 59(1), 60(3)]:
Rules Applying to Undertakings [Article 85, 86]:
162. In support of this argument, the Advocate General cited Articles 187, 189, 191 and
192 of the Treaty.
163. Common Market Law Rerien' (1963) P. 129. The judgment has laid down the criteria
to be applied in deciding whether or not a particular provision may be invoked by individuals
in national courts. As summed up by the Advocate General Mavras in Ro'ners v. Be/qian State,
they are: (1) the provision in question must be clear and precise for judicial application: (2)
it must establish an unconditional obligation: and (3) the obligation must be completed and
legally perfect, and its implementatuon must not depend on measures being -subsequently taken
by Community institutions or Member States with discretionary powers in the matter. As cited
by Derrick W\'att and Alan Dashwood, The Seubstantie Lair of the EEC (London: Sweet and
,Maxwel. 1980) p. 28. See also Gerhard Bebr, "Directly Applicable Provisions of the Community
Law: The Development of a Community Concept", 19 Internationdl and Comparatire Lai) Quar-
terj' (1970) pp. 268-281: "How Supreme Comparative Law in the National Courts? 11 Coln-
3
ma,n Aarket Lan, Rerien' (1974) p. et seq.
164. See Anthony Parry and Stephen Hardy, EEC Law, (London: Sweet and Maxwell,
1973) p. 146: A.G. Toth, "The Individual and European Law," 24 International and Comparatire
Lan' (1975) p. 661 note 8.
Aids Granted by States [Article 92(1), 95]

The concept of directly applicable provision, as developed by the
Court, has an overriding effect over conflicting national law and gives
rights which an individual may enforce by action before municipal
courts. A directly applicable provision thus confers rights on indi-
viduals which national courts must protect." 5 According to the dec-
lared policy of the Court, "private individuals should enjoy rights
under the Treaty in a most direct and extensive manner and that un-
desirable and unnecessary intervention of the States precluding the in-
dividual from enjoying these rights and enforcing them in the courts
should be avoided."""
Individuals have two kinds of remedies available to them: (1)
before the European Court of Justice, and (2) before national courts.
Generally speaking, the European Court is available for actions against
Community institutions (the Council and the Commission) while the
national courts are open for actions against Member States and indi-
viduals.
Of the various powers conferred on the European Court, its ad-
ministrative jurisdiction is the most important for the legal protection
of individuals. The administrative jurisdiction covers four particular
types of action: 167
(a) Action for annulment;
(b) Action for failure to act;
(c) Action for damages; and
(d) Action against penalties.
In the national courts, individuals may seek such protection in
three main situations:"8
(a) Community right;
(b) Non-directly applicable Community provisions, and
(c) Interpretation of a Community provision.
5) The Individual and Human Rights

"Human Rights", as stated by a distinguished authority on the
165. To be directly applicable, the provisions must leave no discretion to the Member
States or to the Community.
166. J.A. Winter, "Direct Applicability and Direct Effect: Two Distinct and Different
Concepts in Community Law", 9 Common Market Law Reriew (1972) p. 433.
167. See Toth, supra note 164 pp. 672-696.
168. Ibid., pp. 696-699.
subject, "are those rights without which there can be no human dig-
nity."9 They are in many cases individual rights and they belong to
individuals. The subject has been a preoccupation of political phi-
losophers for a long time as may be seen from Locke's theory of a
social contract, Montesquieu's concept of the separation of powers,
and Rousseau's theory of the sovereignty of the people. These politi-
cal ideas corroded and undermined absolute and despotic monarchy
and, attempted to protect against the Westphalian model of State sovere-
ignty which used individuals as "mere 'appendices' of the State to
which they belonged, simple pawns in its hands to be used, protected
or sacrificed according to what was dictated by State interests."17 The
concept of the protection of human rights has emerged originally in
the field of domestic legislation, as in the Magna Carta of King John
in England in 1215, the adoption of the British Bill of Rights in
1689, the Bill of Rights in the United States Constitution, the French
Declaration of the Rights of Man in 1789 and other less well-known
laws and declarations. This domestic concept w7as, 'however, translated
into international terms only after World War H A 71
(a) The United Nations and the Protection of Human Rights. The
promotion of respect for human rights is one of the corner stones on
which the Organization stands. The very preamble of the UN Charter
reaffirms "faith in fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women and of
nations large and small". And, one of the purposes of the Organi-
zation is:
To achieve international cooperation in solving international
problems of an economic, social, cultural, or humanitarian charac-
ter, and in promoting and encouraging respect for human rights
169. John Humphrey, No Distant Milleniam: The International Law of Human Rigbts, (Paris:
UNESCO, 1989) P. 20.
170. Antonio Cassese, International Law in a Divided World, (Oxford: Clarendon Press,
1988) p. 288.
171. "The main reason was the shared conviction, of all the victorious powers, that the
Nazi aggression and the atrocities perpetrated during the war had been the fruit of the vicious
philosophy based on utter disregard for the dignity of man. One means of preventing a return
to these horrors was the proclamation at all levels of certain basic standards of respect for hu-
man rights. This view was propounded with greatest force by the Western powers (in particular
the U.S.), for the simple reason that their whole political philosophy and indeed the fundamental
legal texts of some of their national system were based on a 'bill of rights'. Therefore, it came
naturally to them to project their domestic concepts and creeds unto the international com-
munity". Ibid., at pp. 289-290.
and for fundamental freedoms for all without distinction as to

