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
international law
• Prof. Westalke in his papers, “The duties and rights of states are only the duties and rights of the men who
compose them.”
• 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) [1949] 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.
• Dixon
– 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
are subjects
• 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.
STATES
• 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
“highest authority”
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)
• Territory
– 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
• Government
– 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
states.
• 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)
Independence ?
• 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.