Module 4

Subjects of international law

The subjects of international law refer to entities that possess legal

personality and are capable of holding rights and duties under
international law. These subjects are recognized as participants in the
international legal system and can enter into legal relations governed by
international law.

Traditionally, the primary subjects of international law have been

sovereign states, as they are the principal actors in the international
arena. However, the scope of international legal personality has evolved
over time to include other entities. The key subjects of international law
are:

1. States

o States are the original and primary subjects of international

law. They enjoy full legal personality, including the capacity to
make treaties, participate in international organizations, and
exercise sovereignty.

2. International Organizations

o Entities like the United Nations, the European Union, and the
World Health Organization are recognized as subjects of
international law. They are granted legal personality to
perform specific functions within their mandates.

3. Individuals

o While individuals were traditionally seen only as objects of

international law, they are now recognized as subjects in
certain contexts, particularly in areas such as human rights,
international criminal law, and humanitarian law. For example,
individuals can be prosecuted for war crimes or crimes against
humanity under the jurisdiction of international tribunals.

4. Non-State Actors

o Entities such as liberation movements, insurgent groups, and

transnational corporations are increasingly recognized as
subjects of international law to the extent they participate in
international legal processes or are bound by certain
international norms.

5. Other Entities with Specific Legal Personality

 o Entities such as the Holy See, the International Committee of
the Red Cross (ICRC), and territories under international
administration may possess limited legal personality.

The recognition of legal personality varies depending on the type of entity

and its role in the international legal order. Understanding the subjects of
international law is essential for analyzing how international obligations
and rights are distributed and enforced within the global legal framework.

 States as a subject of international law

According to one definition, a state is a community formed by people and

exercising permanent power within a specified territory.
This understanding is formalized in international agreements, especially
the 1933 Montevideo Convention on the Rights and Duties of States.
According to Article 1 of this Convention, a State, as a legal entity in
international law, should have the following essential characteristics:

1. Permanent Population
A State must have a stable, ongoing population that resides within
its borders. This does not mean the population has to be large, but it
should be settled and continuous. The population forms the core of
the community over which the State exercises its authority.

2. Defined Territory
A State needs a clear and defined area of land. Even if there are
minor disputes over specific border areas, the State must have a
recognized territory where it applies its laws and regulations.

3. Government
The State requires an organized government structure. This
government is responsible for establishing and enforcing laws,
maintaining public order, and managing both domestic and foreign
affairs.

4. Capacity to Enter into Relations with Other States

A State must be capable of engaging in diplomatic and legal
relations with other States. This characteristic emphasizes the
State’s independence and ability to interact with the international
community as a separate, recognized entity.

These four criteria, outlined in the Montevideo Convention, serve as the

standard for recognizing a State in international law. Each characteristic
supports the State’s ability to act independently and interact on the global
stage as an equal member of the international community.
Kinds of Different States in International Law

In international law, the classification of states and state-like entities

varies depending on their sovereignty, degree of autonomy, and
international recognition. These classifications help in understanding the
distinct legal personalities and rights that each type holds within the
international community. This note aims to explore sovereign states, semi-
sovereign states, protectorates, vassal states, trust territories, and special
types of states like the Holy State and neutralized states, elaborating on
their definitions, characteristics, and implications under international law.

1. Sovereign States

Definition: A sovereign state is a fully independent and self-governing

entity recognized as having complete authority over its internal and
external affairs. It possesses the capacity to conduct international
relations, make laws, and uphold its sovereignty without subordination to
any external power.

Characteristics:

 Full control over legislative, executive, and judicial functions within

its territory.

 The ability to enter into international treaties and establish

diplomatic relations.

 Membership in global organizations, such as the United Nations.

 Recognition by other sovereign states as independent and equal in

status.

 The capacity to defend its borders and make decisions without

external interference.

Legal Status: Under international law, sovereign states possess

international legal personality, allowing them to exercise rights and
responsibilities in accordance with principles established by the United
Nations Charter and customary international law. The Montevideo
Convention on the Rights and Duties of States (1933) provides the
prevailing criteria for statehood, which include:

 A permanent population

 Defined territory

 Government

 Capacity to engage in diplomatic or foreign relations

Examples: Typical examples include most recognized nations like France,
India, and Japan, which have complete legislative and executive control
within their territories and participate fully in international treaties and
organizations.

