Subjects of International Law — States, Individuals, Organisations

A subject of international law is an entity capable of possessing international rights and duties and of maintaining those rights by bringing international claims. The category was once reserved for States alone; the modern international order recognises three principal classes — States, international organisations, and individuals — with armed groups, peoples and corporate participants occupying a contested middle ground. The contours of this enlargement, the leading authorities that produced it, and the working tests that distinguish a subject from an object are the practical core of this chapter, and recur across the wider international law for judiciary notes on this site.

The distinction between subject and object is fundamental. A subject of law has the capacity to enforce the rights and discharge the duties flowing from the legal order; an object is merely governed by the order without that capacity. Animals are objects of municipal law against cruelty; they are not subjects of it. The same logic, applied internationally, was used in the nineteenth century to confine subject-status to States and to treat individuals as objects whose protection ran only through the State of nationality. That confinement has not survived. International law today reaches individuals directly through human-rights instruments, war-crimes liability and procedural avenues such as the Optional Protocol to the ICCPR; it reaches international organisations directly through their constitutive treaties; and it reaches non-State actors selectively through humanitarian-law obligations. The list of subjects has grown without losing the State as its centre of gravity.

What it means to be a subject — the working test

The classical formulation, drawn from the ICJ's advisory opinion in the Reparation for Injuries Case (1949), is that an entity is a subject of international law if it is capable of possessing international rights and duties and has the capacity to maintain its rights by bringing international claims. The test has three operative elements, each of which must be satisfied at least to some extent: incumbency of rights and duties; possession of procedural capacity to enforce a claim; and the existence of legal interests for which international law makes provision. These were expressed by Starke as the three attributes of a subject, and they remain the standard checklist.

The capacities a subject may exercise vary considerably. A State, by virtue of sovereign equality, possesses the totality of international rights and duties — it can conclude treaties, exercise jurisdiction, claim and grant diplomatic immunity, succeed to obligations under the law of state recognition and succession, and bring or defend claims before the ICJ. International organisations possess only those capacities conferred on them by their constituent instruments, supplemented by what is necessary to discharge their functions. Individuals possess fewer still — primarily rights under international human rights law and obligations under international criminal and humanitarian law — but the catalogue is real, growing, and enforceable in defined fora.

The three theories

Three competing accounts of who counts as a subject have shaped the doctrine.

Realist theory — States alone

The classical realist position, associated with Oppenheim, Brierly and Hall, treats States as the exclusive subjects of international law. International law was created to regulate relations between States; only States have full legal personality on the international plane; only States may be parties to cases before the ICJ under Article 34 of its Statute. Individuals appear in the system only as the objects of obligations owed by one State to another — their injuries are the subject-matter of inter-State claims, but they themselves are not the claimants. The international personality of any other actor depends on the willingness of States to confer it.

The realist account has not held the field. The drafters of the UN Charter spoke in the name of "the peoples of the United Nations"; the Universal Declaration of Human Rights conferred rights on individuals as such; the Reparation Case extended personality beyond the State to the United Nations itself. The realist account survives as a useful working generalisation — most international law still speaks to and through States — but as a strict ontology it is incomplete.

Fictional theory — individuals alone

The opposing position, associated with the individualist school in international jurisprudence, treats individuals as the only real subjects of international law. The duties and rights of States, on this view, are the duties and rights of the human beings who compose them; the State is a technical legal concept aggregating those duties and rights. The argument from substance — that international law ultimately exists for the protection of human welfare — has been reinforced by the contention that the dignity of the individual is the principal concern of any legal order.

This account too is incomplete. Individuals possess rights under international law, but their procedural capacity to enforce those rights is, in most fora, exercised through their State of nationality. The PCIJ in the Mavrommatis Palestine Concessions Case (1925) crystallised the orthodox doctrine of diplomatic protection: by taking up the claim of one of its nationals, a State asserts its own right to ensure respect for the rules of international law in the person of its subjects. The substantive entitlement may be the individual's, but the procedural avenue belongs to the State.

