Topic 2

Soft Law Rules and Interpretation

• Soft law rules can be used to interpret rules of law proper.
• 'Soft law' covers vague provisions of international treaties that do not provide a clear regulation of social relations.
• 'Softness' is due to the non-self-sufficiency of the prescription rather than its non-binding nature.
  • Agreement is more easily reached if the form is non-binding.
  • Soft law instruments allow states to agree to more detailed and precise provisions because their legal obligations and the consequences of non-compliance are more limited.
  • These instruments are convenient for some states because they do not require domestic ratification procedures.
  • Soft law instruments are flexible, easier to supplement, amend, or replace than treaties.
  • Soft law instruments can provide more direct evidence of international support and consensus than a treaty, whose impact is severely limited by reservations and the need to await ratification and entry into force.

Sources of Public International Law: Definition and Types

• Article 38 of the ICJ Statute:
  1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states.
  2. International custom, as evidence of a general practice accepted as law.
  3. The general principles of law recognized by civilized nations.
  4. Subject to Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
• The judgment does not limit the Court's power to resolve a case ex aequo et bono if the parties agree.
• Ex aequo et bono translates to “according to good faith and justice.” It refers to a court rendering a judgment not bound by strict rules of law but guided by fairness and common sense.
• Article 38 should not establish a hierarchy of sources of international law.
• Treaty and custom are formed by States whose legal personality is not split in the process of international law-making and are not in a relationship of subordination.
• Article 38 may reflect a sequence which the Court must follow:
  1. Treaties, which lay down clear rules.
  2. Custom, the content of which tends to be more vague.
  3. General principles of law, the task of which is to fill in the gaps.
• It is questionable whether judicial practice and doctrine are sources of law, but their importance for the interpretation of rules of law and the establishment of international custom cannot be denied.
• This algorithm should not be overestimated: custom can be clearer than a treaty.
• Article 38 does not mention acts of international organizations and unilateral acts of states, which may also create international obligations, partly explained by the fact that the Statute was adopted in 1945 and reflects the level of development of international law in the relevant period.
• Formal vs. Material Sources:
  • Formal sources confer an obligatory character upon the rules.
  • Material sources comprise the actual content of the rules.
  • Formal sources embody the constitutional mechanism for identifying law, while material sources incorporate the essence or subject-matter of the regulations.
• Criticism exists regarding this division, especially regarding the constitutional set-up of international law.
• Some writers categorize international conventions, custom, and general principles of law as the three exclusive law-creating processes, while judicial decisions and academic writings are regarded as law-determining agencies dealing with the verification of alleged rules.
• In reality, it is not always possible to make hard and fast divisions.
• The different functions overlap to a great extent.
• Treaties (or conventions) merely reiterate accepted rules of customary law, and judgments of the International Court of Justice may actually create law in the same way that municipal judges formulate new law in the process of interpreting existing law.