72
race, sex, language, or religion.1
To achieve the above purposes, the basic obligations of the Or-
ganization are set out in Articles 55 and 56. Article 55 puts the Or-
ganization under an obligation to promote universial respect for, and
observance of, human rights and fundamental freedoms. And, as sti-
pulated in Article 56 all Member States are "to take joint and separ-
ate action in cooperation with the Organization for the achievement
of the purposes set forth in Article 55". Further, Article 13 authori-
zes the General Assembly to initiate studies and to make recommen-
dations for the purpose of assisting in the realization of human rights
and fundamental freedoms for all without distinction as to race, sex,
language or religion". Thus, as Buergenthal says, the UN Charter has
internationalized human rights. 173 That is to say, the Member States of
the Organization have recognized that the human rights are a subject
of international concern and, to that extent, no longer within their
174
exclusive domestic jurisdiction.
In addition to the human rights provisions contained in the
Charter, the United Nations in 1948 adopted the Universal Declar-
ation of Human Rights and, in 1966 adopted (1) the International
Covenant on Economic, Social and Cultural Rights and (2) the Inter-
national Covenant on Civil and Political Rights. The Optional Proto-
col to the Covenant on Civil and Political Rights which is of great
significance for our present study was adopted as a separate instru-
ment and it supplements the measures of implementation of the Co-
venant on Civil and Political Rights.
In accordance with Article 1 of the Protocol,
A State party to the Covenant (on Civil and Political Rights)
that becomes a party to the present Protocol recognises the com-
petence of the Committee to receive and consider communications
from individuals.., claiming to be victims of a violation by that
State party or any of the rights set forth in the Covenant.
Further, in accordance with Article 2, "individuals claiming that
any of their rights enumerated in the Covenant have been violated
and who have exhausted all available domestic remedies may submit a
written communication to the Committee for consideration". In fact,
172. United Nations Charter, Article 1(3).

