Subjects of International Law

The General Assembly asked the Court.

The case

Facts. Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, page 174, was an advisory opinion given on 11 April 1949. By a resolution of 3 December 1948 the General Assembly asked whether, where an agent of the United Nations suffers injury in the performance of his duties in circumstances involving the responsibility of a State, the Organization has the capacity to bring an international claim against the responsible de jure or de facto government for the damage caused to the Organization and to the victim, and how such a claim is to be reconciled with the rights of the victim's national State.

Held. The Court answered the first question unanimously and the second by eleven votes to four: the Organization has the capacity to bring an international claim, whether or not the responsible State is a Member. The Charter does not say so expressly, so the Court asked what characteristics the Charter was intended to give the Organization. It found that the Charter conferred on it rights and obligations different from those of its Members and entrusted it with the maintenance of international peace and security. The Court concluded that the Organization possesses a large measure of international personality and the capacity to operate on the international plane, though it is certainly not a super-State. As to the claim for the victim, there is no bond of nationality between the Organization and its agents, so the analogy of diplomatic protection does not by itself supply the answer. But agents may be sent on important missions to disturbed parts of the world and must be assured of effective protection, and the powers necessary to that end must be regarded as a necessary implication arising from the Charter. The Organization therefore has the capacity to exercise functional protection of its agents, resting on the breach of an obligation owed to the Organization itself. On the third question, by ten votes to five, competition between functional protection and the national State's diplomatic protection is to be reconciled case by case and by agreement.

Why it matters. Three separate doctrines come out of this one opinion, and each is asked about on its own.

International personality of organisations. After 1949 it is settled that an international organisation can be a subject of international law. The personality is derived, because it comes from the treaty its members made, and it is functional, because it extends only so far as the organisation's purposes require. That is the difference between an organisation and a State, whose personality is original and general.

Objective personality. The Court held the capacity good against a non-member. Fifty States, it said, representing the vast majority of the members of the international community, had the power to bring into being an entity possessing objective international personality. So the United Nations is not merely a creature effective between its own members.

Implied powers. Powers not written into the constituent treaty may be implied where they are necessary for the performance of the organisation's functions. This is now the standard method of reading the constitutions of international organisations.

The Charter's own provisions

The Charter itself deals with personality in a curiously modest way. Article 104 provides that the Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. Article 105 gives it privileges and immunities on the same functional test.

Notice that both provisions are about capacity in the territory of Members, which is municipal legal personality. Neither says anything about the international plane. That is precisely why the Court had to reason from the Charter's structure rather than quote a provision, and it is why the case is a leading one.

Individuals

The classical position

Under the classical theory the individual was an object, not a subject. An injury to a national abroad was an injury to his State, and it was the State's claim to bring, to settle or to abandon. That doctrine survives, in a much modified form, in [Treatment of Aliens and Diplomatic Protection].

How that changed

Duties came first. The Nuremberg Tribunal after the Second World War convicted individuals of crimes against peace, war crimes and crimes against humanity, and rejected the defence that they had acted as organs of a State. The Rome Statute of the International Criminal Court, in force since 2002, now gives a standing court jurisdiction over individuals for genocide, crimes against humanity, war crimes and aggression. Piracy is the older example: any State may try a pirate, whoever he is and whatever his nationality, and that rule is now in article 105 of the Convention on the Law of the Sea, in [The High Seas].

Rights came next. Human rights treaties give individuals rights against their own State, and several give them a procedure. Under the Optional Protocol to the International Covenant on Civil and Political Rights an individual may complain to the Human Rights Committee against a State that has accepted the Protocol. Regional systems in Europe, the Americas and Africa go further and let individuals bring cases to a court.

How far it has gone, stated exactly

An answer that says "individuals are now subjects of international law" without qualification is too strong. The precise position is this.

Individuals have duties directly under international law, and can be punished for breaching them by international tribunals, without any State's law intervening.

Individuals have rights directly under some treaties, and under a smaller set can enforce them before an international body.

Individuals cannot make treaties, cannot participate in making custom, and cannot be parties before the International Court of Justice, because article 34 permits only States.

The correct formulation is that individuals are subjects of international law to a limited extent, in defined respects, and that the extent has grown steadily since 1945.

Other entities

Your syllabus does not name these, but an examiner asking about subjects expects a candidate to know they exist.

The Holy See and the Vatican City. The Holy See makes treaties, called concordats, sends and receives diplomatic representatives, and is a party to several conventions. Its personality is not in doubt even though the Vatican City is minute.

Insurgents and belligerents. A rebel movement that controls territory and conducts hostilities in an organised way may acquire a limited personality: the law of armed conflict applies to it and it may make agreements about the conduct of hostilities.

National liberation movements. In the decolonisation era several were granted observer status at the United Nations and treaty-making capacity for limited purposes.

Non-governmental organisations. They are not subjects. They are creatures of some national law, they cannot make treaties, and their standing at the United Nations rests on the consultative status that article 71 of the Charter allows the Economic and Social Council to grant. That is influence, not personality, and the distinction is the whole point of [Amnesty International and Non-Governmental Organisations].

Multinational corporations. Also not subjects, in the orthodox view. They contract with States, and investment treaties allow them to arbitrate against States, but the capacity comes from the treaty between States rather than from any personality of their own.

Distinctions table

A worked example

The United Nations sends a mission to State R, which is not a member of the United Nations. A mission vehicle is destroyed and Ms S, a Canadian national employed by the mission, is seriously injured, both through the fault of State R's police.

