NAME- AMIR SUBHANI KHAN

COURSE- BA LLB (Hons.)

SEMESTER- IV
ROLL NO- 10
TOPIC- INDIVIDUAL AS A SUBJECT OF INTERNATIONAL
LAW
SUBMITTED TO- DR. NOORJAHAN MOMIN
INTRODUCTION
Any entity which possesses international personality is called an international person or subject
of international law1. Possession of international personality is therefore determining factor in
deciding as to which entities are the subject of international law. An entity may be said to
possess international personality if it is capable of possessing international rights and duties and
also having capacity to maintain his right.2The concept of International person is thus derived
from International Law

Views of different jurist on the question as what entities are subject of international law has lead
to emergence of three theories.

1. REALIST THEORY
According to this theory state alone are the subject of international law. This is a traditional
concept of International Law. The propounder of this theory believed that State as an entity is
legally distinguishable from the individual who make it. They believe that state are subject
whereas individual are object of international law.

This theory has been criticized by modern jurist who believe that right and duties are given to
other entities apart from states. The expansion of international law into economic and social
welfare has increased number of participants in International Law. This theory is therefore
inadequate.

2. FICTIONAL THEORY
This theory believes that just like municipal law only individual are subject of International Law.
This theory is based on idea that states are without soul and also doesn’t have the capacity to
form its own will, they are just abstract structure working through individuals. This theory is
called Fictional theory because according to it “State” is just a fiction.

3. FUNCTIONAL THEORY
In the both above theories extreme view has been taken,in the realist theory they consider just
State as a subject but in Fictional theory they believe that only Individual are subject of
International Law. In later they consider individual as a subject not because of the right and
duties bestowed upon them but because of the believe that duties and rights of the State are the
duty and right of Individuals.

In the present time taking these extreme view is not pragmatic as it has been seen in last sixty
five years that continuous changes has taken place due to which number of participants in

1
H.O. Agarwal, International Law and Human Rights (Central Law Publication)
2
Reparations for Injury case
International Law has increased. International Organisations have been given rights and duties
and they have distinct legal personality of their own. While interpreating the WHO-Egypt
Agreement ICJ clearly said that International Organization are subjects of International Law.

Same is the case with individual ,they have certain duties as well as rights. They can be punished
if they fail to perform their duties and also has been given certain rights. However it has been
accepted that while state has totality of duties and rights and thus have ‘’unlimited personality’3
that is they are primary subjects of International Law. International Organization and individual
has “restrictive personality.

Oppenheim in his first three edition has said that only state are subject, however in his Ninth
edition he is of the view that state are primary subjects and individual are considered as extended
subject of International Law.

INDIVIDUAL IN INTERNATIONAL LAW

In the classical international law individual were regarded as object and not the subject of
international law. Their only significance was that they were related to state as citizens . If an
injury was caused to citizen a state owed responsibility to another state under International Law.
Thus there was no responsibility if individual was stateless that is he had no nationality.
However this position has changed after establishment of United Nation.

United Nation by using the term “People of United Nation” has given importance to individual in
International Law.

However it is accepted that International Law primarily regulates the relationship of States and
individual are only given secondary status. The rights and duties of individual is based on the
assent given by the State themselves to confer them these privileges.

RIGHTS OF INDIVIDUALS
1. Human Rights
Promoting and encouraging respect for human right is one of the principles of United
Nation. The Universal Declaration of Human Right adopted in 1948 by General
Assembly provides various rights to individuals.
Further International Convention on the Rights of the Child adopted in 1989 provides
many rights to child below 18 year of age.
Convention on Elimination of all forms of Discrimination against women adopted in
1979 provides rights to women.

3
,Jai Kanade & Vishal Kanade, , Public International Law–A Prime( Lexis Nexis)
 2. Right to Make Petition
The rise of Human Rights has given rise to right to make petitions before International
Forum if their right is violated. The Optional Protocol to the Convent on Civil and
Political Rights of 1966 provides for petition by individuals before Human Right
Committee against its own state. Similarly the Convention on the Elimination of All
Forms of Racial Discrimination of 1966 through its Article 14 that Committee can
receive communication from individuals and groups for violation of their rights.
However it is to be noted that right of the individual to make petition is only available at
the instance of the State.
Some regional Convention has also provided mechanism to make petition as the
European Convention for protection of Human Rights and the Fundamental Freedom of
1950 through its Article 25 says that Commission may receive petition from any person,
non governmental organization or group of individuals if their right is violated by One of
the Contracting States.

3. Right to Conciliation and Arbitration Proceedings

The Convention for the Settlement of Investment Dispute between States and Nationals
of other States concluded in 1965 provided for the machinery of conciliation and
arbitration on a consensual basis so that private foreign investor may have direct access to
settle legal disputes with investment receiving states.4

DUTIES OF INDIVIDUALS

1. Offence of Piracy

The offence of piracy has been has been traditionally regarded as crime against
International Law. It is punishable by any state which seizes the offender. Every state
has right to arrest, trial and punish the pirates.
This customary rule was transformed by Law of the Sea 1982 into treaty rule5

2. Violation of Rules of Warfare

Member of armed forces are criminally liable for violation of the rules of warfare and
can be punished. In some cases, sanction is imposed upon individual committing
offence by the States having custody of them.

4
HO Agarwal, International Law and Human Rights (Central Law Publication)

5
Dr.S.K. Kapoor, International Law and Human Rights( Central Law Agency)
 According to Charter of International Military Tribunal its jurisdiction extend to
individuals for crime against peace, war crimes and crime against humanity.

3. Offence of Espionage

The practice of spying or of using spies, typically by governments to obtain political

and military information through clandestine means is known as Espionage.6
Article 24 of Hague Regulations enacted the old customary rule that employment of
spies to obtain necessary information about enemy is permissible but this doesn’t
protect the individual from punishment who is involved in the act of espionage. They
are considered as war criminals7

4. Crime of Genocide

The deliberate killing of a large group of people, especially those of a particular

nation or ethnic group is known as Genocide. It is considered as crime against
International Law and for which the accused may be punished.
This rule was made by General Assembly in a resolution adopted on 11th December
1946.

5. Aircraft Hijacking

Aircraft hijacking is considered as crime in International Law and individual can be

punished for any unlawful act commited against the safety of civil aviation.

6. Kidnapping of Diplomatic Personnel

Convention on Prevention and Punishment of Crimes against Internationally

protected person including Diplomatic Agent of 1973 have expressly laid down for
the punishment to the individual for the acts mentioned in the Convention.8

7. Apartheid

6
Oxford Dictionary
7
Oppenheim,International Law Volume 2

8
HO Agarwal, International Law and Human Rights (Central Law Publication)
It is an African term which means a policy or system of segregation or discrimination
on grounds of race. It is basically a policy through which white minority dominated
the majority black Africans. The policy violates human rights, genocide, slavery and
is crime against humanity. In order to suppress it and give punishment a convention
was adopted by General Assembly in 1973.

CONCLUSION

Individuals do possess rights and duties in International Law and they therefore have
legal significance. They are likely to acquire more rights and duties in the future.
However their role will continue to remain limited as long as they don’t have access
to International Court of Justice. Article 34(1) clearly states that only states maybe
parties of the Court.
However due to creation of International Criminal Court in 1988 has improved the
position of individual in the realm of International Law as they have been given
jurisdiction to decide most serious crime committed by individuals but even
International Criminal Court doesn’t provide any solution when the right of the
individual is violated.