International law is also called public international law or law of the nations, is the body of legal rules, norms and standards that apply between sovereign states and other entities that are legally recognized as international actors. The term ‘international law’ was coined by the eminent English philosopher Jeremy Bentham. According to Bentham, transactions that take place between individuals who are subject of different states are regulated by internal laws and decided upon by the internal tribunals of any one of the party’s states. The case is the same when a state has any immediate transactions with a private member of another state; the state reducing itself to the stature of a private person, submits itself to either tribunal. This is where Bentham explored the possibility of another situation where there might be mutual transactions between sovereigns, and that is where international law comes into the picture.
Bentham made two important assumptions about international law. First, he assumed that international law was exclusively about the rights and obligations of states inter se and not about rights and obligations of individuals. Second, he assumed that foreign transactions before municipal courts were always decided by internal and not international rules.
Modern definition of International Law
Bentham’s definition and perspective of international law was traditional and old schooled, the modern definitions of international law represents its wide ambit and inclusive approach. According to J.G. Starke, International law maybe defined as that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also :
- The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals.
- certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community.
According to the United Nations, International law defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries. Its domain encompasses a wide range of issues of international concern, such as human rights, disarmament, international crime, refugees, migration, problems of nationality, the treatment of prisoners, the use of force, and the conduct of war, among others. It also regulates the global commons, such as the environment and sustainable development, international waters, outer space, global communications and world trade.
In its broadest aspect, international law lays down guidelines, methods, and mechanisms for international actors primarily sovereign states, but also increasingly international organizations and certain individuals. The range of subjects and actors directly involved with international law has considerably widened, moving beyond the traditional questions of war, peace, and diplomacy to include human rights, economic and trade issues, space law, and international organizations. International law differs from international comity, with the latter compromising of legally non binding practices adopted by states for reasons of courtesy. Public International law is also distinct from the field of private international law; the latter being concerned with the rules of municipal law of different countries where foreign elements are involved.
Subjects of International Law
Subjects of international law can be described as those persons or entities who possess international personality. Throughout the 19th century, only states qualified as subjects of international law, but this scenario completely changed after the conclusion of the Second World War with more and more new actors joining the international legal arena. Intergovernmental organizations created by the states; non-governmental organizations (NGOs) created by individuals; and even natural persons like individuals emerged as new actors. A subject of international law is a body or entity recognized or accepted as being capable, or as in fact being capable, of possessing and exercising international law rights and duties. The possession of international legal personality means that an entity is a subject of international law, and is capable of possessing international rights and duties, and has the capacity to maintain its rights by bringing international claims. The subjects of international law can be categorized into:
States:- The moment an entity becomes a state, it becomes an international legal person and acquires international legal personality. States are the original subjects of international law, and the branch of international law was originally established to regulate relations between the states.
Non-State Actors:- There are certain Non-State actors with international legal personalities that include, individuals, armed group involved in conflicts and international organizations like the EU, UN and African union who are deemed to be subjects of international law.
International organizations:- an international organization is also an important subject of international law, it is defined as an organization established by a treaty or other instrument governed by international law and possessing its own legal personality. The United Nations and World Trade Organizations are examples of international organizations.
It can be said that states have original personality and non-state actors have derived personality. This is attributed to the fact that states are considered to be international personalities the moment they are identified as a sovereign state, on the other hand, non-state actors like international organizations derived their personality through other means. For example, the rights and duties and its extent maybe described in their constitutions, charters, and treaties that establish such organizations.
Rights and Duties of Subjects of International Law
The rights, powers, and duties of different subjects change according to their status and functions. For example, an individual has the right of freedom from torture under international law. States have a duty under international law not to torture individuals or to send them to a country where there is a likelihood of that person being tortured. This right exists under treaty law, for example, under the International Covenant on Civil and Political Rights and under customary international law. The Convention against Torture and Cruel, Inhuman and Degrading Treatment places obligations on States not to torture and to extradite or prosecute those who commit torture.
Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under international law. For example, this means that a subject of international law may be able to:
- bring claims before international and national courts and tribunals to enforce their rights.
- have the ability or power to come into agreements that are binding under international law (for example, treaties).
- enjoy immunity from the jurisdiction of foreign courts (for example, diplomatic immunity).
- be subject to obligations under international law (for example, obligations under international humanitarian law).
Theories regarding the subjects of International Law
The Realistic theory reflects the traditions views of international law that were propounded by the likes of Bentham in the 18th century. This theory suggests that only nation states are exclusively to be considered as subjects of international law. According to this theory, international law regulates the conduct of states and hence states alone can be given the status of a subject. The nation states, irrespective of the individuals that they consist of, are separate entities having rights, duties and obligations and possess the capacity to maintain their right under international law, therefore nation states are the ultimate subjects of international law.
According to the Article 1 of the Montevideo Convention on the Rights and Duties of States, a state as a person of international law should possess the following qualifications:
- a permanent population;
- a defined territory
- a government; and
- capacity to enter into relations with other states
The state as a subject is endowed with rights and duties like; the right to equality, right to coexistence and self determination, right to independence, right to respect, dignity etc,. Similarly under the ILC draft declaration on Rights and Duties of states,1949 lays down rights that states are entitled to like; the right to independence, right to jurisdiction, duty of nonintervention, right to equality, duty to protect Human rights and fundamental freedoms, duty to maintain peace and security , etc.
The realistic theory is very similar to the legal positivism approach to international law. The positivist definition of international law has had an enormous impact on modern perceptions concerning the subjects of international law. With few exceptions, the theory rejects the notion individuals are proper subjects of international law. While it may sound prudent to categorize law on the basis of subjects, in practice international law is concerned not just with legal rights of states but also other subjects.
A prominent example of the realistic theory’s failure to describe adequately the reality of the individual as a subject of international law can be seen right from the time of Bentham himself. In the case of Respublica v. DeLongchamps, an American municipal court indicted the defendant for assaulting the Consul General of France to the new United States. It was held that the case must be determined on the principles of the laws of nations. This case was instrumental in reiterating Blackstone’s view that, an individual could be guilty of an infraction of international law.
Similarly in the Paquete Habana case, the United States Navy had seized two Cuban fishing smacks in the opening days of the Spanish-American War. A lower federal court condemned the boats as prizes of war. The masters for themselves, their crews, and their owners, argued before the Supreme Court that peaceful fishing craft were exempt from seizure under the rules of international law. In perhaps the most famous statement ever made about international law by a United States court, the Supreme Court held that “international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.”
This case once again highlighted the fact that individuals cannot be kept excluded from the spectrum of international law.
The most outstanding case that conclusively illustrates the limitations of the realistic theory is the trials of Nazi war criminals after the Second World War. The Charter of the International Military Tribunal at Nuremberg explicitly made individuals subject to international rules relating to crimes against peace, war crimes, and crimes against humanity. At Nuremberg and in other war trials, thousands of war criminals were tried and convicted; hundreds were executed. Nuremberg re-established plainly and forcefully that the rules of international law should and do apply to individuals. The Nuremberg Tribunal held that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
These cases clearly showcase the fact that to view nation-states as the only subject of international law does not fulfill the purpose of the law, and is found to be wanting when there are circumstances concerning individuals who cannot be seen isolated from the state or organization that they are a member of, as seen above in the Nuremberg trials. Further, many of the rules of international law are are directly concerned with regulating the position and activities of individuals, and many more indirectly affect them. It is now generally recognized that besides States, public international organizations, individuals and certain other non-State entities are also the subjects of international law.
