Syllabus Revision Program by Islami Jamiat Talba,

For Batch 19-24,

Punjab University Law College.

Subject: Public International Law (LLB Part IV)

Subjects of International Law

1. INTRODUCTION

Some questions that are relevant to the study of international law include who can create
international law? Who has rights, duties, and powers under international law? (or
international legal personality); and who is regulated (governed), directly or indirectly, by
international law? The term “subjects of international law” refer to entities endowed with legal
personality, capable of exercising certain rights and duties on their own account under the
international legal system.
A subject of international law is an entity possessing international rights and obligations and
having the capacity
(a) to maintain its rights by bringing international claims; and
(b) to be responsible for its breaches of obligation by being subjected to such claims

2. Definition:

• Subject:
In law, a subject refers to a person or entity who is the object of legal rights or duties. A legal
subject is an entity capable of acting in law, having subjective rights and having legal obligations.
• Oppenheim:

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 An international person is one who possesses legal personality in international law meaning one
who is subject to international law so as to enjoy rights, duties, or powers established in
international law. It also gives the capacity to act on the international plane either directly or
indirectly through the state
• Starke:
the term “subject of international law” means; an incumbent of rights and duties under
international law; The holder of procedural privileges of prosecuting a claim before an
international tribunal; and The possessor of interests for which provision is made by international
law.

3. Legal personality
In any legal system, certain entities will be regarded as possessing rights and duties enforceable at
law. Thus an individual may prosecute or be prosecuted for assault and a company can sue for
breach of contract. They can do this because the law recognizes them as legal persons possessing
the capacity to have and to maintain certain rights, and being subject to perform specific duties.

In municipal law, individuals, limited companies, and public corporations are recognized as each
possessing a distinct legal personality, the terms of which are circumscribed by the relevant
legislation.

4. Subjects of international law.

The term subjects of international law refer to entities endowed with legal personality, capable of
exercising certain rights and duties on their account under the international legal system.
Personality in international law necessitates the consideration of the international system and the
capacity to enforce claims.

According to Starke, the team “subject of international law” means:

• An incumbent of rights and duties under international law
• The holder of procedural privileges of prosecuting a claim before an international
tribunal.
• The possessor of interests for which provision is made by international law.
5. Theories regarding subjects of international law.
Jurists of the world are divided into two groups. However, some moderates try to bring about a
compromise between them. The difference of opinion among jurists as to what entities are deemed
to be the subjects of international law had led to the emergence of three popular theories. The sum-
up of these theories can be summarized as follows:

1. States alone are subjects of international law. (Realist theory)

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 2. Individuals alone are subjects of international law. (Fictional theory)
3. States, individuals, and certain non-state entities are subjects. (Functional Theory)

6. REALIST THEORY
• Supporter:
i. Percy Corbett.
ii. Prof. Oppenheim.
iii. likes of Bentham

According to traditional positivist doctrine, states are the only subjects with which international
law is concerned. This theory asserts that states alone, as sovereign political entities, are bearers
of rights and duties under international law. International law regulates the conduct of states and
it is stated which performs all types of international obligations under treaties and conventions.
Prof.Oppenheim falls in line with the traditional view.

According to this theory, Individuals are the object of international law. The recognition of the
sovereignty of each nation is the essence of international law. Individuals and non- state entities
have no place in international law. The jurists of this school maintain that individuals are only
incumbents of rights and duties st international law. Therefore, they are the ultimate objects of
international law and not its objects.

This theory has been subjected to various criticism by jurists. It does not tell about certain rights
bestowed upon the individuals and certain international offenses for which an individual may be
punished.

In Reparation for injuries suffered in the services of the UN, ICJ held that Un can bring an
international claim against the state for obtaining reparation when an agent of the UN suffers injury
in the performance of his duties. The court by implication rejected the proposition that only states
are subjects of international law.

7. FICTIONAL THEORY
• Supporter:
a) Lauterpacht
b) John Westlake
c) Hans Kelsen

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According to exponents of this theory, it is individual beings that are subjects of international law.
According to them, individuals are the ultimate subjects of international law. The state is an
abstract concept and it is no more than aggregate of individuals who compose it. So in the ultimate
analysis, it may be noted that the policies which are made in the international plane are for the
ultimate regulation and control of individual conduct in the international scenario.