Can the United Nations claim for the vehicle? Yes. It has international personality, which includes the capacity to bring a claim for damage to itself, and the Reparation opinion held that this holds good against a non-member because the personality is objective.

Can the United Nations claim for Ms S? Yes, by way of functional protection, because she is its agent injured in the performance of her duties, and the claim rests on State R's breach of an obligation owed to the Organization.

Can Canada claim for Ms S? Yes, by way of diplomatic protection, because she is its national. Both claims exist, and the Court expressly declined to lay down a priority: the competition is resolved case by case and by agreement, which in practice means the Organization and the national State coordinate.

Can Ms S claim in her own name? Not before the International Court, since article 34 permits only States to be parties. She may have a remedy in State R's own courts, and a remedy before a human rights body if State R has accepted the relevant procedure. That gap is the practical meaning of saying an individual is a subject only to a limited extent.

What it does NOT mean

"Subject" does not mean "equal". Saying an organisation or an individual is a subject says only that it has some rights and duties of its own. It says nothing about how many.

Personality is not conferred by a label. An entity does not become a subject because a treaty calls it a legal person. The test is functional: what can it actually do?

Being affected by international law is not the same as being a subject of it. A shipping company is affected by the law of the sea every day and is not a subject of it.

An organisation's personality does not make it a State. The Court was explicit that the United Nations is not a super-State, and its personality is limited to what its functions require.

Limits and criticism

The orthodoxy is under pressure from two directions and a good answer notices both.

From below. Corporations conclude agreements with States that look very like treaties, and arbitrate against States under investment treaties. Insisting they have no personality is increasingly a statement about form rather than substance.

From the side. The functional theory of organisational personality is elastic. If powers may be implied whenever they are necessary for an organisation's purposes, and the organisation itself decides what its purposes require, the constituent treaty stops being much of a limit. That objection was made at the time of the Reparation opinion and has never been fully answered.

Quick revision

A subject has rights and duties under international law directly and can act on them. An object is merely something the law is about.

States are the primary subjects: original, general personality. Article 34 of the ICJ Statute: only States may be parties before the Court.

International organisations: Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, page 174. The United Nations has a large measure of international personality, though it is not a super-State; the personality is objective, good against non-members; and it may exercise functional protection of its agents. The opinion is also the source of the doctrine of implied powers. Charter articles 104 and 105 give only municipal capacity and immunities, which is why the Court had to reason from structure.

Individuals: duties directly (Nuremberg, the Rome Statute, piracy), rights directly under some treaties with a procedure under fewer, but no treaty-making capacity and no standing before the ICJ. Subjects to a limited extent.

Others: the Holy See, insurgents and belligerents, national liberation movements. NGOs are not subjects; article 71 consultative status is influence, not personality.

Test yourself

1. Define a subject of international law and give the test.

A subject of international law is an entity possessing international legal personality, meaning the capacity to have rights and duties under international law directly, to bring international claims to vindicate them, and in some cases to make treaties. The test is functional rather than formal: not what a treaty calls the entity, but what it can actually do on the international plane.

2. State the facts and holding of the Reparation for Injuries opinion, and name the three doctrines that come out of it.

The General Assembly asked whether the United Nations could bring an international claim against a State responsible for injury to its agent, and how such a claim would sit with the rights of the agent's national State. The Court held that the Organization has a large measure of international personality and the capacity to operate on the international plane, though it is not a super-State; that it may claim against non-members as well as members; and that it may exercise functional protection of its agents, resting on breach of an obligation owed to the Organization, with the competing claim of the national State to be reconciled case by case. The three doctrines are the international personality of organisations, objective personality opposable to non-members, and implied powers.

3. Distinguish functional protection from diplomatic protection.

Diplomatic protection is a State's claim for injury to its national, and it rests on the bond of nationality; the classic authority on that bond is Nottebohm, in [Nationality]. Functional protection is an organisation's claim for injury to its agent, and it rests not on nationality, of which there is none, but on the breach of an obligation owed to the organisation itself. Both may exist at once on the same facts, and the Reparation opinion declined to rank them.

4. "Individuals are now subjects of international law." How would you qualify that statement?

They are subjects to a limited extent and in defined respects. They bear duties directly, and international tribunals from Nuremberg to the International Criminal Court have punished them without any national law intervening; piracy is the older instance of the same idea. They hold rights directly under human rights treaties, and under a smaller number they may petition an international body. But they cannot make treaties, cannot participate in the formation of custom, and cannot be parties before the International Court of Justice, since article 34 of its Statute admits only States.

5. Why is an international organisation's personality described as derived and functional, and what follows from that?

Derived because it comes from the treaty its member States concluded, unlike a State's personality, which comes from statehood itself. Functional because it extends only so far as the organisation's purposes require, which is the same test the Charter uses in articles 104 and 105 for capacity and immunities. What follows is that different organisations have different capacities, that an organisation cannot act outside its purposes, and that the doctrine of implied powers, which fills gaps by reference to those purposes, is both the strength and the weakness of the theory.

6. Are non-governmental organisations subjects of international law? Give reasons.

No. An NGO is incorporated under some national law, has no capacity to make treaties, bears no international responsibility, and cannot bring an international claim. What it has is access: article 71 of the Charter permits the Economic and Social Council to make arrangements for consultation with non-governmental organisations, and many have consultative status and considerable practical influence on the making of treaties and the reporting of breaches. Influence is not personality, and a candidate who confuses the two will get the question on Amnesty International wrong.