SUBJECTS OF

INTERNATIONAL LAW
Dr. Jyoti
 Introduction

“Actors” of
International “Subjects” of
Relations International
Law
 Subjects of IL - Legal Personality
Possessing “Rights and Obligations” enforceable under law.

“Individual” Rights To prosecute for Assault

Obligation To be prosecuted for Assault

s

Having rights and obligations under IL is not sufficient.

To participate in creation of
Legal Capacity Active Subjects
new rights
Reparation for injuries suffered in the service of
the United Nations - Advisory Opinion of the
Court of 11 April 1949
Issue: Can the UN bring an international claim for damage suffered by the
UN?
The ICJ considered that –
“The subjects of law in any legal system are not necessarily identical in
their nature, or the extent of their rights, and their nature depends on the
needs of the community. Throughout its history, the development of IL has
been influenced by the requirements of international life.” (Para 8)
The same reasons for the ‘needs of the community’ explain the emergence
of a new category of subjects of IL.
 States

What is a State?
State?
Taliban - State?
 How can we determine that an entity is a State
within the meaning of IL?
Article 1: Montevideo Convention on Rights and Duties of States, 1933
State as an international person should possess –
a) A Permanent population;
b) A defined territory;
c) Government; and
d) Capacity to enter into relations with other states.
Article 4: United Nations Charter (1945)
Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able
and willing to carry out these obligations.
The Arbitration Commission of the European Conference on Yugoslavia (1991)
Opinion No. 1
“The state is defined as a community which consists of territory and a population subject to an
organised political authority & that such state is characterised by sovereignty.”
Are these provisions exhaustive or immutable?