Prof. Kelson is the chief exponent of this theory and he reiterated that notion of the state is purely
a technical legal concept serving to embrace the totality of legal rules applying to a group of
persons living in a defined territorial area. The difference between international law and state law
dissolves, both laws ultimately apply to individuals and they are for the individual alone. While
the former applies to them directly and the latter is applied indirectly that is through states.
Lauterpacht also opined that the claim of the states to unqualified exclusiveness in the field of
international relations was tolerable at a time when the interdependence of the interest of the
individual cutting across national frontiers was less obvious than they are today.
This theory regarded the state as fiction and based on the fiction that rights and duties of the state
are only the duties and rights of men who compose them and therefore it is ultimately individuals
who were the subjects of international law. From the purely theoretical standpoint, and in logic,
Kelson,s view is undoubtedly correct. But so far as regards the practice of states is concerned, the
primary concern of the international law is with the rights and duties of the states. Although from
time to time, some treaties do provide that individual may have rights, for example, reference may
be made to the 1965 convention on the settlement of investment disputes between states and
nationals of other states. But otherwise, it is generally found that treaty provision is couched in the
form of rules of conduct binding upon, or conferring rights on states.

8. FUNCTIONAL THEORY

Jurists having a moderate view criticized the extreme view given by the supporters of the above
theories. If the traditional view is ignoring the status of an individual completely, the modern view
is trying to assert the position of individuals aggressively. Accordingly both the views need
rethinking. Neither the state exist in international context without the interference of the
individuals nor the personality of an individual be expanded to that of a state.

According to moderate jurists, state, as well as individuals and certain non-state entities, are subject
to international law. In the past 50 years or so, substantial changes have been made to the field of
the subject of international law. There has been a proliferation of new participants in international
relations. The scope of international law has widened and new entities have emerged on the
international front.

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So according to this theory, there are various entities which can be called as subjects of
international law. Entities such as International organizations, Individuals, Nonstate entities, and
states play an important role in the contemporary era and they all can be regarded as “subjects of
international law”.

So far, this theory seems to be more consistent with the terms and situation of the present era and
the relations which exist till now. So functional theory can be regarded as the aptest theory in this
regard.

9. Subjects of international law.

As mentioned earlier, following are considered to be subjects of international law:

▪ State.
▪ International organizations.
▪ Individual.
10. STATE
The state has been since time immemorial considered to be subject of international law. Also, it
can be asserted that the states are primary subjects of international law as the obligations flow from
the states. It is the states which are recognized and held liable not for their acts but even for the
acts committed by their citizens also. Also in terms of international trade and relations, it is the
state which has the duty and power to conclude relations with the international front. For ex, in
India, liberalization, and globalization of the economy was done after the positive intervention
from the government.

11. INTERNATIONAL ORGANISATIONS

Until the outbreak of the first world war, world affairs were to a large extent influenced by the
periodic conferences held in various parts of the world. A conference could only be called into
being upon the initiative of one or more of the nation. This procedure implied several delays in the
resolution of the issues.

But after the first world war, the creation of the league of nations paved the way for the forthcoming
change in the international organization. This can be regarded as a changing point in the history of
international organizations. United Nations-led to the development of international organizations.
Various NGOs came into the international field. Amnesty International, WHO, IMF, EU, Red
Cross, etc. emerged.

12. INDIVIDUALS
Modern state practices and contemporary international law does demonstrate that individuals have
become increasingly recognized as participants and subjects of international law. Though limited,

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individuals have international legal personality. This has occurred primarily but not exclusively
through human rights law. Since the first world war, international law has continuously
empowered the individual to a substantial extent.

According to Starke “interest of the individual, their fundamental rights and freedom, etc., have
become a primary concern of international law under modern practice and the number of
exceptional instances of individuals or non-state entities enjoying rights or becoming subject of
duties directly under international law has increased”.

As a result of the modern development in international law and the UN charter, the individual has
acquired status and a stature transforming him from “object of international compassion to a
subject of international right”. By recognizing the fundamental rights of the individual,
independent of the law of the state and imposing obligations or conferring rights directly upon
him, the UN charter and various other law-making treaties have brought about a new phase in the
recognition of rights of individuals to constitute him a subject of international relations.

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

Nevertheless, in the era of globalisation, an international regime is inevitable. International laws

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

References and further reading:

• International Law by JG Starke

• International law by SK Kapoor

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Prepared by: Saffa Hamid

Team Head: Saffa Hamid

Project by Islami Jamiat Talaba, Punjab University Law College

BEST OF LUCK … !!

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