Subjects of International Law

Christian Walter

Content type: Product: Max Planck

Encyclopedia Entries Encyclopedia of Public
Article last updated: May International Law [MPEPIL]
2007

Subject(s):
Territory, non-self-governing — Sovereignty — State practice — Codification — National liberation
movements — Indigenous peoples — Corporations — NGOs (Non-Governmental Organizations) —
Responsibility of international organizations
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

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 A. Notion and Significance

1. Definition
1 According to the traditional understanding of international law only some of the various actors on
the international scene are subjects of international law and thus possess international legal
personality. International law replaced the medieval order of Europe by creating legal relations
between entities claiming to be sovereign (Sovereignty), equal and independent (Territorial Integrity
and Political Independence; see also History of International Law, Ancient Times to 1648). In fact,
the international legal personality of these entities was a necessary prerequisite for the
development of international law. Thus, State[s] are the most obvious and universally accepted
subjects of international law (see also States, Equal Treatment and Non-Discrimination). But there
are many other candidates ranging from international organizations (International Organizations or
Institutions, General Aspects; see also International Organizations or Institutions, History of;
International Organizations or Institutions, Responsibility and Liability), dependent territories (Non-
Self-Governing Territories); belligerent groups (Humanitarian Law, International); multinational
enterprises; and non-governmental organizations (‘NGOs’) to the individual (Individuals in
International Law). As a working definition, subjects of international law may be defined as entities
which are capable of possessing international rights and duties.

2. Historical Development
2 Although States are the traditional subjects of international law, already in the 18th and 19th
centuries a number of atypical subjects of international law were accepted (History of International
Law, 1648 to 1815; see also History of International Law, 1815 to World War I). The Holy See took
part in international relations as a subject of international law right from the beginning of its
development (Concordats). Other atypical subjects recognized in the 19th century were free cities,
constituted as such by the Vienna Congress (1815), eg Krakow. Also, non-sovereign Member
States of federations—such as the constituent States of the German Reich after 1815 or the
cantons of the Swiss federation—were attributed some degree of international legal personality
(Federal States; see also Confederations of States). The same holds true for belligerent parties
exercising effective control over certain territories.

3 The European Commission for the Danube was the first international organization which was
granted a limited international legal personality (see also European Commission of the Danube,
Jurisdiction of the [Advisory Opinion]; see also Advisory Opinions). Since it had the possibility to
exercise some sort of territorial jurisdiction, it may be said that during that period international legal
personality was limited to subjects exercising territorial jurisdiction. Already the creation of the
administrative unions in the late 19th century may be viewed as a move towards enhanced
international co-operation through international organizations (International Administrative Unions).
This was emphasized after the end of World War I with the creation of the League of Nations and
the International Labour Organization (ILO) as almost universal international organizations
(Universality). However, as a strictly legal question the endowment of international organizations
with international legal personality only came up after the creation of the United Nations (UN), when
in 1949 the organization sought to bring a claim for reparations concerning injuries which one of its
employees had suffered while being in active service of the organization. In the ensuing advisory
opinion the International Court of Justice (ICJ) ruled that the UN must be considered an ‘international
person’ (Reparation for Injuries Suffered in the Service of the United Nations [Advisory Opinion]
[‘Reparation for Injuries’] 185 ; see also International Courts and Tribunals; Judicial Settlement of
International Disputes). It attributed absolute international legal personality to the UN. In sum, the
major changes in the area of international personality during the first half of the 20th century
concerned the acceptance of international organizations as new subjects of international law.
Today, the international legal personality of international organizations is generally accepted.

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 Nevertheless, some questions as to its concrete extent remain open (see paras 5–6 below).

