Subjects of International Law

The question of who can hold rights and obligations under international law is more precise than the simple question of who participates in international affairs. States, international organisations, individuals and other entities may all appear in international legal materials, but they do not necessarily possess the same legal status, rights, duties or procedural capacities. A careful court therefore begins by identifying the legal subject involved and then asks what international law actually permits that subject to do, what obligations it places upon that subject, and what legal consequences follow from that status. This distinction is important because international law does not operate through a single uniform category of legal personality. Legal personality is better understood as a legal capacity that may exist to different degrees and for different purposes. An entity may possess some rights without possessing every capacity associated with a State. An organisation may have legal personality for the purposes necessary to perform its functions without possessing the general sovereignty of a State. An individual may possess directly enforceable rights under an international instrument and may, in other circumstances, bear individual responsibility for an international crime, without thereby becoming equivalent to a State as a subject of international law. The starting point is therefore not a ranking of entities but an examination of the applicable legal rule. The relevant question is not simply whether an entity is called a subject of international law. The court should identify the legal instrument, customary rule, general principle or other applicable source that gives the entity a particular right, obligation, capacity or form of participation. The existence and extent of legal personality must be established from the legal framework governing the particular issue. This approach also prevents a common analytical error: treating international legal personality as an all-or-nothing status. In domestic legal systems, a legal person may ordinarily possess a broad collection of capacities defined by domestic law. International law is more differentiated. The legal capacities of an entity may depend upon its nature, constituent instrument, recognition, functions, applicable treaties, customary rules and the particular legal relationship being examined. For example, the legal position of a State cannot simply be transferred to an international organisation because both may possess international rights and obligations. A State possesses sovereignty and a general international legal personality associated with statehood. An international organisation derives its legal existence and powers through the international legal arrangements that establish it and through the functions those arrangements confer upon it. The organisation's capacity must therefore be examined in relation to its constitutive instrument and the purposes for which it was created. The same principle applies to individuals. Modern international law contains important rules under which individuals are direct beneficiaries of international rights and, in particular areas, direct bearers of international duties. Human rights law demonstrates that an individual can possess rights recognised by international law. International criminal law demonstrates that individuals may incur personal responsibility for certain conduct prohibited by international law. Neither development requires the conclusion that individuals possess every capacity enjoyed by States or international organisations. The concept of a subject should therefore be separated from the broader idea of an actor. Many entities influence international relations without possessing the same legal personality as States. Non-governmental organisations, corporations, armed groups, professional bodies, indigenous peoples, humanitarian organisations and other entities may participate in international processes, provide evidence, influence negotiations, assist implementation or be recognised by particular legal instruments. Their practical importance does not automatically establish a general international legal personality equivalent to that of a State. The distinction between legal participation and legal personality is especially important in judicial reasoning. A court should not infer legal rights merely because an entity has political influence, public recognition or practical involvement in international affairs. Conversely, a court should not assume that an entity lacks international legal relevance merely because it is not a State. The proper analysis lies between those extremes: identify the entity, identify the applicable legal source, establish the relevant legal relationship and determine the precise capacity created by the law. This is why the study of subjects of international law follows naturally from the earlier study of sources, treaties, customary international law and general principles. Earlier chapters established how international legal rules are identified. This chapter applies that foundation to the question of the entities to whom those rules attach. The issue is therefore not simply classification for its own sake. It concerns the operation of international law in practice. A court may need to answer several distinct questions. Who possesses the right? Who bears the corresponding obligation? Who has the capacity to enter the relevant legal relationship? Who may bring a claim? Who may be held responsible? Who may appear before a particular tribunal? Who may invoke a treaty provision? Who may be bound by a customary rule? Who possesses the capacity to conclude an international agreement? These questions can produce different answers even when they concern the same entity. The distinction between these capacities should be maintained throughout legal analysis. Possessing an international right does not necessarily mean possessing standing before every international tribunal. Bearing an international