INTERNATIONAL

LAW

 Subjects of International law

 Sources of International law
SUBJECTS OF INTERNATIONAL LAW
 What is meant by ‘Subjects’ in Int. law?
• An entity which possesses
• international legal personality
• capable of possessing international rights and obligations
• capacity to take certain types of action on the international level
(Martin Dixon)

• Characteristics of international personality:

- Enjoyment of rights conferred and subjection to obligation
imposed by int. law
- Capacity to enter into treaties and agreements
- Capacity to make claims in respect of breaches of international
law
- Enjoyment of privileges and immunities from national jurisdiction
• Legal personality:
• Active personality
• Passive personality

• Subject of regulation or Object of regulation

• Extent of rights and Nature of subject varies

1. STATES AS SUBJECTS OF I. LAW:

 It is state only which enjoys rights in international law.

(Oppenheim)
 Basic, primary, traditional subject
 Concrete, specific

 Article 1 of the 1933 Montevideo Convention on the Rights

and Duties of States:
The state as a subject of international law should possess
the following qualifications:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with the other states.
Other Territorial entities

• Trust Territories
• Underdeveloped areas in custody or trust of an advanced state
• To emerge as a sovereign independent state within a specific
period of time
• Chapter 12 of UN Charter- trust arrangements
• 'State' was the sole subject of international law:
• From the Peace of Westphalia (1648) till the creation of the United
Nations system, it was considered that international law is only
applied between states.
 2. INTERNATIONAL ORGANIZATIONS
AS SUBJECTS:
 Product of a multilateral treaty
 Legal personality depending on state actions (partial subject)
 Examples: UNO, WHO, WTO, IAEA, OIC
 Rules and obligations depending upon purposes and functions
specified

 Grows affiliation or association to other organizations

 Article 29- SC can pass resolution and set up an International
organization to perform its functions or assist in perforing its
functions. E.g. UNCIP

 Article 104 UN Charter:

 the organization shall enjoy in the territory of each of its member such
legal capacity as may be necessary for the exercise of its function
and fulfillment of its purpose.
 Article 105: guaranteed privileges and immunities of the UN, its
officials and representatives

 Reparation’s case:
• International Court of Justice, in its 1949 Reparations of Injuries
Advisory Opinion, confirmed that other entities could be subjects of
international law.
• States possess all the rights and duties on the international plane, other
entities such as Inter-Governmental Organizations, as well as the Individual,
and Multi-National Corporations, might posses rights and duties which States
would ascribe to them.
• Reparations for Injuries Suffered in the Service of the UN -
Advisory Opinion (ICJ, 1949) (Court Bernadotte)
• Held:
• Court, having regard to the purposes of the UN, accepted that UN
could claim against non-UN member for direct injury to itself, and
for injury suffered by its agents
- community of States had power to create an entity that had
"objective international personality
- Rights and duties not the same as a State, rather were
dependent upon its "purposes and functions as specified in its
constituent documents and developed practice"
 3. INDIVIDUALS AS SUBJECTS:
 Before twentieth century;
• Individual was merely an object and not subject of IL. However since WWI,
the community of nations has become increasingly aware of the need to
safeguard individual’s right under the IL.
 During the Second World War,
 the trend of International Law had been towards attaching direct
responsibility to individuals for crimes committed against the peace and
security.

 States are represented by Individuals

 Domain of International law to approach and protect Individuals
 Rights, Protection, Liabilities
 War atrocities, genocide, crimes against humanity
 Belligerents- enter into treaties
 Examples:
• Vienna Convention on Diplomatic Relations (April 18, 1961)
• Convention on Prevention and Punishment of crime of Genocide (Dec 9, 1948)
• International Covenant on Civil and Political Rights (Dec 16, 1966)
• Convention on Rights of Child (Nov 1989)
• Convention relating to Status of Refugees (July 28, 1951)
 The Nuremberg trials:
• The Nuremberg International Tribunal pointed
out that “international law imposes duties and
liabilities upon individuals as well as upon states”
• and this was because “crimes against
international law are committed by men, not
by abstract entities, and only by punishing
individuals who commit such crimes can the
provisions of international law be enforced”.
Multi national Corporations
• Registered in a state
• Operate in other states

• Global growing power

• Equal parties to disputed before court
• Examples: Unilever, Coke, McDonalds,
Shell
 Theories:
1. States only are subjects:
It is state which enjoys rights in Int. law. (Oppenheim)
Criticism: rights to pirates, individuals, labors etc.

