Subjects of International Law.
A subject of International Law is defined as an entity capable of possessing international rights and duties and having capacity to protect its rights by bringing international claims.
Critique: it is not an univocal concept and provokes a vicious circle. Why?
- Because what is a subject of IL? Somewhat which has capacity to protect its rights by bringing international claims. Which entity can make that? A subject of IL.
History and development of its concept.
- During the 18th and 19th century, subjects of IL were identified as States. However, some atypical entities were recognised as subjects of IL (e.g. free cities, Federations, etc).
- During the 19th century, IGOs arose in order to ensure efficient cooperation in areas of common interest. Due to its legislative and enforcement powers were considered as subjects of IL.
- After WWI, it became obvious that entities other than States, which had no physical control over any territory were important players in the international arena. However, during the period between WWI and WWII, the matter of whether the League of Nations had international personality was never conclusively decided.
After WWII with the creation of the UN and the proliferation of international organisations the traditional views on subjects of IL changed. The ICJ in Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) (1949) held that the UN possesses legal personality but limited as the conferred competences granted by their constitutional treaties. As consequence, the UN has legal capacity to bring a claim for reparations concerning injuries which one of its employees had suffered while in active service of the organisation.
- Currently, subjects of International Law are:
- Entities which can potentially become States & entities with State-like.
- Some de facto regimes.
- Insurgents and belligerents.
- National liberation movements which represent peoples who are entitled to exercise their right to self-determination.
- IGOs & UN missions created by the UNSC resolutions to administer certain territories during the transition period leading to self-governance of those territories. Such missions enjoy full legal personality during the transition period.
- NGOs, MNCs and indigenous people. It can be argued that NGOs, MNCs are subjects of IL in accordance with LaGrand – Germany v. USA (Judgment)
- Individuals. Historically, individuals were excluded from the concept of subjects of IL. However, some scholars argued that currently the globalisation, privatisation, feminism and the fragmentation of International Law have radically changed its concept. Other scholars trying to reconcile the doctrine of subjects of IL with the appearance of new entities: subjects of IL and object of IL. Higgins proposes to distinguish two concepts: subjects of IL and participants.