Subjects and Actors in International Law


Author: Viljam Engström


Required knowledge:

Learning objectives:

To understand:

  • The interrelations between the concepts of legal subject and legal personality
  • The evolution of the concepts of legal subjects and legal personality
  • The expansion and pluralization of acknowledged actors in international law

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A. Subjects of International LawEdit

I. States and International Organizations as Primary SubjectsEdit

The dawn of the notion of a legal person can be traced back to the publications of G.W. Leibniz in the late 17th century, whereas E. de Vattel’s Le Droit des Gens (1758) is considered to have expanded the moral personality of the state to also cover the international dimension.[2] Any legal system defines who can possess rights and obligations in it. This is the case also for international law. The main subjects of international law are States and international organizations.[3] A particular feature of the international legal system is that it lacks a central legislator (as opposed to domestic law). For this reason, international legal persons are also commonly considered to possess the capacity to create international law. Out of states and international organizations, states are undoubtedly the main subjects, which follows from the central role of state consent for the creation of international law. States can be considered the main source of international law also for the reason that one characterizing feature of international organizations is that they consist of states as their constituents.

The concepts of legal subjectivity and legal personality were noted to be controversial by the ICJ already in 1948 in the Reparations for Injuries case,[4] and raises renewed questions today. In practice 'legal subject' and 'legal person' are commonly used as synonyms. However, they need not be identical. To be a subject can be characterized as possessing an academic label, whereas personality is a status conferred by the legal system.[5] There are also diverging views as to whether the capacity to create international law should be a necessary attribute for legal personality to begin with.[6]

In respect of states and international organizations, the International Court of Justice] has made clear that their status as legal subjects is not identical. What this means for international organizations, is that their "legal personality and rights and duties are [not] the same as those of a State".[7] Further, it means that organizations are "capable of possessing international rights and duties, and ... [have] capacity to maintain ... rights by bringing international claims".[8] This does not mean that the legal personality of organizations is "lesser" in the sense that the rights and obligations of organizations could never be more extensive than those of states. The paradigm example is the monopoly on authorization of use of force possessed by the United Nations.[9]

II. Other SubjectsEdit

In addition to states and international organizations, some actors are commonly identified at the fringes of legal subjectivity. Among such actors are for example national liberation movements, which may have a role as a de facto government, have the capacity to conclude international agreements, and possess rights and obligations under international humanitarian law. The Holy See is also often mentioned, being a party to multiple treaties, having concluded diplomatic relations, and governing a defined territory, all of which can be considered elements of statehood. For this reason the Holy See is considered to possess international legal personality which approximates that of a state, although lacking some central characteristics. Also governments in exile, as well as self-governing territories may exercise functions that indicate the possession of limited legal personality.[10]

B. The Expanding Sphere of Actors of International LawEdit

I. The Eroding Distinction Between Subjects and ObjectsEdit

The concept of international legal personality has been subject to debate ever since it was first launched. Also today, as it becomes clear that more and more persons or other actors have the capacity to possess rights and duties, the question arises whether this also affects (or should affect) the conventional divide between subjects and objects of international law. The position of the individual is a classical debate in this respect, with George Scelle already in the early 20th century positioning individuals as international law´s subjects.[11] Along with the proliferation of international human rights, humanitarian, and criminal law, the status of the individual in international law has been increasingly subject to debate. Whereas the Permanent Court of International Justice in the Jurisdiction of the Courts of Danzig case held that "an international agreement, cannot, as such, create direct rights and obligations for private individuals", in all of these areas of international law individuals are now conferred rights and obligations,[12] claims have been made for the recognition of the international legal personality of individuals.[13]

Another actor the position of which is claimed to be in change is that of animals. Animals are considered rights holders,[14] and for example several European countries have acknowledged in their civil codes that animals are not mere "things", indicating a difficulty of positioning animals in the subject-object dichotomy.[15] This has generated calls for acknowledging at least a limited legal personality of animals.[16]

II. The Pluralization of Actors of International LawEdit

In addition to being legal subjects and possessing international legal personality, states and international organizations are undoubtedly also "actors" of, or "participants" in, the international legal system. Rosalyn Higgins in 1994, building on the ideas of the so-called New Haven School, preferred to approach international law as a dynamic process of decision-making that through "interaction of demands by various actors, and state practice in relation thereto, … leads to the generation of norms and the expectation of compliance in relation to them".[17] In this "actor conception" the importance of the notion of legal personality as a threshold for the creation of international law is reduced.[18] A realization of the limits of the conventional subjects doctrine goes hand in hand with globalization and the consequent surge in the institutionalization of international cooperation.[19] A state-centered image of international law is considered overly narrow both in respect of the actors that it acknowledges as well as the instruments and acts that it considers relevant.

