Introduction

According to the United Nations website, International law defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries.

International law’s 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.

International law also regulates the global commons, such as the environment and sustainable development, international waters, outer space, global communications and world trade.^[1]

In the modern world where globalisation is at its peak which, if disturbed can cause a lot of damage to the countries and its economy this is where international law plays an important role not just in global trade but national security and in world health too.

But how do we differentiate who does and who does not have a legal right under international law with so many different countries with different positions in the globe?

What is Legal personality

To be a legal person is to be the subject of rights and duties. To confer legal rights or to impose legal duties, therefore, is to confer legal personality.^[2]

In any legal system, certain entities, whether they be individuals or companies, will be regarded as possessing rights and duties enforceable at law. Thus an individual may prosecute or be prosecuted for assault and a company can sue for breach of contract. They are able to do this because the law recognises them as ‘legal persons’ possessing the capacity to have and to maintain certain rights, and being subject to perform specific duties.^[3]

A legal ‘person’ is also defined in section 3(42) of the general clause act as “person” shall include any company or association or body of individuals, whether incorporated or not. Inanimate objects can also be considered legal person such as, hindu idols who are not human beings are also considered as legal person under hindu law. Similarly, slaves who are human beings are not considered legal person as they do not have any rights.

International personality

‘what (being an international person) means is that it is a subject of international law capable of possessing international rights and duties, and that it has the capacity to maintain its rights by bringing international claims.’This implies that the international legal system through attribution of rights can provide legal personality.^[4]

International law is based on rules made by states for states. States are sovereign and equal in their relations and can thus voluntarily create or accept to abide by legally binding rules, usually in the form of a treaty or convention. By signing and ratifying treaties, states willingly enter into legal, contractual relationships with other state parties to a particular treaty, which observance is normally controlled by the reciprocal effects of non-compliance. The capacity of states to enter into such relationships with other states and to create legally binding rules for themselves, is a result of states’ international legal personality, a prerogative attributed to all sovereign states.^[5]

International personalities enjoy rights and duties conferred on them as they have rights to enter treaties and agreements imposed by international law, which if breached can also claim for damages and enjoy immunities and privileges. These include states, international organisations, regional organisations, non-governmental organisations, public companies, private companies and individuals. Not all such entities will constitute legal persons, although they may act with some degree of influence upon the international plane.^[6]

Not every entity is considered to have an international personality, it also depends upon the type of personality under question given in certain circumstances.

Subject of international law

The term subjects of international law refer to entities endowed with legal personality, capable of exercising certain rights and duties on their account under the international legal system. Personality in international law necessitates the consideration of the international system and the capacity to enforce claims.^[7]

According to Starke, the team “subject of international law” means:^[8]

An incumbent of rights and duties under international law
The holder of procedural privileges of prosecuting a claim before an international tribunal.
The possessor of interests for which provision is made by international law.

In simple terms, entities who are vested with rights and duties and can also claim for damages and are endowed with legal personality, have capacity to become subject of international law.

Who are subjects of international law?

Conflicting opinions have divided people into groups as to what can be considered subject of law and which broadly speaking has given rise to three popular theories.

● Realist theory

This theory emphasises on the traditional and rather a narrow view that States alone, as sovereign political entities, irrespective of the individuals composing them, are bearers of rights and duties under International Law. They rely upon that International Law came into existence for reforming conduct of only nation States and nobody else.^[9]

The jurists of this school believe that states are the only subject of law and the individuals composing them are not. This is the reason for the criticism of this theory as in modern international law international organisation, corporation, and non state entities are also recognised as subjects. Individuals also have rights to claim and can also be punished for their offences under international law. Example-Rights bestowed upon slaves, punishment to pirates etc.^[10]

● Fictional theory

Contrary to the traditional view, supporters of this theory believe that on ultimate analysis of International Law, it will be evident that only individuals are the subjects of International Law. The reason given to support this theory is that a State is an abstract concept & does not have the ability to manifest its will. A State is nothing except the aggregate of the individuals. Though the rules of International Law relate expressly to the Nation States but actually the States are the fiction for the individuals composing them.^[11]

The chief exponent of this theory, Prof. Kelson held the view that the notion of State is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons living in a defined territorial area. He concluded that the difference between state laws and International Law stood dissolved as both laws apply to the individuals and they are for them alone. The former is binding on them directly whereas the latter bind indirectly, through States.^[12]

Prof.Westlake states that the rights and duties of the States are only the rights and duties of men who compose them.”

