en_subjects2 (5)

1.

LECTURE · PUBLIC INTERNATIONAL LAW
Subjects of IL — II
IOs, Individuals
& other actors
Reparation Case · Nuremberg · NGOs · TNCs · Holy See · SMOM
Academic Lecture Series

2.

OUTLINE
Lecture Contents
Five parts
01
03
Framework
Beyond the state monopoly — categories of subjects.
Reparation Case (1949), implied powers, ARIO.
The individual
Non-state actors
Nuremberg, HR treaties, ICC, standing.
05
02
International organizations
04
NGOs, TNCs, UNGPs, armed groups.
Sui generis subjects
Holy See, SMOM, ICRC, NLMs, peoples.
Subjects of IL II · IOs, Individuals, Other Actors
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3.

PART I
Framework
Beyond the state monopoly · Categories · Personality

4.

CHAPTER 01 · SUBJECT
Subject of international law · concept
Who can hold rights and duties under IL?
REPARATION CASE · ICJ 1949 · P. 178
«The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and
their nature depends upon the needs of the community».
Capacity to have rights
Capacity to invoke
Not identical to states
Ability to bear rights and duties directly under IL — not
Standing to bring international claims or defend
Different subjects have different scopes of personality
through a state's mediation.
against them.
— «attributed» + «limited».
Subjects of IL II · IOs, Individuals, Other Actors
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5.

CHAPTER 01 · EVOLUTION
From state monopoly to pluralist IL
Growing catalogue of subjects — 20th century revolution
States
International organizations
The individual
Full personality — 1648 Westphalia to today; primary
Derivative but wide personality — Reparation Case
Rights holder (HR treaties); duty bearer (int'l criminal
and «full» subjects.
(1949) landmark.
law) since Nuremberg 1946.
Non-state actors
Sui generis entities
Peoples (limited)
NGOs, TNCs, armed groups — limited or emerging
Holy See, Sovereign Military Order of Malta, ICRC —
Right to self-determination; not «full» personality but
personality; still contested.
unique historical status.
recognized capacity.
Subjects of IL II · IOs, Individuals, Other Actors
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6.

PART II
International organizations
Reparation Case · Personality · Implied powers · ARIO

7.

CHAPTER 02 · CONCEPT
What is an international organization?
ILC ARIO 2011 · Article 2(a)
ARIO ART. 2(a)
«International organization» means an organization established by a treaty or other instrument governed by international law
and possessing its own international legal personality. IOs may include as members, in addition to states, other entities.
Established by treaty
Own legal personality
Members can vary
Constituent instrument — a treaty governed by IL.
Separate from that of the member states — legally
Not only states — may include other IOs, entities (e.g.,
distinct entity.
WTO has EU as member).
Subjects of IL II · IOs, Individuals, Other Actors
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8.

ICJ · ADVISORY OPINION
Case · Reparation for Injuries (ICJ, 1949)
The landmark decision on international personality of IOs
FACTS
17 September 1948 — Count Folke Bernadotte, Swedish UN mediator in Palestine, assassinated in Jerusalem by Zionist militants. UNGA
sought advisory opinion.
Question I
Question II
Does UN have capacity to bring int'l claim for reparation for injuries to its agents?
If yes — how is action of UN reconciled with rights of the victim's national state?
Vote
Citation
Unanimous on question 1; 11–4 on question 2 — landmark unanimity.
ICJ Reports 1949, p. 174 · https://www.icj-cij.org/case/4
Subjects of IL II · IOs, Individuals, Other Actors
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9.

ICJ · HOLDINGS
Reparation Case · holdings
Foundational statement on IO legal personality
CENTRAL FINDING
«The Organization is an international person. That is not the same thing as saying that it is a State... It is a subject of international
law and capable of possessing international rights and duties».
Objective personality
Functional necessity
UN's personality is «objective» — opposable even to non-member states.
Personality flows from what is «necessary to the exercise of its functions».
Implied powers
Diplomatic protection of agents
IOs have powers not expressly conferred but implied by their functions.
UN can bring international claim on behalf of injured agent, alongside state of
nationality.
Subjects of IL II · IOs, Individuals, Other Actors
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10.

CHAPTER 02 · TYPES
Types of IO legal personality
Subjective / objective + external / internal
SUBJECTIVE PERSONALITY
OBJECTIVE PERSONALITY
Toward member states
Toward all states
Opposable to members only
Opposable even to non-members
IO's personality exists in law by virtue of state consent — binds only members
Reparation Case — UN has personality opposable to non-members too.
who created it. Most IOs have this at minimum.
Reserved for near-universal IOs (UN specialised agencies, WTO, WHO).
Subjects of IL II · IOs, Individuals, Other Actors
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11.