2. Semi-Sovereign States

Definition: A semi-sovereign state has elements of independence but lacks

complete sovereignty due to specific limitations imposed by treaties,
historical circumstances, or political conditions. Such a state may exercise
autonomy in domestic matters but is restricted in its foreign policy or
defence arrangements.

Characteristics:

 Limited control over foreign policy or military functions.

 Significant autonomy in internal governance and legislative powers.

 Dependency on another state or external authority for specific

functions.

 Often bound by treaties of subordination that dictate its external

relations.

 Recognition as an autonomous entity but with acknowledged

limitations.

Legal Context: Semi-sovereignty often results from treaties of

subordination, where the state agrees to cede some of its powers to
another state or organization. This form of statehood may be subject to
varying degrees of influence from an external power, impacting the semi-
sovereign state's ability to unilaterally engage in certain aspects of
international law.

Historical Examples:

 Finland (before 1917): Under the Russian Empire, Finland had

internal legislative powers but was constrained in international
diplomacy.

 The Dominions of the British Empire: Canada and Australia, before

the Statute of Westminster 1931, had legislative independence yet
remained under the British Crown's influence.

 Even India up to a certain extent can be considered as one of the

most prominent example of this type of states.

3. Protectorates
Definition: A protectorate is a state that maintains its government but is
under the protection and partial control of a stronger state. The protecting
state usually manages the protectorate’s foreign affairs and defence while
allowing local governance over domestic matters.

Characteristics:

 Autonomy in internal governance.

 Foreign policy and defence managed by the protecting state.

 The existence of a formal agreement or treaty outlining the

protectorate relationship.

 Obligation to the protecting state for military or strategic purposes.

 Limited sovereignty, with international representation often handled

by the protector state.

Examples:

 British Protectorate of Bechuanaland (now Botswana): The United

Kingdom oversaw its foreign policy, defense, and major decisions
while allowing local governance to manage domestic affairs.

 French Protectorate of Morocco (1912-1956): Morocco maintained a

monarchy, but France exerted significant control over its external
relations and military matters.

4. Vassal States

Definition: A vassal state is one that acknowledges allegiance to a more

powerful sovereign state or ruler. This relationship, often feudal in nature,
involves obligations such as military support, tribute, or political loyalty in
exchange for protection or other benefits.

Characteristics:

 Dependence on a suzerain state for protection and broader political

support.

 Obligation to pay tribute or provide military assistance.

 Internal self-governance in most domestic affairs.

 Limited autonomy in foreign policy decisions.

 Historical context, more commonly referenced in pre-modern state

relationships.

Legal Perspective: Although largely historical in the context of modern

international law, the concept of vassalage underscores early international
relations marked by hierarchical dependencies. A vassal state might have
limited independence in governance but owed significant obligations to its
suzerain.

Examples:

 The Principality of Moldavia and the Ottoman Empire: Moldavia

retained internal self-rule but paid tribute and followed the foreign
policy dictates of the Ottoman Empire.

 Korea before 1895: Recognized as a vassal state under the

suzerainty of the Qing Dynasty of China.

5. Trust Territories

Definition: Trust territories are areas administered by a state or states on

behalf of the international community, specifically under the United
Nations Trusteeship System established after World War II. These
territories are managed with the aim of promoting development and
progress towards self-governance or independence.

Characteristics:

 Administration by an external state under the supervision of the UN.

 The administering authority must ensure the social and political

advancement of the territory.

 A clear mandate to promote eventual self-governance or

independence.

 International accountability to the United Nations Trusteeship

Council.

 Transitional status with eventual plans for full autonomy or

integration.

Legal Characteristics: The UN Charter (Chapter XII and XIII) provided the
legal basis for this system, requiring the administering authority to
safeguard the well-being and advancement of the people within the trust
territory.

Examples:

 Trust Territory of the Pacific Islands: Administered by the United

States until the eventual independence or free association of its
components (e.g., Palau, Federated States of Micronesia).

 Tanganyika Trust Territory: Administered by the United Kingdom until

its independence in 1961.
6. Special Types of States

a. The Holy State (The Holy See/Vatican City)

Definition: The Holy See represents the central governing body of the
Catholic Church and has a unique sovereign status under international
law. The Lateran Treaty of 1929 established Vatican City as an
independent city-state governed by the Holy See, separate from Italy.

Characteristics:

 Holds international legal personality

 Engages in diplomatic relations and treaties as a recognized

sovereign entity.