This theory is also criticised because of its extreme school of thoughts, states are composed of individuals, but in most of the cases claims are made under state’s name not just the individual. Saying states are just fiction is incorrect as the primary source of claims under international law is state although there are quite a lot of cases regarding individual claims.

● Functional theory

This theory broadened the scope of International Law and criticised the extreme and narrow views given by the other two theories. This theory not only clubbed the other two theories but also went a step ahead to include international organisations and certain other non-state entities as subjects of International Law. The current position of International Law, therefore, is that besides States, individuals, public international organisations and some non-state entities are subjects of International Law.^[13]

This theory is moderate and more practical as it combines both the theories and is relevant with the evolving modern international law. It states that states, international organisations, individuals and non state entities play an important role under international law.

1. States

Despite the increasing range of actors and participants in the international legal system, states remain by far the most important legal persons and despite the rise of globalisation and all that this entails, states retain their attraction as the primary focus for the social activity of humankind and thus for international law.^[14]

Prof. oppenheim stated four conditions for the existence of states: people, territory, government and sovereignty.

Article 1 of the Montevideo Convention on Rights and Duties of States, 193310 lays down the most widely accepted formulation of the criteria of statehood in international law. It notes that the state as an international person should possess the following qualifications:^[15]

(a) a permanent population– The existence of a permanent population is naturally required and there is no specification of a minimum number of inhabitants, as examples such as Nauru and Tuvalu demonstrate.^[16]

(b) a defined territory- The need for a defined territory focuses upon the requirement for a particular territorial base upon which to operate. However, there is no necessity in international law for defined and settled boundaries.^[17]

(c) government- For a political society to function reasonably effectively it needs some form of government or central control. However, this is not a precondition for recognition as an independent country. It should be regarded more as an indication of some sort of coherent political structure and society, than the necessity for a sophisticated apparatus of executive and legislative organs.^[18]

The aaland island case 1920, the question was when did finland became a state. Finland was part of the soviet union but after the Russian revolution countries broke out and became independent. There was friction among people of Finland and violence broke out and they had to take help from foreign troops. The international committee of jurists recognised Finland as an independent country when it became capable of asserting themselves without help from foreign troops.

(d) capacity to enter into relations with other states- an aspect of the existence of the entity in question as well as an indication of the importance attached to recognition by other countries. It is a capacity not limited to sovereign nations, since international organisations, non- independent states and other bodies can enter into legal relations with other entities under the rules of international law.^[19]

2. Individuals

Individuals were a partial subject of international law, dormant always being the states. Individuals were considered an object of international law rather than the subject but after world war 1 with the foundation of united nations, countries became aware of the need to have individual rights under international law.

In P.Mohammad khan versus State of andhra pradesh, 1977 the court stated that

THE passages in Halsbury’s Laws of England,fourth Edition,volume 18 under “foreign Relations Law” may usefully be referred. Para 1421 at page 730:”states: The typical or normal subject of international law, namely, an entity which possesses rights and bears duties under that system, is the independent sovereign state. “para. 1424 at page 732:”individuals: It has been contended on the basis of one decision of the permanent Court of International justice that individuals may, by treaty, be constituted subjects of international law in the sense of beneficiaries of rights under that system of law. . . . . . . . . . . . . . . . ‘however, this classical rule is to some extent qualified by treaty provisions for the protection of human rights’. “^[20]

A number of rights have been given to individuals through the adoption of international convention.^[21]There are also certain rights and duties granted to individuals under conventions and treaties so that they can claim damages from states.