International Customs: Definition, Types, Peculiarities

• In any primitive society certain rules of behavior emerge and prescribe what is permitted and what is not.
• Such rules develop almost subconsciously within the group and are maintained by social pressures and with the aid of various other more tangible implements.
• They are not, at least in the early stages, written down or codified, and survive ultimately because of an aura of historical legitimacy.
• As the community develops it will modernize its code of behavior by the creation of legal machinery, such as courts and legislature.
• Custom remains and may also continue to evolve.
• It is regarded as an authentic expression of the needs and values of the community at any given time.
• The existence of customary rules can be deduced from the practice and behavior of states.
• How can one tell when a particular line of action adopted by a state reflects a legal rule or is merely prompted by, for example, courtesy?
• There are disagreements as to the value of a customary system in international law.
• Some writers deny that custom can be significant today as a source of law, noting that it is too clumsy and slow-moving to accommodate the evolution of international law any more, while others declare that it is a dynamic process of law creation and more important than treaties since it is of universal application.
• Another view recognizes that custom is of value since it is activated by spontaneous behaviour and thus mirrors the contemporary concerns of society.
• However, since international law now has to contend with a massive increase in the pace and variety of state activities as well as having to come to terms with many different cultural and political traditions, the role of custom is perceived to be much diminished.
• The essence of custom according to article 38 is that it should constitute “evidence of a general practice accepted as law.”
• It is possible to detect two basic elements in the make-up of a custom:
  • These are the material facts, that is, the actual behaviour of states, and
  • The psychological or subjective belief that such behaviour is ‘law’.
• As the International Court noted in the $LIBYA/MALTA CONTINENTAL SHELF CASE$, the substance of customary law must be “looked for primarily in the actual practice and opinio juris of states.”
• Practice:
  • It is understandable why the first requirement is mentioned, since customary law is founded upon the performance of state activities and the convergence of practices, in other words, what states actually do.
  • There are a number of points to be considered concerning the nature of a particular practice by states, including its duration, consistency, repetition and generality.
  • As far as the duration is concerned, most countries specify a recognised timescale for the acceptance of a practice as a customary rule within their municipal systems.
  • This can vary from ‘time immemorial’ in the English common law dating back to 1189, to figures from thirty or forty years on the Continent.
  • In international law, however, there is no rigid time element, and it will depend upon the circumstances of the case and the nature of the usage in question.
  • The basic rule as regards continuity and repetition was laid down in the $ASYLUM CASE$ decided by the International Court of Justice (ICJ) in 1950.
  • The Court declared that a customary rule must be “in accordance with a constant and uniform usage practised by the States in question.”
  • State practice must be universal, that is, widespread, representative and consistent. Otherwise, the content of the custom would not be certain.
  • On the condition of universality, no specific duration of practice is required.
  • Universality does not presuppose the participation of all States without exception: it is sufficient that States directly co-operating in the field take part in the practice. Nor does it presuppose absolute uniformity: minor deviations are permissible.
• Opinio Juris:
  • If one left the definition of custom as state practice, then the problem of how to separate international law from principles of morality or social usage would necessarily arise.
  • This is because states do not restrict their behaviour to what is legally required. They may pursue a line of conduct purely through a feeling of goodwill and in the hope of reciprocal benefits.
  • States do not have to allow tourists in or launch satellites. There is no law imposing upon them the strict duty to distribute economic aid to developing nations. The bare fact that such things are done does not mean that they have to be done.
  • This is the psychological factor, the belief by a state that behaved in a certain way that it was under a legal obligation or had a legal right to act that way.
  • It is known in legal terminology as opinio juris sive necessitatis and was first formulated by the French writer François Gény as an attempt to differentiate legal custom from mere social usage.
  • If states believe that a course of action is legal and perform it, even if only once, then it is to be inferred that they have tacitly consented to the rule involved.

Opinio Juris: Its Significance and Evidence

• The requirement of opinio juris means that the practice must be adopted with the knowledge of a legal obligation and allows to distinguish custom from custom or habit.
• Evidence of opinio juris includes public statements by bodies and officials, official publications, diplomatic correspondence, decisions of domestic courts, treaty provisions, conduct in connection with resolutions of international organisations, etc.
• $NICARAGUA V. UNITED STATES$ and express reference was made to the $NORTH SEA CONTINENTAL SHELF CASES$. The Court noted that:
  • “for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.”
• Examples of opinio juris:
  • $AIR SERVICE AGREEMENT CASE$ (the US, in defence, publicly acknowledged the existence of countermeasures)
  • $INDIA V. PAKISTAN CASE$ (India considered its actions to be countermeasures necessary to prevent and further prevent similar actions by Pakistan. This confirms that the State (namely India) recognises the rule of countermeasures as legally relevant).

Protest, Acquiescence, and Change in Customary Law

• Customary law is thus established by virtue of a pattern of claim, absence of protest by states particularly interested in the matter at hand and acquiescence by other states.
• Together with related notions such as recognition, admissions and estoppel, such conduct or abstinence from conduct forms part of a complex framework within which legal principles are created and deemed applicable to states.
• The Chamber of the International Court in the $GULF OF MAINE MARITIME BOUNDARY CASE$ defined acquiescence as “equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent: and as founded upon the principles of good faith and equity.”
• Generally, where states are seen to acquiesce in the behavior of other states without protesting against them, the assumption must be that such behavior is accepted as legitimate.
• Some writers have maintained that acquiescence can amount to consent to a customary rule and that the absence of protest implies agreement.
• In other words, where a state or states take action which they declare to be legal, the silence of other states can be used as an expression of opinio juris or concurrence in the new legal rule.
• In the $LOTUS CASE$, the Court held that “only if such abstention were based on their [the states] being conscious of having a duty to abstain would it be possible to speak of an international custom.”
• Thus, one cannot infer a rule prohibiting certain action merely because states do not indulge in that activity. But the question of not reacting when a state behaves a certain way is a slightly different one.
• The decision in the $ANGLO-NORWEGIAN FISHERIES CASE$ may appear to suggest that where a state acts contrary to an established customary rule and other states acquiesce in this, then that state is to be treated as not bound by the original rule.
• The Court noted that “in any event the . . . rule would appear to be inapplicable as against Norway inasmuch as she had always opposed any attempt to apply it to the Norwegian coast.”
• In other words, a state opposing the existence of a custom from its inception would not be bound by it. This is known as the persistent objector rule.