CHAPTER 02 · IMPLIED POWERS
The implied powers doctrine
Powers not expressly stated but essential to the IO's functions
REPARATION CASE · P. 182
«Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are
conferred upon it by necessary implication as being essential to the performance of its duties».
UN peacekeeping
Effect of Awards (1954)
Not mentioned in Charter — implied from Chapter VI + VII combined.
UN can establish administrative tribunal (UNAT) even though Charter is silent.
Certain Expenses (1962)
Limits
UN can incur expenses for peacekeeping — implied from purposes.
Powers must be «necessary», not merely convenient; still bounded by consent.
Subjects of IL II · IOs, Individuals, Other Actors
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12.

CHAPTER 02 · ARIO
Responsibility of IOs · ARIO 2011
ILC Draft Articles on Responsibility of International Organizations
ADOPTED BY ILC 2011 · 67 ARTICLES
Mirrors ARSIWA 2001 for states. Establishes: internationally wrongful acts of IOs, attribution, circumstances precluding wrongfulness,
consequences.
Art 4 · Wrongful act
Art 6 · Attribution
Two elements: attributable to IO + breach of an international obligation of IO.
Conduct of organs / agents of IO is attributed — even acting ultra vires.
Art 7 · Placed at disposal
Art 62 · Member responsibility
State organ placed at IO disposal — attribution follows «effective control» test.
Members may be responsible for IO wrongdoing if they authorized or contributed.
Subjects of IL II · IOs, Individuals, Other Actors
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13.

PART III
The individual
Nuremberg · Human rights · Int'l criminal responsibility · Standing

14.

CHAPTER 03 · HISTORY
The individual · historical development
From object to subject of international law
Pre-1945
1945-46
Object of IL
Nuremberg + Tokyo
Only state could protect its citizen — Mavrommatis (1924): «by taking up the case of
«Crimes against IL are committed by men, not by abstract entities» — individual
one of its subjects the State is asserting its own right».
criminal responsibility.
1948-onwards
1998
HR treaties
ICC + Rome Statute
UDHR + ICCPR + ICESCR + regional systems (ECHR, ACHR, ACHPR) — individual as
Permanent International Criminal Court — universal individual responsibility for
rights-holder.
atrocity crimes.
Subjects of IL II · IOs, Individuals, Other Actors
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15.

CHAPTER 03 · NUREMBERG
Nuremberg Tribunal (1945-46)
Birth of international individual criminal responsibility
IMT JUDGMENT · 1 OCT 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».
Crimes against peace
War crimes
Planning, preparation, initiation, or waging of a war of aggression.
Violations of laws or customs of war — murder, ill-treatment, deportation.
Crimes against humanity
Conspiracy
Murder, extermination, enslavement, persecution — even against own nationals.
Common plan or conspiracy for the commission of the above crimes.
Subjects of IL II · IOs, Individuals, Other Actors
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16.

CHAPTER 03 · HR
Human rights treaties
Individual as rights-holder before international bodies
UDHR 1948
ICCPR + ICESCR 1966
ECHR 1950
Foundational — not binding as such, but core is now
«International Bill of Rights» — 170+ parties each.
Council of Europe — European Court of HR
CIL.
(Strasbourg).
ACHR 1969
ACHPR 1981
CEDAW, CAT, CRC etc.
OAS — Inter-American Commission and Court.
African Charter — African Commission + Court.
Specialized treaties — each with treaty body
monitoring.
Subjects of IL II · IOs, Individuals, Other Actors
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17.

CHAPTER 03 · COMPLAINTS
Individual complaints procedures
Direct access — the individual as party before international bodies
HR Committee (ICCPR OP1)
CEDAW Committee
«Views» on individual communications from states that ratified First Optional
Optional Protocol allows individual complaints on discrimination against women.
Protocol.
CAT Committee
ECHR — direct access
Complaints of torture from persons under jurisdiction of a state party.
Since Protocol 11 (1998) — individuals can bring cases directly against member
states.
Inter-American system
African Court
Petitions to Commission; Court hears cases referred by Commission or state.
Cases from individuals via NGOs — Protocol requires special state acceptance.
Subjects of IL II · IOs, Individuals, Other Actors
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18.

CHAPTER 03 · ICC
International Criminal Court (ICC)
Rome Statute 1998 — permanent international court for individuals
ROME STATUTE · 17 JULY 1998 · IN FORCE 1 JULY 2002
First permanent international court to try individuals for genocide, crimes against humanity, war crimes and aggression. Complementary
to national courts.
Rome Statute crimes
Complementarity
Genocide (Art. 6), crimes against humanity (7), war crimes (8), aggression (8bis).
ICC steps in only when national courts unwilling or unable to prosecute.
Jurisdiction
124 states parties
Nationals of parties + acts on territory of parties + UNSC referral.
Notable non-parties: USA, Russia, China, India — limits universal reach.
Subjects of IL II · IOs, Individuals, Other Actors
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19.