Self-Determination?
And
Recognition?
 Territory
◦ There is no state without a territory.
◦ Territory constitutes:
◦ An area of land attached to the earth
◦ Must be a natural territory
◦ Exceptions:
◦ No need to have a territory with clear and undisputed borders all around – A State
may be recognised as a legal person even though it is involved in a dispute with its
neighbours as to the precise demarcation of frontiers, so long as there is a
consistent band of territory which is undeniably controlled by the govt. of the
alleged state.(presence stable community) – Example, State of Palestine declared in
1988 not as state because PLO did not control any part of the territory they claim.
Albania, prior to WWI was recognised by many even though its borders were in
dispute.
◦ Size of the territory does not matter.
 A Permanent Population
◦No state without population, without human beings living on the
territory of the state.
◦Essential elements:
◦Size of the population does not matter – Nauru and Tuvalu
◦Population must live on a permanent basis on the territory.
 Government
◦ Independent and effective exercise of control by government or central
body throughout its territory and population.
◦ Authorities must be independent i.e., they must not obey orders from
outside and must act in an autonomous way.
◦ There must be a coherent political structure, and the govt. can exercise
some control/protection over its population. Some disruptions in the govt.
control would be OK.
◦ Recent practise: suggests modification of the criterion of effective
control. Example – Croatia and Bosnia and Herzegovina, recognised as
independent states by EC member states and admitted to UN membership
despite control by non-governmental forces (i.e., lack of effective govt.).
Kosovo declared independence with Serb-inhabited areas not under the
control of the central govt. - the role of international recognition
Capacity to enter into Relations with other States
◦This links with “recognition by other states”, which is, in modern
times, another requirement for statehood.
◦This capacity is not limited to sovereign nations, since International
Organisations, non-independent states, and other bodies can enter
into relations with other entities under IL.
◦ It is essential for a sovereign state to be able to create legal relations
with other states – if not – it cannot be an independent state.
 Self Determination
◦ It is a criterion of government and has been most affected by the development of the
legal right to self-determination – it implies that people should be free to choose their
own state and its territorial boundaries – developed in the context of decolonisation
situations.
◦ “All people have the right to self-determination and subjection of people to alien
subjugation, domination and exploitation constitutes a denial of fundamental human
rights.” (Declaration on Granting of Independence to Colonial Territories and
People, General Assembly Resolution 1514, 1960.
◦ Developed in colonial context- do not extend to non-colonial contexts like self-
determination by minorities. Example – Kosovo, unilaterally declared independence
in 2008 from Serbia.
◦ Crimea, its declaration of independence from Ukraine after a referendum on 16
March 2014 and subsequent claim and annexation by the Russian Federation on 18
March 2014, was widely criticised.
 Recognition
◦Unilateral action to affirm the real existence of other states - Key for
diplomatic relations – no obligation to recognise.
◦It may not be a criterion for statehood as such but will confirm the
status of other criteria, especially the 4th criterion(capacity to enter
into international relations).
◦In the context of the creation of Statehood – Constitutive and
Declaratory.
◦Once granted, recognition is complete and cannot be withheld.
Is Sealand a State?
 Fundamental Rights of States
◦ Independence or Sovereignty – the capacity of the state to provide for its well-being
and development free from the domination of other states – Political or economic
dependency does not affect independence unless the state is compelled to submit to the
demands of a superior state.
◦ Implies: the right of the state to exercise jurisdiction over its territory and permanent
population; right to engage in acts of self-defence; duty not to intervene in internal
affairs of other states; duty not to aid or assist submissive elements aiming at the violent
overthrow of the govt. of a state.
◦ Equality – equality of legal rights and duties and equal members of the international
community irrespective of size and power.
◦ Includes: States are juridically equal; enjoy rights inherent in full sovereignty; duty to
respect the personality of others; territorial integrity and political independence; right to
freely choose and develop its political, social, economic, and cultural systems; duty to
comply fully and in good faith with its international obligations.
◦ Origin – natural law
◦Peaceful Co-existence – legal nature varies
◦Five principles of Peaceful co-existence by India and China
(1954): Mutual respect for each other’s territorial integrity
and sovereignty, mutual non-aggression, non-interference in
each other’s affairs, and the principle of equality.
◦Other international documents, including UN resolutions,
also include condemnation of subversive activities carried out
by one state and aimed against another, the principle of non-
aggression, execution of international obligations in good
faith.
 Individuals
◦Legal status of individuals – closely linked with the rise of
international protection of HRs and investment protection.
◦Natural Law vs. Positivist law – Individual as subject
◦Modern practice – individuals have become increasingly
recognised as participants and subjects of international law –
through human rights law.
◦ Can individuals enforce rights and obligations through
international treaties directly? Danzig Railway officials case,
PCIJ, 1928.
◦General Rule: Individuals lack standing to claim violations of
international treaties. However, States may agree to confer
particular rights on individuals which will be enforceable under
International Law, independent of Municipal Law.
◦Examples: Treaty of Versailles, 1919 – nationals could bring cases
before the Tribunal.
◦ The Treaty of 1907 between five Central American states
establishing the American Court of Justice provided for individuals
to bring cases directly before the court.
◦Danzing Railway Officials Case: under IL, treaties do not create
direct rights and obligations for individuals, although some treaties
may allow specific rights and obligations for individuals to be
enforced in national courts if the contracting parties agree.
 Rights and Obligations
◦ A wide range of treaties have provided for individuals to have
direct rights and direct access to international courts and tribunals.
◦The European Convention on HR, 1950, the Inter-American
Convention on Human Rights, 1969, the optional Protocol to the
ICCPR 1966, the international Convention on elimination of All
Forms of Racial Discrimination, 1965, Convention on the
Settlement of Investment Disputes, 1965.
◦Direct Criminal Responsibility: Genocide – The Convention on the
Prevention & Punishment of the Crime of Genocide, 1948; war
crimes- the Nuremberg Charter, 1945, etc.
◦Individual Rights and Obligations in IL – Depends on the will
of the State.
 International Organisations
◦International Organisations (IOs) are an indispensable part of
International Law.
◦In a globalised world, they facilitate cooperation across state
frontiers, allowing for the identification, discussion and resolution
of difficulties in a wide range of subjects from peacekeeping to
environmental, economic and human rights concerns.
◦Universal and Regional IOs.
◦19th Century – a growing number of International Organisations
raised issues of International Legal Personality.
 Legal Personality
◦ The legal personality of IO depends on its constitutional status –
its powers and practice.
◦Indicators of Legal Personality of IOs:
◦ Capacity to enter into relations with states and other IOs,
◦ Capacity to conclude treaties with them,
◦ Status given under the Municipal Law.
◦ Are non-members of the IO obliged to recognise its legal
personality?
◦ Directly, by entering into an agreement with the Org.
◦ Indirectly, by virtue of the rules of private international law (conflict
of Laws).
◦IOs, in order to operate within particular states, require legal
personality to be recognised not only under the IL but also
within the domestic law – in order to be able to make claims,
defend claims and generally perform legal acts in domestic
law.
◦Monism and Dualism
 Legal Rights
◦ Legal Personality: International organisations have legal personality, allowing them
to enter into contracts, sue and be sued, and participate in legal proceedings. This
grants them a status akin to that of states in certain legal matters.
◦ Immunity: Many international organisations enjoy immunity from the jurisdiction of
national courts and other forms of legal process. This immunity is usually intended to
ensure the independence and effective functioning of the organisation.
◦ Diplomatic Privileges and Immunities: International organisations often benefit
from diplomatic privileges and immunities similar to those granted to diplomatic
missions, protecting their premises, assets, and personnel from interference by the
host state.
◦ Capacity to Acquire and Hold Property: International organizations have the
capacity to own property, enter into contracts, and engage in financial transactions.
This allows them to function effectively in their areas of operation.
 Legal Obligations
1.Compliance with Charter and Constituent Documents: International
organisations are bound by their constitutive documents (such as a charter or
treaty) that define their purposes, functions, and powers. They are obligated to
operate within the framework established by these documents.
2.Obligation to Respect International Law: International organisations, like
states, are generally obliged to comply with international law. This includes
customary international law, general principles of law, and treaty obligations.
3.Human Rights Obligations: Some international organisations, especially
those with a human rights mandate, may have obligations to respect and
promote human rights. This can include adherence to international human
rights treaties.
 Legal Obligations
3. Responsibility for Acts of the Organisation: International organisations are
responsible for their own actions. If an organisation breaches its obligations, it
may be held accountable through mechanisms specified in its constitutive
documents or by other means recognised in international law.
4. Cooperation with Other States and Organisations: International
organisations often have an obligation to cooperate with states and other
international organisations. This collaboration can involve joint efforts on
various issues, including peacekeeping, development, and humanitarian
assistance.
 Entities Sui Generis
◦ Sui Generis – a Latin expression meaning “of its own kind”.
◦ Sui Generis Territorial Entities are regions with a unique and special status that
doesn’t fit into the conventional categories of statehood.
◦ Example – Hong Kong and Macau
Both are considered Special Administrative
Regions (SARs) of China, operating under the
Principle of “one country, two systems.”
Hence, have a high degree of autonomy in most
matters, except foreign affairs and defence.
◦ The legal personality of these kinds of entities is decided on case to case basis
depending on claims made by such entity in question, facts on the ground (third party
control), degree of administrative effectiveness and reaction of other int. persons.
 Condominium
◦ Two or more states equally exercise sovereignty with regard to a territory and its
inhabitants.
◦ Example: New Hebrides Condominium (Today’s Vanuatu)

