Chapter 3 (Subjects of PIL) Notes of Public International Law

a. International Organizations as a Subject of International Law

1. Concept and Definition

Concept

International organizations (IOs) are entities established by sovereign states through international agreements (usually treaties) to carry out common objectives. Unlike non-governmental organizations (NGOs), which are governed by national laws, IOs operate under international law and play a significant role in global governance.

Definition

• Martin Dixon defines international organizations as "entities created by treaties between states and endowed with rights and obligations under international law".
• Ian Brownlie describes them as "entities possessing international rights and obligations and having the capacity to maintain their rights by bringing international claims and being responsible for breaches of obligations".
• The ICJ Reparation for Injuries Case (1949) recognized the United Nations as having an objective international personality, meaning that it possesses legal personality independently of the recognition of individual states.

2. Historical Background

• 19th Century: Formation of technical organizations like the International Telegraph Union (1865) and the Universal Postal Union (1874).
• League of Nations (1919): The first political international organization with a broad mandate but limited success.
• United Nations (1945): Established after World War II with expanded functions in international peace and security.
• Specialized Agencies: The WHO, the IMF, and the World Bank became important global actors in the 20th century.

3. Legal Personality of International Organizations

Meaning

Legal personality of IOs refers to their capacity to possess rights, obligations, and responsibilities under international law, independent of their member states.

Criteria for Legal Personality

According to the ICJ Reparation for Injuries Case (1949), an international organization possesses legal personality if:

• It performs functions on the international stage.
• It has the capacity to enter into treaties.
• It can bring international claims.
• It can incur responsibility for international wrongful acts.

Types of Legal Personality

• Objective International Personality: Recognized by the international community as a whole (e.g., UN).
• Functional Personality: Limited to the functions and powers explicitly granted by member states (e.g., ICSID).

4. Treaty-Making Capacity of IOs

International organizations have the capacity to enter into treaties under the 1986 Vienna Convention on the Law of Treaties between States and International Organizations.

Example: The Berlin Plus Agreement (2003) between NATO and the EU allows NATO to use EU military assets in certain operations.

5. Privileges and Immunities

International organizations enjoy privileges and immunities to ensure their independent functioning, including:

• UN Charter (Article 105): Immunities necessary for the UN to fulfill its functions.
• UN Convention on Privileges and Immunities (1946): Provides immunity from legal processes, tax exemptions, and inviolability of premises.
• ICSID Convention (Article 25): Provides immunity to ICSID arbitration awards from judicial review by domestic courts.

6. International Responsibility of IOs

The Articles on the Responsibility of International Organizations (2011) by the International Law Commission (ILC) outline that:

• IOs are responsible for internationally wrongful acts.
• Member states may share responsibility if they aid or assist the wrongful act.
• Remedies include restitution, compensation, and satisfaction.

Example: The UN was held responsible for the Cholera Outbreak in Haiti (2010) caused by UN peacekeepers, sparking debate on the accountability of IOs.

7.                  Case Laws

 

Case	Court	Significance
Reparation for Injuries Case	ICJ (1949)	Recognized the UN's legal personality and ability to bring claims.
Certain Expenses Case	ICJ (1962)	Confirmed the UN's power to perform international obligations.
Manderlier v Belgium	Belgian Court (1969)	Established that the UN enjoys immunity from domestic jurisdiction.

 

8. Types of International Organizations

• Universal Organizations: UN, WTO
• Regional Organizations: African Union, European Union, NATO
• Technical Organizations: International Civil Aviation Organization (ICAO), World Health Organization (WHO)
• Financial Organizations: IMF, World Bank
• Arbitration Organizations: ICSID, Permanent Court of Arbitration (PCA)

9. Challenges and Limitations

• Lack of direct enforcement mechanisms.
• Immunity from domestic jurisdiction often leads to lack of accountability.
• Limited powers as granted by member states.

b.      Other Specific Subject of International Law

Other Specific Subjects of International Law

1. Introduction

The scope of subjects of international law has expanded beyond states to include various non-state entities. These subjects have varying degrees of rights and obligations under international law. The recognition of these subjects reflects the changing dynamics of international relations and the increasing importance of individuals, groups, corporations, and organizations in the global legal framework.

