Subjects

of
International Law
 THEORIES OF SUBJECTS OF INTERNATIONAL LAW

1. Realist Theory (States alone are subjects of International Law)

According to this, states are the only subjects of international law. It says that 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.

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 the 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.

3. Functional Theory (States, Individuals and some non-state entities are subjects of International law)

These Jurists believe that States, Individuals and certain non-state entities are subjects of international law. Now,
Individuals got right even against the states. Examples are the European Convention on Human Rights, 1950 and
International Covenants on Human rights 1966.
SUBJECTS OF INTERNATIONAL LAW

Dixon – “A subject of international law is a body or entity recognised or accepted as capable, or as in fact being
capable, of possessing and exercising international law rights and duties”.

Oppenheim says that an international person possesses a legal personality in international law, meaning one who is
subject to international law to enjoy rights, duties or powers established in international law.

Kinds of Subjects of International Law

1. State
2. International organisations
3. Non-State entities
4. Individual
5. Minorities

A subject of International Law is a person (entity) who:

1. possesses international legal personality, i.e.,

2. capable of possessing international rights and obligations and
3. having the capacity to take certain types of action on the international level.
1. States

States are the original and major subjects of International Law. All States, by the principle of
sovereign equality, enjoy the same degree of international legal personality. International Law is
primarily concerned with the rights, duties and interests of States. Normally the rules of conduct that
International Law prescribes are rules which States are to observe.

2. International Organization

An international organisation is an association of States established by a treaty between two or more

States. Its functions transcend national boundaries. International organisations are generally
considered subjects of International Law, as are States, even though their international legal
personality is limited to possessing specific rights and duties. Their status is determined by
conventions among States and, therefore, the recognition of the international personality of an
international organization is limited to signatory States of the convention creating such an
organization. International organisations include universal all-purposes organisations, universal
functional organisations, and regional organisations.
Generally, the treaty creating a public international organisation indicates its nature, purposes
and powers. The international legal personality of an international organisation is, therefore,
limited to the rights, duties, purposes and powers laid down in the treaty creating it. The
international legal personality of the United Nations, for example, is derived from the United
Nations Charter.

The United Nations can perform legal acts such as entering into agreements with member States
and other international organisations, concluding contracts and bringing claims before a court.
Such capacity to perform legal acts is a prerequisite of international legal personality. In reality,
international organisations have exercised their legal capacity in a great variety of ways. They
have concluded treaties, created military forces, convened international conferences, and brought
claims against States.
3. Non-State Entities

There are certain entities, although they are not regarded as independent States, they are granted a
degree of personality, a definite and limited special type of personality, under International Law.
Such entities have certain rights and duties under International Law.. However, the rights and duties
of these entities in International Law are not the same as those of the States. They have a sort of
international personality. The capacity of each of them is more limited than an independent State
has since it is limited to the purpose it is existed for and the powers or functions it can perform.

Members of federal States: The federal State has itself, of course, an international legal
personality, but the controversial question is whether the component units of the federation have the
personality on the international plane. The international personality of such units and their extent
can only be determined in the light of the constitution of the State and State practice. The
constitution of a federation may grant a component unit a special international personality; however,
such personality will not be operative on the international plane without being recognized as such
by other States.
Insurgents and Belligerents:

Insurgents are individuals who participate in an insurrection against their government. Belligerents
are a body of insurgents who by reason of their temporary organized government are regarded as
lawful combatants conducting lawful hostilities provided, they observe the laws of war. They can
enter into valid arrangements on the international plane with States, international organizations, and
other belligerents and insurgents. They are bound by the rules of International Law with respect to
the conduct of hostilities.

National liberation movements:

In the course of anti-colonial actions sponsored by the United Nations and regional organisations,
these organisations and the Member States have conferred international legal status upon specific
national liberation movements. In 1974, the General Assembly recognised the international legal
status to the Angolan and Palestinian movements. The Security Council of the United Nations
permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same
rights of participation as conferred upon a member State not a member of the Security Council.
The international practice has accorded the political entities recognised as national liberation
movements a number of legal rights and duties. The most significant of these rights and duties are
the capacity to conclude binding international agreements with other international legal persons, the
capacity to participate in the proceedings of the United Nations, and the rights and obligations of
International Humanitarian Law.

International territories: The term “International territory” refers to territories placed under a
variety of international legal regimes including those administered by the United Nations under the
trusteeship system or special arrangements. The Charter of the United Nations established the
trusteeship system, replacing the mandate system established by the League of Nations, to enable
the United Nations itself or a State to administer certain territories pending independence. The
United Nations is also able to administer territories in specific circumstances.
In several instances, The United Nations placed certain territories under its transitional
administration for a variety of purposes, such as the preparation for independence, the
administration of an election, the adoption of a new constitution, the implementation of a peace
settlement, and the performance of other civil functions. Examples of such instances are
Cambodia (1992-1993), Bosnia (1995), and East Timor (1999-2002).