3. Current Significance
4 The debate after World War II was concentrated on the international legal situation of groups
(Group Rights) and other corporate entities as well as the individual (History of International Law,
since World War II). The development of international law in the second half of the 20th century
may be described as a move towards the creation of international rights and duties of the individual
and groups. With the adoption of international human rights catalogues such as the Universal
Declaration of Human Rights (1948) (UNGA Res 217 A [III] [10 December 1948] GAOR 3rd Session
Part I 71), the International Covenant on Civil and Political Rights (1966) ([adopted 19 December
1966, entered into force 23 March 1976] 999 UNTS 171), the International Covenant on Economic,
Social and Cultural Rights (1966) ([adopted 16 December 1966, entered into force 3 January 1976]
993 UNTS 3) and corresponding regional developments in the Americas (American Convention on
Human Rights: ‘Pact of San José, Costa Rica’ [signed 22 November 1969, entered into force 18 July
1978] 1144 UNTS 123; American Convention on Human Rights [1969]) and in Europe (Convention
for the Protection of Human Rights and Fundamental Freedoms [signed 4 November 1950, entered
into force 3 September 1953] 213 UNTS 221; European Convention for the Protection of Human
Rights and Fundamental Freedoms [1950]) the decades after World War II led to the creation of
individual rights on the international level (see also African Charter on Human and Peoples’ Rights
[1981]). At the same time, the Nuremberg Trials may be viewed as an early step in the
development of international criminal law, which may be seen at the origin of international duties for
the individual (see also International Military Tribunals). Compared with the earlier situation this
implies a potential broadening of the circle of subjects of international law towards individuals,
groups, and multinational enterprises.

B. The Subjects of International Law

1. States and International Organizations

5 The international legal personality of States has never been put into question. They have been
and continue to be the traditional and most important subjects of international law. In addition,
development during the 20th century has led to the recognition of international governmental
organizations as subjects of international law. According to the ICJ in its advisory opinion on the
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, requested by the World
Health Organization (WHO), the object of the constituent instruments of international governmental
organizations is ‘to create new subjects of law endowed with a certain autonomy, to which the
parties entrust the task of realizing common goals’ (Legality of the Use by a State of Nuclear
Weapons in Armed Conflict [Advisory Opinion] 75; Nuclear Weapons Advisory Opinions). The
founding documents of international organizations only rarely expressly confer international legal
personality, see eg Art. 281 European Community Treaty (‘ECT’; European [Economic] Community;
see also European Community and Union, Actor in International Relations; European Community
and Union, Party to International Agreements; European Community, Membership in International
Organizations or Institutions). In the absence of an express provision, an interpretation has to be
made, taking account of the context, to decide on whether or not they actually do possess
international legal personality (Interpretation in International Law). In its advisory opinion on
Reparation for Injuries the ICJ followed a functional approach which asks whether or not the
organization needs international legal personality in order properly to fulfil the tasks entrusted to it
(Reparation for Injuries 178–9).

6 While the legal personality of NGOs still is an unsettled issue, it should be noted that they are
increasingly recognized as relevant actors on the international scene (see also Environment, Role
of Non-Governmental Organizations; Human Rights, Role of Non-Governmental Organizations; Non-

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 State Actors). For example, Art. 71 United Nations Charter (‘UN Charter’) provides for a specific
status of consultation for NGOs within the United Nations Economic and Social Council (United
Nations, Economic and Social Council [ECOSOC]; see also International Organizations or
Institutions, Observer Status). The details for acquiring consultative status have been set out in
more detail in ECOSOC Resolution 1996/31 of 25 July 1996 (International Organizations or
Institutions, Secondary Law). This resolution distinguishes three categories of NGOs according to
their respective fields of activities and grants them certain rights of participation in the work of the
organization. While this recognition within the UN system cannot automatically attribute
international legal personality to the organizations concerned, one cannot ignore either that their
influence and status have become more important. This has led some authors to the conclusion
that, at least in some situations, partial international legal personality of NGOs is no longer
completely excluded.