2. State as a Subject of International Law

Concept

States are the primary and most significant subjects of international law. They are recognized as sovereign entities with full legal personality under international law.

Legal Basis

• Montevideo Convention on the Rights and Duties of States (1933): Defines the criteria for statehood.
• ICJ Statute (Article 34): Only states may be parties in cases before the ICJ.

Elements of Statehood

According to Article 1 of the Montevideo Convention, a state must possess:

• Permanent population
• Defined territory
• Government
• Capacity to enter into relations with other states

Rights and Obligations

• Sovereign equality
• Right to self-determination
• Obligation to refrain from the use of force
• Duty to respect international treaties

Case Laws

Case	Court	Significance
North Sea Continental Shelf Case (1969)	ICJ	Recognized the principle of sovereign equality.
Nottebohm Case (1955)	ICJ	Established the principle of effective nationality.
Nicaragua v. United States (1986)	ICJ	Affirmed the prohibition on the use of force.

 

3. International Personality of International Non-Governmental Organizations (INGOs)

Concept

International Non-Governmental Organizations (INGOs) are private organizations that operate across borders to promote social, humanitarian, or environmental causes.

Legal Basis

• UN Charter (Article 71): Grants consultative status to NGOs at the Economic and Social Council (ECOSOC).
• UN Declaration on Human Rights Defenders (1998): Protects individuals and organizations working in human rights advocacy.

Functions

• Humanitarian assistance
• Advocacy for human rights
• Environmental protection
• Development cooperation

Examples

• Amnesty International
• Greenpeace
• International Committee of the Red Cross (ICRC)

Case Laws

Case	Court	Significance
Manderlier Case	Belgian Court	Recognized the immunity of the ICRC.
Greenpeace Case	ECtHR	Affirmed the right of NGOs to freedom of expression.

 

4. International Personality of Individuals

Concept

Individuals are increasingly recognized as subjects of international law, particularly in the fields of human rights and international criminal law.

Legal Basis

• Universal Declaration of Human Rights (1948)
• International Covenant on Civil and Political Rights (1966)
• Rome Statute of the International Criminal Court (1998)

Rights and Obligations

• Right to life, liberty, and security
• Freedom from torture
• Individual criminal responsibility for genocide, war crimes, and crimes against humanity

Case Laws

Case	Court	Significance
Nuremberg Trials	Nuremberg Tribunal	Established individual criminal responsibility.
Eichmann Case	Israeli Court	Affirmed universal jurisdiction for crimes against humanity.
Prosecutor v. Tadić	ICTY	Recognized individual responsibility in armed conflicts.

 

5. International Personality of Groups

Concept

Groups, especially indigenous peoples and minority communities, are recognized as subjects of international law in certain contexts.

Legal Basis

• UN Declaration on the Rights of Indigenous Peoples (2007)
• ILO Convention No. 169 on Indigenous and Tribal Peoples (1989)

Rights

• Right to self-determination
• Protection of cultural heritage
• Land and resource rights

Case Laws

Case	Court	Significance
Awas Tingni Case	IACHR	Recognized indigenous land rights.
Endorois Case	African Commission	Affirmed the right to land and cultural heritage.

 

6. International Personality of Corporations

Concept

Corporations can be considered subjects of international law, particularly in the areas of investment law and human rights.

Legal Basis

• ICSID Convention (1966): Provides a mechanism for resolving disputes between states and investors.
• UN Guiding Principles on Business and Human Rights (2011)

Rights and Obligations

• Right to bring claims before international arbitration tribunals
• Obligation to respect human rights in business operations

Case Laws

Case	Court	Significance
Barcelona Traction Case (1970)	ICJ	Defined corporate nationality.
Hussein Soufraki v. UAE (2004)	ICSID	Determined corporate nationality in investment disputes.

 

7. International Personality of International Arbitration Institutions (ICSID)

Concept

The International Centre for Settlement of Investment Disputes (ICSID) is an international arbitration institution that resolves disputes between states and foreign investors.

Legal Basis

• ICSID Convention (1966)
• ICSID Rules of Procedure for Arbitration Proceedings

Jurisdiction

• Investment disputes between states and private investors
• Disputes involving companies, shareholders, and individuals

Case Laws

Case	Court	Significance
Hussein Soufraki v. UAE (2004)	ICSID	Clarified corporate nationality in investment disputes.
Salini v. Morocco (2001)	ICSID	Established the "Salini Test" for qualifying an investment under ICSID jurisdiction.