2. Individuals only are subjects:

Individuals represent states, go to treaty making,
they are only subjects. (Kelsen)
Criticism: states are primary concern, individuals cannot be
part to ICJ, treaties are signed by states they are binding.

3. States to major extent, individuals to some extent and

International organizations are also subjects.
In modern times this theory is most accepted.
SOURCES OF INTERNATIONAL LAW
• Where to find
• Where to locate
• How to access
• How should we make an assessment

• Different assessments, findings, article 38

• Artile 38
• Is this list final?
• Order of list? Treaty fotremo
• Broad sources of Int.law
• Jus cogens
• Working of int organizations; resolutions, works
• Treat:
• Regulates relations between states
• Doctrine of collective security- permissive under UN charter
• NATO, NPT
• Not political but legal obligation
• (33000 Multilateral treaties)
• Law making treaty: introduces a new law through its structure
NPT, CTBT, WTO
• Codifying treaty: codifying existing custom, UNC diplomatic
immunity
• Constituent instruments: international organizations are
formed, SAARC Charter, Judicial tribunals, *UNDHR)
 What is meant by ‘Sources’ in Int. law?
• They are the materials and processes out of which the rules and
principles regulating the international community are developed.

• According to Brown lie there are two types of sources of law:

1. Formal sources: Legal procedures and methods for the creation

of rules of general application, which are legally binding on the addressees.
Formal sources refer our mind toward state law making machinery such as
parliament rules of which are binding to its people. Decisions of the
International Courts, unanimous resolutions of General Assembly are
lacking the quality to bind states generally in the same way that Acts of
Parliament bind its people.

2. Material sources: provide evidence of the existence of rules

which, when proved, have the statuses of legally binding rules of general
application. These are actual materials from which an international lawyer
determines the rule applicable to a given situation.
Material sources of International Law:
1. Customs

2. Treaties

3. The general principles of law recognized by civilized nations.

4. Decision of judicial or arbitrate tribunals,

5. Juristic work.

6. Decisions of organs of International institutions:

Article 38 Statute of ICJ

 Customs:
Most part of International Law consists of customary rules. Article
38 refers to “international custom, as evidence of general practice
accepted as law”
Developed in long process of historical development. When usage
receives general acceptance or recognition by states in their
relations, it becomes the custom.
Essentials for international custom are ;
duration, uniformity, consistency and generality of practice.
Customary rules are extracted from usages or practices which
have evolved in three sets of circumstances:
(a) Diplomatic regulations between states
(b) Practice of international organs
(c) State laws, decisions of state courts, and state military or
administrative practices
Treaties:
Vienna convention on law of treaties (1969) Article 2:
“A treaty is an agreement whereby two r more states establish or
seek to establish relationship between them governed by
international law.”
1. Law making treaties: which lay down rules of universal or
general application enunciating rules of universal International
Law, e.g., the United Nations Charter.
2. Treaty contracts: a treaty between two or few states dealing
with special matter concerning with these states exclusively.
CENTO, WARSA PACT, SAARC etc.
 General principles of law:
Principles recognized by almost all states . These are good faith,
responsibility, court’s right to determine limits of its jurisdiction in
judicial proceedings, proper and equal opportunity of hearing to
parties.

Decisions of Judicial or Arbitral Tribunals:

Article 38 of the Statute of International Court of Justice provides
that, subject to certain limitations, the Court shall apply judicial
decisions as a subsidiary means for the determination of rules of
law. State judicial decisions show how law of nations in given cases
is understood in that country.
 Juristic work:
Juristic work played very important role in the development of
International Law, but juristic works are not an independent
“source” of law, although sometimes juristic opinion does lead to
the formation of International Law. According to experts, juristic
opinion is only important as a mean of throwing light on the rules
of International Law and rendering their formation easier.

Decisions of organs of International institutions:

These are final steps in development of customary rules binding
on members. They decide limits of their competence and may
refer matters to international committees of jurists.
1949 Reparations of Injuries Case
The Nuremberg Trial