MODULE 4

SUBJECTS OF INTERNATIONAL LAW

Meaning and definition of state:

State is the main subject of international law. It is difficult to define the term ‘state’ . But various jurists
have defined state as following :

Dr. Lawrence defines State as, “ State is a Political community, the members of which are bound
together by the central authority and most of the people, automatically follow the rules of this central
authority.

According to Oppenheim, “The existence of the State is possible only when people of state have settled
under highest government authority and historically follow it’s orders.

According to Prof. Salmond, “ A State is a society of men established for the maintenance of order and
justice within a determined territory by the way of force”.

According to Prof. H.L.A Hart, “ The expansion, ‘A State is a way of ordered government provided by a
legal system which is characteristic structure of Legislature, Courts and primary rules and secondary
that the government enjoys a vaguely defined degree of independence.

Starke has rightly pointed out that, an ideal definition of State is not possible.

But in modern period, it is finally settled as to what are essential elements of the State according to
Article 107 Montevideo Convention 1933, The State showed must have:

1) A permanent population

2) A defined territory

3) A government

4) Capacity to enter into relation with other States.

According to Oppenheim, State has following essential elements:

1) 1) A permanent population
2) 2) A defined territory
3) 3) A government
4) 4) Capacity to enter into relation with other States.

Kinds of Different States in International Law:

Following are different kinds of States and Non State entities-

1. Confederation-
Confederation is found by independent states. Under International law Confederation has no
International Personality. The aim and objective of Confederation is to establish a sort if coordination
among the States leaving States independent in their internal and external matters. But under
International Law their Confederation are not international persons.

2. Federal States-

Generally Federal State is formed by the merger of two or more than two sovereign. Under International
law, Federal State is an International person. The Federal state exercises control and has right not only
over the member states but also on the citizens if the States. In a Federal State, generally there is
division of power between Central authority and the states through the contribution. States are
generally autonomous in their internal matters but the federation or the central authority exercises
control over them.

Example of Federal State ; United States of America, Switzerland, India.

3. Condominium-

When two or more States exercises right over a territory, it is called Condominium. New Hebrides is a
good example of Condominium. Both England and France exercises right and control over the territory
of New Hebrides between 1914 and 1950.

Other examples of condominium is those Great Britain and Egypt over Sudan from 1898 to 1955.

4. Vassal State-

A state which is under the suzerainty of another state is called Vassal state

The word suzerain, meaning upper sovereign is derived from French word Sus (meaning above) +
erian (meanings sovereign).

Its independence is so restricted that it has no importance under international law. According to
Starke “ Vassal state is one which is completely under suzerainty another state”

Internationally its independence is restricted. As far as its Foreign Affairs are concerned, Vassal state
possesses no power and all its foreign policies are governed by the states of which it is a vassal state.

Example of vassal States are ancient Chinese States, vassal states of Zand dynasty.

5. Protectorate state-

A protectorate state is a dependent territory that has been granted local autonomy and some
Independence while it is still under suzerainty of a greater Sovereign state.
 In exchange of this a protectorate state usually accepts specified obligations, which may vary greatly
depending on the real nature of their relationship. Therefore a protectorate state remains an
autonomous part of a Sovereign state. However, a state which remains under the protection of another
state but still retains independence is known as protected state and is different from protector rates.

Example: British protectorates vare territories in which the British Crown exercised sovereign
jurisdiction.

6. Holy See or Vatican City-

Holy See or Vatican City is a place where the religious hand of Catholic Christians (Pope) resides. Holy
see is a smallest sovereign state. In the middle of 19 century, the rulers of Italy seized the territory of
Pope and occupied his capital Rome. Consequently pope went away and settled in his residential place
called Vatican City. Since Pope was religious head, the Government of Italy passed a law in 1871
whereby some guarantee was given to the Pope. The said act conferred some privileges and immunities
upon Pope more or less equal to those privileges and immunities which are enjoyed by the head of the
states. In 1929 when a Treaty was concluded between Pope and the Government of Italy wear by the
Vatican City comprising of 100 acres of land was accepted as a state and Pope was conferred upon the
rights to enter into diplomatic relations with other states. Thus, by the Treaty of 1929, Vatican state
assumed the status of an international person and under the international law. The present position of
Vatican city is that it is an international person and possesses all the rights and duties of a Sovereign
state. It is a natural state. It is not a member of United Nations. In short Vatican city is an international
person and is fully Independent and sovereign state under international law.

Commonwealth of nations:

Accept Britain, Commonwealth of nations is an association of those States which add some times the
colonies of British Empire. Before 1948 it was called the British Commonwealth of nations. Slowly and
gradually in the British colonies became independent one by one and with their liberation, their attitude
also underwent significant changes.

