States | Subjects of International Law | PUBLIC INTERNATIONAL LAW

Topic: PUBLIC INTERNATIONAL LAW: Subjects of International Law: States

I. Introduction: Overview of Public International Law Public International Law (PIL) governs relations between entities with international legal standing or personality. Among these entities, States are the principal subjects, playing a primary role in the creation, development, and enforcement of international law. Understanding the legal concept of a State is fundamental to analyzing the structure and nature of international relations and law.

---

II. Definition and Criteria of Statehood In international law, a State is defined as a political entity that possesses the attributes of sovereignty and operates independently within a defined territory. The classical definition of statehood is rooted in the Montevideo Convention on the Rights and Duties of States (1933), which establishes the following four criteria for statehood:

1. Permanent Population: A stable and permanent group of people residing within the territory of the State. This population must have some form of social organization.

2. Defined Territory: A State must have a recognized and defined geographical territory. There is no requirement for exact or settled boundaries, but the core territorial extent must be determinable.

3. Government: The existence of a central authority that exercises control over the population and the territory. This government must have the capability to enforce laws, maintain order, and engage in foreign relations.

4. Capacity to Enter into Relations with Other States: This requires a degree of independence in conducting foreign affairs, whereby the State is not under the legal authority of any other entity.

Notably, the Montevideo Convention’s criteria are widely accepted, but not universally binding. In practice, recognition by other States often plays a crucial role in confirming statehood.

---

III. Recognition of States Recognition is the acknowledgment by existing States of the existence of a new entity fulfilling the criteria of statehood. Recognition can be:

1. De Jure Recognition: Full legal recognition of a State’s sovereignty, implying that it fully meets the Montevideo criteria and operates independently.

2. De Facto Recognition: Temporary or provisional acknowledgment of a State's existence. This is often granted when an entity exercises sufficient control over a territory but lacks certain elements, such as international legitimacy or effective governance.

Recognition is generally discretionary and political, but in international law, it has legal effects. A non-recognized entity cannot enjoy the full rights and obligations of statehood in its dealings with recognizing States.

---

IV. Sovereignty A core characteristic of a State in international law is sovereignty—the supreme power by which a State governs itself without external interference. Sovereignty is divided into two dimensions:

1. Internal Sovereignty: The authority of the State over its territory and population, involving the power to create and enforce laws and govern autonomously.

2. External Sovereignty: The capacity of a State to engage in international relations and enjoy immunity from the jurisdiction of other States. It underscores the principle of non-interference in the domestic affairs of States, a central tenet of the UN Charter.

---

V. Legal Rights and Duties of States States, as subjects of international law, have rights and duties defined by treaties, customary international law, and general principles of law. These include:

1. Rights:

   • Right to Sovereignty: Freedom from external interference in internal matters.
   • Right to Territorial Integrity: Protection against the forcible seizure or occupation of its territory by another State.
   • Right to Self-Defense: As enshrined in Article 51 of the UN Charter, States have the inherent right to defend themselves against armed attack.
   • Right to Diplomatic Immunity: States and their diplomatic agents enjoy immunity from the jurisdiction of other States while conducting official functions.
   • Right to Self-Determination: States have the right to freely determine their political status and pursue their economic, social, and cultural development.

2. Duties:

   • Duty to Abstain from Threat or Use of Force: Under Article 2(4) of the UN Charter, States are prohibited from using force or threatening to do so against the territorial integrity or political independence of any State.
   • Duty to Settle Disputes Peacefully: States are obligated to seek peaceful solutions to conflicts through diplomatic means, such as negotiation, mediation, or adjudication (Article 33 of the UN Charter).
   • Duty to Respect International Law: States must comply with their treaty obligations, respect customary international law, and honor general principles of international law.
   • Duty to Protect Human Rights: States have the duty to protect the human rights of persons within their territory, as codified in various international instruments such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

---

VI. State Succession State succession refers to the legal process by which one State assumes the rights and obligations of another due to changes in sovereignty, such as:

• Dissolution (e.g., Yugoslavia).
• Secession (e.g., South Sudan from Sudan).
• Annexation (e.g., Crimea by Russia).
• Decolonization (e.g., former colonies gaining independence).