2. Atypical Subjects of International Law (Holy See, Sovereign Order

of Malta, International Committee of the Red Cross)
7 The Holy See and the Sovereign Order of Malta (Malta, Order of) traditionally have been
accepted as subjects of international law. The same holds true for the International Committee of
the Red Cross (ICRC), an organization established in 1863 as a private Swiss association for
fulfilling humanitarian tasks in times of war. The ICRC’s role in the promotion and implementation of
the laws of war has led to it being endowed with specific rights under the 1949 Geneva
Conventions (Geneva Conventions I–IV [1949]). It has also entered into international treaties with a
number of States and international organizations such as the UN.

3. Non-Self-Governing Peoples, Insurgents, and Movements of

National Liberation
8 The acceptance of the groups mentioned in this heading as subjects of international law is a
delicate issue. The government is the authoritative representative of a State (Governments;
Representatives of States in International Relations). Hence, governments are usually reluctant to
admit a specific international status for non-self-governing peoples, insurgents, or national
liberation movements (see also Combatants, Unlawful; Resistance Movements; Wars of National
Liberation). This is due to the fact that from their point of view the issues in question are considered
purely domestic (International Law and Domestic [Municipal] Law; see also Domaine réservé).
However, when a rebel movement has gained de facto control of a certain territory and where the
upheaval has reached a certain degree of intensity, certain international rules of the laws of war do
apply and render the belligerent group a subject of international law (see also Armed Conflict,
International; Armed Conflict, Non-International).

9 The process of decolonization which started after World War II brought about a number of
organized groups which fought on behalf of their people against the respective colonial power
(Colonialism). The process of decolonization having today been practically completed, the
importance of national liberation movements as subjects of international law is diminishing, with,
however, the Palestine Liberation Organization (PLO) in the territories occupied by Israel as an
important exception (see also Arab-Israeli Conflict; Israel, Occupied Territories). In contrast to
insurgents, the effective control of territory has not been a significant element for the qualification
of national liberation movements as subjects of international law. In fact, only a few of them ever
did control territory effectively (see also Occupation, Belligerent; Occupation, Pacific). In the
majority of cases the movements were based in a neighbouring country and operated from there
(see also Neighbour States). The legal basis for their recognition as subjects of international law is
considered to be the right to self-determination. It is a matter of controversy whether the same line
of argument can be applied to minorities (Minorities, International Protection; see also Minorities,
European Protection).

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 4. Mandated Territories, Trusteeship Territories, and
Internationalized Territories
10 At the end of World War I the League of Nations established a mandates system which was
basically designed to deal with the colonies of the defeated powers (Art. 22 Covenant of the
League of Nations [28 June 1919, entered into force 10 January 1920] 225 CTS 195). The system
was taken up after World War II in Chapters XII and XIII UN Charter, which transformed the League
of Nations mandates into UN trusteeships (Art. 77 (1) (a) UN Charter ; United Nations Trusteeship
System). The exact legal status of such territories was a matter of various legal controversies, the
most notorious concerning the legal status of South West Africa, the later Namibia (South West
Africa/Namibia [Advisory Opinions and Judgments]; see International Status of South-West Africa
[Advisory Opinion] [1950] ICJ Rep 128; Legal Consequences for States of the Continued Presence
of South Africa in Namibia [South West Africa] notwithstanding Security Council Resolution 276
[1970] [Advisory Opinion] [1971] ICJ Rep 16). Furthermore, in its 1992 decision in the Certain
Phosphate Lands in Nauru Case (Nauru v Australia) the ICJ held that the common administration of
Nauru by the United Kingdom, Australia and New Zealand did not imply that this tripartite
‘administering authority’ constituted an independent subject of international law (Case concerning
Certain Phosphate Lands in Nauru [Nauru v Australia] [Preliminary Objections] [1992] ICJ Rep
258). Since the independence of Palau in 1994 all territories formerly under trusteeship have either
become independent States or joined neighbouring countries (see also New States and
International Law). It may thus be concluded that the international legal personality of mandated
and trusteeship territories is no longer an issue of relevance.

