Subjects of International

Laws-Theories
Theories  regarding subjects of International Law

• There are three main theories in respect to the subject of international law.

• I) States alone are the subject of international law.( Realist Theory)

• II) Individual alone are subject of international law.(Fictional Theory)

• III) States , individual and certain non state entities are subjects of
international law.  (functional theory)
State alone are the subject of international
law [REALIST THEORY]
• Some Jurist have Expressed the view that only States are the subject of
international law.
• In their view International Law regulates the conduct of the state and only
state alone are the subject of international law.
• According to them as per the positivism view, individual is an object and not a
subject of International law. International Law gives more Emphasis and stress
upon the states, their sovereignty ,etc .
• States are legal entities who can be legally distinguished from individual
human beings who compose them.
• Individuals lack any judicial personality under I.L because they do not have
rights or duties under it.
• Criticism:
• Individuals who are the basis of the society and are the subject of international
law and not the object of international law.
•  It fails to explain the case of slaves and pirates.
 Under international law slaves have been conferred upon some rights by the
states.
In the same way pirates are treated as Enemies of the mankind and they may be
punished for piracy by the state.
 The jurist who emphasis that States alone are the subjects of international law,
are of the view that slaves and pirates are exception and are objects of
international law.
•  Professor Oppenheim is of the view that since the law of nation is
primarily a law  between the States,  state are to that extent, the only
subject of the law of nations.
• Professor Oppenheim subsequently has changed the view and mentioned
that," States are primarily ,but not exclusively, the subjects of International
law.
• To the extent that bodies other than States directly possesses some rights,
power and duties in international law they can be regarded as subjects of
international law possessing international personality. Many of the rules of
international law are directly concerned with regulating the position and
activities of the individual and many more directly affect them. 
Individuals alone are subject of international
law [FICTIONAL THEORY]
• Some Jurist Express the view that in the ultimate analysis of International law ,
it will be evident that only individuals are the subjects of international law.
• Professor Kelson is the chief exponent of the theory .
• Even before kelson, Westlake had remarked," the duties and rights of the States
are only the duties and rights of man who composed them.
• Prof. Kelson has analysed the concept of the state and Expressed the view that
state is a technical legal concept and includes rules of law  applicable on the
persons living in a definite territory.
• Hence under International Law duties of the states are ultimately the duties of
individual. and there is no difference between International Law and State Law .
as per Kelson both laws apply to the individual and they are for the individual.
• UDHR,ICCPR,Convention on the Settlement of Investment Disputes
between States and Nationals of other States etc are examples of ????
• The questions of “Pirates”??
• Criticism:
• Philips C. Jessup, has taken the view that although individual possesses
number of rights under International Law , in most of the cases claim on
his behalf can be brought only by the state whose National he is. 
• It is an elementary principal of international law that state is entitled to
protect its subjects when injured by the acts contrary to international
law committed by another states.
States, individual and certain non-state entities are subject of
international law
[FUNCTIONAL THEORY]

• This view not only combines the first and second view but Goes a step
ahead to include international organisations and certain other non state
and entities as subjects of international law.
• According to this theory, legal functionality is given to those who have
the capability to perform legal functions internationally.

• Reasons for its support:

•  In present times, several treaties have conferred upon individual certain
rights and duties, for example International Covenant on human rights .
• Danzing Railways official case- held that- if any treaties the intention of
the parties is to enforce certain rights upon some individuals, then
International Law will recognise such rights and enforce them.
• Geneva convention on Prisoners of War 1949, has conferred certain rides
upon the Prisoners  of law.
• The Nuremberg and Tokyo tribunals laid down the principle that
International Law may impose obligations directly upon the individuals
• The Genocide convention, 1948 ,has imposed certain duties upon the
individual and persons guilty of the crime of genocide maybe punished .
• A new trend has started in the international field under which some rights has
conferred upon individuals  even against the States. Eg.- European Convention on
Human Rights,1950, International Convention on Human Rights 1966- optional
protocol, by which an individual who is the victim of the violation of human rights, May
send petition regarding violation of human rights by his own state to the United
Nations Commission on Human rights.
• It is now agreed that International organisations are also the subject of international
law. United Nation is an international person under international law and it is held by
International Court of Justice that  United Nation is a subject of international law and
capable of possessing rights and duties and it has capacity to maintain its right by
bringing International things.
• The law making treaties in respect of international criminal law, have imposed certain
obligations upon the individuals ,Eg.-narcotic drugs convention, 1961.
•  Thus the states are not only the subjects of international law. There is no doubt that
states are still the main subject of international law and most of the part of
international law concerns with the conducts  and relationship of state with each other.
• But, in view of the developing and changing character of the International Law ,
International organisations and some non-state entities individuals are also the subject
of international law. 
• It is apparent from the above discussion that the position of subjects of international
law has greatly changed with the passage of time.
• Originally, sovereign States were the only actors in the international community, but in
present century new non state entities such as International organisations and
Institutions and individuals have been given the status and rank of international legal
subjects.