Subjects of International Law — Public International Law Notes

Subjects of International Law

In 1948 a UN mediator, Count Bernadotte, was assassinated in Jerusalem while on UN service. Could the United Nations itself — not a State, but an organisation — bring an international claim for the injury? The ICJ, asked for an advisory opinion in Reparation for Injuries (1949), said yes: the UN is an international person with the capacity to bring claims. That single opinion broke the old idea that only States can be subjects of international law.

Who international law speaks to — States, individuals, organisations

A “subject” of international law is an entity that has international legal personality: it can bear rights and duties under international law and can enforce or answer for them. The question is who qualifies, and there are three theories.

A. The realist / States-only theory (classical view)

Only States are subjects; individuals are merely objects (like cargo the law is about but which cannot itself sue). On this view international law is a law between States alone. Criticism: too narrow for the modern world — it cannot explain war-crimes trials of individuals, human-rights petitions, or the UN’s own capacity to claim.

B. The fictional / individuals-only theory

Kelsen and others argued the opposite extreme: since all law ultimately regulates human conduct, individuals are the only real subjects; “the State” is just a convenient name for the conduct of individuals. Criticism: it ignores the plain reality that States, not individuals, make treaties, wage war, and appear before the ICJ.

C. The functional / modern (middle) view — the correct answer

International law has several kinds of subject, differing in the extent of their personality:

1. States — the primary and full subjects: full personality, can do everything (make treaties, go to war, appear before the ICJ, incur responsibility).
2. International organisations — derivative subjects with the personality their member States gave them, to the extent needed for their functions (Reparation for Injuries, 1949). The UN can make treaties, bring claims and enjoy immunities.
3. Individuals — increasingly subjects, though limited: they bear duties directly (war crimes, genocide, piracy — the Nuremberg trials, 1946: “crimes are committed by men, not by abstract entities”) and hold rights they can sometimes enforce (human-rights treaties, individual petition to human-rights courts).
4. Also, in special ways: insurgents/belligerents, national liberation movements, and (historically) the Holy See, and even individuals under investment treaties.

The examiner always frames this as a proposition to evaluate (“States alone are subjects” / “Individuals are the only subjects”). Argue to the middle: States are the primary subjects, while individuals and organisations are derivative/limited subjects. That balanced verdict, with Reparation for Injuries and Nuremberg named, is what separates a good answer from an ordinary one.

ICJ, Reparation for Injuries Suffered in the Service of the UN (1949): “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 upon the needs of the community.”

In Simple Terms: The Court’s key insight: not every subject of international law has to look like a State or have the same powers. An entity has as much international personality as the international community needs it to have — which is why the UN (an organisation) and, in a narrower way, individuals, can be subjects too.

🧩 WORKED EXAMPLE — “Only States are subjects of international law. Comment.”

Facts. The statement to evaluate: “Only States are the subjects of international law.”

Rule. Three theories; the functional view prevails — States are primary, but organisations and individuals also have (limited) personality.

Apply. Concede States are the primary subjects. Then rebut the word “only”: the UN can bring claims (Reparation, 1949); individuals are tried directly for international crimes (Nuremberg, 1946) and can petition human-rights bodies.

Conclusion. The statement is partly true (States are the primary subjects) but wrong as an absolute — international law today has several classes of subject.

flowchart TD
    A["Subjects of International Law"]
    A --> B["States<br/>primary, full personality"]
    A --> C["International organisations<br/>derivative; Reparation 1949"]
    A --> D["Individuals<br/>limited; Nuremberg 1946, human rights"]
    A --> E["Others<br/>insurgents, liberation movements"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,C,D,E box;

Case Laws

• Reparation for Injuries Suffered in the Service of the UN (1949, ICJ advisory) — the UN has international legal personality and can bring an international claim; organisations are subjects to the extent their functions require.
• Nuremberg Trials / Judgment (1946) — individuals can be held directly responsible under international law for crimes against peace, war crimes and crimes against humanity; “crimes are committed by men, not abstract entities”.
• Barcelona Traction (Belgium v. Spain, 1970, ICJ) — recognises obligations erga omnes owed to the international community as a whole, showing personality is broader than bilateral State relations.

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