11 A related matter which is of considerable relevance concerns internationalized territories

(Internationalization). In recent years, the United Nations Security Council (United Nations, Security
Council) has resorted to conferring administrative functions for certain territories on newly created
UN Agencies (see also United Nations, Specialized Agencies). By agreement between the
Cambodian factions a United Nations Transitional Authority in Cambodia (‘UNTAC’) was established
in 1991 (Cambodia Conflicts [Kampuchea]). The most recent and most extensive application of
international administration of territories by the UN concerns the United Nations Civil Mission in
Kosovo (‘UNMIK’) which was established by UNSC Resolution 1244 (1999) of 10 June 1999 and
covers all aspects of public governance, including legislation (see also Good Governance). A
similar model was followed in East Timor, where UNSC Resolution 1272 (1999) of 25 October 1999
endowed the United Nations Transitional Administration in East Timor (‘UNTAET’) with ‘overall
responsibility for the administration of East Timor’. The issue of whether these UN missions possess
independent international legal personality does not seem to have been addressed. Since the
traditional concept of international personality relies strongly on the administration of territory, it
would be logical to attribute international legal personality to these missions.

5. Indigenous Peoples
12 Although indigenous peoples have been granted specific rights under the ILO Convention (No
107) concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal
Populations in Independent Countries and Convention (No 169) concerning Indigenous and Tribal
Peoples in Independent Countries, it has been made clear in both conventions that the use of the
term people does not imply a respective general qualification under international law. Therefore,
until recently, current international practice did not seem to include indigenous peoples in the right
to self-determination (State Practice). However, the United Nations Human Rights Council (United
Nations Commission on Human Rights/United Nations Human Rights Council) adopted in 2006, as
one of its first actions, the draft for a United Nations Declaration on the Rights of Indigenous
Peoples, which contains in its Art. 3 the express recognition that indigenous peoples have the right
to self-determination. If this approach is continued, indigenous peoples may qualify as subjects of
international law in the future (see also Codification and Progressive Development of International
Law).

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 6. Independent Agencies Created by International Organizations
13 A quite recent development concerns the creation of so-called agencies endowed with legal
personality by international organizations. It has become quite common within the first pillar of the
European Union to establish Community Agencies by an act of secondary legislation (International
Organizations or Institutions, Secondary Law). The most recent example is the establishment of the
European Agency for the Management of Operational Cooperation at the External Borders,
FRONTEX (see Council Regulation [EC] No 2007/2004 of 26 October 2004 establishing a European
Agency for the Management of Operational Cooperation at the External Borders of the Member
States of the European Union; ‘Frontex Regulation’). Usually, these agencies are expressly granted
legal personality without any specification as to whether this implies international legal personality
(see Art. 15 Frontex Regulation; Art. 7 Council Regulation [EEC] No 1210/90 of 7 May 1990 on the
Establishment of the European Environment Agency and the European Environment Information and
Observation Network; Art. 59 Council Regulation [EEC] No 2309/93 of 22 July 1993 laying down
Community procedures for the Authorization and Supervision of Medical Products for Human and
Veterinary Use and Establishing a European Agency for the Evaluation of Medical Procedures; see
also European Community and Union Law and International Law). Until now this development seems
to have remained restricted to the EC. From the practice of the UN it is clear that subsidiary organs
of the United Nations General Assembly (United Nations, General Assembly), the UNSC or the
ECOSOC do not enjoy an independent legal personality. Even with respect to the ad hoc tribunals
concerning Rwanda and Yugoslavia this principle seems to have been respected (International
Criminal Tribunal for Rwanda [ICTR]; International Criminal Tribunal for the Former Yugoslavia
[ICTY]; see also Yugoslavia, Dissolution of), which may be inferred from the fact that, for example,
the headquarters agreement for the ICTY was concluded between the Netherlands and the UN and
not the ICTY itself (International Organizations or Institutions, Headquarters).