After the attainment of independence, this liberated states were not prepared to accept the
suzerainty or of any other state. In the conference of 1948, a resolution was passed that the members of
British Commonwealth of nations will be autonomous in their internal matters. Significant changes had
appeared in international field by the year 1948. Consequently the word ‘British’ was dropped and was
named only ‘Commonwealth of Nations’. The present position is that all the members of the
Commonwealth of Nations are sovereign States. They are fully independent. In sovereign affairs their
powers are unlimited. They can enter into Treaty and may make declaration of War or peace on the
basis of their sovereign powers.

Legal status of Commonwealth of nations:

Commonwealth of states is neither a state nor a Federation. It is only a loose Association of equal and
sovereign States who are members of the United Nations and agree to follow certain principles. Under
international law, the Commonwealth of nations is not a separate independent entity. It is only a loose
Association of Independence state. As far as India is concerned, it has made it clear that India is one who
is hostile or one who wages a war.

Sovereign, democratic, republic. India has joined Commonwealth of nations on the basis of equality and
the membership of Commonwealth of nations depends on the will and discretion of India.

Neutralized States:

According to Lawrence, neutrality is the “condition of those States which in Times Of War take no part in
the contest but continue Pacific intercourse with the belligerents. In his definition, Lawrence has laid
emphasis on the point that neutrality is a condition wherein a state does not take part in war and
continues intercourse with the belligerent States.

The essential element of neutrality are:

1) Attitude of impartiality-

Neutral state is a state which does not take part in war and remains impartial. This impartiality is one of
the important element of neutrality.

2) Recognition of impartiality by belligerent States-

Not only the neutral state should remain impartial, it is also necessary this impartiality should be
recognised by the belligerent States.

3) Creation of rights and duties-

The recognition of attitude of impartiality of the neutral States given rise to the certain rights and duties.
It gives certain rights to neutral states and also imposes certain duties upon them. Similarly the neutral
state also requires certain rights because of the attitude of impartiality and neutrality adopted during
the war between the two belligerent States. These rights and duties are recognised under international
law and should be observed by the belligerent States as well as the neutral States.

Rights and duties of the neutral state:

Duties of the neutral State-

 1) Abstention

It is the duty of the neutral state to abstain from direct or indirect help to the belligerent States.

For example: the neutral state cannot assist either the belligerent through war forces or cannot
guarantee the loans to be given to them.

2) Prevention-

It is duty of the neutral state to prevent certain things within their territory.

For example: it is their duty to ensure that persons are not recruited for the war forces of belligerent
States within their territory. They should also prevent the preparation of War in favour of either of the
belligerent state. ( permit, allow, give consent to)

3) Acquiescence-

It is the duty if neutral state to give acquiescence is respect of certain matter.

For example: They should give their acquiescence when a ship using flag of their state is seized for
carrying contraband (the goods which are illegal, forbidden or banned). Also on addition to above
duties, States have the following duties-

1) Restoration- It is the duty of neutral State to not allow any act connected with the war within
the territory and in case if any such act takes place, it is their duty to restore them.

2) Reparation- If a neutral state contravenes the above mention duties, or may be held liable to
pay compensation for the same.

Rights if the Neutral States and duties if the Belligerents towards the Neutral States:

According to Lawrence, following are the duties of the Neutral State-

1) The first right if the neutral state is that no war like act should be committed in their territory.

2) Their call lines in seas etc. should not be damaged as far as possible.

3) The belligerent states should not use their territories for making preparation for war.

4) They are also entitled to get certain rules formulated for the protection of their territory and to make
belligerent states observe them.
5) Neutral state also posses the right if their neutrality is violated then they may get compensation for
the same and the compensation should be propionate to less or damaged suffered by them.

Commencement of Neutrality:

Immediately after the start of the war, neutral states should declare their neutrality. Also belligerent
states have duty to intimate the neutral states about the start of war.

End of Neutrality:

Neutrality comes to an end in one of the following ways:

1. At the end of war

2. When the neutral state starts the war with one of the belligerent states.

3. When any belligerent state starts war with the neutral state.

The rights and duties of the neutral state continue till a state remains neutral, they end as soon as
the neutral state enda its neutrality. Neutrality however, doesn’t end simply by violation of neutrality.

Trust Territories:

Article 75 of the charter of the United Nations provides that U.N shall establish under its authority,
an international trusteeship system for the administration and supervision of such territories as may be
placed there under by subsequent individual agreements. These territories are called as trust territories.