A thickening “regulatory” or “governance” layer has been noted to be emerging, developed through institutional regimes, atop the constitutional and legislative layer.[20] This emergence of new political arenas and actors is sometimes addressed as the 'post-national condition', taking hold of the fact that the pluralization of regulatory authority and proliferation of new forms of law and politics also suggests that the role of the nation state is under change.[21]

This development does not solely take place outside of the realm of states and international organization. To the contrary. International organizations themselves actually partially drive this development. A phenomenon known as 'agencification' concerns the establishment of international bodies that are not based on international agreements but on decisions of international organizations. This includes for example subsidiary bodies established by the UN General Assembly (such as UNEP and UNDP), but also bodies established jointly by organizations (such as the WFP or the Codex Alimentarius Commission).[22] Also in the European Union agencies (such as the Maritime Safety Agency and the European Fisheries Control Agency) have become new sources of authority.[23] Agencies in the EU have separate legal personality,[24] whereas the situation among agencies in international law in general is more varied.

Whereas agencies display an institutional relationship to the founding organization(s), a pluralization of actors in international law also goes further than that practice. Under labels such as "post-national rule-making",[25] "global administrative law",[26] "exercise of public authority",[27] and "informal international lawmaking",[28] interest has been turned to less formalized forms of international collaboration. These approaches bring into focus actors such as the G20, the ISO, and ICANN, and explore the performance of their tasks, their role in global governance, and the regulatory impact of their activities. As part of this, also domestic authorities become of interest,[29] including cities,[30] none of which are international legal subjects, but which can bear rights and obligations and play a role in implementing international law.[31]

There are merits and demerits with this development at large, as well as in respect of particular actors (discussed more in detail in the consequent chapters). This broadening of the scope of international law to include a varied range of institutional actors also raises question marks concerning the conventional squaring of the notions of "subject of international law" and "international legal personality".[32] At any rate it seems clear that the conventional doctrine of international legal personality can be inadequate or even an obstacle to discussing other actors than states or international organizations from a legal perspective.[33]

Further ReadingsEdit

  • Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law ‐ Contributions to Disciplinary Thought (Edvard Elgar 2017)
  • Jean d´Aspremont (ed.), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011)
  • Helmut Aust and Janne E. Nijman (eds), Research Handbook on International Law and Cities (Edvard Elgar 2021)
  • Ayelet Berman, Sanderijn Duquet, Joost Pauwelyn, Ramses A. Wessel and Jan Wouters (editors), Informal International Lawmaking: Case Studies, Torkel Opsahl publishers (2012).
  • Armin Bogdandy et al., The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Springer 2010)
  • Damian Chalmers, 'Post-nationalism and the Quest for Constitutional Substitutes', (2000) 27 Journal of Law and Society
  • Richard Collins, The Institutional Problem in Modern International Law (Hart 2916)
  • Elaine Fahey (ed), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (Routledge 2016)
  • David Favre, ‘Living Property: A New Status for Animals Within the Legal System’ (2010) 93 Marquette Law Review
  • Articles in (2008) 9(11) German Law Journal
  • Rosalyn Higgins,Problems and Process: International Law and how We Use it (Clarendon Press 1994)
  • Fleur Johns (ed), International Legal Personality, Ashgate, 2010
  • Benedict Kingsbury, 'The Concept of Law in Global Administrative Law', (2009) 20 European Journal of International Law
  • Jan Klabbers, 'The Concept of Legal Personality' (2005) 11 Ius Gentium
  • Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Law (TMC Asser Press 2004)
  • Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (CUP 2016)
  • Joost Pauwelyn et al.,Informal International Lawmaking (OUP 2012)
  • Roland Portmann, Legal Personality in International Law (CUP 2010)
  • Cass R. Sunstein and Martha C. Nussbaum (eds), Animal Rights: Current Debates and New Directions (OUP 2005)
  • Birgitta Wahlberg, 'Animal Law in General and Animal Rights in Particular' (2021) 67 Scandinavian Studies in Law
  • Ramses A. Wessel, Decisions of International Institutions: Explaining the Informality Turn in International Institutional Law