173. Thomas Buergenthal, International Human Rights in a Nutshell, (Minnesota: West
Publishing Co. 1988) p. 21.
174. Ibid.
the Committee has found that in'a number of cases there have been
violations of the Covenant. For example, in Sandra Lovelace v. Canada,
in 1981, the Committee concluded that to exclude an Indian woman
from membership in an Indian band to which she had belonged, be-
cause she had married a non-Indian was an 'unjustifiable denial of
her rights under Article 27 of the Covenant'.1 7 5 In Suerez de Guerrero
v. Colombia, the Committee found that:
the action of the police resulting in the death of Mrs. Maria
Fanny Suerez de Guerrero was disproportionate to the require-
ments of law enforcement in the circumstances of the case and
that she was arbitrarily deprived of her life contrary to Article
6(1) of the International Covenant on Civil and Political Rights. 7 '
Other major United Nations Human Rights Treaties are (1) The
Convention on the Prevention and Punishment of the Crime of Geno-
cide; 1 7 7 (2) International Convention on the Elimination of All Forms
of Racial Discrimination; 178 (3) International Convention on the Sup-
7 9
pression and the Punishment of the Crime of Apardheid (4) Con-
vention on the Elimination of all Forms of Discrimination against
Women; 18° and (5) Convention against Torture and Other Cruel, In-
human or Degrading Treatment. 81
Under the International Convention on the Elimination of All
Forms of Racial Discrimination of 1965, individuals have the right to
communicate alleged violations to the Committee on the Elimination
of Racial Discrimination of any of the rights set out in the Conven-
tion by their home State, provided that it has declared its recognition
of the competence of the Committee to receive communications from
175. See Humphrey, supra note 169 at p. 187 citing Selected Cases Under the Optional Protocol,
117
United Nations Document CCPR/C/OP, p. para. 87.
176. Ibid.
177. See Resolution 260A (lI) of the General Assembly, 9 December 1948. Entered in
277
to force on 12 January 1951. 78 United Nations Treaty Series (1951) p. .
178. See Resolution 2106A (XX of the General Assembly, 21 December 1965, Entered
into force on 4 January 1969. General Assembly Official Records, XX. Supplement No.14
7
(A/6014) pp. 4 -51.
179. This Convention was adopted on November 30, 1973 and entered into force on July
18, 1976. See Buergenthal, supra note 173 at pp. 54-55.
180. The Convention was adopted on December 18, 1979 and it entered into force* on
September 3, 1981. Ibid., p. 56.
181. The Convention was adopted on December 10, 1984 and entered into force on June
28, 1987, ibid, p. 58.
2
individuals"
(b) The European System for the Protection of Human Rights. The
European Convention for the Protection of Human Rights was ado-
pted on 4 November 1950 and entered into force on 3 September
1953. 1" All 21 Members of the Council of Europe have ratified the
Convention." 4 The Convention has been amplified and amended by
means of additional Protocols.
The Commission set up under Article 19 of the Convention may
receive petitions from any individual or group of individuals claiming
to be the victim of a violation by one of the High Contracting Par-
ties of the rights set forth in the Convention. This right of indi-
viduals is however conditioned on that State's prior recognition of
the right of private petition." ' The requirement that the complainant
must be "a victim of a violation" has been interpreted by the Euro-
pean Court to mean that "an individual applicant should claim to
have been actually affected by the violation he alleges... Article 25
does not institute for individuals a kind of actio popularis for the in-
terpretation of the Convention...." The admissibility of petitions by in-
dividual is governed by the provisions of Article 27 of the Conven-
tion which reads as follows:
1. The Commission shall not deal with any petition submitted
under Article 25 which
(a) is anonymous, or
(b) is substantially the same as a matter which has already
been examined by the Commission or has already been
submitted to another procedure of international investi-
gation or settlement and if it contains no relevant new
information.
2. The Commission shall consider inadmissible any petition sub-
182. See Article 14.

183. On the history of the Convention, see G.L. Weil The [volution of the European
Convention on Human Rights", 57 The -lmerican Journal qf Inlernational Law (1951) p. 804 et
seq.
184. These States are: Austria, Begium, Cyprus, Denmark, France, Federal Repulic of Ger-
many, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Norway-,
Portugal, Spain, Sweden, Switzerland. Turkey. and the United Kingdom.
185. "That recognition is not deemed to be automatic when the State ratifies the Conven-
tion: it requires a special declaration [Article 25(1)). To date 19 of the 21 States Parties have
accepted the Commission's jurisdiction to deal with private petitions. Only Ialta and Cyprus
have not as vet done so." See Buergenthal, supra note 173 at p.8 9 .
186. Ibid., at p. 90 citing Case of K/ass and Oibirs, Judgement of September 6. 1978.
mitted under Article 25 which it considers incompatible with

the provisions of the present Convention, manifestly ill-founded,
or an abuse of the right of petition.
3. The Commission shall reject any petition referred to it which
it considers inadmissible under Article 26.
(c) The Inter-American Human Rights System. The American Con-

vention of Human Rights, which was adopted at San Jose, Costa Ric-
a on 22 September 1969, came into force on 18 July 1978187 The
Convention created an Inter-American Commission of Human Rights
consisting of seven members elected by the General Assembly of the
OAS to act in their individual capacity ad an International Court of
Human Rights consisting of seven judges elected by a majority vote
of the States parties to the Convention.
In accordance with Article 44 of the Convention, "any person or
group of persons, or any non-governmental entity legally recognized
in one or more member States of the Organization" may petition the
Commission to the effect that the Convention has been violated by a
State party. The jurisdiction of the Commission In such a case does
not depend on the acceptance of any optional clause by the respon-
dent State.
The admissibility of a petition is subject to the qualifications:
(1) the exhaustion of domestic remedies, and (2) the requirement that
the petition be submitted to the Commission within a pe,sod of six
months. These requirements, however, do not prevent the au, iissibility
of a petition if it can be shown that (1) there exist no remedies to
protect against the violation of the rights at issue; (2) there has been
a denial of access to or interference with respect to the applicable
domestic remedies; or (3) the domestic remedies have been subjected
to unwarranted delay.'m
In dealing with the petitions, the Commission examines the alle-
gations, seeks information from the Government concerned and investi-
gates the facts. The Commission may also hold hearings in which the
187. For text of the Convention, see OAS Treat , Series, No.36 pp. 1-21 (OAS Official
Records, OEA/SER.A/16). The following States are parties to the Convention: Argentina, Bar-
bados, Bolivia, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Grenada, Gua-
temala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Peru, Suriname, Uruguay and
Venezuela.
188. See Article 46(2). See also Case No.9102 (Nicaragua) Resolution No.29/86 of April
16, 1986, Annual Report of the Inter-American Commission on Human Rights (1985-1986). OEA/
Ser.L/V/Il. 68, Doc. 8, Rev. 1 (1986) p. 57.
Government and the petitioners participate. If the parties reach a friend-