Functional theory — States, organisations, individuals

The functional theory occupies the middle ground and is the position now generally accepted. States remain the principal subjects, but they are not the only ones. International organisations have legal personality conferred and shaped by their constituent treaties. Individuals have rights and duties to the extent that international law provides for them, with procedural capacity in defined fora. Non-State entities — peoples claiming self-determination, insurgent movements, protectorates and trust territories, multinational corporations in some investment regimes — possess rights and duties in selective regimes. The functional theory does not deny the primacy of States; it recognises that the system has expanded beyond them.

States — the original subjects

States are the original and full subjects of international law. They have all the capacities listed above: treaty-making, jurisdiction, immunity, succession, claim-bringing and norm-creating. Statehood itself is governed by the criteria collected in the Montevideo Convention on the Rights and Duties of States (1933): a permanent population, a defined territory, a government, and the capacity to enter into relations with other States. Although the Montevideo Convention never came into force as a treaty for want of ratification, its definition is regularly cited as a convenient legal statement of the conditions of statehood and is treated as customary in much State practice.

The principle of sovereign equality, articulated in Article 2(1) of the UN Charter, means that all States are equal in their capacity to act on the international plane regardless of size, population or military power. Equality is formal — the legal capacities are the same — even where political and economic disparities are vast. Recognition by other States and admission to the United Nations are the typical, though not the conclusive, indicia of statehood; the doctrine of recognition and its consequences for treaty obligations are taken up at length in the next chapter of this set.

International organisations — the Reparation breakthrough

The status of international organisations as subjects of international law was settled by the ICJ's advisory opinion in the Reparation for Injuries Suffered in the Service of the United Nations Case (1949) ICJ Rep 174. Two UN officers had been killed by Israeli extremists while on an official mission. The UN sought compensation. The General Assembly asked whether the UN had the legal personality required to bring such a claim against a State.

The Court answered yes. The development of international law had given rise to entities other than States acting on the international plane; the establishment of the UN had culminated this trend. The UN Charter conferred on the Organisation legal capacity, privileges and immunities; the Convention on the Privileges and Immunities of the United Nations (1946) created rights and duties between the Organisation and its signatories; the functions assigned to the UN — maintenance of international peace and security, friendly relations among nations, international cooperation across economic, social, cultural and humanitarian fields — could not be discharged without international personality. The Court concluded that the UN was "a subject of international law and capable of possessing rights and duties" and had "the capacity to maintain its rights by bringing international claims."

The Court was careful about what international personality meant. The UN was not a State, and certainly not a super-State; its rights and duties were not the same as those of a State. What it had was the capacity to act on the international plane to the extent necessary to discharge the functions and obligations specified or implied in its constituent documents and developed in its practice. This formulation — functions, plus implied powers — is the working test for the personality of any international organisation.

Criteria for the personality of international organisations

From the Reparation Case and later practice, three criteria are usually applied:

1. Permanent association of States for some lawful purpose, established by a treaty or other instrument governed by international law.
2. Autonomy from the member States — the organisation must enjoy a measure of detachment, with its own organs, distinct legal powers and a separate institutional will.
3. Operation on the international plane — the legal powers of the organisation must be intended to be exercised internationally, not merely within the domestic systems of member States.

Legal competence is determined by the constituent instrument and varies between organisations. Unlike States, organisations do not possess general competence — the ICJ in the Legality of the Use of Nuclear Weapons (Request by the World Health Organisation) Case (1996) emphasised that organisations are bound by the principle of speciality, restricted to the functions entrusted to them. The doctrine of implied powers, articulated in Reparation, supplements this by recognising that an organisation possesses, beyond what its charter expressly states, those powers necessary for the effective discharge of its functions.