Regional and Local Custom

• It is possible for rules to develop which will bind only a set group of states, such as those in Latin America, or indeed just two states. Such an approach may be seen as part of the need for respect for regional legal traditions.
• In the $ASYLUM CASE$, the International Court of Justice discussed the Colombian claim of a regional or local custom peculiar to the Latin American states, which would validate its position over the granting of asylum.
• The Court declared that the “party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party.”
• It found that such a custom could not be proved because of uncertain and contradictory evidence.
• In such cases, the standard of proof required, especially as regards the obligation accepted by the party against whom the local custom is maintained, is higher than in cases where an ordinary or general custom is alleged.
• In the $RIGHT OF PASSAGE OVER INDIAN TERRITORY CASE$, Portugal claimed that there existed a right of passage over Indian territory as between the Portuguese enclaves, and this was upheld by the International Court of Justice over India’s objections that no local custom could be established between only two states.
• The Court declared that it was satisfied that there had in the past existed a constant and uniform practice allowing free passage and that the “practice was accepted as law by the parties and has given rise to a right and a correlative obligation.”
• Such local customs therefore depend upon a particular activity by one state being accepted by the other state (or states) as an expression of a legal obligation or right.
• While in the case of a general customary rule the process of consensus is at work so that a majority or a substantial minority of interested states can be sufficient to create a new custom, a local custom needs the positive acceptance of both (or all) parties to the judicial process: rule.
• This is because local customs are an exception to the general nature of customary law, which involves a fairly flexible approach to law-making by all states, and instead constitutes a reminder of the former theory of consent whereby states are bound only by what they assent to.
• Exceptions may prove the rule, but they need greater proof than the rule to establish themselves.

General Principles of Law as a Source of Public International Law

• In any system of law, a situation may very well arise where the court in considering a case before it realises that there is no law covering exactly that point, neither parliamentary statute nor judicial precedent.
• In such instances the judge will proceed to deduce a rule that will be relevant, by analogy from already existing rules or directly from the general principles that guide the legal system, whether they be referred to as emanating from justice, equity or considerations of public policy.
• There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations.
• It is for such a reason that the provision of ‘the general principles of law recognised by civilised nations’ was inserted into article 38 as a source of law, to close the gap that might be uncovered in international law and solve this problem which is known legally as non liquet.
• The question of gaps in the system is an important one.
• It is important to appreciate that while there may not always be an immediate and obvious rule applicable to every international situation, ‘every international situation is capable of being determined as a matter of law’.
• Between these two approaches, most writers are prepared to accept that the general principles do constitute a separate source of law, but of fairly limited scope, and this is reflected in the decisions of the Permanent Court of International Justice and the International Court of Justice.
• It is not clear, however, in all cases, whether what is involved is a general principle of law appearing in municipal systems or a general principle of international law or indeed, as it has been expressed, such principles of municipal law as are applicable to the relations between states.
• In the $CHORZÓW FACTORY CASE$, which followed the seizure of a nitrate factory in Upper Silesia by Poland, the Permanent Court of International Justice declared that ‘it is a general conception of law that every violation of an engagement involves an obligation to make reparation’.
  • The Court also regarded it as: a principle of international law that the reparation of a wrong may consist in an indemnity corresponding to the damage which the nationals of the injured state have suffered as a result of the act which is contrary to international law.
• The most fertile fields, however, for the implementation of municipal law analogies have been those of procedure, evidence and the machinery of the judicial process:
• In the $GERMAN SETTLERS IN POLAND CASE$, the Court, approaching the matter from the negative point of view, declared that ‘private rights acquired under existing law do not cease on a change of sovereignty . . . It can hardly be maintained that, although the law survived, private rights acquired under it perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice.’
• The International Court of Justice in the $CORFU CHANNEL CASE$, when referring to circumstantial evidence, pointed out that ‘this indirect evidence is admitted in all systems of law and its use is recognized by international decisions’.
• International judicial reference has also been made to the concept of res judicata, that is that the decision in the circumstances is final, binding and without appeal.
  • Another example of a general principle was provided by the Arbitral Tribunal in $AMCO V. INDONESIA$, where it was stated that ‘the full compensation of prejudice, by awarding to the injured party the damnum emergens and lucrum cessans is a principle common to the main systems of municipal law, and therefore, a general principle of law which may be considered as a source of international law’.
  • Another principle would be that of respect for acquired rights, a further one that a party advancing a point of fact in support of its claim must establish that fact, while yet another argued general principle is that of proportionality, which notes that in areas ranging from recourse to self-defence and the actual use of force in the conduct of hostilities to maritime delimitation, counter-measures in WTO and investment law and in human rights, the application of a particular rule may be constrained by relevant factors.
  • One crucial general principle of international law is that of pacta sunt servanda, or the idea that international agreements are binding. The law of treaties rests inexorably upon this principle since the whole concept of binding international agreements can only rest upon the presupposition that such instruments are commonly accepted as possessing that quality.
• The most important general principle, underpinning many international legal rules, is that of good faith. This principle is enshrined in the UN Charter, which provides in article 2(2) that ‘all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter’, and the elaboration of this provision in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970, referred to the obligations upon states to fulfil in good faith their obligations resulting from international law generally, including treaties.
• IT THEREFORE CONSTITUTES AN INDISPENSABLE PART OF THE RULES OF INTERNATIONAL LAW GENERALLY.

