A subject of International Law is a person (entity) who possesses international legal personality, i.e., capable of possessing international rights and obligations and having the capacity to take certain types of action on the international level. Traditionally, States have been the only subjects or persons of International Law. However, with the establishment of international organizations, it has become necessary that a sort of international legal personality be granted to these entities. Thus, international organizations become subjects or persons of International Law. Beside States and international organizations, non-States entities such as members of federal States, belligerents, insurgents, national liberation movements, and international territories are granted a sort of international legal personality. Special international status was granted to the Holly See and the Vatican City, and the Sovereign Order of Malta. Moreover, individuals, ethnic minorities, and indigenous peoples are considered, in certain circumstances, subjects of International Law. These persons and subjects of International Law are discussed in the following.
States are the original and major subjects of International Law. Their legal personalities derive from the very nature and structure of the international system. All States, by virtue of the principle of sovereign equality, enjoy the same degree of international legal personality.
International Law is primarily concerned with the rights, duties and interests of States. Normally the rules of conducts that International Law prescribes are rules which States are to observe.
Since a State is the primary concern of International Law, it is necessary to study it in a separate chapter. Thus, the next chapter of this book is devoted to the study of a State as a subject of International Law.
- International Organizations
An international organization is an association of States, established by a treaty between two or more States. Its functions transcend national boundaries. It is for certain purposes a subject of International Law.
The appearance of international organizations from the early part of the Nineteenth Century raises a critical question of their status in the International Law. International organizations are generally considered to be subjects of International Law, as are States, even though their international legal personality is limited to possessing specific rights and duties. Their status is determined be conventions among States and, therefore, the recognition of the international personality of an international organization is limited to signatory States of the convention creating such an organization.
International organizations include universal all purposes organizations, universal functional organizations, and regional organizations. Generally, the treaty creating a public international organization indicates its nature, purposes and powers. The international legal personality of an international organization is, therefore, limited to the rights, duties, purposes and powers laid down in the treaty creating it. The international legal personality of the United Nations, for example, is derived from the United Nations Charter, the Headquarters Agreement between the United Nations and the United States of America of 1947, and the 1946 Convention on the Principles and Immunities of the United Nations. The attribution of an international legal personality involves the capacity to perform legal acts, to have rights and duties and to enter into relations on the international level. Actually, the legal capacity of the United Nations was a question brought before the International Court of Justice. In its advisory opinion in the Reparation for Injuries Case of 1949, the Court held that the United Nations was an international person, although not a State, and therefore not having the same rights and duties as a State. The United Nations had an international personality; its functions and powers were so important that the Organization could not carry them out unless it had some degree of international personality. The United Nations can perform legal acts such as entering into agreements with member States and with other international organizations, concluding contracts and bringing claims before a court. Such capacity to perform legal acts is a prerequisite of international legal personality.
In reality, international organizations have exercised their legal capacity in a great variety of ways. They have concluded treaties, created military forces, convened international conferences, and brought claims against States.
- Non-State Entities
There are certain entities, although they are not regarded as independent States, they are granted a degree of personality, a definite and limited special type of personality, under International Law. Such entities have certain rights and duties under International Law. They can participate in international conferences and enter into treaty relations.
However, the rights and duties of these entities in International Law are not the same as those of the States. They have a sort of international personality. The capacity of each of them is more limited than an independent State has since it is limited to the purpose it is existed for and the powers or functions it can perform. These entities fall into the following categories:
(a) Members of composed States or federal States: The federal State has itself, of course, an international legal personality, but the controversial question is whether the component units of the federation have the personality on the international plane. Actually, the international personality of such units and its extent can only be determined in the light of the constitution of the State and State practice. The constitution of a federation may grant a component unit a special international personality; however such personality will not be operative on the international plane without being recognized as such by other States. State practice has granted international personality to certain component units of the federation. For instance, the Soviet Republics of Byelorussia and the Ukraine were admitted as members of the United Nations in 1945 and to that extent possessed international personality. Moreover, these two Republics were members of a number of international organizations and parties to a number of treaties.
(b) Insurgents and Belligerents: Insurgents are individuals who participate in an insurrection (rebellion) against their government. Belligerents are a body of insurgents who by reason of their temporary organized government are regarded as lawful combatants conducting lawful hostilities, provided they observe the laws of war. For a long time, International Law has recognized that insurgents and belligerents may in certain circumstances, primarily dependent upon the de facto administration of specific territory, be international subjects having certain rights and duties under International Law, and may in due course be recognized as de factogovernments. They can enter into valid arrangements on the international plane with States, international organizations, and other belligerents and insurgents. They are bound by the rules of International Law with respect to the conduct of hostilities.