ConclusionEdit

  • The notions of legal subject and legal personality are often used interchangeably
  • States and International organizations are the predominant legal subjects in international law
  • Many other actors can display features of legal personality
  • A changing conception of who is an actor in international law (as well as what acts are part of that law) challenges the subject - object dichotomy
  • Contemporary legal discourse acknowledges a wide variety of actors as part of the international legal system which challenges the conventional conception of legal subject / legal personality

Table of ContentsEdit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

FootnotesEdit

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Catherine Brölmann and Janne Nijman, Legal personality as a fundamental concept of international law, in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law ‐ Contributions to Disciplinary Thought (Edvard Elgar 2017)
  3. In this context meaning "intergovernmental organizations".
  4. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Reports 1949
  5. Jan Klabbers, 'The Concept of Legal Personality' (2005) 11 Ius Gentium
  6. Roland Portmann, Legal Personality in International Law (CUP 2010)
  7. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Reports 1949
  8. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ICJ Reports 1949
  9. Robert Kolb, An Introduction to the Law of the United Nations (Hart Publishing 2010)
  10. See e.g. James Crawford, Brownlie´s Principles of Public International Law (OUP 2012), 123-125
  11. George Scelle, Précis de Droit des Gens, Principes et Systématique Vol I, Introduction, le milieu intersocial (1932)
  12. [https://www.icj-cij.org/sites/default/files/permanent-court-of-international-justice/serie_B/B_15/01_Competence_des_tribunaux_de_Danzig_Avis_consultatif.pdf Jurisdiction of the Courts of Danzig (Advisory Opinion) 1928
  13. Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (CUP 2016)
  14. Cass R. Sunstein and Martha C. Nussbaum (eds), Animal Rights: Current Debates and New Directions (OUP 2005)
  15. Birgitta Wahlberg, 'Animal Law in General and Animal Rights in Particular' (2021) 67 Scandinavian Studies in Law
  16. David Favre, ‘Living Property: A New Status for Animals Within the Legal System’ (2010) 93 Marquette Law Review
  17. Rosalyn Higgins,Problems and Process: International Law and how We Use it (Clarendon Press 1994)
  18. Roland Portmann, Legal Personality in International Law (CUP 2010)
  19. Richard Collins, 'Mapping the Terrain of Institutional Lawmaking: Form and Function in International Law', in Elaine Fahey (ed), The Actors of Postnational Rule-Making; Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Law (TMC Asser Press 2004)
  20. Richard Collins, The Institutional Problem in Modern International Law (Hart 2916); 235; Jean d´Aspremont (ed.), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011)
  21. Damian Chalmers, 'Post-nationalism and the Quest for Constitutional Substitutes', (2000) 27 Journal of Law and Society
  22. Edoardo Chiti and Ramses A. Wessel, 'The Emergence of international agencies in the global administrative space', in Richard Collins and Nigel D. White, International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (Routledge 2011
  23. Elspeth Guild et al., Implementation of the EU Charter of Fundamental Rights and its Impact on EU Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office (2011), Report to the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs; Deirdre Curtin, Executive Power of the European Union: Law Practices, and the Living Constitution (OUP 2009
  24. European Parliamentary Research Service, EU Agencies, Common Approach and Parliamentary Scrutiny (2018)
  25. Elaine Fahey (ed), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (Routledge 2016)
  26. Benedict Kingsbury, 'The Concept of Law in Global Administrative Law', (2009) 20 European Journal of International Law
  27. Armin Bogdandy et al., The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (Springer 2010)
  28. Joost Pauwelyn et al.,Informal International Lawmaking (OUP 2012)
  29. See e.g. Lorenzo Casini, 'Domestic Public Authorities within Global Networks: Institutional and Procedural Design, Accountability, and Review', in Joost Pauwelyn et al.,Informal International Lawmaking (OUP 2012)
  30. Helmut Aust and Janne E. Nijman (eds), Research Handbook on International Law and Cities (Edvard Elgar 2021)
  31. Yishai Blank, 'International Legal Personality/Subjectivity of Cities', in Helmut Aust and Janne E. Nijman (eds), Research Handbook on International Law and Cities (Edvard Elgar 2021)
  32. Gerd Droesse, Membership in International Organizations: Paradigms of Membership Structures, Legal Implications of Membership and the Concept of International Organization (TMC Asser 2020)
  33. Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Law (TMC Asser Press 2004)