International law addresses State succession in terms of:

• Succession to Treaties: Whether the new State inherits the predecessor’s treaty obligations.
• Succession to Property and Debts: Transfer of State property and debt obligations.
• Succession to Membership in International Organizations: The legal status of the successor State in relation to organizations like the United Nations.

---

VII. Special Categories of States

1. Failed States: States where central authority has collapsed, and the government cannot exercise effective control over its territory or population (e.g., Somalia in the 1990s). Despite this, failed States remain subjects of international law.

2. Belligerent Occupation: A situation where a State occupies the territory of another during armed conflict. The occupying State must respect the rights and obligations of the international law of occupation (under the Geneva Conventions).

3. Neutral States: States that maintain neutrality during an armed conflict between other States. Neutral States must refrain from supporting any belligerent party and their rights of non-interference are protected by international law (e.g., Switzerland).

---

VIII. Non-State Actors and Their Relationship with States While States are the primary subjects of international law, non-State actors, including international organizations (e.g., the UN), non-governmental organizations (NGOs), and individuals, increasingly play significant roles. However, their legal standing differs from that of States. States remain the foundational subjects of PIL, with unique rights and responsibilities that non-State actors do not fully possess.

---

IX. Conclusion States are the principal subjects of public international law, possessing the legal capacity to exercise sovereign rights, enter into international agreements, and engage in diplomatic relations. The concept of statehood, shaped by criteria outlined in the Montevideo Convention and customary international law, remains central to the structure of international relations. Understanding a State's rights, obligations, and legal personality within the international system is vital for comprehending broader issues of governance, diplomacy, and conflict resolution in international law.

International Organizations | Subjects of International Law | PUBLIC INTERNATIONAL LAW

INTERNATIONAL ORGANIZATIONS AS SUBJECTS OF INTERNATIONAL LAW

International organizations (IOs) have become essential actors in international law, shaping the global legal order. As subjects of international law, they possess legal personality, which enables them to enter into legal relations and exercise rights and obligations independent of the states that compose them.

1. Definition of International Organizations

An international organization is a permanent association of sovereign states, established by treaty or other legal instruments, with a legal personality distinct from its member states. The primary purpose of IOs is to address issues that transcend national borders, such as international peace and security, economic cooperation, human rights, and environmental protection.

Examples of international organizations include the United Nations (UN), World Health Organization (WHO), International Monetary Fund (IMF), and the European Union (EU).

2. Legal Personality of International Organizations

International organizations derive their legal personality from the treaties or agreements that establish them. Legal personality implies that an organization can:

• Enter into treaties and international agreements;
• Sue or be sued in international and domestic courts;
• Own property;
• Enjoy privileges and immunities (both functional and institutional);
• Participate in diplomatic relations.

a. Internal vs. External Legal Personality

• Internal Legal Personality refers to the organization's legal status under the domestic laws of its member states. This may vary depending on how domestic law treats international organizations. However, most member states recognize the immunity and privileges of IOs, preventing them from being sued without consent.

• External Legal Personality refers to the organization's legal status on the international plane. This allows the organization to operate as a subject of international law, distinct from its member states.

3. Sources of Legal Personality

The legal personality of international organizations originates from:

• Founding Treaty/Charter: The primary legal instrument establishing the organization, such as the UN Charter or the Treaty of Rome (EU), outlines the scope and capacity of the organization's legal personality.
• International Customary Law: Over time, certain IOs have developed capacities recognized by states, even in the absence of explicit treaty provisions.
• General Principles of International Law: These principles apply to the legal personality of IOs, especially in matters of sovereignty, immunity, and treaty-making capacity.

4. Privileges and Immunities

International organizations and their staff often enjoy privileges and immunities necessary to carry out their functions independently. These privileges include:

• Immunity from Jurisdiction: IOs are typically immune from the jurisdiction of domestic courts in matters related to their official functions.
• Inviolability of Premises: Offices and premises of international organizations are often inviolable, meaning they cannot be searched or seized without consent.
• Exemption from Taxation: IOs are generally exempt from taxes and customs duties in member states.