PART IV
Non-state actors
NGOs · TNCs · UNGPs · Armed groups

20.

CHAPTER 04 · NGOs
Non-governmental organizations (NGOs)
Civil society actors — influence without formal personality
STATUS IN IL
NGOs lack formal international legal personality — but their influence on norm creation + enforcement is now widely acknowledged.
ECOSOC consultative status
Human rights monitoring
UN Charter Art. 71 — categories I, II, roster. 6 000+ NGOs currently.
Amnesty, HRW — reports feed into UN and HR treaty bodies.
Norm-entrepreneurs
Amicus curiae
Land Mines Ban (ICBL 1997), Cluster Munitions (2008), R2P — NGO-driven treaties.
Written briefs at ICJ, ICC, WTO, ISDS tribunals — increasingly accepted.
Subjects of IL II · IOs, Individuals, Other Actors
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21.

CHAPTER 04 · TNCs
Transnational corporations (TNCs)
Economic power, ambiguous legal status
SCALE
Top TNCs (Apple, Aramco, Walmart) have revenues larger than many states' GDPs — but IL still treats them primarily as objects, not
subjects.
Nationality of host state
Investment protection
Traditionally «nationals» of state of incorporation — Barcelona Traction (1970).
ICSID, BITs — can bring claims against host states = limited procedural personality.
HR obligations
Criminal liability
Direct obligations still debated — UN Guiding Principles = «responsibility to respect».
No international criminal responsibility of corporations — ICC only individuals.
Subjects of IL II · IOs, Individuals, Other Actors
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22.

CHAPTER 04 · UNGPs
UN Guiding Principles · Ruggie Framework (2011)
«Protect, Respect, Remedy» — the authoritative business + HR standard
HRC RES 17/4 (2011) · UNANIMOUSLY ENDORSED
Prof. John Ruggie's «Framework» — 31 Guiding Principles operationalising three pillars. Soft law but with strong normative pull.
Protect
Respect
Remedy
State duty
Corporate responsibility
Access to redress
States must protect against HR abuses by third parties,
Business enterprises must avoid infringing HR of
Both state and corporate — both judicial and non-
including businesses, within their territory or
others + address adverse impacts.
judicial remedies for HR harm.
jurisdiction.
Subjects of IL II · IOs, Individuals, Other Actors
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23.

CHAPTER 04 · ARMED GROUPS
Armed groups + national liberation movements
Limited personality — but bound by IHL
Insurgents / rebels
Belligerents
Bound by IHL applicable in NIAC (Common Art 3 + Additional Protocol II) — but not
Recognized rebels with organized command + effective control of territory — treated
«subjects» of IL.
as if state for war law.
National liberation movements
De facto regimes
PLO, SWAPO — 1974 UNGA recognition; can conclude treaties, observers at UN.
Somaliland, Transnistria, Abkhazia — control territory, seek statehood, not
recognized.
Terrorist organisations
Private military companies
ISIS, Al-Qaeda — bound by IHL as parties to conflict; no personality as legal subjects.
Wagner, Blackwater — accountability gap; state responsibility for their conduct.
Subjects of IL II · IOs, Individuals, Other Actors
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24.

CHAPTER 04 · IHL
Individuals + armed groups in IHL
ICRC Interpretive Guidance on Direct Participation in Hostilities (2009)
ICRC · MELZER INTERPRETIVE GUIDANCE 2009
Non-state actors are increasingly relevant subjects of IHL — bound by rules, liable for war crimes, subject to targeting rules.
«Continuous combat function»
Civilians directly participating
Members of organized armed groups — targetable at all times, not just during acts.
Lose protection «for such time as» they take direct part in hostilities.
Three-part test
Individual war crimes
Threshold of harm + direct causation + belligerent nexus — all three required.
Nuremberg legacy — members of armed groups liable for war crimes at ICC +
national courts.
Subjects of IL II · IOs, Individuals, Other Actors
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25.

PART V
Sui generis subjects
Holy See · Sovereign Order of Malta · ICRC · NLMs · Peoples

26.

CHAPTER 05 · HOLY SEE
The Holy See + Vatican City State
A unique dual personality in international law
HOLY SEE
VATICAN CITY STATE
The government of the Church
Territorial base since 1929
Sui generis subject
Lateran Treaty with Italy
Holy See has been a subject of IL for centuries — even during 1870-1929 when
0.5 km² state — created 1929 to provide territorial base for Holy See
it had no territory. Non-member observer at UN + treaty-making capacity.
sovereignty. ~800 inhabitants. Meets Montevideo criteria of statehood.
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27.

