Public International Law Content
Subjects of international law
Traditionally – before world war, only State was considered as subject.
• Now, some advocates only state as subject while some advocates only individual as a subject
• Some moderates – compromise
• Kelsen and his followers maintain that in the ultimate analysis, individuals alone are the subject of
• Prof. Westalke in his papers, “The duties and rights of states are only the duties and rights of the men who
• ICJ in 1949, famously remarked that, to be an international person,
– an entity must be ‘a subject of international law and capable of possessing international rights andduties’; it must also have ‘the capacity to maintain its rights and duties by bringing international claims’.
• Reparation for Injuries Suffered in the Service of the United Nations,(Advisory Opinion)  ICJ
• Ian Brownlie observed:
– ‘All that can be said is that an entity of a type recognized by customary law as capable of possessing rights and duties and of bringing international claims, and having these capacities conferred upon it, is a legal person.’
• measure of international legal personality is the actual, rather than the potential, exercise of rights and duties.
– A subject of international is
• (1) an individual, body or entity;
• (2) recognized or accepted;
• (3) as being capable of possessing and exercising;
• (4) rights and duties;
• (5) under international law.
• Subjects = Personality
– the ability to have rights and obligations under International Law
• Legal personality
– is a conditio sine qua non for participation in a legal system.
– threshold that must be crossed, for without legal personality entities do not exist in law
– Kelsen notes, law cannot be considered only in terms of rights and duties – it must also be able to point to someone or something that possesses those rights and duties.
Theories : Subjects
• Only States is subject
• Only Individuals is subject
• States, Individuals and other non-state actors
• Only States
• In their view, international law regulates the conduct of States
• and only States alone are the subject of international law.
• Criticism :
– Oppenheim :
• States are primarily, but not exclusively, the subject of international law.
• bodies other than states directly possess some rights, power and duties,
• Many of rules of IL are directly concerned with regulating the position and activities of individuals, and many more indirectly affect them.”
• Thus, it is wrong to say that individual are not the subjects.
• To begin at the beginning: states are the primary and universally accepted subjects of international law are the most obvious accepted subjects giving them certain rights and duties
Elements of States
• As per the Arbitration Commission of the European Conference on Yugoslavia
– a state may be defined as ‘a community which consists of a territory and a population subject to an organized political authority . . . such a state is characterized by sovereignty’
Elements of State
• Mainly : Sovereignty
– notion of sovereignty is one of the oldest concepts in
– Article 2(1) of the Charter of the United Nations
reflects the continued relevance of the principle to modern international law and the significance of the
sovereign equality of all states
– Its origins can be traced to the Peace of Westphalia
– Hans Kelsen, ‘[s]overeignty in its original sense means
1933 Montevideo Convention:
• Article 1 (Cumulative criteria)
– a permanent population;
– a defined territory;
– a government; and
– the capacity to enter into relations with other states
• These should not be considered exhaustive elements
• other requirements may be relevant including sovereignty, independence, self-determination and recognition.
• Permanent Population with an intention to inhabit permanently
– Defined as stable community
– Not required to be homogenous
– people must have the intention to inhabit a specific territory on a permanent basis
– is also no requirement as to the size of thepopulation (Vatican City = under 1000)
– control must be exercised over a certain portion of territory
– Critical precondition for statehood
– The size or wealth of the territory is also not important. (Vatican = less than 100 acre)
– Important is that an exclusive right is established in that area to display state power – that is, effective government (the third Montevideo criterion)
• As territory is requisite element,
– the “State of Palestine” which was declared in November 1988 was not regarded as valid state.
– The Palestinian organizations did not control any part of the territory they claim.
– But now (2012) UN recognized
– As of 30 October 2014, 135 (69.9%) of the 193 member states of the United Nations have recognized the State of Palestine
• There must be territory – but should not be clearly defined
– E.g. Albania, prior to WWI was recognized by many countries as an independent state, although its borders were in dispute.
– Israel was admitted to the United Nations as a State in spite of disputes over its territory
– requires that a state-entity must have a central government operating as a political body within the law of the land and an effective control of the territory.
– there must exist central organs for the creation and the application of the norms of that order, especially that organ which is called government
– mere existence of a government will not be sufficient to satisfy the requirement of an effective government
– As a need for stability and effectiveness both within a state and in a state’s international relations.
• However, in certain cases, the requirement of an effective government was not regarded as a precondition for recognition as an independent State.
– The State of Croatia and the State of Bosnia and Herzegovina were recognized as independent States at a time when substantial areas of the territories of each of them, because of the civil war situations, were outside the control of each government.
• Some States had arisen before the government was very well organized
– Eg: Burundi and Rwanda
• Moreover, a State does not cease to exist when it is temporarily deprived of an effective government because of civil war or similar upheavals.
– The long period of de facto partition of Lebanon did not hamper its continuance as a State
• The lack of a government in Somalia did not abolish the international personality of the country
• Capacity to Enter into Legal Relations
– is discrete, but in practice is often treated as being closely connected to the third requirement of effective government
– is one of the capacity to act independently in international legal relations, rather than proof of action
• So what about federal states ?
– while ‘states’ or provinces within federated countries
• have permanent populations, defined territory and effective governments, they are not considered to be sovereign
• capacity to act on the international plane is absent
– Thus, although political subdivisions within a state may meet the first three criteria, they will not meet the fourth
– Of course, the fact that some provincial entities do, in fact, maintain international dealings (Ex: Government
of California in regard to renewable energy program)
• The concept of independence means that the State is subject to no other State.
• Many jurists stress on independence as the decisive criterion of statehood
• Some consider independence the essence of a capacity to enter into relations with other States,
• Others consider it in association with the requirement of effective government;
– to them, if an entity has its own executive and other organs, and conducts its foreign relations through its own
organs, then it is independent, and this is a prima facie evidence of statehood.