ly settlement, the Commission prepares a report for the General As-
sembly of the OAS for publication. In case of failure of a friendly
settlement, the Commission sends a report with recommendations to
the States concerned. The case may also be referred to Inter-Ame-
rican Court of Human Rights by the Commission or the interested
States. Individuals do not have a right to refer a case to the Court.
(d) The African Sstem of Human and Peoples' Rights. The African
Charter on Human and Peoples' Rights which was adopted by the
Organization of African Unity (OAU) in 1981 entered into force on
October 21, 198618 The Charter which has been ratified at least by
30 States establishes a system for the protection and promotion of
human rights within the institutional framework of the OAU.
The individual complaint mechanism of the Charter is similar to
the one provided in the UN System. It thus differs from the system
of the European and American Conventions."° According to Article
55 of the Charter, the Commission on Human and Peoples' Rights
(established within the framework of the OAU) compiles "a list of
communications other than those of States parties to the present
Charter and transmit them to the members of the Commission".191
An important aspect of the individual petition system of the African
Charter is that it is not designed to remedy isolated cases of indivi-
dual violations of human rights. Article 58(1) permits the Com-
mission to act only in relation to "special cases which reveal the
existence of a series of serious or massive violations of human and
peoples' rights." If the complaint is admitted, the Commission refers
it to the Assembly of the Heads of State and Government. The As-
sembly, then, decides whether to "request the Commission to under-
take an in-depth study"" - or not. The in-depth study and report
thus prepared by the Commission may only be published "after it has
been considered by the Assembly of the Heads of State and Govern-
189. See Gittleman, "The African Charter on Human and Peoples' Rights: A Legal
Analysis", 22 Virginia Journal of International Law (1982) p. 667: Nowak, "The African Charter
of Human and Peoples' Rights", 7 Human Rights Law journal (1986) p. 399.
190. See Buergenthal, supra note 173 at p. 186.
191. "The language of Article 55 suggests that the communications may originate with
private individuals, non-governmental organizations and various other entities." Ibid., pp.
186-187.
192. Article 58(2).
ment".193
THE RESPONSIBILITIES OF INDIVIDUALS
(1) The Prohibition of Piraq,
Under customary international law, individuals who commit the

offence of piracy on the high seas are liable as enemies of mankind
to punishment by any apprehending State. The law has now been
codified in the 1982 Mvontego Bay Convention on the Law of the
Sea. In accordance with Article 101 of the Convention, piracy consists
of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depre-
dation, committed for private ends by the crew or the pas-
sengers of a private ship or a private aircraft, and directed:
( i ) on the high seas, against another ship or aircraft, or
against persons or property on board such ship or air-
craft ;
(ii) against a ship, aircraft, persons or property in a place
outside the jurisdiction of any State:
(b) any act of voluntary participation in the operation of a ship
or of an aircraft with knowledge of facts making it a pirate
ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act des-
cribed in subparagraph (a) or (b).
International law authorizes ever, State to seize a pirate ship or
aircraft and arrest the persons and seize the property on board. 94 The
punishment may be determined by national law. According to Article
105 of the Law of the Sea Convention, the courts of the State which
carried out the seizure may decide upon the action to be taken with
regard to the ships, or aircraft or property, subject to the rights of
third parties acting in good faith.
Thus, the penalty to be imposed upon the pirate is not directly
determined by international law which leaves the question to national
193. Article 59(3). "This language leaves open the question whether or not the Assembly
may prevent the publication of the annual report altogether or merely order changes to be made
before publication. It is quite obvious, however, that the Commission's only real sanction-publicity-
is severely limited by the powers the African Charter vests in the Assembly, which is a political
body that is not likely to be an enthusiastic guardian of human rights." Buergenthal, supra note
173 at p. 189.
on the Laii of the Sea, I982, Article 105.
194. United Nations Conren/tion
law. But in determining the penalty for piracy, the State executes in-
ternational law and acts as an organ of the international community
constituted by general international law.
In essence, the doctrine of piracy assumes that individuals are
subjects of the world community and that their acts manifestly directed
toward destruction of that community are criminal. As Hans Kelsen
observes:
As the norm forbidding piracy is a norm of international
law, it is individuals who are immediate subjects of international
law, subjects of an international obligation. " "
The act of sanction is directed against the particular individual or
individuals and not against the State of which the pirate is a citizen.
In the case of piracy, individual and not collective responsibility is
imposed for a violation of international law.
(2) The Illegal Use of Flag