The evolving recognition of various subjects of international law reflects the dynamic nature of the international legal system. While states remain the primary subjects, the inclusion of individuals, groups, corporations, INGOs, and arbitration institutions highlights the increasing complexity of international relations. This expansion enables a more inclusive and responsive framework for addressing global challenges.

 

c.       Position of Individuals in International Law

Position of Individuals in International Law

1. Introduction

Historically, individuals were not considered subjects of international law, as the discipline primarily focused on regulating relations between sovereign states. However, with the development of international human rights law, humanitarian law, and international criminal law, individuals have increasingly become recognized as subjects of international law. This transformation reflects the growing importance of protecting individual rights and holding individuals accountable for international crimes.

2. Concept of Individuals as Subjects of International Law

Individuals are now acknowledged as partial subjects of international law, possessing both rights and obligations. Unlike states, which enjoy full international personality, individuals are limited subjects with functional personality, primarily in the realms of human rights, international humanitarian law, and international criminal law.

Theories Supporting Individuals as Subjects

• Fictional Theory (Hans Kelsen): Argues that individuals are the real subjects of international law, while states are merely collections of individuals.
• Functional Theory: Recognizes individuals as subjects only to the extent that they are granted rights and obligations by international law.
• Realist Theory: Maintains that only states are true subjects of international law, viewing individuals merely as beneficiaries of state actions.

3. Legal Basis

The recognition of individuals as subjects of international law is rooted in various international instruments:

• Universal Declaration of Human Rights (1948): Recognizes basic human rights.
• International Covenant on Civil and Political Rights (1966): Grants individuals enforceable rights.
• Rome Statute of the International Criminal Court (1998): Establishes individual criminal responsibility.
• European Convention on Human Rights (1950): Provides for individual complaints against states.
• Geneva Conventions (1949): Protects individuals during armed conflicts.

4. Rights of Individuals under International Law

Individuals enjoy various rights under international law, particularly in the fields of human rights and humanitarian law.

Key Rights

• Right to life
• Right to freedom from torture
• Right to fair trial
• Freedom of expression
• Right to seek asylum
• Protection against discrimination

Human Rights Mechanisms

• UN Human Rights Committee (HRC)
• European Court of Human Rights (ECtHR)
• Inter-American Court of Human Rights (IACHR)
• African Commission on Human and Peoples' Rights

5. Obligations of Individuals under International Law

Individuals are not only beneficiaries of international law but also bearers of obligations, particularly in the field of international criminal law.

Crimes under International Law

• Genocide
• War crimes
• Crimes against humanity
• Aggression
• Terrorism (in certain contexts)

Case Laws

Case	Court	Significance
Nuremberg Trials	Nuremberg Tribunal	Established individual criminal responsibility for war crimes and crimes against humanity.
Eichmann Case	Israeli Court	Affirmed universal jurisdiction for crimes against humanity.
Prosecutor v. Tadić	ICTY	Recognized individual responsibility for crimes committed in non-international armed conflicts.
Prosecutor v. Lubanga	ICC	First conviction by the ICC for conscripting child soldiers.

 

6. Access to International Forums

Individuals can bring complaints against states or seek remedies before international forums under certain conditions.

Mechanisms

• UN Human Rights Committee (HRC): Receives individual complaints under the ICCPR.
• ECtHR: Allows individuals to file complaints against European states.
• IACHR: Receives petitions from individuals in the Americas.
• ICSID: Allows investors to bring claims against states in investment disputes.

7. Limitations on Individuals' Position in International Law

• Limited access to international courts (e.g., ICJ only accepts states as parties).
• Dependence on states recognizing individual complaints mechanisms.
• Enforcement challenges in securing remedies for human rights violations.

8. Conclusion

The recognition of individuals as subjects of international law marks a significant evolution in the international legal order. Although individuals do not enjoy the same degree of legal personality as states, they now possess enforceable rights and bear obligations under international law. This transformation enhances the protection of human dignity and promotes accountability for serious violations of international norms, reflecting the growing human-centric approach in international law.