Subjects of International Law
The terms “subjects of international law” refers to entities endowed with legal personality, capable of exercising certain rights and duties on their own account under the international legal system.
According to Starke, the term “Subject of international law” means; a) An incumbent of rights and duties under international law; b) The holder of procedural privileges of prosecuting a claim before an international tribunal; and c) The possessor of interests for which provision is made by international law. Oppenheim says that an international person is one who possesses legal personality in international law meaning one who is subject of 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. Suggested Read: Public International Law Theories regarding subjects of International Law
1. Realist Theory (States alone are subjects of International Law)
According to the orthodox positivist doctrine, states are the only subjects of international law. According to Prof. Oppenheim, “the law of nations is primarily a law of international conduct of states and not of their citizens”. If individuals have any right then it can be claimed only through the states. The Jurists of this school believes that the states are the subjects of international law, while individuals are the objects of international law. Criticism of Realist Theory It is silent on the rights of the individuals and the international offences for which individuals may be punished. In Reparation for injuries suffered in the services of the UN case, the ICJ held “that the UN has the capacity to bring an international claim against the State for obtaining reparation when an agent of UN suffers injury”. 2. Fictional Theory (Individuals alone are subjects of International Law) In this theory, Jurists believe that Individuals are the only subjects of international law as states do not have soul or capacity to form an autonomous will. Prof. Kelson opined that the laws ultimately apply to the individuals and are for the individuals alone. As per this theory, the welfare of an individual is the ultimate goal of international law. Criticism of Fictional Theory The primary concern of International law is the rights and duties of the states. Individuals possess many rights under international law but their capacity to enforce these rights is limited. In most of the cases, a state files the claims for the rights of the citizens. In Mavrommatis Palestine Concession case (1934), the PCIJ observed that “It is an elementary principle of international law that a state is entitled to protect its subjects”. 3. Functional Theory (States, Individuals and some non-state entities are subjects of International law) The jurists with a moderate view criticize both of the above theories. These Jurists believe that States, Individuals and certain non-state entities are subjects of international law. Now, Individuals got right even against the states. An example of this is the European Convention on Human Rights in 1950. Under International Covenants on Human rights 1966, it is held that individuals can claim rights directly under international law. In some cases, Non-state actors like Colonies and Protectorate states are treated as subjects of international law. International Organizations as subjects of International Law
The advent of international organizations in the 20th Century is having immense significance. There are different types of International organizations, some are Global like the United Nations and others are regional like the African Union.
Functional Theory believe that States, Individuals and non-state actors are subject of international law
Individuals as subjects of International Law
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