Under general international law, and in accordance with the Law
of the Sea Convention, 1982, every State shall fix the conditions for
the grant of its nationality to ships and for the right to fly its flag.
And ships have the nationality of the State whose flag they are enti-
tled to fly.19
A ship should sail under the flag of one State only and should
not change its flag during a voyage or while in port of call. 19 7 And, a
ship which sails under the flag of two or more States, using them
according to convenience... may be assimilated to a ship without
nationality.19
It seems that general international law authorises States to seize
ships which illegitimately sail under their flags and to confiscate the
ship by decision of their courts, as a penalty for abuse of flag. 1' This
would demonstrate that the owner of the ship and the master of the
ship are directly obliged by international law not to commit the de-
,,,
lct,
and
n, owner is made ;nAd;AivIdu
th200AiI
d the, ~
, respnil ~ h~.ri ~it'
195. Kelsen, supra note 137 at p. 204.

196. Article 91.
199. Kelsen, supra note 137 at p. 205.
200. Ibid.
(3) Crimes Against Peace: The Laws of War
Criminal liability for crimes against peace was accepted for the
first time following World War U. In the Charter of the Inter-
national Military Tribunal annexed to the Agreement for the Pro-
secution and Punishment of the Major War Criminals of the Euro-
pean Axis signed on August 8, 1945,201 Article 6 said that the follow-
ing acts, or any of them, are crimes coming within the jurisdiction of
the Tribunal for which there shall be individual responsibility: (a)
Crimes against peace; (b) War crimes; and (c) Crimes against hu-
manity.
On the question of individual responsibility for such acts, the
Tribunal said :
It was submitted that international law is concerned with the
actions of sovereign States, and provides no punishment for indi-
viduals and further that where the act in question is an act of
State, those who carry it out are not personally responsible but
are protected by the doctine of the sovereignty of the State. In
the opinion of the Tribunal, both those submissions must be re-
jected. That international law imposes duties and liabilities upon
individuals as upon States has long been recognised." the very
essence of the Charter is that individuals have international duties
which transcend the national obligations of obedience imposed by
the individual State. He who violates the laws of war cannot ob-
tain immunity while acting in pursuance of the authority of the
State, if the State in authorizing action moves outside its com-
petence under international law. 2 -
The abovementioned Agreement of August 8, 1945 was origi-
nally signed by the United States, United Kingdom, France and U.S.
S.R. and, nineteen other States subsequently acceded to it. Further-
more, in a resolution adopted unanimously on December 11, 1946,
the United Nations General Assembly, after taking note of the Agree-
ment affirmed the principles of international law recognized by the
Charter of the Nuremburg Tribunal and the Judgment of the Tri-
buna 1.20
201. For the text, see 39 Fjrl in/er'lan Journal qf Interna/ional Law, .Snpp/emient (1945) p.
258.
202. .I/i4g mnit
i o/ //" In/rrnatiol .li/i/na i Tri/nna!/./r the Trial a/". jor Geraiaii liar Cri-
n/ina/s. Cmd. 6964, pp. 41-42.
203. Resolution .95(0).
Individual members of belligerent armed forces may become cri-

minally responsible for violations of the rules of war and may be
20 4
punished by enemy or international authorities.
The Geneva Conventions on the treatment of prisoners of war
authorize a beligerent State to try individual members of enemy forces
who violate the provisions of the Convention; they also require the
State whose military authorities have committed these violations to
bring them to punishment. Similar provisions apply to offences aga-
inst civilian populations in violation of the Convention relative to the
Protection of Civilian Persons in Time of War.
(4) Crimes Against Humanity: The Crime of Genocide
The worst crime that can be committed against minorities is that

of genocide which the United Nations Convention on the Prevention
and Punishment of the Crime of Genocide was adopted on 9 December
1948 and came into force on 12 January 1951.20- In accordance with
Article I of the Convention, "genocide, whether committed in time of
peace or in time of war, is a crime under international law" which
the Contracting Parties undertake to prevent and to punish.
Article I defines genocide as the commission of certain enumerated
acts "with intent to destroy, and whole or in part, a national ethnical,
racial or religious group, as such." The acts constituting genocide
are: (a) killing members of the group; (b) causing serious bodily
or mental harm to members of the group; (c) deliberately inflicting
on the group conditions of life calculated to bring about its physical
destruction in whole. or in part; (d) imposing measures intended to
prevent births within the group; (e) forcibly transferring children of
the group to another group. To be guilty of the crime of genocide,
an individual must have committed one of the foregoing acts with
the specific intent of destroying, in whole or in part, a national, ethnic,
racial or religious group.
• .... ...... : 1irticle IV11 of the Co......ion, persons com-
mitting genocide "shall be punished, whether they are constitutionally
responsible rulers, public officials or private individuals."
(5) Air Piraq, (Hijacking and Sabotage of Aricraft) and Hostage-Taking
204. Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 1, 87 I.. Ed. 3 (1942).