These privileges and immunities are usually codified in treaties such as the Convention on the Privileges and Immunities of the United Nations (1946) and other agreements specific to individual organizations.

5. Treaty-Making Capacity

International organizations can conclude treaties with both states and other IOs. This capacity is derived from the doctrine of implied powers, which states that organizations have the ability to perform any action necessary to fulfill their functions, even if not expressly provided in their founding treaty.

However, the scope of an IO’s treaty-making power depends on the functions and powers conferred upon it by its founding treaty. For instance:

• UN: The UN can enter into agreements with member states and other international organizations in pursuit of its objectives (peace, security, development, etc.).
• EU: The European Union, given its expansive role, enters into treaties not only with other states but also in the realm of trade, security, and international cooperation.

6. Responsibility and Accountability of International Organizations

Like states, international organizations may bear responsibility under international law for wrongful acts committed in breach of international obligations. The Articles on the Responsibility of International Organizations (ARIO), adopted by the International Law Commission in 2011, outline the principles governing the responsibility of IOs. Key elements include:

• Attribution of Conduct: Acts or omissions by organs or agents of an international organization may be attributable to the organization itself.
• Breach of International Obligation: IOs are responsible for breaches of their international obligations, such as violating human rights or international humanitarian law.
• Reparations: IOs are required to make reparations for internationally wrongful acts, including restitution, compensation, and satisfaction.

7. Participation in International Dispute Resolution

International organizations have limited access to dispute resolution mechanisms in international law. They may participate in legal proceedings before international tribunals, such as:

• International Court of Justice (ICJ): While IOs cannot be parties to contentious cases (these are reserved for states), they can request advisory opinions from the ICJ, as seen in the Advisory Opinion on the Legality of the Use of Nuclear Weapons (requested by the WHO).
• International Centre for Settlement of Investment Disputes (ICSID): Some IOs are party to investment treaties and may participate in arbitration proceedings related to investment disputes.

8. Role of International Organizations in the Development of International Law

International organizations play a crucial role in the development and codification of international law by:

• Creating Soft Law: IOs often produce soft law instruments, such as resolutions, guidelines, and declarations. While not legally binding, these documents influence state behavior and the development of customary international law.

  Example: The Universal Declaration of Human Rights (UDHR) by the UN General Assembly has shaped international human rights law, despite being non-binding.

• Promoting Treaties: IOs serve as platforms for treaty negotiations, such as the UN Convention on the Law of the Sea (UNCLOS), negotiated under the UN's auspices.

• Supervising Compliance: Many IOs have mechanisms to monitor state compliance with international obligations. For instance, the UN's Human Rights Council supervises compliance with human rights treaties.

• Establishing International Tribunals: IOs have contributed to the establishment of international courts and tribunals, such as the International Criminal Court (ICC), the result of efforts by the UN and other IOs.

9. Types of International Organizations

a. Intergovernmental Organizations (IGOs)

• These are composed primarily of sovereign states. Membership is usually limited to states, and decisions are made by state representatives.
• Examples: United Nations, ASEAN, NATO.

b. Supranational Organizations

• These organizations, such as the European Union, go beyond intergovernmental cooperation by allowing for the delegation of decision-making authority to a higher body, which can make binding decisions on member states.

c. Non-Governmental Organizations (NGOs)

• While not subjects of international law in the strict sense, NGOs such as the International Committee of the Red Cross (ICRC) have gained significant influence in international legal processes, especially in humanitarian and human rights law.

10. Conclusion

International organizations are essential subjects of international law, distinct from states but capable of influencing the international legal order. Their legal personality, rights, and responsibilities empower them to promote cooperation, resolve disputes, and contribute to the codification and development of international law. As these organizations continue to evolve, their role in global governance and international law will likely expand, further shaping the dynamics of international relations.