The basic objective of the trusteeship system, according to the Article 1 of the charter of UN are as
follows:

1. To promote international peace and security.

2. To promote the political, economical, social and educational advancement, of the inhabitants of the
trust territories and their progressive development towards self government or independence as may be
appropriate to the particular or each territory and its people and the freely expressed wishes of the
people.

3. To encourage respect for human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion and to encourage recognitions of the independence of the people’s of the
world and

4. To ensure equal treatment in social, economical and commercial matters for all the members of the
U.N and their nationals and also equal treatment for the nationals of the U.N in administration of justice.

The trusteeship system applies to such territories, as may be placed under trusteeship agreement.

a) Territories held under mandate.

b) Territories detached from enemy states as a result of the second world war, and

c) Territories voluntarily placed under the trusteeship system by states responsible for their
administration.

The trusteeship however does not apply to territories which are members of the U.N.

Territories placed under the trusteeship system were:

New Geneva and Nauru (Australia)

Rwanda and Urandi (Belgium)

Cameroon and Togoland (France)

Somaliland (Italy)

Western Samva (New Zealand)

Pacific Islands Trust Territory (United States)

The UN has also assured responsibility for South West Africa (Namibia). In 1966 the General Assembly
terminated South Africa’s mandate over Namibia and in 1967, the Assembly established an 11 member
council for South West Africa to administer the territory untill independence. In 1968, the General
Assembly declared that the territory of South West Africa would henceforth be known as Namibia and
the council was predesignated the U.N council for Namibia. Thus Namibia became the unique
responsibility of the U.N, the only non self governing territory for which the U.N rather than a member
state, assumed responsibility through the council as the administering authority.

Sovereign States and Semi-Sovereign States:

In view of jurists, only Sovereign states are entitled to be the member of the family of Nations.

According to Austin, “If a determinate human superior, not in the habit of obedience to a like
superior, receive habitual obedience from a bulk of a given society, that determinate superior is
sovereign in that society and the society is political and independent.

According to Max Huber, “ Sovereignty in relation between states signifies independence.

Independence is regard to a portion of the globe is the right to exercise therein to the exclusion of any
other state, the functions of the state. In the modern period, John Bodin put forward the concept of
Sovereignty. According to him, the essential element of sovereignty is the law making power of the
sovereign. Since the sovereign makes the law, he does not intend to bind himself by the law.

In 16th century, Hobbes expressed that the sovereignty is meant the absolute and complete power
of the sovereign.
 Sovereignty is defined as the Supreme power over a definite territory unrestricted by any power.
Every sovereign state can exercise the functions of State, to the exclusion of all other states. In other
words, it exercises complete sovereignty within its territories.

According to the theory of auto limitation, State follows intentional law because they have by their
consent reduced their powers. This principle is based on the principle of State Sovereignty. This principle
is propounded by Anzilotti and Triepel. But this theory was criticized severally and had many defects. In
the modern time, there have been various changes in respect of the theory of Sovereignty of States. In
present time it is not proper to say that State sovereignty is indivisible and illimitable. Ordinarily over
one and the same territory there can be only one sovereign. In practice however there can be several
exceptions, such as:

1. The only real exception is the condominium which exists between two or more States exercising
sovereignty jointly over a territory. Ex. Condominium of Great Britain and Egypt over Sudan from 1898
to 1955.

2. One State exercising sovereignty which is in law vested else where ex. Where a territory is
administered by a foreign power with the consent of the owner State. For ex. Great Britain exercised
sovereignty over Turkish Island from 1878 to 1914.

3. The third exception is that of giving territory on lease or pledge by an owner State to a foreign power.
For ex. In 1998 China leased its one district to Germany and the other to Great Britain.

4. Where the use, occupation and control of territory are granted in perpetuity by the grantor state to
the other state.

For ex. In 1903 the Republic of Panama transferred to the United States of America a ten mile territory
for construction, administration and defense of the Panama Canal.

5. The next exception is that of Federal State because sovereignty is divided between federal state and
its member a States.

6. the last exception in that of a mandated or as trust territory. The state, which is given a mandate or a
trust territory, exercises Sovereignty over it although the to territory is not its own.

In the present time, States have accepted many restrictions under international treaties and in
international institutions. Whereby they have impliedly surrendered a part of their sovereignty.

For ex. The members of the United Nations and International Labor Organization have accepted many
obligations have because of which their sovereignty has ceased to be illimitable and inviable.

Thus “sovereignty” has much restricted meaning today than in 18th and 19th centuries, when with the
emergence of powerful highly nationalized States, few limits on States autonomy were acknowledged.