 Participates as an observer in the United Nations.(Does not hold the

right to vote)

 Exercises spiritual and administrative authority globally.

 Maintains a unique blend of religious and temporal governance.

b. Neutralized States

Definition: A neutralized state is bound by an international treaty to

remain neutral in conflicts and military engagements. Other states agree
to respect this neutrality and pledge not to involve the neutralized state in
military conflicts.

Characteristics:

 Bound by international agreements to permanent neutrality.

 Obligation to abstain from military alliances and conflicts.

 Guaranteed protection by other states in exchange for maintaining

neutrality.

 Retains internal sovereignty and governance.

 Functions as a zone of peace, often strategically located to prevent

conflict escalation.

Legal Context: The neutrality of such states is not only voluntary but is
reinforced through multilateral or bilateral agreements. The primary
objective is to establish a zone of peace and stability in a strategic region.

Example:

 Switzerland: Recognized as a permanently neutral state by the

Congress of Vienna (1815), it maintains a legal and international
obligation to abstain from participation in armed conflicts.
  Belgium: Declared neutral by the Treaty of London (1839) until this
status was violated during World Wars I and II.

Conclusion

The classification of states in international law reflects a diverse range of

legal statuses and degrees of autonomy. From fully sovereign states to
semi-sovereign entities, protectorates, vassals, trust territories, and
unique forms like the Holy State and neutralized states, each type
contributes to the intricate tapestry of international relations. The
existence and recognition of these states underpin the principles of state
sovereignty, self-determination, and international legal obligations,
demonstrating the varied paths by which states navigate their identities
and interactions on the global stage.

Individuals in International Law

Individual, in a legal sense, is a broader term and in international law,

individuals include human beings, foundations, and legal commercial
enterprises. Though not all individuals have the same rights, it is
considered in a broader sense. Before 1945, international law could
recognize individuals as a subject but still didn’t provide rights and duties
as a direct individual. In an overview, International law did not consider
Individuals other than in an abstract sense for centuries and the reason
was that international laws are laws between states, and individuals are
the citizens of states, therefore, individuals were seen as objects rather
than subjects. They were not considered competent to have rights and
duties under international law. However, after the first and second World
wars, the international community contemplated the need and possibility
of recognizing an individual’s legal responsibility under international law
and to make them subjects of international law in some respect. Even
today, individuals are seen as only partial subjects of international law as
states still remain the dominant subject of international law.

Scholar’s Opinions on the Individual as a Subject of Public

International Law

The status of individuals in public international law is debated, ranging

from their complete exclusion as subjects to their recognition as primary
subjects. The assertion of individuals as subjects gained prominence at
the end of the 19th century and notably after World War II due to reasons
such as the primacy of international law over domestic law, direct
regulation of individual rights and duties, and the evolution of
humanitarian principles.
  French scholar George Scelle viewed states as mere fictions,
positing individuals as the true subjects of international law. Critics,
including Wolfgang Friedmann and Humphrey Waldock, countered
that this perspective was more philosophical than practical. Hersch
Lauterpacht argued that changes in human rights and humanitarian
law strengthened individuals' legal status, allowing them to protect
their rights in international forums, though he acknowledged the
limitations imposed by state actions.
 Hans Kelsen supported the idea that individuals could bear
responsibility under international law for certain violations, viewing
this as an exception to the state-centric norm. Friedmann
emphasized that, while individuals could make enforceable claims
under international law, they remained primarily beneficiaries of a
state-driven system.
 Oppenheim and others, including Waldock and Brownlie, rejected
the idea of individuals as primary subjects, asserting that
international law is fundamentally state law. Schwarzenberger
considered individual personality a matter of fact rather than
principle, and Myres McDougal emphasized state power, suggesting
that individuals act through state policies. Rosalyn Higgins
advocated abandoning the concept of "subject" in international law
altogether.

The issue of direct applicability of International Law to individuals

The question of whether international law directly governs individuals is

pivotal in establishing their status as subjects of international law.
Proponents of direct applicability often reference the monistic doctrine,
which asserts the supremacy of international law over domestic law,
particularly in the realm of human rights treaties designed to protect
individuals rather than states.