Individuals | Subjects of International Law | PUBLIC INTERNATIONAL LAW

Individuals as Subjects of International Law

I. Introduction

In public international law, individuals have traditionally been regarded as objects rather than subjects. However, the development of international human rights law and international criminal law has significantly altered this view, recognizing individuals as bearers of rights and duties. This discussion will delve into the status of individuals as subjects of international law, their rights and obligations, and the mechanisms through which they can interact with the international legal system.

II. Traditional View: States as Primary Subjects

Historically, states were the primary subjects of international law. In this traditional Westphalian model, individuals were regarded as objects of state actions, with no direct standing in international law. International law governed relations between sovereign states, while individuals were considered under the purview of domestic legal systems.

However, over time, international law has evolved to extend certain rights and obligations directly to individuals, making them subjects of international law in specific contexts.

III. Evolution of Individuals as Subjects of International Law

Several developments have transformed the position of individuals in international law:

1. International Human Rights Law
   The establishment of international human rights treaties marked a significant shift, recognizing individuals as rights holders independent of their national governments. Examples include:

   • Universal Declaration of Human Rights (UDHR) (1948): While not legally binding, it laid the foundation for subsequent binding treaties recognizing individuals' rights.
   • International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICESCR) (1966): These binding treaties enumerate specific rights individuals enjoy under international law.
   • European Convention on Human Rights (ECHR) (1950): This treaty allows individuals to bring claims against states before the European Court of Human Rights.

   These treaties empower individuals by granting them rights, which states must respect and enforce under international law.

2. International Criminal Law
   International criminal law imposes direct obligations on individuals, holding them accountable for grave breaches of international law. This is most notably seen in:

   • The Nuremberg and Tokyo Tribunals after World War II, where individuals were held criminally responsible for war crimes, crimes against humanity, and genocide.
   • International Criminal Court (ICC) (1998): Established under the Rome Statute, the ICC prosecutes individuals for genocide, war crimes, crimes against humanity, and the crime of aggression.

   These developments highlight that individuals can be held directly accountable under international law, independent of state actions.

3. International Humanitarian Law
   Individuals, especially combatants and civilians, are subjects of international humanitarian law (IHL), which governs the conduct of armed conflict. Key treaties include the:

   • Geneva Conventions (1949) and their Additional Protocols (1977): These treaties protect individuals in times of war, specifically civilians, prisoners of war, and the wounded. Violations of these treaties can lead to individual criminal liability under international law.

IV. Rights of Individuals in International Law

As subjects of international law, individuals enjoy certain rights under various international legal regimes:

1. Human Rights
   Under international human rights law, individuals are entitled to a wide range of civil, political, economic, social, and cultural rights, including:

   • The right to life, liberty, and security
   • Freedom from torture and inhumane treatment
   • Freedom of expression, assembly, and religion
   • The right to an adequate standard of living
   • The right to education, health, and work

   These rights are enshrined in binding treaties like the ICCPR, ICESCR, and various regional human rights instruments (e.g., the ECHR, the African Charter on Human and Peoples' Rights).

2. Diplomatic Protection
   Although individuals do not traditionally have direct access to claim rights under international law, states can exercise diplomatic protection on behalf of their nationals when a foreign state violates their rights. This is a mechanism where the injured individual’s state takes up their claim against the offending state, provided that the individual has exhausted all local remedies in the foreign state.

3. Access to International Courts and Tribunals
   Certain international bodies allow individuals to file complaints or petitions:

   • European Court of Human Rights (ECHR): Individuals can directly file claims against states alleging violations of their rights under the European Convention.
   • Inter-American Court of Human Rights: Individuals and groups can bring cases before the court, subject to certain procedural rules.
   • Human Rights Committee under the ICCPR: Individuals can file communications alleging violations of their rights by states that are parties to the Optional Protocol to the ICCPR.
   • African Court on Human and Peoples' Rights: This court similarly allows individual petitions under certain conditions.

   These mechanisms signify the increasing recognition of individuals as active participants in the international legal order.