Individuals — from object to limited subject

The classical position that individuals were merely objects of international law has been steadily displaced over the last century. Three developments mark the change: the recognition of individual rights under international human rights instruments; the imposition of direct duties on individuals through international criminal law and humanitarian law; and the conferral of limited procedural capacity through specialised tribunals and complaint mechanisms.

Individuals as holders of rights

The Universal Declaration of Human Rights (1948) inaugurated the modern international protection of human rights, articulating in 30 articles a comprehensive catalogue of civil, political, economic, social and cultural rights. Although not a treaty in itself, large parts of the Declaration are now treated as customary international law and have been used as a yardstick to measure compliance with international standards. The Declaration was followed by the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Convention against Torture (1984), the Convention on the Rights of the Child (1989) and the Convention on the Rights of Persons with Disabilities (2006). Together these instruments form the core of the contemporary human rights regime under international law.

Beyond human rights, individuals can acquire direct rights under treaties wherever the contracting parties so intend. The PCIJ in the Danzig Railways Officials Case (1928) confirmed that if the parties intend to confer rights on individuals, international law will recognise and enforce those rights. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention, 1965) is a modern example, conferring on foreign investors a procedural and substantive entitlement to bring claims directly against host States.

Individuals as bearers of duties

International law also imposes obligations directly on individuals, principally in the field of international criminal law. The Nuremberg Tribunal (1947) propounded the principle that "crimes under 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 Tokyo Tribunal (1948) followed. The principles articulated by these tribunals were affirmed by the UN General Assembly and reinforced through the International Criminal Tribunals for the former Yugoslavia (1993) and Rwanda (1994), and finally institutionalised in the International Criminal Court established by the Rome Statute of 1998. The ICC has jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression — all crimes against humanity and core international crimes for which individuals are personally liable.

The same is true of piracy, where pirates are treated as enemies of mankind under the United Nations Convention on the Law of the Sea (1982); aircraft hijacking under the Tokyo (1963), Hague (1970) and Montreal (1971) Conventions; offences against internationally protected persons, including diplomats, under the 1973 Convention; hostage-taking under the 1979 Convention; drug trafficking under the 1988 Convention; and enforced disappearance under the 2006 Convention. The Genocide Convention (1948) imposes individual criminal responsibility regardless of whether the perpetrator is a head of State, a high official or a private individual.

Individuals as bearers of procedural capacity

Individuals' procedural capacity in international law is limited but real. They cannot be parties to cases before the ICJ — Article 34 of its Statute reserves that capacity to States — but they can bring claims before specialised tribunals and treaty bodies. The European Convention on Human Rights (1950), through the European Court of Human Rights and (until its abolition in 1998) the European Commission, has long allowed individuals to petition for breaches of Convention rights, with judgments binding the State in question. The Optional Protocol to the ICCPR (1966) allows individuals to lodge communications with the Human Rights Committee alleging violations of Covenant rights. The ICSID Convention (1965) gives investors direct access to investment arbitration. The International Tribunal for the Law of the Sea, established under UNCLOS (1982), confers limited procedural capacity on natural and juridical persons in seabed-mining disputes.

The Lawless Case (1961) is the classical illustration. Mr. Lawless, an Irishman detained without trial, was unable to obtain habeas corpus in Ireland and applied to the European Commission, which referred the matter to the European Court of Human Rights. The Court accepted jurisdiction and observed: "An individual is as much a subject of international law as a State is; it is more so, when an individual suffers grievously by the acts of his government for reasons which he does not know." Although the Court ultimately upheld Ireland's emergency action under Article 15 of the Convention, the procedural recognition was decisive. The De Becker Case (1962) and the Belgian Vagrancy Cases (1966–72) followed in the same vein, leading to changes in Belgian penal legislation through the operation of an international tribunal.

Indian Supreme Court on the place of individuals

In People's Union for Civil Liberties v Union of India (AIR 1997 SC 568), the Supreme Court of India observed that international law today is not confined to regulating the relations between States; matters of social concern such as health, education and economics, alongside human rights, fall within international regulation. International law "is more than ever aimed at individuals." This is the modern Indian articulation of the functional position. The procedure by which Indian courts give effect to such international standards is treated in the chapter on the implementation of international treaties in Indian courts.

