Public International Law/Subjects and Actors in International Law





Author: Viljam Engström "Required knowledge: History of International Law, Sources of International Law" 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 pluralisation of acknowledged actors in international law

A. Introduction
Any legal system defines who can possess rights and obligations in it. This is also the case for international law. This chapter identifies States as the paramount subjects of international law, with international organisations possessing legal personality alongside states. Our conception of the sphere of actors that can have a regulatory function at the international level has broadened beyond these two subjects to include for example individuals, non-governmental organisations, corporations, animals and cities. This chapter introduces the challenge that this poses to the conventional conception of subjects of international law.

I. States and International Organisations as Primary Subjects
The main subjects of international law are States and international organisations. States are commonly considered the original subjects of international law. Out of States and international organisations, 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 organisations is that they consist of States as their constituents. A particular feature of the international legal system is that it lacks a central legislator (compared to domestic law). For this reason, international legal persons are also commonly considered to possess the capacity to create international law. In other words, the capacity to have rights/obligations under international law is a defining feature of being an international legal person.

The notion of a legal person as such 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. 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. There are also diverging views as to whether the capacity to create international legal obligations should be a necessary attribute for legal personality to begin with.

The international legal personality of international organisations was confirmed by the International Court of Justice] in 1948 in the Reparations for Injuries case. In the case the ICJ made clear that the status as legal subjects of States and international organisations is not identical. What this means for international organisations, is that their 'legal personality and rights and duties are [not] the same as those of a State'. Organisations rather have a capacity for possessing international rights and duties. This means that no automatic set of rights or legal powers can be derived from the possession of personality as such. Instead, the nature and extent of rights of organisations depend on 'the needs of the community'. Some common power that organisations do possess are, however, the capacity to conclude treaties, to acquire and dispose of property, and to institute legal proceedings.

This does not mean that the legal personality of organisations is categorically 'lesser' in the sense that the rights and obligations of organisations 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.

II. Classical Subjects "in the Greyzone"
In addition to States and international organisations, 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. Actors of international law can, in other words, enjoy legal personality to various degrees.

I. The Eroding Distinction Between Subjects and Objects
The concept of international legal personality has always been subject to debate. Today, as it becomes clear that more and more actors have the capacity to possess rights and duties in international law, 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. Along with the proliferation of international human rights, humanitarian, and criminal law, the status of the individual in international law has been increasingly elevated. Another actor the position of which is in change is that of animals. Animals are considered rights holders, and several countries have in their civil codes gone beyond treating animals as mere "things". This has also generated calls for acknowledging at least a limited legal personality of animals.

II. The Pluralisation of Actors of International Law
In addition to being legal subjects and possessing international legal personality, States and international organisations are undoubtedly also 'actors' of, and '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'. In this 'actor conception' the importance of the notion of legal personality as a threshold for the creation of international law is reduced. A realisation of the limits of the conventional subjects doctrine goes hand in hand with globalisation and the consequent surge in the institutionalisation of international cooperation. 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 'regulatory' or 'governance' layer is steadily thickening, developed through institutional regimes, atop the constitutional and legislative layer. This emergence of new political arenas and actors is sometimes addressed as the 'post-national condition', taking hold of the fact that the pluralisation of actors and the corresponding proliferation of new forms of regulatory acts also suggests that the role of the nation State is under change. This development does not solely take place outside of the realm of States and international organisations. 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). Also in the European Union agencies (such as the Maritime Safety Agency and the European Fisheries Control Agency) have become new sources of authority. Agencies in the EU have separate legal personality, whereas the situation among agencies in international law in general is more varied.

Whereas agencies display an institutional relationship to the founding organisation(s), a pluralisation of actors in international law also goes further than that practice. Under labels such as 'post-national rule-making', 'global administrative law', 'exercise of public authority', and 'informal international lawmaking', interest has been turned to less formalised 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, the regulatory impact of their activities, and the potential status of their acts as sources of international law. As part of this, also domestic authorities become of interest, including cities, which can bear rights and obligations and play a role in implementing international law. There are merits and demerits with this development at large, as well as in respect of particular actors (discussed more in detail in the subsequent chapters). This broadening of the scope of international law to include a varied range of actors also raises question marks concerning the conventional squaring of the notions of 'subject of international law' and 'international legal personality'. 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 organisations from a legal perspective.

D Conclusion
This chapter has positioned States and international organisations as the conventional legal subjects of international law. Out of these two, States are the legal subjects par excellence, as State consent is needed for the creation of international legal obligations, including the establishment of organisations. An increasingly expanding set of actors are however acknowledged as performing a regulatory function in the international legal system. This development reveals the inadequacy of a subject - object dichotomy for capturing this regulatory function and its effect. The following sub chapters will further expand on the status and function in international law of a set of actors not traditionally thought of as international legal subjects.

Further Readings

 * Johns F (ed), International Legal Personality (Ashgate 2010)
 * Fahey E (ed), The Actors of Postnational Rule-Making: Contemporary Challenges of European and International Law (Routledge 2016)
 * Special Issue: Legal Personality (2005) 11 Ius Gentium
 * Special Issue: The Exercise of Public Authority by International Institutions, (2008) 9(11) German Law Journal
 * Wessel RA, 'Decisions of International Institutions: Explaining the Informality Turn in International Institutional Law' (conference paper 2014)

Summary

 * The notions of legal subject and legal personality are often used interchangeably
 * States and International Organisations 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 and legal personality