(c) National liberation movements: In the course of anti-colonial actions sponsored by the United Nations and regional organizations, these organizations and the member States have conferred international legal status upon certain national liberation movements.In 1974, the General Assembly recognized the international legal status to the Angolan, Mozambican, Palestinian, and Rhodesian movements (which had been recognized as such by the Organization of African Unity (OAU) or the Arab League), and accorded them observer status in its meetings, in meetings of various organs of the United Nations, in meetings of the United Nations specialized agencies, and in conferences convened under the auspices of the United Nations. The Security Council of the United Nations permitted the Palestine Liberation Organization (PLO) to participate in its debates with the same rights of participation as conferred upon a member State not a member of the Security Council.
International practice has accorded the political entities recognized as national liberation movements a number of legal rights and duties. The most significant of these rights and duties are the capacity to conclude binding international agreements with other international legal persons, the capacity to participate in the proceedings of the United Nations, and the rights and obligations of International Humanitarian Law.
(d) International territories: The term “International territory” refers to territories placed under a variety of international legal regimes including those administered by the United Nations under the trusteeship system or special arrangements. The Charter of the United Nations established the trusteeship system, replacing the mandate system established by the League of Nations, to enable the United Nations itself or a State to administer certain territories pending independence. The United Nations is also able to administer territories in specific circumstances. In several instances, The United Nations placed certain territories under its transitional administration for a variety of purposes, such as the preparation for independence, the administration of an election, the adoption of a new constitution, the implementation of a peace settlement, and the performance of other civil functions. Examples of such instances are Cambodia (1992-1993), Bosnia and Herzegovina (1995- ), and East Timor (1999-2002).
The territories (trust territories) placed under the trusteeship system have been accorded special status under International Law. Their inhabitants have been granted the rights for advancement, progressive development, and self-government or independence. Actually, all these territories have attained independence as separate States, or have joined other independent States. The territories placed by the United Nations under special systems, except Cambodia which has been already an independent State, have been also accorded special status under International Law for the purpose of assisting them in attaining their independence.
- Special case entities
There are two special case entities accorded a special unique status under International Law; they are the Sovereign Order of Malta, and the Holly See and the Vatican City.
(a) The Sovereign Order of Malta: The Sovereign Order of Malta was established during the Crusades as a military and medical association. It ruled Rhodes from 1309 to 1522. It was entrusted to rule Malta by the treaty with King Charles V of England in 1530. It lost its rule of Malta in 1798. In 1834 the Order established its headquarters in Rome as a humanitarian organization. The Order already had international personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European States. Today, the Order maintains diplomatic relations with over forty States.
(b) The Holy See and the Vatican City: The Holy See, which is sometimes used interchangeably with the Vatican City, is the international legal person of the Roman Catholic Church, with its physical location at the Vatican City in Rome and its sovereign the Pope. It is not a State in the normal sense of the word. It is a unique person of International law because it combines the feature of the personality of the Holy See as a religious entity with its territorial base in the Vatican City. Apart of some one thousand Church functionaries, it has no permanent population of its own. Its sovereign territory consists of only about one hundred acres granted it by Italy in the 1929 Lateran Treaty. Nevertheless, the status of the Holy See as an international person is accepted by a number of States. Its personality approximates to a State in functions. The Holy See exchanges diplomatic representatives with other States, enters into bilateral treaties (called concordats), and is a party to many multilateral treaties.
The ultimate concern for the human being has always been the essence of International Law. This concern was apparent in the Natural Law origin of the classical International Law. The growth of the positivist theories of law, particularly in the Nineteenth Century, obscured this concern for the human being and emphasized the centrality and even the exclusivity of the State in International Law.
In the Twentieth Century, International Law became again concerned with individuals. In 1907, the Hague Conventions initiated the concern in view of prisoners of war and the wounded. 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. The Charter of London of 1943 issued by the Allied Powers established the individual responsibility for committing war crimes, crimes against humanities and crimes against peace. On this basis, after the Second World War, the German leaders were brought to trial before the Nuremberg International Tribunal (1945-1946) where their guilt was established. The Charter of the Nuremberg International Tribunal of 1945 provided specifically for individual responsibility for crimes against peace, war crimes and crimes against humanity. 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”. The principles of the Charter of the Nuremberg Tribunal and the decisions of this tribunal were affirmed by the General Assembly of the United Nations in 1946, thus making them to be part of the International Law. The Assembly also, in 1946, stated that genocide was a crime under International Law bearing individual responsibility; and this was reaffirmed in the Genocide Convention of 1948.
