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CHAPTER 3

SUBJECTS OF INTERNATIONAL LAW

Contents

Pages

3.1

Different views of jurists

3.2

States

3.3

International Organizations

3.4

Individuals

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SUBJECTS OF INTERNATIONAL LAW

"Subjects" as the term is used in general jurisprudence are the

persons whom the law attributes rights and duties. A subject of
international law may, therefore, be defined as an entity who has rights
and duties under international law. At the same time, we may say that a
subject of international law is an entity who possesses "international
personality".
( )

Since international law is the name of a body of rules which regulate

the conduct of the states in their intercourse with one another, state are the
principal subjects of international law. This is also in conformity with the
nature of international law as the law of nations or the "law among
nations".

3. 1

Different views of jurists

The traditional view is that only states are subjects of international

law. Professor Oppenheim is a staunch supporter of the traditional view. In
his opinion, "the subjects of the rights and duties arising from the law of
nations are states solely and exclusively.

According to Sir Frederick Smith, "States and States alone can enjoy
locus standi in the law of nations: they are the only wearers of
international personality".

On the other hand Austrian jurist Hans Kelsen and his followers
maintain that individuals alone are the subjects of international law. In
Kelsen's view, "law is essentially the regulation of human conduct. Like
all law, international law, too, is a regulation of human conduct. It is to
men that the norms of international apply; it is against men that they
provide sanctions".
Austrian Jurist Hans Keisen

Kelsens

Kelsen emphatically asserted that "the traditional doctrine, namely,
only States are subjects of international law is untenable and incorrect".
Kelsen

With the emergence of the United Nations, it has been obvious that
the traditional doctrine, namely. States only are subjects of international
law, can no longer exist. International law is no longer centred exclusively
on the rights and duties of States. It has recognized the independent
existence of a variety of international institutions and, within definite
limits, has imposed obligations on, and granted rights to, individuals.

Therefore, the modern view is that while States will remain by far
the most important subjects of the law of nations, they are no longer the
exclusive subjects of international law. There are entities other than States
as subjects of present-day international law.

3. 2

States

States are the principal subjects of international law. One must,

therefore, know what a state is.

According to Holland, "normal international person is a state which
not only enjoys full external sovereignty, but also is a recognized member
of the family of nations".
Holland

According to the definition of Fenwick, "a state theoretically was a
permanently organized political society, occupying fixed territory and
enjoying within the boundaries of that territory freedom from control by
any other state.

Fenwick

In the view of Oppenheim a state is in existence when the people is

settled in a country under its own sovereign government'. The
characteristics of a state in Oppenheim's sense therefore are four.

' '

First there must be a people who live together as a community in

spite of the fact that they may belong to different races or religions, or of
different colour.

Secondly, there must be a country in which the people has settled

down. A wandering people is not a state. But it does not matter whether
the country is small or large; it may consist as in the case of city states, of
one town only.

Thirdly, there must be a government. The government may be one or

more persons who are the representatives of the people and rule according
to the law of the land. An anarchistic community is not a state.

Lastly, there must be a sovereign government. Sovereignty means

supreme authority. Sovereignty in the strict and narrowest sense of the
term implies, therefore, independence all round, within and without the
borders of the country.

3. 3

International Organizations

Although the states remain by far the most important subjects of

international law, since they alone have all the attributes of territorial and
jurisdictional sovereignty, they are no longer the only subjects of
international law. International practice has in recent years extended the
range of subjects far beyond that of states only. A new type of
international legal person, namely the public international organizations,
has been emerged.

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The International Court of Justice has expressly held in the
'Reparation for Injuries Suffered in the Service of the United Nations' that
the United Nations is an international person.

Altogether, seven agents of the United Nations had been killed in
Palestine during their official observations of the troubled armistice
between Arabs and the Jews. The culmination, on 17 September 1948, was
the deaths of Count Folke Bernadottle, the United Nations Mediator and a
national of Sweden, and Colonel Secret, a U.N Observer and a national of
France.
()

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Under international law, states have the right to bring claims on

behalf of their nationals. But could the United Nations bring a claim for
injury to one of its agents? This was the question before the General
Assembly.

On December 3

rd

1948. The General Assembly adopted the

following resolution:
"The General Assembly decides to submit the following legal
questions to the International Court of Justice for an advisory opinion.
In the event of an agent of the United Nations in the
performance of his duties suffering injury in circumstances involving the
responsibility of a state, has the United Nations as an organization, the
capacity to bring an international claim against the responsible de jure or
de facto government with a view to obtaining the reparation due in respect
of the damage cause:
(a) to the United Nations,
(b) to the victim or to persons entitled through him?

