This article is written by Rohit Raj, a Student pursuing B.A. LLB. (Hons.) from Lloyd Law College. This is an exhaustive article which deals with the Concept of International Law and different Subjects of International Law.
“Together with international unity and resolve we can meet the challenge of this global scourge and work to bring about an international law of zero tolerance for terrorism.”
This article basically deals with International law and how International law helps in integrating different nations and maintains peace and cooperation all over the world. International Law is a very wide concept which consists of different treaties, agreements between different nations and different subjects of International law. Law is the part of society which helps to develop a structure within which rights and duties are established. The world needs to build up interstate relations and international law fills this gap.
Different subjects that are included in International law have a different role in establishing good relationships and better cooperation among the Nations. The three major theories that are included in international law are a Realist Theory, Fictional Theory, and Functional Theory. And all the three subjects have a different strategy and role in International law.
International law is a system of agreements and different treaties between different nations which helps in establishing and maintaining cooperation among different nations and also governs the relationship between different nations and how one nation interacts with other nations. Or we can also say that International law is a set of norms which is made up of by different nations through different treaties and customary practices and that norms regulate the relation of one nation to other nations. International law is divided or classified into two branches i.e. ‘Public International law’ and ‘Private International law’.
‘Public International law’ is a branch of International law which deals with the relationships between nations. It also refers to those laws, rules and different principles that concern the conduct of different nations. This means how each nation will behave with the other nations and regulates the different International organizations and sets their role. The primary motive for the creation of Public International law is inter-governmental organizations like the United Nations through the help of international treaties. Public international law includes humanitarian law, environmental law, human rights law, and these laws regulate the matter or issue of these areas particularly.
‘Private International law’ is that branch of International law that deals with the conflict between private entities like the big corporate sector which have a network in more than one nation. Private International law governs the conflicts in the domestic laws of different nations which is related to the private transactions of nations. There is no demarcation between National laws and Private International law because National laws are the primary source of Private International Law. And the laws which were included in Private International law are Contracts, torts, family matters, Intellectual property and many more.
Public International Law includes Humanitarian law, Environmental law, civil rights, and others. Now, we will deal with what are these areas of law which are included or part of Public International law.
Environmental Law comes into existence when there is a matter of global environment. It is more important as more nations realize that the activities of one nation can harm the global environment. Environmental law is a collective term that provides protection to the global environment and restricts the activities of different nations which will deteriorate the global environment.
Humanitarian Law is a part of Public International law which is a set of rules for humanitarian reasons, to put a limitation on the armed conflict that is on the peak. Humanitarian law is basically known as the Law of war or law of armed conflict whose motive is to deal with any issue of war or armed conflict and it is required most and considered as essential when the country is on the verge of war with any country.
Civil rights Law is also a part and this law guarantees the rights for each individual to receive equal treatment and prohibits discrimination in different aspects or areas. This Civil rights law ensures that there should be no suppression of the rights of people. Many countries enact various other laws little similar to the civil rights law i.e. Age Discrimination Act of 1975, Age discrimination in Employment Act, American with Disabilities Act.
Subjects of International Law
Subjects of International law means different entities which possess international personality. Or we can also say that those entities whose rights, duties, and obligations come under the International law and these entities have the power to confer these rights, duties and international obligations through the international claim. Subjects of International law does not mean different types of international law. It simply means the entities which have rights and power conferred in International law.
Earlier this topic i.e. Subjects of International law is not so much debatable but after LPG policy came up in 1991, this topic heated up and becomes so much debatable in International Organizations and the simple reason behind this is that earlier only States were included or qualified for international personality but in the current scenario, many other entities other than the state is qualified for the international personality. There are mainly 7 subjects of International law i.e. States, International Organizations, Non-State entities, Special case entities, Individuals, Minorities and Indigenous People. All these are explained what are these subjects and why it is considered as subjects of International law.
- States are considered as the original and major subject of International law and their legal personality derived from the international system structure. And one good thing is that all the states enjoy equal rights and international legal personalities. The International organization is mainly concerned with the rights, duties of each state and due to which the International organization lays down rules which every state observes and follows.
- International Organizations are an association of different states which are formed with the help of a treaty or agreement between different nations and its function goes beyond the states and deals with the conflict of nations. With the establishment and rise of international organizations in the early 19th century, the legal status of international organizations in International law is questioned. But, the status of international organizations is determined to be a convention among the states.