obligation does not necessarily mean that every court has jurisdiction to determine an alleged breach. Having legal personality does not automatically confer competence to exercise every conceivable international power. Likewise, practical participation in an international process does not automatically establish a legal entitlement. The concept of legal personality must consequently be used with care. It describes the capacity of an entity to occupy legal relationships recognised by international law, but the content of that capacity must still be identified. A State's personality is broad and general. The personality of an international organisation may be functional and connected to its purposes. The international legal position of an individual may arise through particular bodies of law and may consist of specific rights or responsibilities. Other entities may have narrower capacities recognised for particular purposes. The historical development of international law helps explain why States occupy the central position, but historical centrality should not be confused with exclusive legal personality. The modern international legal order contains rules directed not only at States but also at organisations and individuals. The correct legal method is therefore to recognise the continuing centrality of States while examining the specific legal basis for the status of other entities. An entity's legal personality may also be relevant to responsibility. If international law places an obligation directly upon an entity, a breach may produce legal consequences for that entity where the applicable rules provide for responsibility. The analysis must identify the obligation, establish that the obligation applies to the entity, determine whether the relevant conduct is attributable or otherwise legally connected to that entity under the applicable rules, and then identify the consequences recognised by international law. The existence of personality alone does not establish responsibility for every act associated with an entity. Similarly, legal personality should not be confused with recognition in political or diplomatic terms. Recognition may have important legal consequences in particular contexts, but the court must identify the legal issue actually before it. A political relationship, diplomatic practice or institutional participation may provide evidence relevant to a legal question, but it does not replace the applicable legal rule. The central methodological lesson is therefore simple: international legal personality must be examined in context. The court should avoid asking whether an entity possesses every characteristic of a State and instead ask what legal capacity international law recognises for the entity in the circumstances before the court. This contextual approach becomes particularly important where several legal subjects interact. A treaty may create rights and obligations for States parties. A treaty may also establish an international organisation with defined functions. Individuals may benefit from provisions contained in the same or related instruments. A dispute may then involve questions of jurisdiction, standing, responsibility and remedy that cannot be answered merely by identifying the participants. Each legal relationship must be separately established. The study of subjects of international law therefore requires precision in language. The words “subject”, “actor”, “person”, “entity”, “participant”, “beneficiary”, “rights-holder”, “obligation-bearer”, “party” and “standing” should not be treated as interchangeable. They describe related but different legal concepts. A strong legal analysis identifies which concept is relevant and explains why. The same discipline should be applied to the term “international legal personality”. It should not be used as a conclusion that ends the analysis. Rather, it is the beginning of a more precise inquiry into the nature and extent of the entity's legal capacity. Once personality is established, the court must still identify the particular rights, duties, powers, immunities, responsibilities or procedural capacities that follow. This chapter will therefore develop the subject through a series of connected questions. It will begin with the position of States, then examine the meaning and scope of international legal personality, before considering international organisations, individuals and other entities. It will then distinguish legal rights and duties from capacity, standing and participation, allowing the learner to apply the concepts in judicial analysis. The purpose is not to create a rigid list of international actors. It is to provide a method for determining legal status from the applicable law. That method is essential because international legal personality is ultimately functional and legal rather than merely political. The decisive question is what the international legal order recognises and for what purpose. A court applying this method should resist two opposite errors. The first is excessive State-centred reasoning, under which only States are treated as legally relevant. The second is excessive expansion, under which every influential international actor is treated as possessing international legal personality. Both approaches are inadequate. The correct approach is evidence-based and source-based: identify the entity, identify the applicable legal basis, establish the relevant legal relationship and determine the precise consequences that the law attaches to that relationship. The learner should carry this method into every later section of the chapter. The question “Who is a subject of international law?” is therefore not answered by one sentence. It is answered by examining how international law creates, recognises and limits legal relationships involving different entities. That distinction provides the foundation for understanding States, international organisations, individuals and other international legal participants without incorrectly treating their capacities as identical.