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()

()

In its advisory opinion the International Court of Justice answered in

the affirmative the question as to whether the United Nations has the
capacity to bring international claims.

"In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjoying, functions and

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rights which can only be explained on the basic of the possession of a

large measure of international personality and the capacity to operate upon
an international plane".

"Accordingly, the Court has come to the conclusion that the
Organization is an international person. That is not the same thing as
saying that it is state, which it certainly is not, or that is legal personality
and rights and duties are the same as those of a state . What it does
mean is that it is a subject of international law and capable of possessing
international rights and that it has capacity to maintain its rights by
bringing international claims".

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Under the authority of the dictum of the World Court, now it is an
established principle that the United Nations is a subject of international
law. But it is difficult to decide whether other international organizations
are subjects of international law or not.

It has become customary for most of the international organizations
to insert in their constitutions or charters some reference to their legal
status. For instance, the Constitution of the F.A.O provides:
"The Organization shall have the capacity of a legal person to
perform any legal act appropriate to its purpose which is not beyond the
powers granted to it by this Constitution".

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However, the Constitution of an international organization, only

rarely, will provide an express answer to the question whether or not the
organization is endowed with international personality. Therefore, the
question can only be answered by inference from the type of powers,
function, immunities and privileges provided by the Charter or
Constitution of the organization concerned.




)

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3. 4

Individuals

The widely accepted view is that states are the primary subjects of

international law and such international organizations as the United

Nations also possess international personality. Individuals cannot, strictly
speaking, be regarded as subjects of international law.

To be a subject of the law, one of the most important qualifications

is that it must have locus standi before a competent court. Individuals lack
this qualification. According to Article 34 (1) of the Statue of I.CJ,
"only states may be parties in cases before the Court."

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()

Thus it is obvious that an individual does not have access to the
World Court. He may do so only through the state of which he is a
national. Only the state concerned may, on behalf of its national submit the
case to the International Court of Justice.

However, in exceptional cases, individuals have been given by treaty
the right to appear before international tribunals.

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A treaty was concluded in 1921 by Danzig and Poland, regulating

questions relating to the employment of officials, employers, and workmen
of the Danzig railways.

In the advisory opinion concerning the "Jurisdiction of the Courts of

Danzig" the Permanent Court of International Justice pointed out the

"Danzig Railway Officials had a right of action against the Polish Railway
Administration for the recovery of the claims based on the treaty between
Poland and Danzig.

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Though individuals are not subjects of international law in the strict

sense of the word, it is an undeniable fact that they are, within very
definite limits, subjects of certain rights and duties in international law.

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There are, exceptionally norms of international law which establish

individual responsibility by directing sanctions against the private person

who commits.



(a) piracy jure gentium;
(b) slave-trading;
(c) illegal use of flag on the High Sea;
(d) Crimes against peace, war crimes or crimes against
humanity;
(e) The crime of Genocide;
()
()
()

() ( )

()

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However, individual responsibility in international law even after the

Nuremberg and Tokyo judgments only extend to a very limited number of
individuals.




On the other hand, such individuals as sovereigns, diplomats and
international civil servants can exercise privileges and immunities in
accordance with international law. But they are only a handful of
individuals. The Universal Declaration of Human Rights is an attempt to
recognize the rights of individuals in a global character. But it does not
create legal obligation on the part of the states. Moreover, there is not an
international court of a universal character for individuals to appear as
parties, once their rights under international law are violated.

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Making international law apply directly to individuals remains
therefore a continuing problem. In the meantime, states remain the
principal subjects of international law.

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KEY TERMS

International personality

International person

Sovereign government

International organizations

Individuals

International Court of Justice

Advisory opinion

de jure

de facto

piracy jure gentium

( )

Genocide

International crimes

war crimes

crimes against humanity

locus standi

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Anarchistic

Legal personality

F.A.O(Food and Agriculture

Organization)
Law of Land

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EXERCISE QUESTIONS
Assignment Questions
1. "Only states are subjects of international law". Is this statement
correct? Give reasons to your answer.
2. Assess the legal value of the dictum of the World Court in the
"Reparation Case."
3. Are individuals subjects of international law? Why?
4. A company from state A makes a contract with U Ba, a citizen of
Myanmar, to buy timber. U Ba exports timber according to the
contract but the Company refuses to pay the amount due for the
exported timber. U Ba wants to sue the Company before the
International Court of Justice. He wants to ask for your legal advice.
Advise U Ba.

Short Questions
1. What are the terms of Subject of international law?
2. Explain about the different views of jurist between Professor
Oppenhein and Austrain jurist Hans Kelsen.

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3. What are exceptional norms of international law which establish

individual responsibility by directing sanctions against the private person
who commits?