Other non-State entities

Beyond States, organisations and individuals, several other entities possess limited international personality.

Insurgents and belligerents

Armed groups in non-international armed conflict have obligations under common Article 3 of the Geneva Conventions and Additional Protocol II. Where insurgents control territory and conduct hostilities according to the laws of war, they may be recognised as belligerents and acquire selective international personality. This recognition does not amount to statehood; it is a status conferred for the duration of the conflict and for limited purposes — primarily the application of international humanitarian law.

Peoples claiming self-determination

Peoples under colonial rule or alien subjugation have been recognised since the UN era as the bearers of the right to self-determination — a right articulated in the UN Charter, the 1960 Declaration on the Granting of Independence to Colonial Countries, common Article 1 of the two Covenants of 1966, and the ICJ's advisory opinions in Western Sahara (1975) and the Wall in the Occupied Palestinian Territory (2004). National liberation movements representing such peoples have, in particular contexts, been treated as having limited international personality, including the capacity to participate in international conferences and conclude agreements relating to the conflict.

Mandated and trust territories, protectorates

Territories not yet attaining full statehood — colonies, protectorates, mandated and trust territories — have historically been treated as possessing some international personality, exercised through the supervising or protecting power. The personality is partial: the territory may be the subject of treaty arrangements affecting its status, but its capacity to act on its own is residual until it achieves statehood.

Multinational corporations and NGOs

The status of multinational corporations and international non-governmental organisations remains contested. They are not generally treated as full subjects of international law, but particular regimes — investment treaties, the ICSID Convention, certain human-rights instruments — confer limited procedural capacity. International NGOs play a significant role in shaping international law through advocacy and treaty-drafting, but in formal terms they remain participants rather than subjects.

Capacity does not require all rights

An entity need not possess every international right and duty in order to qualify as a subject. As the ICJ said in Reparation, the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends on the needs of the community. An entity competent to perform even a single act conferred by international law may be a subject in respect of that act. States have all the capacities; international organisations have the capacities given by their charters and implied by their functions; individuals have the capacities conferred by treaties and customary rules. Different subjects, different capacities — but each is, within its sphere, a subject of the international legal order.

The Pinochet Case — the receding immunity of officials

The decision of the House of Lords in R v Bow Street Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147 is the most-cited modern illustration of the consequences of recognising individuals as subjects of international law. Pinochet, the former head of State of Chile, was arrested in London on a Spanish extradition request alleging international crimes including torture. The House of Lords held that a former head of State did not enjoy immunity ratione materiae for acts of torture committed in office, because torture had been criminalised under international law as a peremptory norm and could not be characterised as part of the official functions of the head of State. The case showed that the international personality of the individual now reaches into the immunities once thought absolute, and that municipal courts may, in appropriate cases, complement international tribunals in enforcing international criminal law.

Why subjecthood matters in practice

The doctrinal status of an entity determines what it may demand and what may be demanded of it. Only a subject of international law may bring or defend claims, conclude binding agreements at the international level, claim immunities, and bear the obligations whose breach gives rise to international responsibility. The expansion of subject-status from States alone to States, organisations and individuals has translated into concrete change: organisations sue and are sued; individuals petition treaty bodies and human-rights courts; war criminals stand trial under universal jurisdiction; investors arbitrate against host States.

The expansion has not, however, displaced the State. The bulk of international law still operates between States, through State practice and State consent. The State remains the principal duty-bearer for human rights, the principal actor in customary international law, and the principal interlocutor at the United Nations and other organisations. What has changed is the recognition that the law's reach is no longer mediated solely through the State — that the system is, in D'Amato's phrase, gradually moving from State-versus-State to State-versus-individual and beyond.