◦ Flag of the New Hebrides 1966-1980

 Various Secessionist Claimants
◦ A number of secessionist claims from recognised independent states exist where such
claimants in practise exercise some control over all or part of territory claimed.
◦ Example: Somaliland, officially the Republic of Somaliland, is an unrecognised
state in the Horn of Africa, recognised internationally as de jure part of Somalia.
The Government of Somaliland regards itself as the successor state to British
Somaliland. However, Somaliland's self-proclaimed independence has not been
officially recognised by any UN member state or international organisation.
◦ The “Moldavian Republic of Transdniestria” is an internationally unrecognised
state, considered to be a part of Moldova.
This entity has been able to maintain itself as a result of Russian assistance.
Result of Soviet Union dissolution (1990).
 Associations of States
◦ There are a number of ways in which states have become formally associated
with one another.
◦ Such associations does not form states, but have particular effect upon IL.
◦ Example – The Commonwealth of Nations is a voluntary association of 56
sovereign states based on common interests and historical ties. It does not
constitute a legal binding relationship but, operates as a useful forum of
discussions.
 Non-State Actors

• International Organisations
• Individuals
Gained more
• National liberation movements recognition as
• Insurgent and revolutionary groups
subjects

• Non-governmental Organisations
• Multinational Corporations Still under
• Terrorist Groups
debate
 Non-governmental Organisations
◦ Non-governmental Organizations are those organisations which are not established by a
government or by an agreement between states but, its members are private citizens or body
corporate.
◦ International NGOs have proliferated considerably in past decades and are engaged in a
broad variety of different areas, ranging from politics, the legal and judicial field, the social
and economic domain, human rights and humanitarian relief, education, women, to the
environment and sports.
◦ The role of NGOs in International Law is primarily of informal character. They have some
effect on International law-making in certain areas by adding additional expertise and
making procedures more transparent.
◦ on global level there are no international legal standards governing the establishment and
status of NGOs.
◦ Inter-governmental organisations may agree to grant NGOs a certain consultative or
observer status (such as the exceptional case of the observer status granted by the UN
General Assembly to the International Committee of Red Cross in1991) and thereby a
limited international status, but this does not make them a subject of international law.
 Multi-National Corporations (MNCs)
◦ MNCs are those corporations and associations that operate transnationally in
the finance, transportation, communication and other areas of economic life.
◦ Because they operate across many state boundaries, they serve as a global
vehicle to transfer and disseminate capital, skill and technology.
◦ They are profit-oriented and hence are commonly treated as distinct from
NGOs.
◦ Though they are labeled multi-national, trans-national, or international, MNCs
owe their creation to national laws.
◦ MNCs are incorporated under domestic law of State of incorporation.