14 It is nevertheless possible to envisage a similar development outside the European context in

the general law of international organizations. This raises the question of whether or not
international organizations have an autonomous capacity to create new subjects of international
law. Where such a capacity is expressly provided for in the founding document of the international
organization in question, the international legal personality of the newly created agency operates
at least vis-à-vis the Member States concerned. But even in the absence of an express
authorization it is possible to assume—on the basis of the arguments of implied powers used by the
ICJ with respect to the international legal personality of the UN (International Organizations or
Institutions, Implied Powers)—that an implicit authorization has been granted, wherever the
substantive competence transferred necessarily requires the creation of independent agencies.
Furthermore, notably with respect to third States, it is always possible to construct the international
legal personality of independent agencies upon acts of recognition where such actions have been
taken.

7. Individuals
15 The position of international law with respect to individuals has changed considerably in the
last 50 years. Under traditional international law, individuals were under the exclusive control of
States. Even the body of general international law which related to the position of aliens was,
although motivated in part by the intention to protect aliens as human beings, in principle a matter
between the State of residence and the State of nationality. Individuals were mediated in
international law by the States involved in their treatment in a specific situation and had no legal
position of their own (see also Diplomatic Protection). This traditional position is reflected in the
advisory opinion of the Permanent Court of International Justice (PCIJ) concerning Pecuniary Claims
of Danzig Railway Officials who have Passed into the Polish Service, against the Polish Railways
Administration, which stated in 1928 with respect to a treaty between Germany and Poland, that
this treaty, ‘being an international agreement, cannot as such create direct rights and obligations
for private individuals’ (Jurisdiction of the Courts of Danzig [Advisory Opinion] 17).

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 16 International law has undergone an evolutionary development in this respect. It is undisputed
that international treaties may create individual rights and obligations. The most obvious examples
are the numerous human rights treaties which have been concluded since 1945. The relevant
issue of interpretation is now whether or not a treaty creates individual rights (see eg LaGrand
Case [Germany v United States of America] [Judgment] 494).

17 A similar development has taken place with respect to the creation of international obligations
for individuals. In 1945, the Charter annexed to the Agreement for the Prosecution and Punishment
of the Major War Criminals of the European Axis stated the individual criminal responsibility for
crimes against peace, war crimes, and crimes against humanity (see also Criminal Responsibility,
Modes of; Responsibility of States for Private Actors). The Nuremberg Tribunal consequently stated
that ‘international law imposes duties and liabilities upon individuals as upon States’ (Judgment of
the Nuremberg International Military Tribunal 1946 [1947] 220). This principle has been taken up
in Art. 25 Rome Statute of the International Criminal Court (ICC) and in UNSC Resolutions 827 (1993)
of 25 May 1993 and 955 (1994) of 8 November 1994 concerning the establishment of international
ad hoc tribunals for the prosecution of war crimes on the territory of the Former Yugoslavia and
Rwanda respectively.

18 These developments lead to the conclusion that the individual today has acquired a legally
relevant position in international law. It has internationally been granted rights and is made subject
to obligations which—in many instances—have a procedural corollary, eg the individual complaint
mechanism in international human rights protection (Human Rights, Individual
Communications/Complaints; see also International Courts and Tribunals, Standing). For this reason,
the individual today is usually qualified as a—partial—subject of international law by international
legal doctrine (see also International Legal Theory and Doctrine). Although many norms of
international law are, for reasons of their content, only applicable to States, the general
acceptance of individuals as—partial—subjects of international law marks an important shift in the
structure of international law. It reduces the traditional State-centrism and will in the future
contribute to a further restructuring of its role in the domestic legal systems.

8. Multinational Enterprises
19 Multinational enterprises or transnational corporations, as they are also sometimes called, are
another candidate for functionally limited international legal personality. The phenomenon as such
is not really new. In fact, the Hanseatic League is viewed as a very early version of an
internationalized corporate body. Nevertheless, the need to qualify the international legal position
of transnational corporations is mainly a development of the period after 1945.

20 From a strictly legal perspective it is especially the development in international investment law
which leads to the conclusion of their—partial—international personality (Investments, International
Protection). According to the principles applied in the International Centre for Settlement of
Investment Disputes (ICSID), States and multinational companies are considered equal parties to a
dispute once it has been brought to ICSID dispute settlement procedures (see notably Art. 25
Convention on the Settlement of Investment Disputes between States and Nationals of other States
[opened for signature 18 March 1965, entered into force 14 October 1966] 575 UNTS 159). This
necessarily implies an international legal position of the respective corporation.