Crime against peace and humanity
War criminals
Crime of genocide
Aircraft hijacking
Kidnapping of diplomatic personnel
Prevention of drug trafficking

There is a general rule that individuals have no locus standi or access to international court or tribunals, most international tribunals are not open to individuals. But there is an exception: individuals may be given the right to appear before an international tribunal, European convention on human rights and fundamental freedom states that any private individual who are national or state parties can bring an action before the European court of human right against their own government for violation of human right.^[22]

In nottebohn corporation case, corporation or companies are usually treated as individuals and their relationship with the states are governed by the domestic law. However, it is possible that a contractual relationship between a corporation and state be governed by international law.^[23]

3. Non state entities

Before only states were considered the dormant subject of international law but with the evolving international law, international organisations are also considered as subjects of international law especially after the foundation of united nations.

Non-state actors are “derivative subjects” of international law. But at the end of the day, all traditional and new subjects are derivatives from the one original subject of man-made law, the human being. De facto, non-state subjects might be “second-class” subjects when compared to the state, but that does not mean that they do not play a role in making new rules of international law while “creating rights and obligations left, right and centre, however useful perhaps in itself, does not add up to sort of paradigm shift that international law might need in order to truly accommodate entities other than states”, but these developments indicate that such a change is – while not yet realized – at least possible.^[24]

These are organisations established by inter-governmental agreement and having wide international responsibilities in economic, social, cultural and other fields that have been brought into relationship with the United Nations.^[25]

Various types of international organisations

Universal organisations

which are otherwise called open organisations. Enrollment of such an organisation isn’t limited to any locale however is available to all States fulfilling its participation necessities. A model is the UN.^[26]

Regional organisations

These are organisations made by States that share a typical geographic or strategy security. Participation is confined to a specific gathering of States model States of a specific area like the AU, or States with a typical strategy like NATO.^[27]

Supranational organisations

These are crossover organisations made out of States. They are organised in a manner like government States. They settle on choices restricting straightforwardly on part States and their nationals, and their laws have incomparability over, and abrogate clashing, public laws of part States.^[28]

Rights of international organisation

The treaty making power
Privileges and immunities
Right to bring international claim
The right to protect their agent acting in their official capacity

In reparation’s case, the court established two criteria for determining international legal personality: the intention of a state to establish an organisation having a distinct personality separate from its members can be inferred from various factors. May also be expressly mentioned in the constituted instrument of the organisation and actual exercising and enjoying of functions and rights which can only be explained on the basis of possession of a large measure of international personality.^[29]

Conclusion

International law is evolving and modern international law is very different from what it used to be. It has become more practical and keeps becoming more accessible to even individuals and with the growth of the position of UN lots of international organisations have started holding a stronger position in the world. There are also debates about giving an international legal personality to not so traditional or talked about organisations and will keep becoming a growing field in law.

Reference

What is international law,united nations,available at https://www.un.org/en/our-work/uphold-international-law last seen on 09/04/23.
Smith, Bryant. “Legal Personality.” The Yale Law Journal, vol. 37, no. 3, 1928, pp. 283–99. JSTOR, https://doi.org/10.2307/789740. Accessed 9 Apr. 2023.
Malcolm N. shaw, international law, 195,(6th edition,2008).
A Case for International Legal Personality of Cities and Local Subnational Governments, (2018) 2.2 IJLIA 1
International legal personality,icelandic human rights center, available at https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-actors/international-legal-personality, last seen 10/04/23.
Malcolm N. shaw, international law, 196-197,(6th edition,2008).
Subjects of international law, indian legal solution, available at https://indianlegalsolution.com/subjects-of-international-law/ last seen 11/04/23
ibid.
Concept of legal personality and subject of law, laxpeeps, available at https://lexpeeps.in/concept-of-legal-personlity-and-subjects-of-international-law/#:~:text=Concept%20of%20Legal%20Personality&text=For%20example%2D%20an%20individual%20may,subject%20to%20certain%20specific%20duties, last seen 11/04/23
ibid
Concept of legal personality and subject of law, laxpeeps, available at https://lexpeeps.in/concept-of-legal-personlity-and-subjects-of-international-law/#:~:text=Concept%20of%20Legal%20Personality&text=For%20example%2D%20an%20individual%20may,subject%20to%20certain%20specific%20duties, last seen 11/04/23
ibid
Supra 11.
Malcolm N. shaw, international law, 197,(6th edition,2008).
Ibid at 198.
Ibid at 199.
Ibid at 199.
Ibid at 200.
Ibid at 202.
P.Mohammad khan versus State of andhra pradesh, represented by secretary to government, home (passports-a) department, hyderabad lnind 1977 ap 333
A.K.Jain,public international law and human rights, 23
Slidesshare, subject of international law and of legal personality, available at https://www.slideshare.net/VandanaDhoundiyal/subject-of-international-law-legal-personality, last seen at 12/04/23
ibid
Recognition and Responsibility: A Legislative Role for Transnational Corporations in Public International Law – Thoughts from the Perspective of Human Rights, 7 Ind J Int Ec L [117] 2015
Malcolm N. shaw, international law, 11285,(6th edition,2008).
International organisations as subject of international law, legal service india, available at https://www.legalserviceindia.com/legal/article-7340-international-organization-as-a-subject-of-international-law.html, last seen 12/04/23
ibid.
ibid.
Supra 26.

