Tuesday, 31 May 2022

Modern Subjects of International Law

 Modern Subjects of International Law

By: Anjali Tiwari

"A subject of international law is a body or entity that is acknowledged or accepted as capable, or as actually being capable, of owning and exercising international law rights and duties," says Dixon.

Subjects Theories

1. Realist Theory 

States are the only subjects of international law, according to traditional positivist thought.

The Realistic theory incorporates views of international law that were popularized in the 18th century by thinkers like Jeremy Bentham. According to this theory, only nation states should be treated as subjects of international law. According to this idea, international law governs state behavior, and hence states can be accorded the status of a subject on their own. Nation states, regardless of the individuals who make up its population, are distinct legal entities with rights, responsibilities, and obligations, as well as the ability to enforce their rights under international law. As a result, nation states are the ultimate subjects of international law.

"The law of nations is basically a regulation of international conduct of states, not of their citizens," says Prof. Oppenheim. Individuals can only seek rights through the states if they have any. This school of thought holds that states are the subjects of international law, whereas people are the objects of international law.

Criticism

The legal positivism approach to international law is quite close to the realistic theory. The positivist definition of international law has had a significant impact on present perceptions of international law themes. The doctrine denies the idea that individuals are legitimate subjects of international law, with a few exceptions. While it may appear wise to categories law according to subjects, in actuality international law is concerned with more than only state legal rights.

2. Fictional Theory 

According to this reasoning, jurists claim that individuals are the sole subjects of international law since states lack a soul or the ability to develop an independent will. Prof. Kelson argues that laws ultimately concern and are intended only for individuals. Individual well-being is the ultimate goal of international law, according to this viewpoint.

Certain jurists believe that in the final analysis of international law, only individuals will be found to be the subjects of international law. Professor Kelson is the leading proponent of this view, claiming that only a person has the right to be governed by international law. The states' responsibilities and rights are, in actuality, the responsibilities and rights of the men who make up the states. Individuals are granted rights and are obligated by many modern treaties. Individuals have been granted specific rights as a result of treaties that have been signed from time to time. Although the ICJ's legislation adheres to the traditional idea that international procedures can only be brought by states, a number of other international instruments have recognized the individual's procedural ability. Individual individuality has been recognized under international law by a number of international treaties, judicial bodies, and courts.

Criticism

The principal objection of the fictional theory is that it only recognizes persons as subjects of international law; it theorizes that, while States are the primary actors, they are made up of individuals, and hence only they are allowed to be termed subjects of international law. The fictional theory's attempt to represent individuals as subjects of international law fails because, in reality, even individuals get their rights from a state, and the state's involvement in international law is crucial. States are, without a question, the most important issue of international law, with the majority of it concerned with the conducts and relationships of states with one another. As a result, states cannot be separated from being a subject of international law.

3. Functional Theory 

Moderate jurists criticize both of the preceding ideas. According to these jurists, international law applies to states, persons, and some non-state organizations. 

Both the Realist and Fictional doctrines took strong positions on issues. Functional theory, on the other hand, tends to meet both radical ideas on a new approach route. According to this idea, neither governments nor individuals are the only subjects; both are inextricably linked to international law and hence both are deemed to be international law subjects. States, as the principal and active subjects of international law, have recognized rights, duties, and obligations under international law, which they can enforce through an international claim. Individuals have been granted some rights, duties, and obligations under international law in modern international law, which they can enforce through international claims. International law's increasingly inclusive approach has broadened the field's ambit and breadth, with international organizations and non-state entities finding a position and gaining the status of subjects.

People have now taken a stand against the governments. This is exemplified by the European Convention on Human Rights, which was adopted in 1950. According to the 1966 International Covenants on Human Rights, individuals can assert rights directly under international law. Colonies and protectorate nations, for example, are sometimes considered international law subjects.

4. International Organizations as Subjects

In the twentieth century, the establishment of multinational organizations was enormously significant. There are many different types of international organizations, some of which are global in scope, such as the United Nations, and others which are regional in scope, such as the African Union.

5. Individuals as Subjects

According to modern state conventions, individuals have international legal individuality, but only in a limited sense. Individuals do not have the same legal status as states, but for a variety of reasons, they do have legal personality. Individuals have a number of rights under international law, which allows them to participate with confidence. The Universal Declaration of Human Rights, which was adopted in 1948, grants individuals a number of rights.

6. States as Subjects

 When a person or thing becomes a state, it gets international legal personality and becomes an international legal person. The original subjects of international law were states, and the field of international law was created to regulate state-to-state relations.

7. Non-State Actors as Subjects

Individuals, armed groups involved in conflicts, and international organizations such as the EU, UN, and African Union are all considered to be non-state actors with international legal persons.

Conclusion

In modern times, states are no longer the sole subjects of international law. They are still the primary subjects, although international organizations, individuals, and other non-state entities have earned subject status as international law evolves. Individuals can now sue states to enforce their rights in specified instances. The rights of governments and those of people on the other end of the spectrum, however, are vastly different.

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