205. Resolution 260A ([]) of the General Assembly, 79 United Natiols Treaij Series
(1951) p. 277.
206. For the text of the Converntion, see 10 In/eratiolra/ Lena/ .Iatkria/s (1971) p. 133.
Close on the heels of adventurist Arab guerilla activities, under

the auspicies of the International Civil Aviation Organization, the
Hague Convention for the suppression of Unlawful Seizure of Aircraft
was adopted in 1970.207
The Hague Convention which was adopted on 16 December
1970 entered into force in 1971. The Convention defined the offence
of unlawful seizure of aircraft and provided that each contracting State
should undertake to make the offence punishable by severe penalities.
21"Article 4(2) established universality jurisdiction for hijacking as a
safety-net to catch the person who escaped from, or was allowed to
leave, a State with jurisdiction under Article 4(1). In accordance with
Article 7,
The Contracting State in the territory of which the alleged
offender is found shall, if it does not extradite him, be obliged
without exception whatsoever and whether or not the offence
was committed in its territory, to submit the case to its com-
petent authorities for the purpose of prosecution.
And, Article 8 makes hijacking an extraditable offence in present
and future extradition treaties and practice between contracting par-
ties- -
The Montreal Convention provides for universal jurisdiction in
respect of violence, destruction or damage and the placing of a device
on board an aircraft.
Similar rules as to jurisdiction may be found in the 1979 Inter-
national Convention against the taking of hostages 2 09 which is aimed at
international terrorism. The offence of hostage-taking which each party
must incorporate into its law, is defined in Article 1(1) as follows:
Any person who seizes or detains and threatens to kill, to
injure or continue to detain another person, in order to compel a
third party, namely, a State, an international intergovernmental
organization, a natural or juridical person, or a group of persons,
to do or abstain from doing any act as an explicit or implicit
condition for the release of the hostage commits the offence of
taking of hostages... within the meaning of the Convention.
Contracting parties must either consider the prosecution of offen-
ders found within their territory or extradite them.
207. See, ibid.. p. 1151.

208. Articles 1 and 2.
209. For the Convention, see 18 Jntem;ationa/ Legal 11aterials (1979) p. 1456.
(6) Other Crimes of International Legal Significance

If international crimes are understood in a wider sense, then the
range of international agreements with penal provisions or provisions
of a quasi-penal nature may become extensive in scope and may be
difficult to delimit.21° They may include espionage, counterfeiting cur-
rency, illicit traffic in dangerous drugs, slave trading in women and
children, pollution of the seas, damaging submarine cable, offences
against persons protected by international law, unlawful despatch of
explosives through post, pirate broadcasting, and theft of national and
archaeological treasures.
V. Some Concluding Observations
In its earliest beginnings, a sharp distinction was not made be-

tween international law and municipal law and it was easy to assume
that individuals, like States, had legal personality and thus subjects of
international law. State which is only a fiction of the brain is an in-
stitution to safeguard and protect the rights of individuals constituting
it and that its personality is the sum total of the personalities of such
individuals. Individuals are, on the other hand, the only natural per-
sons and, as such, the ultimate units of every society and the ulitmate
subjects of all law. The idea of a direct relationship of individual to
the community of nations has a long history and according to the
naturalists, individuals enjoyed certain natural and human rights.
With the ascendency of positivist writers on international law,
States have succeeded in maintaining a practically unchallenged mono-
poly of exclusive jurisdiction over individuals. According to the posi-
tivist doctrine, States are the sole dramatis personae on the international
scene, only they enjoy a locus standi in international law and are the
wearers of international personality. The salient feature of international
law was that it aimed at regulating the behaviour of States. Thus,
States have rights and duties directly supplied by international law in
addition to the rights and duties supplied by the domestic law. Among
these rights, there are the right to free action, adoption and alteration
of the constitution, the right of self-preservation, the right of trade
and commerce, the right to enter into treaties with foreign States, the
right to exercise jurisdiction over all persons and things within its
210. See Hans-Heinrich Jescheck, "International Crimes" in 8 Encyclopaedia of Pltblic Inter-

