Lecture 4

SUBJECTS OF INTERNATIONAL LAW

STATE Territory, airspace, minerals beneath.
Meaning of Subject of law
Applicability of that law,
determination of rights
and duties ..

Meaning of Subject of
International law

Any entity that possesses international

personality
 Capable of possessing international
rights and duties & having capacity of
bringing claims to maintain its rights.
Oppenheim says that, “International person is one who possesses legal personality in International law,
meaning one who is a subject of International law so as itself to enjoy right, duties or powers
established in international law, and generally, the capacity to act on the international plane directly, or
indirectly through another state (as in the case of a protected state). “

It is significant to note that it is not necessary for an entity to possess all the rights and duties recognized by
international law. If an entity is competent to perform only a few acts or even a single act as provided by the
rules of international law, that entity would be regarded as to have possessed capacity to become a subject
of international law.
 THEORIES OF SUBJECTS OF INTERNATIONAL LAW

REALIST THEORY

Only STATES are the subjects of International Law. States are the bearer of the rights and duties under the rules
of International law.

Fictional Theory
Individuals have been deemed as subjects not
because IL endows rights and duties to them,
but due to the fiction that duties and rights of
the state are the duties and rights of the
individuals who compose them.
Kelson is of the view that rules of municipal law as well as
those of International law are meant for human beings.
While, the former is binding on them directly, the latter is
binding indirectly, that is through states.
Only individuals are the subject of International
law through the fictional capacity of the state.
States have no soul, no capacity to form and
express an autonomous will.
Duties and rights of the state are only the
duties and rights of men who compose them,
and therefore, it is ultimately individuals who
are the subject of IL.
The theory is called fictional, since according to
it the state has been regarded as fiction.
 While States have been
endowed totality of rights and
Functional Theory duties under IL, & therefore,
they have unlimited personality
that is, they have full capacity,
& they’re therefore the primary
subjects of IL.

International Organizations and

individuals posses ‘restricted
personality’, since they perform
only a few rights & duties.
States,
international States are active subjects, the creators of According to this view,
organizations as laws while other subjects are passive as they international personality is
well as individuals are bound by the laws made by the states. granted to those who are
are subjects of capable of performing legal
International law. functions under it.
 General Subjects of International Law

States (Basic Subject)

Other territorial entities, e.g., territories with no

governments, trust territories under chapter 12 of the
United Nations Charter, Safe havens (declared by a country
as a territory beyond their constitution), administered areas
e.g. AJK, Guantanamo bay (purchased from Cuba).

International Organizations ( product of a

multilateral treaty always).
For example, UNO, WHO, IAEA, SAARC, etc.

The products of these international

organizations also become subjects of
International law.
 Liberation Movements

Observer States

Individuals
They are the flesh and blood behind
the legal fiction of the states
State is a fiction, individuals are the
real players
War Crimes, crimes against humanity,
hijacking
Treaties on individuals : Vienna
Convention on Diplomatic Relations,
Genocide Convention, ICCPR,
Convention against Torture, etc.