- Non-State entities are those types of entities that are not registered as an independent state and also not have a legal status like the states have. The Non-State entities have a special type of personality in International law.
- As they have not been registered as an independent state yet the Non-State entities have the right to participate in international conferences and in every treaty. But one thing more that differs it from the states is that the Non-State entities the rights and duties of Non-State entities are not similar to the state and their functions and power were also limited as compared to the state. Non-State entities existed for a particular function and this reason is considered for the limitation of rights and duties of Non-State entities. These entities fall into different categories i.e. Member of the Composed States or federal states, Insurgents and Belligerents, National Liberation movements, International territories.
- Special Case entities are the subjects of International law and Special case entities are classified into two categories which are granted special unique status under International law and they are the Sovereign Order of Malta, and the Holy See and the Vatican City.
- The Sovereign Order of Malta was established during the time of Crusades as a military and medical association. In 1834 order established its headquarters in Rome as a Humanitarian organization. At the time of taking control of Malta, Order already had an international personality and even after leaving the island he continued to exchange diplomatic legations with most of the European states and currently maintains diplomatic relationships with more than 40 states.
- The Holy See and the Vatican City is the international legal person of the Roman Catholic Church and its location is set in the Vatican City in Rome. It is considered as the most unique person of International law and the reason behind why it is considered as the most unique person of International law is that it combines the feature of the personality of the Holy see with its location in the Vatican city, Rome.
- Individuals are always the main concern of International law and the growth of positivist theories of law darkens the concern for human beings but in the 20th century again the International law became concerned for the individuals. During the Second world war, the trend which up comes in international law had been towards blaming or attaching direct responsibilities to the individuals for crimes committed against the peace and security.
- Minorities are the next concern along with the concern of individuals during the 20th century. The serious and major problem which comes out after the first world war is to protect the minorities in Europe. The League of Nations assumed its responsibilities in the field of treaty-based protection of minorities in Europe in social aspects such as education, health, and fair labor standards.
- Indigenous Peoples a special issue that came under International law. Despite so many attempts of the United Nations to recognize group rights to Indigenous peoples but nothing changed and it is still considered as a specific category of minorities with special needs.
There are different theories as regards to the rising debate on Subjects of International law but there are majorly three theories of International law. All three major theories and their explanation is mentioned below.
If we see what the followers of this theory think then we come to know that according to them the only subject of International law is the Nation States. They believe that the Nation-states are the only entities for whose conduct the International law comes into existence. The Nation States have separate legal entities and have their own rights, duties and obligations which they can possess under International law. So, according to the followers of the Realist theory, Nation-states are the ultimate and only subjects of International law.
According to the supporters of the fictional theory the only subjects of international law are the individuals not the nation-states. The reason they gave that the legal orders are for the conduct of human beings and for their wellness. And there’s nothing much difference between Nation States and an individual because Nation States are the aggregate of the individuals. And according to the followers individuals are the sole subjects of International law.
In both the theories i.e. Realistic and Fictional adopted their opinion without considering other subjects of International law. But the functional theory tends to meet both the extremist theories. According to this theory neither Nation States nor individuals are the only subjects of International law. Even, not only the Nation States and individuals are the subjects of International law but other entities have been granted international personality and status and considered as Subjects of International law.
After analyzing all the three theories then according to my view Functional theory is more accurate and best suited for the modern area of International law and also found suitable according to the world condition and trend. Declaring any one subject as the sole subject of International law is never a solution and hence, the other two theories lag behind than the Functional Theory.
Is the existence of International law for all the Nations in the world a Good Concept? It is always said that everything has a positive as well as negative aspects. International law binds the whole nation and ensures positive interaction between different nations and also ensures better cooperation among the Nations.
But on the other side International law has negative aspects as well as International law sometimes. If there will be absence of International law and every country has their own law related to international conflict then it will be a really difficult situation to cope up with each other and finally comes to a single decision to which everyone agrees. But everything has positive and negative aspects so in the future the International law should be amended instead of scrapping it.
And according to the functional theory followers it is said all the entities should be declared as subjects of International law which is good but in the current scenario. In the upcoming days, International law will be more vast and wider so to cope up with a better plan should be made and according to that the subjects of International relations should be declared.
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