V. Obligations of Individuals in International Law

Individuals not only enjoy rights but also bear responsibilities under international law. These obligations primarily arise in the context of:

1. International Criminal Law
   Individuals are directly accountable under international law for certain international crimes, including:

   • Genocide
   • War crimes
   • Crimes against humanity
   • Aggression

   The ICC, ad hoc tribunals (e.g., the International Criminal Tribunal for the former Yugoslavia and Rwanda), and hybrid courts (e.g., the Special Court for Sierra Leone) have jurisdiction to prosecute individuals for these crimes.

2. International Humanitarian Law
   Under the Geneva Conventions and other instruments, individuals involved in armed conflict must adhere to IHL principles, such as:

   • Protecting civilians and non-combatants
   • Treating prisoners of war humanely
   • Prohibiting torture and inhumane treatment
   • Prohibiting the use of certain weapons and tactics (e.g., biological and chemical weapons)

   Violations of these principles can lead to individual criminal responsibility.

3. Individual Responsibility in Economic Sanctions
   In certain cases, individuals can be subjected to sanctions (e.g., asset freezes, travel bans) imposed by international bodies like the United Nations Security Council for activities deemed threatening to international peace and security, such as terrorism or human rights abuses.

VI. Limitations of Individuals as Subjects of International Law

While individuals have gained recognition as subjects of international law, there are limitations to this status:

1. No General Standing Before International Courts
   Apart from human rights courts and specific mechanisms, individuals generally do not have standing before international courts such as the International Court of Justice (ICJ), which typically handles disputes between states.

2. Limited Enforcement Mechanisms
   Despite the rights conferred on individuals, enforcement remains a challenge. International law largely relies on state cooperation, and individuals often depend on their state or international organizations to uphold their rights.

3. Jurisdictional Issues
   The jurisdiction of international bodies over individuals is often limited by treaties. For instance, the ICC can only prosecute crimes committed on the territory of a state party or by a national of a state party, unless the UN Security Council refers a situation to the ICC.

VII. Conclusion

The role of individuals in international law has significantly evolved. While states remain the primary subjects, individuals now have direct rights and obligations under international law, particularly in the areas of human rights, international humanitarian law, and international criminal law. This recognition reflects a shift towards a more inclusive international legal order, wherein individuals are both protected by and accountable to the international community. Nonetheless, the enforcement of these rights and obligations remains largely dependent on states and international institutions, which presents ongoing challenges in the protection and accountability of individuals under international law.

Others | Subjects of International Law | PUBLIC INTERNATIONAL LAW

Others: Subjects of International Law

In the context of Public International Law, the term "subjects of international law" refers to entities endowed with rights and obligations under international law and possessing the capacity to enforce those rights or fulfill those obligations on the international plane. Traditionally, states are recognized as the primary subjects of international law, but other entities can also have international legal personality. The category "Others" refers to non-state entities that may be considered subjects of international law under certain conditions. These include, but are not limited to, international organizations, insurgents and national liberation movements, individuals, multinational corporations, and non-governmental organizations (NGOs). Below is a meticulous analysis of each category.

1. International Organizations

International organizations, such as the United Nations (UN), World Trade Organization (WTO), and International Monetary Fund (IMF), have long been considered secondary subjects of international law. Their legal personality arises from their constitutive instruments, typically multilateral treaties, which define their powers and functions. Their international legal personality allows them to enter into treaties, claim privileges and immunities, and initiate legal proceedings in certain circumstances.

Key points:

• Constitutive Instruments: These define the scope of legal personality for international organizations. For instance, the UN Charter endows the UN with certain rights and obligations.
• Capacity to Act: International organizations can enter into agreements with states and other organizations, as exemplified by the UN’s peacekeeping operations or the WTO’s role in global trade regulation.
• Immunities: International organizations generally enjoy privileges and immunities similar to those of sovereign states, particularly in the context of their operational needs.

2. Insurgents and National Liberation Movements

Insurgents and national liberation movements may acquire limited international legal personality under certain conditions, particularly in the context of decolonization or internal armed conflicts. This occurs when such movements achieve recognition, either by the state they are opposing, the international community, or through their effective control over a defined territory.