CHAPTER 05 · SMOM
Sovereign Military Order of Malta (SMOM)
A subject of IL without territory — unique medieval survival
FOUNDED 1099 · BASED IN ROME
Founded as Order of St John of Jerusalem during Crusades. Lost Malta 1798, seat in Rome since 1834. Recognized as sovereign subject of IL
— no territory required.
Bilateral relations
Passports + license plates
Formal diplomatic relations with 110+ states — including Kazakhstan (2013).
Issues own passports (~500), diplomatic license plates, postage stamps, coins.
Observer at UN
Humanitarian mission
Non-member permanent observer since 1994 — participates in UN meetings.
Runs hospitals, medical services, refugee assistance in 120+ countries.
Subjects of IL II · IOs, Individuals, Other Actors
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28.

CHAPTER 05 · ICRC
International Committee of the Red Cross (ICRC)
Private Swiss association with international mandate — sui generis
FOUNDED 1863 GENEVA · HENRY DUNANT
Founded after Battle of Solferino (1859). Under Swiss law an association — but with mandate under Geneva Conventions treated as a
subject of IL for its humanitarian functions.
Geneva Conventions mandate
Treaty-making capacity
Common Art 3 + Convention I Art 9 — right of humanitarian initiative in armed
Headquarters agreements with 100+ states — diplomatic status of delegates.
conflict.
Testimonial privilege
Non-recognition
ICTY Simic (1999): ICRC has right not to testify — sui generis privilege in IL.
Not member of UN; not formally «international organization»; unique legal person.
Subjects of IL II · IOs, Individuals, Other Actors
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29.

CHAPTER 05 · NLMs
National liberation movements (NLMs)
Recognized subjects of IL — during the decolonization era
UN RECOGNITION
Movements representing peoples fighting colonial, alien, racist domination — recognized as legitimate representatives of peoples struggling
for self-determination.
PLO
SWAPO
Palestine Liberation Organization — UN observer since 1974; treaty-making capacity.
South West Africa People's Organization — Namibian independence 1990.
ANC
Additional Protocol I 1977
African National Congress — recognized during apartheid; now governs South Africa.
Art 1(4) — extends IHL of IACs to armed conflicts against colonial + racist regimes.
Subjects of IL II · IOs, Individuals, Other Actors
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30.

CHAPTER 05 · PEOPLES
Peoples, indigenous groups + minorities
Collective subjects with limited but real personality
«Peoples»
Indigenous peoples
Right to self-determination (Common Art. 1 ICCPR/ICESCR) — collective right vs
UNDRIP 2007 — recognizes collective rights: FPIC, land, culture, self-government.
collective bearer.
Minorities
Non-self-governing territories
ICCPR Art. 27 — right to enjoy own culture, religion, language in community with
UN Charter Ch. XI — obligations of administering powers, right of inhabitants to self-
others.
determination.
Trust territories
Failed states
UN Charter Ch. XII (now largely obsolete after decolonization) — special status.
Somalia (1991-2012) — controversial: does statehood survive collapse of
government?
Subjects of IL II · IOs, Individuals, Other Actors
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31.

OVERVIEW · COMPARISON
Comparative overview · subjects of IL
At-a-glance summary of scope of legal personality
PERSONALITY
SCOPE
KEY BASIS
States
Full, original
Universal
Sovereign equality
IOs
Derivative, functional
As per constituent instrument
Reparation Case 1949
Individual
Limited (rights + duties)
HR + ICL
Nuremberg 1946 + HR treaties
NGOs
None (informal influence)
Consultative + advocacy
ECOSOC Art. 71
TNCs
Procedural (ISDS)
Investment protection + UNGPs
BITs + ICSID + Ruggie 2011
Sui generis
Historical + humanitarian
Historical continuity
SUBJECT
Holy See / SMOM / ICRC
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32.

KEY TAKEAWAYS
Summary
Reparation Case (1949) — UN has «objective» international personality;
01
personality is functional, not identical to that of a state.
Implied powers doctrine — IOs have powers necessary to fulfill
02
Individual — from Nuremberg (1946) rights + duties directly under IL; ICC
03
(2002) permanent forum for individual criminal responsibility.
Non-state actors — NGOs, TNCs have limited or emerging personality;
04
Sui generis subjects — Holy See (dual), Vatican City, SMOM (no territory),
05
ICRC (Geneva Conventions mandate).
functions, even if not expressly conferred by constituent instrument.
UNGPs (Ruggie 2011) — «Protect, Respect, Remedy».
Modern IL is pluralist: state remains primary, but individuals, IOs, and
06
non-state actors all bear rights and duties in varying scope.