C. The Concept of International Legal Personality

1. International Legal Personality and International Legal Capacity

21 The terms international legal personality and international legal capacity describe the same
characteristic, namely the fact that an entity is capable of possessing international rights and/or

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 duties. In the following both terms are used interchangeably.

22 From these two concepts the capacity to act in the international sphere in a legally relevant
manner should be distinguished. This capacity presupposes international legal personality.
However, it does not imply that each subject of international law has the same capacity for action.
The individual is, for example, in some areas granted substantive rights, without necessarily having
a procedural right to defend these rights internationally (see also International Courts and
Tribunals, Procedure). With respect to the international legal personality of international
organizations, traditional doctrine tends to mix their international legal personality and their
capacity for action: their so-called partial international legal personality is limited by the
competences granted to them in the founding documents (see para. 23 below). An overall
evaluation of the international developments concerning international legal personality must focus
more intensively on the distinction between international legal personality and the capacity to act in
a legally relevant manner.

2. Full and Partial International Legal Personality

23 Current legal doctrine distinguishes between partial and full legal personality. This distinction is
well reflected in the advisory opinion on Reparation for Injuries, in which the ICJ stated that the
‘subjects of law in any legal system are not necessarily identical in their nature or in the extent of
their rights’ (Reparation for Injuries 178). Under this distinction only States are accorded full legal
personality, which implies that, in principle, States possess all international legal rights and are
subject to all international legal duties. By contrast, other subjects of international law, such as
international organizations, are only considered partial subjects in the sense that their rights and
duties are limited by the founding documents in which the respective rights and obligations are
conferred upon the organization by the founding States. Consequently, their international
personality is seen as being confined to the rights and duties mentioned in these founding
documents and as not stretching to other areas of international law.

3. Objective and Relative International Personality

24 The predominant role of States in the international system is still reflected in the distinction
between objective and relative international personality. By reason of the principle of sovereign
equality enshrined in Art. 2 (1) UN Charter, States enjoy international legal personality vis-à-vis all
other subjects of international law (States, Sovereign Equality). In contrast to this—objective
—international legal personality, the international legal personality of other subjects of international
law, notably of international organizations, is considered to be relative in the sense that it has to be
recognized in order to come into being. The underlying principle is the pacta tertiis nec nocent nec
prosunt maxim according to which a third person may not automatically be bound by an agreement
between others (Treaties, Third-Party Effect).

25 In Reparation for Injuries, the ICJ came to a different conclusion with respect to the UN.
According to the ICJ, due to its almost universal membership the UN enjoys objective international
legal personality (Reparation for Injuries 185; see also International Organizations or Institutions,
Membership). While it is true that the factual basis for the ICJ’s conclusion has become even
stronger today—of the arguably 193 States existing on the globe, 192 are members of the UN—the
rationale of the ICJ is still questionable: if the reason for according only relative international
personality to international organizations must be seen in the principle that third States cannot be
bound by an agreement among others, it is difficult to see how the quasi-universal character of an
organization could change that principle even in the case of a single non-member. If on the other
hand quasi-universal membership is the relevant criterion, then a number of other organizations
would also qualify for objective international personality. The best analysis of the existing practice
since 1945 seems to be that the creation of an international organization implies a presumption
according to which it is also endowed with international legal personality, a presumption which

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 may, of course, be rebutted in each individual case.

4. Original and Derived Subjects of International Law

26 A related distinction is the distinction between original, or born, subjects of international law
and derived, or created, subjects of international law. In view of the historic development (see
paras 2–3 above), States are qualified as original subjects of international law. This implies that an
entity, once it has been qualified as a State, automatically enjoys full international legal personality.
The same does not hold true for subjects other than States. International organizations, for
example, do not possess international legal personality by their own will but depend on the action
of States as their creators. Hence they are often qualified as created subjects of international law.
The distinction, although it may have some descriptive value, is of limited practical relevance. It
does not indicate in which specific areas a created subject does possess international legal
personality.