While treaties such as the U.N. Convention Against Torture and various
human rights instruments aim to safeguard individual rights and establish
enforcement mechanisms, they primarily impose obligations on states.
Analysis of these obligations reveals that international law does not
universally govern individuals directly; instead, it allows states discretion
in implementing the rights outlined in these treaties. A state’s
constitutional framework must recognize the primacy of international
treaties for direct applicability to occur. If such recognition is absent,
individuals cannot be directly governed by international law.
Even in legal systems that permit the direct applicability of treaties, this
principle arises from domestic law rather than international law.
Lauterpacht (scholar) contends that the rights granted by international
law are not directly enforceable unless incorporated into domestic
legislation. Thus, while international law provides the foundation for these
rights, they must be enacted through municipal laws to be actionable in
national courts.

Some argue that the language of certain human rights treaties, such as
the European Convention on Human Rights and the International
Covenant on Civil and Political Rights, directly grants rights to individuals.
However, without domestic legal frameworks recognizing these rights,
such instruments do not operate autonomously. Conversely, other
treaties, including the Genocide Convention and the Convention Against
Torture, explicitly outline state obligations to uphold individual rights
without conferring direct rights to individuals. This distinction highlights
that, regardless of the wording, all these instruments create obligations
for states, which retain the authority to determine how these rights are
realized for individuals within their jurisdiction

Current Status of the Place of Individuals in International Law

The current status of individuals in international law reflects several key

trends and conclusions regarding their legal standing. First, it is widely
recognized that the capacities of states and individuals differ
fundamentally in both character and degree. While individuals are
increasingly acknowledged as having some form of international
personality, the majority concede that this capacity is derived primarily
from treaties requiring state consent and typically exists only in
exceptional circumstances.

Several instances illustrate the emerging legal capacity of individuals

within international law:

1. Direct Applicability of International Law: International law rules

can be applied directly to the legal relationships and conduct of
individuals, marking a significant evolution in the treatment of
individuals under international norms.

2. Rights and Duties: Individuals are recognized as having specific

rights and duties under international law, which contribute to their
legal status as subjects within the international legal framework.

3. Participation in Law-Making: Individuals, along with private

transnational corporations, can actively participate in the
 formulation of international law, highlighting their role in the
international legal order.

4. Access to Judicial Mechanisms: Individuals are now competent to

bring their cases before judicial and quasi-judicial international
institutions, seeking protection for their rights, thereby reinforcing
their status as subjects of international law.

5. Liability for International Crimes: Under certain conditions,

individuals may face prosecution for breaches of international law,
with international judicial courts empowered to hold them liable
irrespective of state consent or domestic legal provisions. This
development underscores the growing recognition of individual
accountability within the international legal system.

In summary, while the recognition of individuals in international law has

evolved significantly, their legal capacity remains distinct from that of
states, often contingent on state consent and applicable treaties.
Nonetheless, the increasing involvement of individuals in various aspects
of international law signifies a noteworthy shift toward acknowledging
their role as active participants in the global legal landscape.

Introduction

A multinational corporation is a centrally coordinated company that is

established in more than one nation-state. A typical multinational
corporation comprises a parent company in one state with subsidiaries in
one or more other states. There is no uniform terminology, however. The
United Nations continues to use the term “transnational corporation,”
although many academic authors have dropped that term because of its
association with the now discredited New International Economic Order.
The International Labour Organization (ILO) and the Organisation for
Economic Co-operation and Development (OECD) employ the term
“multinational enterprise.” The main difficulty with multinational
corporations is the accountability or governance gap caused by the
absence of corporate regulation in international law. In traditional
international law, multinational corporations have rights but no
obligations. In practice, therefore, multinational corporations are subject
only to the domestic laws of the different states in which they operate.
Since states compete with each other to attract investment from
multinational corporations, the regulatory framework applicable to such
corporations has a tendency to weaken rather than strengthen.
4.1. MNC as an object of Inernational Law

The first position recognises MNC as an object of international law, not a

subject. This distinction is based on the traditional notion of how
international law is created, from where it derives its binding force, and
what its structure is, which has posited the state as the main focus of this
law. Therefore, '[individual] has no inherent capacity under international
law. 115 In this case, the subject of law or personality refers to the
concept of statehood; hence, a non-state actor is not a subject, but an
object. What do we mean by object?