At the present time, there is hardly a state, which in the interests of the International Community,
has not accepted restrictions on its liberty of action. Thus most states are member of United Nations
and the International Labor Organization (ILO), in relation to which they have undertaken obligations
limiting their unfettered discretion in matters of international policy.
 Sabhya Mukherjee C. J in Union of India Sukuma Sen Gupta (AIR 1990 SC 1692 at P 1701) remarked
that, “ It is now considered and accepted as both divisible and limitable and we must recognise that it
should be so. Sovereignty os limited extremely by the possibility of general resistance”.

Individuals on Subjects and Objects of International Law:

Ordinarily International Law deals with the rights and duties of the States. Ordinarily its rules are for
States. Generally states enter into treaties with each other are bound by its provisions. There are three
theories in regard to the subject of International Law.

1. States alone are subjects of International law.

2. Individuals alone are the subjects of International law.

3. States are the main subjects of International law, but to a lesser extent individuals and certain state
entities, have certain rights and duties under international law.

Individuals are subject of international law:

There are certain jurist who have expressed the view that only individuals are the subjects of
international law. Kelsen was the chief exponent of this theory. Kelsen has analyzed the concept of state
and expressed the view that it is a technical legal concept and includes the rules of law applicable on the
persons living in a definite territory. Hence under International Law the duties of the states are
ultimately the duties of the individuals. There is no difference between State Law and international law.
Both laws apply on the individuals and they are for the individuals.

Kelsen’s theory looked sound but in practice it is seen that primary concern of the international law
is with rights and duties of the state.

Place of individuals in international law:

Individuals are also treated to be the subjects of international law although they enjoy lesser rights than
States under international law. In the beginning they were accepted as subjects of international law as
an exception of the general rule and number of jurist treated them as objects rather than the subjects of
international law. This view has now discarded. In the present time, several treaties have been
concluded where in rights have been conferred and duties have been imposed upon the individuals.
Some of the provisions of the International Law under which rights have been conferred upon
individuals and obligations that have been imposed upon them are as follows:

1. Pirates – under international law pirates are treated enemies of mankind. Hence every state is
entitled to apprehend them and punish them. Thus under international law it is the obligation of
the parties not to commit piracy.
 2. Harmful acts of individuals- for maintaining amicable relations of the states is necessary that
the individuals not be involved in such acts as may prove detrimental for the good relations
among States. Therefore under international law there are several provisions which provide that
the person who commits such crime may be punished.

For example if a person causes harm Ambassador other state, then under international law, he is
liable for severe punishment.

In ex Parte petroff, 1971, the supreme court of Australia convicted two persons when they were
found guilty throwing explosive substances on the Soviet Chancery.

3. Foreigners- international law regulates the conduct of the foreigners to some extent. According
to international law it is the duty of each state to give them those rights which it confess upon
its own citizens.

4. War criminals- war criminals can be punished international law. This conception is based the
principal that rules related to war crime are not only for the states but individuals are also
bound to them.

Nuremberg and Tokyo tribunals have established principal that since crimes under International Law
are committed by individuals and only by punishing them the provisions of international law can be
enforced.

5. Espionage- espionage is a crime under international law. When the spies are apprehended they
may be punished.

6. Under some treaties individuals have been conferred upon some rights whereby they can claim
compensation of damages against the state.

For example the Treaty of Versailles , 1919 provided under article 297 that individual could file suit
against Germany for compensation of damages.

7. The United Nations charter has also given place of importance to the rights of individuals. There
are numbers of provisions of the United Nations charter such as article 1(3), article 13(1) (b),
article 55a, article 62(3), article 68 and article 76(c) which deal with individuals.

Beside these United Nations adopted the universal declaration of human rights in 1948. This
declaration mentions in detail the fundamental rights and freedoms of the individuals. Also general
assembly of the United Nations update the genocide convention. This convention imposes an obligation
upon the individuals in respect of the crimes of genocide. Thus the United Nations Organization has
given significance to the right of the individuals.

8. Besides this, certain rights are conferred upon individuals under international law. As per the
convention on the settlement of Investments disputes between States and the nationals of
other states, the person who invest their money in foreign countries have been conferred upon
certain rights against the state concerned.

9. The international convention on civil and political rights 1966 confers rights directly on the
individuals.

The human rights council gave rights to the individuals to send petition even against their own state.

Conclusion:

The states became realistic and are acknowledged position of individuals in the legal order. The
individual has become subject of the international law and became capable of asserting his rights
himself before International tribunals.

Slowly and gradually individuals are occupying place of importance under international law. They are
more mere objects of international law, they are one in fact the subject of international law. However
even today states are the main subject of international law and International law deals with their rights
and duties.