Subjects of International Law
Introduction;-
International law is primarily concerned with the rights, duties and interest of the states. It prescribes the rules of conducts which the states are to observe. A subject of rules is a being or thing upon which their rules confer certain Personal rights and the capacity and at the same time imposes duties and responsibilities. The law is the body of the rules which commands it subjects. Generally International Law deals with the rights and duties of the states. It's rules for the states to regulate the relationship interest the state. It is the states who enter into treaties with each other and they are found by the terms and conditions of the treaties . International law not only applies to the states but also applies of an individual and certain non-state entities.Theories regarding subject of international law :-
There are three main theories in respect to the subject of international law.1.States alone are the subject of international law.( Realist Theory)
2.Individual alone are subject of international law.(Fictional Theory)
3.States , individual and certain non state entities are subjects of international law. (functional theory)
1 ) State alone are the subject of international law /Realist Theory;-
Some Jurist have Expressed the view that only States are the subject of international law. In their view International Law regulates the conduct of the state and only state alone are the subject of international law. According to them as per the positivism view, individual is an object and not a subject of International law. International Law gives more Emphasis and stress upon the states, their sovereignty ,etc .Criticism;-
- This view has been criticized by various jurist because this theory fails to explain the case of slaves and pirates. Under international law slaves have been conferred upon some rights by the states. In the same way pirates are treated as Enemies of the mankind and they may be punished for piracy by the state. The jurist who emphasis that States alone are the subjects of international law, are of the view that slaves and pirates are exception and are objects of international law.
- It is argued that the treaties which confer certain rights over the slave and pirates impose certain obligations upon the states if there is no search obligation of the states, the slaves cannot have any rights under international law.
- Professor Oppenheim is of the view that since the law of nation is primarily a law between the States, state are to that extent, the only subject of the law of nations. Professor Oppenheim subsequently has changed the view and mentioned that," States are primarily ,but not exclusively, the subjects of International law.
- To the extent that bodies other than States directly possesses some rights, power and duties in international law they can be regarded as subjects of international law possessing international personality.
- Many of the rules of international law are directly concerned with regulating the position and activities of the individual and many more directly affect them. Thus it is wrong to say those individuals or not the subjects of international law.
2) Individuals alone are subject of international law/ fictional theory;-
Some Jurist Express the view that in the ultimate analysis of International law , it will be evident that only individuals are the subjects of international law. Professor Kelson is the chief exponent of the theory . Even before kelson, Westlake had remarked," the duties and rights of the States are only the duties and rights of man who composed them. Prof. Kelson has analysed the concept of the state and Expressed the view that state is a technical legal concept and includes rules of law applicable on the persons living in a definite territory. Hence under International Law duties of the states are ultimately the duties of individual. and there is no difference between International Law and State Law . as per Kelson both laws apply to the individual and they are for the individual.Criticism;-
- The view taken by the Kelson is more logical and practical. so far as the practice of the state is a concerned, it is seen that the primary concern of international law, is with the rights and duties of the states.
- It can be seen, certain treaties have been entered into which have conferred certain rights upon individuals. As per International Court of Justices, statute, though States can be parties to the international processing, a member of other international instruments have recognised ready procedural capacity of the individual. There are number of examples wherein international law applies on individual not only mediately but also directly. It is wrong to say that pirate, slave,etc are only object of International Law.
- Philips C. Jessup , has taken the view that although individual possesses number of rights under International Law , in most of the cases claim on his behalf can be brought only by the state whose National he is. It is an elementary principal of international law that state is entitled to protect its subjects when injured by the acts contrary to international law committed by another states.
3) States, individual and certain non-state entities are subject of international law/ functional theory;-
This view not only combines the first and second view but Goes a step ahead to include international organizations and certain other non state and entities as subjects of international law. This view appears to be more practical and are better than the first two views.The reason in support of this view are as under:-
1.In present times, several treaties have conferred upon individual certain rights and duties, for example International Covenant on human rights .
2.Permanent Court of Justice in Danzing Railways official case, 1928, held that if any treaties the intention of the parties is to enforce certain rights upon some individuals, then International Law will recognize such rights and enforce them.
3.Geneva convention on Prisoners of War 1949, has conferred certain rides upon the Prisoners of law.
4.The Nuremberg and Tokyo tribunals laid down the principle that International Law may impose obligations directly upon the individuals.
5.The Genocide convention, 1948 ,has imposed certain duties upon the individual and persons guilty of the crime of genocide maybe punished .
6.A new trend has started in the international field under which some rights has conferred upon individuals even against the States. for example European convention on human rights,1950, International convention on human rights 1966, optional protocol, by which an individual who is the victim of the violation of human rights, May send petition regarding violation of human rights by his own state to the United Nations Commission on Human rights.
7.It is now agreed that International organizations are also the subject of international law. United Nation is an international person under international law and it is held by International Court of Justice that United Nation is a subject of international law and capable of possessing rights and duties and it has capacity to maintain its right by bringing International things.
8.The law making treaties in respect of international criminal law, have imposed certain obligations upon the individuals , for example narcotic drugs convention, 1961, Hague conversation of suppression of unlawful Seizure of aircraft 1970.
Thus the states are not only the subjects of international law. There is no doubt that states are still the main subject of international law and most of the part of international law concerns with the conducts and relationship of state with each other, but in view of the developing and changing character of the International Law , International organisations and some non-state entities individuals are also the subject of international law.