Websites

Icelandic human rights center
SCC online
Manupatra
Academia.edu
Indian legal solution
Laxpeeps
Lexisnexis

Books

A.K.Jain,public international law and human rights
Malcolm N. shaw, international law

Articles

Recognition and Responsibility: A Legislative Role for Transnational Corporations in Public International Law – Thoughts from the Perspective of Human Rights

^[1] What is international law,united nations,available at https://www.un.org/en/our-work/uphold-international-law last seen on 09/04/23.

^[2] Smith, Bryant. “Legal Personality.” The Yale Law Journal, vol. 37, no. 3, 1928, pp. 283–99. JSTOR, https://doi.org/10.2307/789740. Accessed 9 Apr. 2023.

^[3] Malcolm N. shaw, international law, 195,(6th edition,2008).

^[4] A Case for International Legal Personality of Cities and Local Subnational Governments, (2018) 2.2 IJLIA 1

^[5] International legal personality,icelandic human rights center, available at https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-actors/international-legal-personality, last seen 10/04/23.

^[6] Malcolm N. shaw, international law, 196-197,(6th edition,2008).

^[7] Subjects of international law, indian legal solution, available at https://indianlegalsolution.com/subjects-of-international-law/ last seen 11/04/23

^[8] ibid.

^[9] Concept of legal personality and subject of law, laxpeeps, available at https://lexpeeps.in/concept-of-legal-personlity-and-subjects-of-international-law/#:~:text=Concept%20of%20Legal%20Personality&text=For%20example%2D%20an%20individual%20may,subject%20to%20certain%20specific%20duties, last seen 11/04/23

^[10] ibid

^[11] Concept of legal personality and subject of law, laxpeeps, available at https://lexpeeps.in/concept-of-legal-personlity-and-subjects-of-international-law/#:~:text=Concept%20of%20Legal%20Personality&text=For%20example%2D%20an%20individual%20may,subject%20to%20certain%20specific%20duties, last seen 11/04/23

^[12] ibid

^[13] Supra 11.

^[14] Malcolm N. shaw, international law, 197,(6th edition,2008).

^[15] Ibid at 198.

^[16] Ibid at 199.

^[17] Ibid at 199.

^[18] Ibid at 200.

^[19] Ibid at 202.

^[20] P.Mohammad khan versus State of andhra pradesh, represented by secretary to government, home (passports -a) department, hyderabad lnind 1977 ap 333

^[21] A.K.Jain,public international law and human rights, 23

^[22] Slidesshare, subject of international law and of legal personality, available at https://www.slideshare.net/VandanaDhoundiyal/subject-of-international-law-legal-personality, last seen at 12/04/23

^[23] ibid

^[24] Recognition and Responsibility: A Legislative Role for Transnational Corporations in Public International Law – Thoughts from the Perspective of Human Rights, 7 Ind J Int Ec L [117] 2015

^[25] Malcolm N. shaw, international law, 11285,(6th edition,2008).

^[26] International organisations as subject of international law, legal service india, available at https://www.legalserviceindia.com/legal/article-7340-international-organization-as-a-subject-of-international-law.html, last seen 12/04/23

^[27] ibid.

^[28] ibid.

^[29] Supra 26.