International law represents a complex concept, which requires careful attention. Various views provide various definitions of international law, and all of them can include the point that it represents a set of rules that the States bound to observe (Kaczorowska, 2015, p. 1). The topic of individuals within international law and their status is quite controversial, and it has changed throughout the history. Different positions explain the issue of the individuals as subjects to international law from different sides. This problem has gone through rejections and affirmations many times, and it has been under discussion for almost as long as the concept of international law exists. An important point is that the debate continued due “to the lack of precision of the concept of subject of the international law itself” (Assenza, 2010).
First, it is important to define what an individual in the international law is. Individuals are separate people, but in the context of the law, we can view the groups of people, who share the same interests and act with one purpose, as an ‘individual’. Thus, a group of people that acts with one aim concerning different international legal issues, also becomes a subject to the law as an ‘individual’, and further in the paper we will imply groups of people into the term ‘individuals’ (McCorquodale).
A theory of legal positivism is “the thesis that the existence and content of law depends on social facts and not on its merits”, and it has emerged in the XIX century (Green, 2003). This theory implies that the law has its power, if there are special structures that work with legal issues, rather than the extent, to which those structures comply with the ideals of justice and democracy. Due to the nature of this theory, individuals were the subjects to the international law on the basis that the State was responsible for the actions of the individuals. Moreover, it is important to state that under the power of legal positivism, individuals fully depended on the state, to which they were the subjects, which implies that the State was the main body and the decisions on the legal issues over individuals were fully in its power (Assenza, 2010).
It is also important to note that in order for the State to be a subject of international law, this State had to have certain characteristics. In other words, it has to comply with the concrete criteria that the 1933 Montevideo Convention has listed. Those criteria include the following: (1) permanent population (there is no concrete number required), (2) concretely defined territories, (3) the presence of government, and (4) an ability to work together (to make connections) with other States (Kaczorowska, 2015, p. 166).
Without any doubt, under those qualifications, only the States could be the subjects to international law, because any other entities would not meet those requirements.
In a modern world, everyone has to acknowledge that every individual has a significant role in the process of the formation of international law and its understanding. In addition, individuals can have certain responsibilities under international law, and it goes far beyond the issues connected to international crimes (Clapham, 2010). We can see that legal positivism did not fully recognize the rights of individuals and cherished the State and gave it almost an ultimate power. The changes started to come to the global society with the creation of the organization that had a crucial influence on the history of international law – International Labor Organization. A little bit later, after the end of the Second World War, United Nations appeared, and it was another integral step to the protection of human rights and recognition of individuals under international law. Consequently, the provision of certain rights to the workers and the establishment of a global system that works towards human rights’ protection dramatically changed the situation and helped to overcome the principles of the major legal theories and political principles of that time that discriminated individuals and their rights (Assenza, 2010).
Therefore, classical international law implied that only states become the subjects of this law, and the creation of powerful international organizations that strive to protect humans, led to the further consideration of who can become subjects of international law and further widening of these categories. Thus, individuals’ actions before international courts, various international institutions and organizations that protect human rights showed that the participation of individuals on the global legal arena is important. Consequently, different authorities of the world caught the trend of individuals’ importance and started to move gradually to the acknowledgement of the individuals as the subjects of international law (Assenza, 2010).
At this point, we can see who, in a modern world, represents the subjects of international law. Below you can see the current situation of the subjectivity of international law in the global arena (Ruwanthikagunaratne.wordpress.com):
States (without any doubt, the States saved their authority and subjectivity throughout history);
Non-state bodies: individuals and various international organizations also entered into relationships with international law;
Various multinational companies and international non-governmental organizations (but this consideration still depends on the nature of activities and not each of those entities fall under the subjectivity).
The actors of the international law system should have a direct ability to possess and exercise the ultimate duties, powers, and rights, which puts those entities and individuals under the category of international law. In other words, if the States and non-State bodies comply with those qualifications, they acquire their international legal personality, which determines their subjectivity. It is important to mention here, that those duties, powers and rights significantly differentiate, because various actors possess different statuses and have different functions and responsibilities related to the nature of their activities. One of the examples can be human rights for the freedom of torture and the duty of the States not to put individuals under torture, and, in case, it occurs, to send them to another State, in which there will be no harm for those individuals (Ruwanthikagunaratne.wordpress.com).
Moreover, there are certain obligations that every subject of the international law has to be able to perform (Ruwanthikagunaratne.wordpress.com):
Have a possibility to enter various agreements that comply with international law, such as legal treaties;
Possess immunity from the legal system of foreign courts;
Raise claims in front of foreign and national courts in order to enforce their rights. For instance, in the International Court of Justice, which works throughout the world;
Be ultimate subjects to all the responsibilities under international law.
Overall, we can trace that the nature of legal personality under international law has come through significant changes throughout history, and the course of the establishment of various international organizations had a crucial influence on this process. In such a way, from positivist principles that recognized only the States as the subjects of international law, global society reached the situation, when individuals and international organizations also acquired their legal personality and received certain rights and obligations. It is important to comply with the aspects of international law, and all of its subjects should carefully follow the major principles and, in addition, to comply with the established qualifications. In future, the situation can change, and international organizations should constantly work on the protection of human rights.
Works Cited
Assenza, Conrado M. "Individual as Subject of International Law in the International Court of Justice Jurisprudence." (2010). Web. 8 Apr. 2016.
Clapham, Andrew. "The Role of the Individual in International Law." European Journal of International Law 21.1 (2010): 25-30. Web. 7 Apr. 2016.
Green, Leslie. "Legal Positivism." Stanford Encyclopedia of Philosophy. Stanford University, 2003. Web. 07 Apr. 2016. <http://plato.stanford.edu/entries/legal-positivism/>.
Kaczorowska, Alina. Public International Law. 5th ed. Abingdon, Oxon: Routledge, 2015. Print.
McCorquodale, Robert. Cases and Materials on International Law. Oxford: Oxford UP, 2003. Print.
"Who Is a Subject of International Law?" Public International Law. 26 Mar. 2011. Web. 09 Apr. 2016. <https://ruwanthikagunaratne.wordpress.com/2011/03/26/1-2-an-introduction-to-subjects-of-international-law/>.