There are certain jurists who ascertain 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 proponent of this theory, he states that an individual alone is entitled to be the subject of international law. The duties and rights of the states are in reality the duties and rights of the men who compose them. Many modern treaties do bestow rights and impose duties upon individuals. From time to time certain treaties have been entered into which have conferred certain rights upon individuals. Although the statute of the ICJ adheres to the traditional view that only states can be parties to international proceedings, a number of other international instruments have recognized the procedural capacity of the individual. Various international treaties, judicial tribunals and courts have recognized individual personality under international law.
For example Treaty of 1907 between five central American states established Central American Court of Justice, which provided for individuals to bring cases directly before the court. African Charter 1981 and African Commission on Human & Peoples Rights The ICSID, 1965 has enabled private foreign investor to have access to international machinery. The International Convention on the Suppression & punishment of Crime of Apartheid of 1974 declared apartheid a international crime and individual is directly responsible.
A compelling case that highlights the modern approach to international law and provides credibility to the fundamental aspect of the fictional theory is the case of Filartiga v. Peha-Irala. This case was adjudicated by the United States Court of Appeals for the Second Circuit; in this case both parties to the dispute were individuals and the court found international law dispositive on the fundamental question of jurisdiction. The plaintiffs who were Paraguayan citizens were related to another Paraguayan, who, they contended had been tortured and killed in Paraguay by the defendant who was also a Paraguayan. Though all the elements in this case were foreign or alien, the plaintiffs based their claim on a provision from the Judicial Act of 1789, which provided the federal district courts of USA with ‘original jurisdiction’ for any civil action by an alien for a tort only, committed in violation of the law of nations. This statutory provision is an example of the eighteenth century view of the relationship between individuals and the international law.
The court concluded that “an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence international law.” Moreover, the court overruled dictum from an earlier decision and held that “international law confers fundamental rights upon all people vis-a-vis their own governments.”
The chief criticism of the fictional theory is that it considers only individuals as the subject of international, it theorizes that though States are the main actors, they are composed of individuals and hence only they are entitled to be called subjects of international law. The fictional theory’s attempt to portray individuals as the subjects of international law proves futile because in reality even individuals derive their rights from a state, and the role of a state in international law is of paramount importance . 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 states with each other, therefore states cannot be isolated from being a subject of international law.
Both the Realist and Fictional theories adopted the extreme course of opinions. But Functional theory tends to meet both the extremist theories at a road of new approach. According this theory neither states nor individuals are the only subjects; both are an inseparable part of international law and therefore, both are considered to be subjects of international law. States being primary and active subject of international law have recognized rights, duties and obligations under international law and are capable to maintain the same by bringing international claim. At the same time in modern international law individuals have also been granted certain rights, duties and obligations under international law and can maintain the same by bringing international claims. The increasingly inclusive approach of international law has widened the ambit and scope of the field, with international organizations and non-state entities also finding a place and acquiring the status of subjects.
There is very little to criticize in this theory as it rightly includes, not just states and individuals, but also international organizations and non-state entities as subjects of international law. The functional theory truly reflects the inclusive approach of modern international law. The widening scope of modern international law has led to an increase in the subjects of international law, there are many actors in international law, which have been granted rights, duties and obligations, and also to secure their rights, they have been provided with capacity to bring international claims, hence along with states and individuals certain other entities which have been given international personality shall be treated as subjects of international law.
No longer is international law associated with only one particular subject or personality; evolving since the times of Bentham, it has been able to incorporate different views and aspects to accommodate the ever growing field of international law. Though states ultimately play the most important role in international law, the increasing prominence of individuals, international organizations and non-state entities cannot be overlooked. The modern international law as we know today has played a herculean role in the amicable settlement of issues that have affected the global stage. Intergovernmental organizations like the UN, EU, IMF, WHO, etc. Have played an economic, cultural, social and political role in managing international affairs, and have helped in the development of international law. Staying true to its name, international law has played an instrumental role in regulating the conduct of all the subjects that it encompasses and the entire international arena as a whole.
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Author Details: Advaith Raj