Subjects of international law: States, organisations and individuals

1. Meaning

The ICJ in Reparation for Injuries Suffered in the Service of the United Nations (advisory opinion, 1949) described an international person as an entity capable of possessing international rights and duties, with the capacity to maintain its rights by bringing international claims. It added that the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights. Personality is therefore a matter of degree: a State has the fullest; an organisation has what its functions require; an individual has limited rights and duties.

2. The three theories

• Realist theory (States only). The positivists (Oppenheim in the older editions) held that only States are subjects, since international law is made by and for States. Individuals are only objects, like territory, benefiting from rules made for States. Criticism: it cannot explain piracy, war crimes or human rights.
• Fictional theory (individuals only). Kelsen and the Westlake school: all law ultimately regulates the conduct of human beings; the duties of a State are really the duties of the individuals who act for it. Criticism: it ignores the separate legal personality of the State, which can be bound when its government changes.
• Functional theory (modern view). States are the principal subjects, but international organisations, individuals and certain other entities are also subjects to the extent the law gives them rights and duties. This is the view to adopt in the answer.

3. States

States are the primary and original subjects. They alone have full capacity: to make treaties, to bring claims, to be members of the UN (Article 4 of the Charter) and to be parties before the ICJ (Article 34(1) of the Statute). The criteria of statehood, from Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933, are a permanent population, a defined territory, a government and the capacity to enter into relations with other States. These are treated in the note on States in general.

4. International organisations

Reparation for Injuries (ICJ, 1949). Count Folke Bernadotte, the UN mediator in Palestine, was assassinated in Jerusalem in 1948. The General Assembly asked whether the UN could bring a claim against the responsible State (Israel was not then a member) for injury to the Organisation and to its agent. The Court held that:

• the UN possesses international legal personality, not because the Charter says so, but by necessary implication from its functions, its organs, its power to make treaties and the privileges given to it (Articles 104 and 105);
• fifty States, representing the vast majority of the international community, had power to bring into being an entity possessing objective international personality, opposable even to non-members;
• it can bring an international claim for injury to itself, and, by implication from its functions, a claim for injury to its agent (functional protection).

Personality of organisations is limited by their purposes. In the WHO request for an advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (ICJ, 1996), the Court declined to answer because the question lay outside the WHO's sphere of activity: the principle of speciality. Other examples of subjects: specialised agencies (ILO, WHO), the WTO, the European Union, and the International Committee of the Red Cross for limited purposes.

5. Individuals

The individual was long treated as an object. The position has changed in two directions: duties and rights.

Duties.

• Piracy has always been an international crime; every State may seize a pirate ship on the high seas and punish the pirates (UNCLOS, Articles 101 and 105).
• War crimes and crimes against humanity. The Nuremberg Tribunal (1946): crimes against 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. Later: the tribunals for former Yugoslavia (1993) and Rwanda (1994), and the Rome Statute of the International Criminal Court (1998).
• Genocide: the Genocide Convention, 1948, Article IV, makes punishable persons committing genocide whether they are constitutionally responsible rulers, public officials or private individuals.

Rights.

• Jurisdiction of the Courts of Danzig (PCIJ, 1928). The Court accepted that a treaty can, if that is the intention of the parties, confer rights on individuals enforceable in national courts. Here, Danzig railway officials could sue on an agreement between Poland and Danzig.
• The Universal Declaration of Human Rights, 1948; the two Covenants of 1966; regional conventions; and individual petitions to the Human Rights Committee under the First Optional Protocol to the ICCPR and to the European Court of Human Rights.
• Investment treaties allow private investors to bring claims directly against States before arbitral tribunals.

Indian courts. In Chairman, Railway Board v. Chandrima Das, 2000 INSC 38, (2000) 2 SCC 465, a Bangladeshi woman was gang-raped by railway employees at Howrah station. The Court held that she was entitled to compensation: Article 21 protects “persons”, not only citizens, and the Universal Declaration of Human Rights was relied on in reading the right to life and dignity as extending to foreign nationals.

6. Other entities

• The Holy See, which makes concordats and sends nuncios, and the Sovereign Order of Malta.
• Insurgents and belligerents who have been recognised as such, for the purposes of the laws of war.
• National liberation movements, such as the PLO, which was given observer status at the UN in 1974.
• Peoples entitled to self-determination, whose right was treated as an obligation erga omnes in East Timor (Portugal v. Australia), ICJ, 1995, and in the Chagos advisory opinion, 2019.

How this is examined

January 2026 set the essay on individuals and international institutions as subjects in the light of case law; June 2025 set “Are individuals subjects of international law?” and “Place of individuals under international law” as short notes; February 2025 asked for a short note on the subjects. For the essay: define a subject (from Reparation), give the three theories, then States briefly, organisations with Reparation, and individuals under duties and rights, ending with the limit. A short note on the individual should give Nuremberg, Danzig, the human rights treaties and Chandrima Das.