national Law (Amsterdam: Elsevier Science Publishers, 1985) p. 334.
territory, the duty of non-intervention etc. The State possessed the

totality of international rights and duties.
In the contemporary world, the question of the subjects of inter-
national law has acquired great significance. State practice has aban-
doned the traditional orthodox positivist doctrine that States are the
exclusive subjects of international rights and duties and individuals,
mere objects. Although States are still considered the principal sub-
jects and the primary function of international law remains regulation
of the relations of States with one another, contemporary international
law has become increasingly concerned with international organizations
and with the individuals. Thus, we may say that States are the pri-
mary concern of international law but not its sole concern.
To be a subject of law, three essential elements are to be satis-
fied: (1) incurring responsibility for any act or omission in breach
of the rules of the system: (2) claiming rights from that system;
and (3) possessing capacity to enter into legal relations with other
legal persons recognized by the system.
Within the framework of any legal system, all the subjects are
not identical; all do not possess exactly the same characteristics. As
the International Court of Justice said in the Reparation for Injuries
21
Suffered in the Service of the United Nations case. '
The subjects of any legal system are not necessarily identical
in their nature or in the extent of their rights, and their nature
depends upon the needs of the community.
Thus, a subject of international law need not be a State and its
rights and duties need not be the same as those of a State. The fact
that international organizations and individuals lack certain capacity
possessed by States do not necessarily mean that they are not subjects
of international law. Lack of personal capacity is not peculiar to in-
ternational law. In most of the municipal legal systems, certain classes
of persons-notably the insane and infants-have disabilities with respect
to bringing actions. Actions are brought on their behalf. Yet, they
are not considered as objects of the law or mere beneficiaries of the
law.
The first faint beginnings of international personality of an inter-
national organization may be discerned from some of the functional
international organizations established in the nineteenth century such
as the now defunct European Danube Commission. An international
211. I.C.J. Repors (1949) p. 178.

organization is an association of States established by a treaty, pos-

sessing a constitution and common organs and having a legal person-
ality distinct from that of the member States. They are endowed with
functions, powers and personality of their own.
When States create an international organization, they set it up
for specific purposes and give it certain limited powers. The position
of an international organization in international law is thus rather
similar to the position of companies in municipal law since companies
are also set up for specific purposes and are only given limited powers.
A company which is corporated to mine coal is not allowed to mine
gold. For this reason, if for no other, it should be clear that legal
personality must be treated as a relative concept, not as an absolute
concept.
The leading judicial authority on the personality of international
organization is the Advisory Opinion given by the International Court
of Justice in the Reparation for Injuries Case. The Court said that
the United Nations had international personality in principle, its fun-
ctions were so important that the Organization could only carry them
out if it had some degree of international personality.
In recent years, when an organization is established the practice
has been to specifically acknowledge its legal personality in the con-
stituent instrument. Even if it is not expressly stated, it shall have
some measure of international personality to perform its functions eff-
ectively in the internaitonal plane. Possession of such personality will
normally involve the attributes such as power to make treaties, pri-
vileges and immunities in the territories of Member States, capacity to
bring claims, jurisdiction over the organs, accreditation of repre-
sentatives to the organization etc.
The concept of the individual as a subject of international law
has been developed by numerous publicists during the twentieth cen-
tury. It has been recognized in official declarations and treaties which
permit individuals of minority groups and mandatory/trusteeship ter-
ritories to petition to international institutions. International tribunals
have been proposed/established where individuals could be parties. In-
ternational procedures exist for protection of human rights and for
punishing offences against international law.
Although the Statute of the International Court of justice adheres
to the traditional view that only States can be parties to international
proceedings, a number of other international instruments have recog-
nized the procedural capacity of the individual. They have been dis-
cussed above under the section "The Procedural Capacity of Indi-

viduals." It is however instructive to note again what P.C.I.J. said in
its Advisory Opinion in the Danzig case. The Court brushed aside
objections in principle to treatment of individuals as subjects of inter-
national law and said that there was nothing in international law to
prevent individuals from acquiring directly rights under a treaty pro-
vided that this was the intention of the parties. The opinion suggests
that individuals may be bound directly by any rule of international
law, customary or conventional, if the intent of the rule was so to
bind them.
The difficulty of granting individuals the access to international
courts is the following. States which are not willing to be brought
before a court by another State are even less willing to submit to
claims by a national of that State. Further, the sovereignty of the
State and the superiority of the domestic law over the individual may
make it difficult for the individual to sue his own State in an inter-
national court. Furthermore, no international tribunal may exercise juris-
diction over a State unless the State consents. As observed by Antonio
Cassese, the status of the individual is subject to the following limi-
tations :212
(1) Individuals are given only procedural rights: the right to
initiate proceedings before an international body, for the
purpose of ascertaining whether the State complained of has
violated the treaty providing for substantive rights benefitting
213
individuals.
(2) The procedural right in question is only granted by treaties
214
(or, in a few instances, by international resolutions).
(3) Another limitation on the right at issue lies in the fact that
not all States that are parties to the above treaties have ac-
212. See supra note 170 at pp. 100-102.