5. Domestic and International Legal Personality

27 A further distinction must be made between domestic and international legal personality.
International legal personality does not automatically imply national legal personality and vice
versa. For many international organizations it is not sufficient that they possess international legal
personality; for their proper functioning they also need to possess legal personality in the national
legal orders of their Member States. The EC is, for example, expressly endowed with both national
and international legal personality. While Art. 281 ECT provides for international legal personality,
Art. 282 ECT covers the legal personality of the EC in its Member States in order to ensure the
proper exercise of its functions.

D. Evaluation: From International Legal Personality to

International Legal Relationships
28 The doctrine of international legal personality reflects that traditional international law is an
actor-centred law, which focuses intensively on the issue of subjects of international law. However,
there can be little doubt that the concept and meaning of international legal personality have
developed considerably over the last century. As already indicated, it is essentially a development
in which the number of subjects was broadened. For this reason, today, some authors even refuse
to use the term subjects of international law and prefer to speak of participants (see Higgins 48).
This change of terminology is an adequate description of the broadening of subjects of
international law. However, the price which has to be paid is a loss of legal precision. It was exactly
the legal significance of the concept of international legal personality to allow for a distinction
among the many actors on the international scene. While some could acquire internationally
created rights or be made subject to international legal obligations, others could not. With the
introduction of the term ‘participant’ this important distinction gets blurred.

29 It is therefore submitted that it is preferable to stick to the existing terminology and to continue
to use the notion of subjects of international law for those entities which are capable of holding
rights or of being made subject to obligations created by international law. The broadening of
subjects, most notably the inclusion of the individual among the subjects of international law,
requires laying more emphasis on differences in the capacity to act. It seems to be clear from the
above analysis that not all of the subjects of international law have the same capacity to act. Even
in modern international law its bulk is only applicable to States. The traditional international legal
doctrine links this difference to the legal personality in distinguishing partial and full international
personality.

30 This link should be questioned. Many domestic legal systems operate differently. They

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 distinguish capacities for certain action from the legal personality as such: there can be no doubt
that each individual is endowed with legal personality, while not being able to perform certain acts.
Individuals usually cannot legislate, they cannot adopt administrative acts, etc. However, these
limitations do not depend on their legal personality. Whether or not a person can act in a specific
manner depends on the applicable norms which allow or prohibit a certain action, not on his or her
legal personality. The same idea could be transferred to international law. One would then have to
ask which norms govern a specific behaviour. The question would not be who acts, but rather
whether the action in question is governed by international law or not. The focus consequently
shifts from the international legal personality to what could be called an international law
relationship.

31 If the observation is correct that the reason for the primordial relevance of the notion of
subjects of international law is the actor-centred structure of traditional international law, and if it is
equally correct that the traditional actor-centred order is currently being, perhaps not really
replaced, but at least supplemented and in part modified by a subject-oriented structure, then it
may help as a first step to give up the notion of international legal personality as the cornerstone of
international law and replace it with the notion of an international law relationship. This would most
probably change little in terms of the answers to specific legal questions, but it would contribute to
a re-conceptualization of international law which takes into account the proliferation of its subjects
which has taken place throughout the 20th century.

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Charter of the International Military Tribunal (signed and entered into force 8 August 1945) 82
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Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945)
145 BSP 805.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Direccion Nacional de Fronteras y Limites del Estado; date: 11 March 2016
 Consolidated Version of the Treaty Establishing the European Community (signed 16 April
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Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for
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International Labour Organisation: Convention (No 107) concerning the Protection and
Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent
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UNSC Res 955 (1994) (8 November 1994) SCOR 49th Year 15.
UNSC Res 1244 (1999) (10 June 1999) SCOR 54th Year 32.
UNSC Res 1272 (1999) (25 October 1999) SCOR 54th Year 130.

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