Key points:

• International Recognition: Recognition of insurgents or national liberation movements confers upon them certain rights and duties under international law. For example, the recognition of the Palestine Liberation Organization (PLO) by several states and the United Nations as the representative of the Palestinian people grants it a degree of international legal personality.
• Geneva Conventions: Insurgents engaged in armed conflict may become subjects of international law under the framework of the Geneva Conventions if they comply with the laws of war. This means they may have obligations relating to humanitarian treatment and conduct during armed conflict.
• Self-determination: Movements for national liberation, particularly those seeking independence from colonial powers, may invoke the principle of self-determination under international law, further bolstering their status as subjects of international law.

3. Individuals

Historically, individuals were not considered subjects of international law; only states could hold international rights and obligations. However, developments in human rights law and international criminal law have increasingly recognized individuals as having rights and obligations directly under international law.

Key points:

• International Criminal Law: Individuals can be held directly accountable for violations of international law, especially in the context of international crimes such as genocide, war crimes, and crimes against humanity. The establishment of international criminal tribunals, such as the International Criminal Court (ICC), provides mechanisms for prosecuting individuals for these offenses.
• Human Rights: Individuals are recognized as subjects of international law in the context of human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. These treaties establish direct rights for individuals and may allow them to bring claims before international human rights bodies.
• Diplomatic Protection: States can invoke diplomatic protection on behalf of their nationals in certain cases where an individual’s rights under international law are violated. This highlights the intersection of individual and state interests under international law.

4. Multinational Corporations (MNCs)

While multinational corporations do not traditionally enjoy full international legal personality, their growing role in global governance has led to increased scrutiny of their actions under international law. In certain circumstances, multinational corporations may be held accountable for violations of international law, particularly in the fields of human rights and environmental protection.

Key points:

• Corporate Social Responsibility (CSR): MNCs are increasingly expected to respect international human rights standards, even though they are not traditional subjects of international law. Initiatives such as the UN Guiding Principles on Business and Human Rights encourage corporate adherence to international human rights norms.
• Jurisdiction and Liability: MNCs may face legal proceedings under the domestic laws of states for their international activities, particularly if they are involved in violations of international norms. In certain cases, international bodies may also scrutinize corporate behavior, particularly in relation to human rights abuses.

5. Non-Governmental Organizations (NGOs)

NGOs do not possess international legal personality in the same sense as states or international organizations. However, they play a significant role in international law by influencing policy, contributing to the development of international norms, and participating in international institutions, especially in the areas of human rights, environmental law, and humanitarian law.

Key points:

• Consultative Status: Some NGOs, particularly those with consultative status at the United Nations (e.g., Human Rights Watch, Amnesty International), have the ability to participate in international discussions and influence decision-making processes.
• International Advocacy: NGOs are crucial in the enforcement of international human rights law and the promotion of humanitarian principles. They often act as watchdogs, providing reports and advocating for the implementation of international norms at both the national and international levels.

6. Special Cases: Entities with Limited or Contested Legal Personality

In some cases, entities may possess limited or contested legal personality under international law. These include:

• The Holy See (Vatican City): The Holy See is recognized as a subject of international law with the capacity to enter into treaties and participate in international relations, even though it is not a traditional state.
• The Sovereign Military Order of Malta: The Order of Malta has a unique status as a sovereign entity under international law, despite lacking a defined territory. It engages in diplomatic relations with various states and international organizations.
• Taiwan (Republic of China): Taiwan’s international legal personality is contested due to the "One China" policy. While it operates as a de facto independent state, its recognition on the international stage is limited due to political considerations.

Conclusion

The subjects of international law have expanded beyond the traditional framework of states. International organizations, individuals, insurgent groups, multinational corporations, and NGOs are all recognized as having varying degrees of legal personality, allowing them to act or be held accountable on the international stage. These entities play a crucial role in the contemporary international legal order, contributing to the development, implementation, and enforcement of international norms across various fields, including human rights, environmental protection, trade, and conflict resolution.