Individual responsibility was also confirmed with regard to grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deal with armed conflicts (International Humanitarian Law). On this basis, two specific international war crimes tribunals were established, one for the former Yugoslavia in 1993 and one for Rwanda in 1994, to prosecute persons responsible for the serious violations of International Humanitarian Law committed in the territory of each of these countries.
The events in the former Yugoslavia and Rwanda impelled the renewal of the international concern for the establishment of a permanent international criminal court, which had long been under consideration. In 1998, the Rome Statute of the International Criminal Court was adopted at the United Nations Diplomatic Conference. The Statute provides that the jurisdiction of the Court is limited to “the most serious crimes of concern of the international community as a whole”, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, and that “[A] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”
In addition, after the Second World War, International law became also concerned with individuals in the field of human rights and the fundamental freedoms. The Charter of the United Nations started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples. Since then, several conventions have been concluded to define human rights and fundamental freedoms which individuals and peoples are entitled to and to ensure their respect and protection. Among these conventions are the International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966.
Although, individuals as a general rule lack standing to assert violations of the above treaties in the absence of the protest by the State of nationality, a wide range of other treaties have enabled individuals to have direct access to international courts and tribunals. Examples of such treaties are the European Convention on Human Rights of 1950, the American Convention on Human Rights of 1969, the International Convention on the Elimination of All forms of Racial Discrimination of 1966, and the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.
In conclusion, we can say that Contemporary International Law has recaptured the concern for individuals, and individuals have become recognized as participants and subjects of this law. This has occurred primarily through the evolution of Human Rights Law and Humanitarian Law coming together with the evolution of the Traditional International Law. Individuals have a sort of legal personality under International Law; they are granted certain rights and subjected to certain obligations directly under International Law. International Law is applicable to relations of States with individuals and to certain interrelations of individuals themselves where such relations involve matters of international concern.
The concern of International Law, in the Twentieth Century, for individuals was accompanied by another concern for minorities. The problem of protecting national minorities in Europe confronted the League of Nations after the First World War. The League assumed its responsibilities in the field of treaty-based protection of minorities in Europe, in social matters, such as health and fair labor standards. After the Second World War certain rights were granted to the individual members of ethnic, linguistic and cultural minorities; they were granted the right to have their identity and language respected by the State as part of the process of the development of human rights in general.
The rise of ethno-nationalism after the collapse of the Soviet Union in 1991 brought back the status of ethnic minorities and other groups in International Law to be an important issue concerning the international community. Various efforts have been made on the global and regional level to improve the legal protection of minorities. On the Global level, there is “the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992”. On the regional level, there are “the European Charter for Regional or Minority Languages” adopted by “the Council of Europe” in 1992, “the Framework Convention for the Protection of National Minorities” adopted by “the Council of Europe” in 1995 and the creation of “the High Commission for National Minorities” belonging to “the Conference on Security and Cooperation in Europe”.
Despite all these efforts that aimed to grant specific rights to minorities, the question remains, what legal status should be accorded to minorities in International Law? Do minorities have international legal personality?
There is no clear answer to these questions. Actually, the problem of minorities is very complicated because it involves political and legal dimensions related to the meaning and legal consequences of the principle of self-determination that may lead to loss of the concerned State part of its territory and its control over part of its population and to the possible outside intervention in its domestic affairs. For this reason, it is no accident that in the development of International Law since the Second World War, the rights of minorities have been conceived as a category of human rights which are to be exercised by the individual belonging to a minority, rather than as group rights attributed to a collective entity as such.
- Indigenous Peoples
In recent years, a special issue related to a category of the so-called “indigenous peoples” has been raised. Examples of indigenous peoples are the Aborigines in Australia, the American Indians, the Eskimos and the Maori in New Zealand. Despite the attempts by the United Nations to recognize group rights to indigenous peoples, it is still regarded as a specific category of minorities with special needs and having a particular relationship to their traditional territory.
In conclusion, we can say that minorities and indigenous peoples are not subjects of International Law in any meaningful sense of the term and that they have not achieved an international legal personality. They may receive guarantees of certain levels of treatment under international treaties, but it does not follow that they as such have legal personality. International Law does not attribute rights to minorities and indigenous peoples as an entity, but rather to individual members of them.