Public International Law: Subjects of International Law

Introduction: Public International Law governs the relationships between international actors. One of the key elements is determining who or what qualifies as a "subject" of international law. A subject of international law is an entity that possesses international legal personality, meaning it has rights, duties, and the capacity to engage in legal relations under international law.

In Public International Law, the subjects are typically sovereign states, but in modern practice, other entities such as international organizations, individuals, non-governmental organizations (NGOs), and certain non-state actors can also be considered subjects of international law. The following discussion will provide a detailed exploration of each subject type, its characteristics, and its legal status.

1. States as Primary Subjects of International Law

The state is the principal subject of international law. A state's international legal personality is determined by its possession of the following attributes, as established in the Montevideo Convention on the Rights and Duties of States (1933):

a. Population

A state must have a permanent population. The size of the population is irrelevant, but there must be people living within the state’s territory.

b. Defined Territory

The state must have a defined territory, although the borders do not have to be settled or undisputed. Territorial disputes do not disqualify an entity from being a state.

c. Government

The state must have an effective government that exercises control over its territory and population. The government must have authority to maintain order, enter into relations with other states, and represent the entity on the international stage.

d. Capacity to Enter into Relations with Other States

The state must have the ability to enter into diplomatic relations with other states and conduct foreign affairs independently. This includes the ability to sign treaties, establish embassies, and engage in diplomacy.

Sovereignty and Independence:
States possess full sovereignty, meaning they have supreme authority within their territorial limits, free from external interference. Sovereignty implies equality in the international system, although the power dynamics between states may differ.

Recognition of States:
While an entity may meet the criteria of statehood, recognition by other states enhances its capacity to act in international relations. Recognition can be de facto (acknowledgment of factual existence) or de jure (legal acknowledgment). However, statehood does not depend entirely on recognition, as it can exist independently of other states’ acknowledgment.

2. International Organizations as Subjects of International Law

International organizations are created by states through international treaties to carry out specific functions. These organizations are considered subjects of international law due to their international legal personality, which allows them to perform acts such as entering into treaties and filing claims in international courts.

Examples include:

The United Nations (UN)
The World Health Organization (WHO)
The International Monetary Fund (IMF)

The legal personality of an international organization depends on the constituent treaty that establishes it, and this personality may vary. Not all organizations enjoy the same level of personality or authority.

Legal Capacity:
International organizations have the capacity to:

Enter into international agreements.
Bring claims before international courts.
Enjoy privileges and immunities.

For instance, the International Court of Justice (ICJ) has affirmed the legal personality of the UN in the Reparations for Injuries Suffered in the Service of the United Nations (1949) advisory opinion.

3. Individuals as Subjects of International Law

Traditionally, individuals were not considered subjects of international law, as only states had international legal personality. However, this has evolved, and individuals now have limited international legal personality, particularly in areas such as human rights law, international criminal law, and international humanitarian law.

Human Rights Law:
Individuals have rights under international human rights treaties, such as:

The International Covenant on Civil and Political Rights (ICCPR).
The International Covenant on Economic, Social and Cultural Rights (ICESCR).
The European Convention on Human Rights (ECHR).

These treaties grant individuals the ability to claim violations of their rights before international bodies such as the European Court of Human Rights (ECHR) or the Inter-American Court of Human Rights (IACHR).

International Criminal Law:
Individuals can be held personally responsible for violations of international law, particularly under the statutes of international criminal tribunals such as the International Criminal Court (ICC). Crimes under international law that individuals can be prosecuted for include:

Genocide
War Crimes
Crimes Against Humanity
Aggression

4. Non-State Actors as Subjects of International Law

Certain non-state actors have increasingly gained recognition in international law. These include entities that do not fit within the traditional state-based framework but exert significant influence in the international arena.

a. National Liberation Movements (NLMs):

National liberation movements engaged in struggles for self-determination (e.g., the Palestine Liberation Organization (PLO)) are sometimes recognized as subjects of international law. These movements may enjoy observer status at the United Nations and are entitled to exercise the right to self-determination under the UN Charter and Declaration on Friendly Relations (1970).

b. Corporations and Multinational Enterprises:

While traditionally not subjects of international law, multinational corporations (MNCs) are increasingly considered actors in international legal disputes. They can be involved in international arbitration cases, particularly under bilateral investment treaties (BITs). Some treaties impose direct obligations on corporations in relation to human rights and environmental protection.

c. Non-Governmental Organizations (NGOs):

NGOs, such as Amnesty International or Human Rights Watch, do not have international legal personality in the same way as states or international organizations. However, they play a significant role in the development of international norms, particularly in areas such as human rights and environmental law. NGOs often act as pressure groups and participate in international negotiations.

d. Insurgent Groups:

Insurgent groups or rebels in civil wars may be recognized as belligerents under certain circumstances, allowing them limited rights and duties under international humanitarian law, particularly under the Geneva Conventions.

5. Other Possible Subjects of International Law

a. The Holy See (Vatican City):

The Holy See is a unique subject of international law due to its religious and historical significance. It is treated as a sovereign entity capable of entering into treaties, engaging in diplomacy, and participating in international organizations.

b. The International Committee of the Red Cross (ICRC):

The ICRC, while a private organization, has a unique status under international law. It is recognized as a neutral and independent body under the Geneva Conventions and has a mandate to protect victims of armed conflicts.

6. Other Entities with Special Status

a. Sovereign Orders:

Entities like the Sovereign Military Order of Malta also possess international legal personality, albeit with limited rights and functions in international relations.

b. Entities in Special International Status:

Entities like Taiwan or Kosovo may not be universally recognized as independent states but still engage in international relations to some extent.

Conclusion

Subjects of international law are primarily states, as they have full international legal personality. However, over time, other entities, such as international organizations, individuals, and non-state actors, have gained certain rights and responsibilities under international law. The evolution of international law reflects the growing complexity of global governance, where multiple actors influence and shape legal norms and practices across borders.

Understanding the subjects of international law is crucial in analyzing how international legal obligations are formed, interpreted, and enforced within the international system.