According to Manner, in the case of an individual, being an object means:

...he[individual] has no rights and duties whatsoever under it

[international aw] or that he [individual] cannot invoke it for his protection
nor violate its rules. [...] [T]he individual is but a thing from the point of
view of this law or that he is benefited or restrained by this law only
insofar and to the extent that it makes it the right or the duty of states to
protect his interests or to regulate his conduct within their respective
jurisdiction through their domestic law. [...] [I]he individual as such, or as
object, has not international rights or claim against states to be made by
them as an object of their international rights an duties or to be treated by
them according to the international law once they have in fact made him
an object thereof. Rather, it holds, the individual must look to states also
in these respects, 15

Similarly, Mecorquodale defines 'objects' as entities ruled by states or

beneficiaries under a system in which a treaty or treaties benefit
individuals, as in diplomacy or commerce.17 Oppenheim's definition of an
object of international law also stipulates that International law does nis
impose duties or confer rights directly upon an individual human being.
Rights or duties which might necessarily have to be granted to an
individual [including corporations] are not, as a rule, international rights or
duties, but rights/duties granted/imposed by national law in accordance
with a duty/right imposed upon the state in question by international law.
20 In short, the semantic of object or subject refers to strict jurisdictional
distinction between national and international law, whereby non-state
actors fall under national law, and states, under international law. The two
levels operate differently, and their applicability should not overlap.

This approach was established at a time when 'the very nature of

international law necessite this view meaning that International law was
seen as a set of rules governing states. This significantly eroded the
grounds for the object theory of the individual; it rested only on the
circular argument that non-state actors are objects under International law
because the latter treats them so. 24 Moreover, the approach is unrealistic
today, in light of current developments in the field. International
humanitarian law, international human rights, and international criminal
law are examples of how non state actors like individuals and corporations
are not treated merely as 'things', but have rights and obligations
imposed. The question is no longer what constitutes a sovereign State or
not, but what the subject of law is.

4.2. MNC as a Partial Subject of International law

This means that MNCs have certain rights and duties as well as capacities,
and enjoy a partial international legal subjectivity in specific
circumstances. According to some authors, unlike states, which are 'full'
subjects of international law, corporations have only a 'partial
international legal personality', provided that states allow it.25 The
partiality implies three points.

 First, the existence of the entity in question is subject to states

consent. 26 State confers legal status to non-state actors through
various means, including treaty and customary international law.
 Second, a corporation can have either direct or indirect rights,
obligations, capacities and/or personalities determined by States. 28
This state exclusivity has been contested by scholars. Some propose
that the particular subject of law and personality should be
determined by the entity in question (self-identification) while others
hold that states, as primary subjects of International law, should
decide who can be included in its 'society'. The ICJ itself, in the
reference case Reparations for Injuries Opinion, is unclear in this
regard, merely stating that the concept of subject of law can be
broadened depending on the need of the 'international community'
and 'the requirement of internal life'. However, it is not explicitly
stated whether that need and requirement are solely determined by
states or by other actors.
 Third, partiality implies that the rights, obligations, and
responsibilities of non- state actors are not identical to those of
states. The former may carry different rights, obligations and
capacities. This uneven construction of personality signifies that
non- state actors will not and cannot become the 'full' subjects of
 law. The unavailability of international mechanisms for corporation,
for example, speaks to the corporations'

'partial relationship to Public International law. This is underscored by the

fact that non-state actors are excluded from the international law-making
process, which emphasizes the handicap of accepting the corporation as a
'full subject' of international law. In this case, personality or subjectivity is
perceived as a jigsaw puzzle of different entities, where unlike states, non-
state actors cannot contain all the pieces:

Only independent states possessing sovereign equality in their mutual

relations enjoy all-round legal capacity comprising any legal position
provided by the international legal order. All other subjects of international
law possess only a capacity which is limited to the function they are to
fulfil in that legal order. 29

Thus, other (non-state) actors may have only relative (or limited) legal
personality, which depends on and is circumscribed by certain rights and
duties granted to them under international law.

Regarding MNC as the partial subject of international law may provide an

easy escape from the dilemma, but leaves many problems to be
addressed such as the absence of clear criteria, as well as the limitations
and consequences if such criteria is not met. An excessive reliance on
states as a mirror for determining the personality of entities risks
overlooking other powerful actors on the international stage.4

There also exists a third school of thought which objects the use of the
concepts of personality and subjectivity in international contexts, this view
is often regarded as the new legal approach to international law, under
this view there exist multiple actors (state and non-state) and this view
states that there should be no differentiation between these on the basis
of personality and subjectivity.