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7 views2 pages

Subject of PIL

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Aryaka Jain
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Subjects of Public International Law

Introduction

Some questions that are relevant to the study of international law include who can create
international law? Who has rights, duties, and powers under international law? (or international
legal personality); and who is regulated (governed), directly or indirectly, by international law?
The term “subjects of international law” refer to entities endowed with legal personality, capable
of exercising certain rights and duties on their own account under the international legal system.

According to Starke, the term “subject of international law” means; an incumbent of rights and
duties under international law; The holder of procedural privileges of prosecuting a claim before
an international tribunal; and The possessor of interests for which provision is made by
international law

Oppenheim says that an international person is one who possesses legal personality in international
law meaning one who is subject to international law so as to enjoy rights, duties, or powers
established in international law. It also gives the capacity to act on the international plane either
directly or indirectly through the state.

Theories regarding subjects of International Law

1. Realist Theory (States alone are subjects of International Law)

According to the orthodox positivist doctrine, states are the only subjects of international law.
According to Prof. Oppenheim, “the law of nations is primarily a law of international conduct of
states and not of their citizens”. If individuals have any right then it can be claimed only through
the states. The Jurists of this school believe that the states are the subjects of international law,
while individuals are the objects of international law.

Criticism of Realist Theory

It is silent on the rights of the individuals and the international offenses for which individuals may
be punished. In Reparation for injuries suffered in the services of the UN case, the ICJ held “that
the UN has the capacity to bring an international claim against the State for obtaining reparation
when an agent of UN suffers injury.”

1. This theory was supported by Percy Corbett.


2. As per his view, International Law regulates the conduct of States and only States
are subjects of International Law.
3. He regards individuals as objects of International Law and not its subjects.
4. Criticism: This theory was criticised by George Schwarzenberger, who opined
that it is not correct to assume individuals as merely the objects of International
Law, as they are the basis of society. It takes an extreme view.

2. Fictional Theory (Individuals alone are subjects of International Law)

In this theory, Jurists believe that Individuals are the only subjects of international law as states do
not have the soul or capacity to form an autonomous will. Prof. Kelson opined that the laws
ultimately apply to the individuals and are for the individuals alone. As per this theory, the welfare
of an individual is the ultimate goal of international law.

Criticism of Fictional Theory

The primary concern of International law is the rights and duties of the states. Individuals possess
many rights under international law but their capacity to enforce these rights is limited. In most
cases, a state files the claims for the rights of the citizens. In the Mavrommatis Palestine
Concession case (1934), the PCIJ observed that “It is an elementary principle of international law
that a state is entitled to protect its subjects”.

1. This theory was supported by John Westlake and Hans Kelsen.


2. Westlake opined that “the rights and duties of States are only the rights and
duties of men who compose them.”
3. Kelsen stated that every law, whether municipal or international, is ultimately
made for the individuals.
4. Criticism: As per Judge Philip Jessup, this is another extreme view. The
procedural capacity of individuals is very restricted under Int Law. For ex:
individuals cannot approach the ICJ directly.

3. Functional Theory

The jurists with a moderate view criticize both of the above theories. These Jurists believe that
States, Individuals and certain non-state entities are subjects of international law. Now, Individuals
got right even against the states. An example of this is the European Convention on Human Rights
in 1950. Under International Covenants on Human rights 1966, it is held that individuals can claim
rights directly under international law. In some cases, Non-state actors like Colonies and
Protectorate states are treated as subjects of international law.

1. •As per this theory, States are the primary subjects of International Law.
2. •However, individuals and non State entities also have some rights and duties
under International Law.
3. •States possess ‘original personality,’ while non State entities and individuals
possess ‘derivate personality’ under International Law.

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