213. "In addition, this right is usually limited to forwarding a complaint: the complainant
is not allowed to participate in international proceedings (a notable exception is the European
Convention of Human Rights of 1950). Much less has the individual a right to enforce or to
promote the enforcement of any international decision favourable to him. Once the international
body has pronounced upon the alleged violation, the applicant is left in the hands of the ac-
cused State: cessation of, or reparation for, the wrongful act will substantially depend upon its
goodwill". Ibid., p. 100.
214. "Consequently, it exists only with respect to certain well-defined matters (labour rel
ations, human rights)". Ibid.
cepted being made accountable to individuals.

(4)A further weakness in the international status of individuals
is that the procedures they are authorized to set in motion
215
are quite different from those existing in domestic law.
In fine, it may be said that the usefulness of necessity of a limited
personality of international orgnaizations and individuals, apart from
that of the States under traditional international law, is becoming in-
creasingly important. There are many practical and moral reasons for
recognizing the right of an individual/international organization to the
direct assertion before international bodies of his/its claims against a
foreign State.
bodies responsible
215. "Three things in particualar should be stressed. First, international
generally not judicial in character, although the\ often behave in
for considering petitions are
are themselves often quite ru-
conformity with judicial rules'" Second, international proceedings
taking of e\vidence. Third,
dimentarv, in particular, there are notable limitations concerning the
a judgment proper, but a fairly
and even more important, the outcome of the procedure is not
a recommendation,
mild act such as a report setting out the views of the international bodv:
the European Convention is an
and the like: no legally binding decision is envisaged (again,
exception)." Ibid., p. 101-102.

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

The international law of the previous centuries was to a large

of international organizations as permanent institutions for the cooper-

2. International organization is a phenomenon of the multi-state system and is a character-

the adequacy of the instruments which serve their needs".,

II. The Traditional Doctrine - States as the Only Subjects

Until recently, an overwhelming .majority of writers on inter-

In the domain of municipal law, the word 'State' is commonly

The concept of "State" is the antithesis of the concept of the

To the so-called father of International Law, Hugo Grotius, 1

truly sovereign and independent: it must govern itself by its

16. Ibid., Ch. 1, Sec. 4.

pacity" is formulated in such a way that it can give a good reason

To constitute a State, first of all, there must be a people. A

There is no minimum limit to the size of a State's population.

The territory of a State is that portion of the earth's surface

34. See H. Lauterpacht, Recognition in International Law (Cambridge: University Press,

Polish Mixed Arbitral Tribunal stated the rule succinctly:

39. I.C.J. Reports (1969) p. 32.

considerations borne out by established practice:

'Capacity to enter into relations with other States' referred to in

capacity in law to conduct relations with other States)". *

parties, by recognition or non-recognition of the situation. 8

Though stability is not a requirement in accordance with the

born State with certainty. Nevertheless, an objective assessment of the

The Effects of Recognition

Traditionally, by recognition a new State confirms its status in

54. Ibid., pp. 635-636.

municipal law. It signifies that the State which recognizes it ac-

ported by State and arbitral practice. According to Article 3 of the

60. See supra note 18.

[I].International Organizations as Subjects of International Law

International organization is a characteristic feature of the present

of States; (2) existence of a substantial measure of contact between

68. Finn Seversted, Ojective International Personality of Intergovernmental Organizations (1963)

come into existence on the basis of general international law when

"that the omission of an express reference to international personality

ance of his duties suffering injury in circumstances involving the

of the Organization comprises the right to bring the kind of inter-

missible to assume that most Organizations created by a multilateral

mise between the two conflicting points of view. It is flexible and

2) Privileges and Immunities

87. I.C.J. Reports (1949) p. 180.

International organizations do not have a territory of their own.

They also enjoy exemption from immigration restrictions, alien regis-

In the Reparation case, the ICJ affirmed that the Organi-

tration Clauses in Contracts, and even bilateral negotiations between

4) Status Under Municipal Law

useful to consider the specific powers conferred on an organization