Indian law on the personality of non-State actors

India's constitutional order treats international law in the dualist tradition for treaties — Article 253 reserves treaty implementation to Parliament — but Indian courts have repeatedly accepted the international personality of non-State actors as an aspect of the law to be applied in domestic adjudication where it is consistent with the Constitution. The Supreme Court has cited the Reparation Case in support of the personality of the United Nations and has applied human-rights instruments such as CEDAW (in Vishaka v State of Rajasthan, 1997) and the ICCPR (in Jolly Verghese, 1980) to guide the construction of domestic statutes. The position is summarised in the chapter on the Indian Constitution and international law: customary international law is incorporated into Indian law to the extent it does not conflict with statute, and unincorporated treaty obligations may shape interpretation under the rule of harmonious construction.

Frequently asked questions

Who are the recognised subjects of international law today?

Three classes are firmly recognised: States, international organisations and individuals. States are the original and full subjects, possessing the totality of international rights and duties. International organisations possess the legal personality conferred by their constituent treaties and supplemented by the implied powers necessary to discharge their functions, as the ICJ confirmed in the Reparation for Injuries Case (1949). Individuals are subjects to the limited extent that international human rights, criminal and humanitarian law confer rights and duties directly on them. Insurgents, peoples claiming self-determination, and corporations possess limited personality in particular regimes.

Did the ICJ in the Reparation Case treat the United Nations as a State?

No. The Court was careful to say that the UN was not a State and certainly not a super-State. What the UN possessed was international personality — the capacity to possess rights and duties and to maintain its rights by bringing international claims — to the extent necessary to discharge its functions and obligations under the Charter. The Court applied the doctrine of implied powers: the Organisation has not only the powers expressly conferred but also those necessary, by implication, for the effective discharge of its functions.

Can an individual file a case before the International Court of Justice?

No. Article 34 of the Statute of the ICJ provides that only States may be parties in cases before the Court. An individual whose rights have been violated must rely on the State of nationality to bring a claim under the doctrine of diplomatic protection, as articulated in the Mavrommatis Palestine Concessions Case (1925). Individuals do, however, have direct procedural access to other international bodies — the European Court of Human Rights under the European Convention, the Human Rights Committee under the Optional Protocol to the ICCPR, ICSID arbitral tribunals under the ICSID Convention, and certain chambers of the International Tribunal for the Law of the Sea.

What was the significance of the Pinochet Case for the personality of individuals?

R v Bow Street Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147 held that a former head of State did not enjoy immunity ratione materiae for acts of torture committed in office, because torture had been criminalised by international law as a peremptory norm and could not be characterised as part of the official functions of a head of State. The case showed that the international personality of the individual now reaches into immunities once thought absolute and that municipal courts may, in appropriate cases, complement international tribunals in enforcing international criminal law.

What are the criteria for an entity to qualify as an international organisation with legal personality?

Three criteria are generally applied: it must be a permanent association of States established by a treaty or other instrument governed by international law and pursuing a lawful purpose; it must enjoy a measure of autonomy from its member States, with its own organs and a distinct institutional will; and its legal powers must be intended to be exercised on the international plane rather than merely within the domestic systems of member States. Personality is then shaped by the constituent instrument and supplemented by implied powers necessary for the discharge of functions, following the Reparation Case.

How do Indian courts treat the legal personality of non-State actors?

Indian courts accept the international personality of international organisations and the limited personality of individuals as part of the international legal order to be referenced in domestic adjudication where consistent with the Constitution. The Supreme Court in People's Union for Civil Liberties v Union of India (AIR 1997 SC 568) recognised that international law is no longer confined to State-to-State relations and is increasingly aimed at individuals. In Vishaka v State of Rajasthan (1997), the Court used CEDAW to formulate enforceable workplace guidelines. India remains dualist for treaties — Article 253 reserves treaty implementation to Parliament — but treats customary international law as part of the law of the land where it does not conflict with statute.