Legal Force of Decisions of International Organizations

• They may contain rules of international law, thus acting as sources of international law. Some UN specialised agencies (ICAO, WHO) may adopt such acts.
  • For example, in accordance with Article 21-22 of the WHO Constitution, the Health Assembly has the power to lay down rules in certain areas which become binding on all members of that organisation, except for those that would notify their rejection or reservations to them.
• They can capture the content of customary norms and contribute to their formation, as well as confirm the existence of opinio juris.
• Soft law: They may contain recommendations, i.e. they may indicate a course of conduct that is endorsed by the international community and the organisation in question. Recommendations may relate to the content of international treaties. The reason for the proliferation of this type of instruments is that in some areas States are unable to create treaty or customary norms.
• They may contain individual obligations from which international obligations arise (e.g. UN Security Council resolutions).
• They may contain corporate rules governing relationships within a given organisation.
• They may establish other international organisations and contain rules governing their activities.
• They may enshrine provisions that provide guidance to the national legislator (model and model laws, guidelines and rules, etc.).

Judicial Decisions as Subsidiary Means for Determination of Legal Rules

• Judicial decisions and writings clearly have a subordinate function within the hierarchy in view of their description as subsidiary means of law determination in article 38(1) of the ICJ Statute.
• While by virtue of article 59 of the ICJ Statute the decisions of the Court have no binding force except as between the parties and in respect of the case under consideration, the Court has striven to follow its previous judgments and insert a measure of certainty within the process:
  • As the Court stated in $CAMEROON V. NIGERIA (PRELIMINARY OBJECTIONS)$, ‘[t]he real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases’
  • In $APPLICATION OF THE GENOCIDE CONVENTION (CROATIA V. SERBIA) (PRELIMINARY OBJECTIONS)$, the Court declared that ‘it will not depart from its settled jurisprudence unless it finds very particular reasons to do so’.
• Accordingly, while the doctrine of precedent as it is known in the common law, whereby the rulings of certain courts must be followed by other courts, does not exist in international law, one still finds that states in disputes and textbook writers quote judgments of the Permanent Court and the International Court of Justice as authoritative decisions.
• The International Court of Justice itself will closely examine its previous decisions and will carefully distinguish those cases which it feels should not be applied to the problem being studied.
• But just as English judges, for example, create law in the process of interpreting it, so the judges of the International Court of Justice sometimes do a little more than merely ‘determine’ it.
  • One of the most outstanding instances of this occurred in the $ANGLO-NORWEGIAN FISHERIES CASE$, with its statement of the criteria for the recognition of baselines from which to measure the territorial sea, which was later enshrined in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
  • Other examples include the $REPARATION FOR INJURIES CASE$, which recognised the legal personality of international institutions in certain cases,
  • The Reservations to the GENOCIDE CONVENTION CASE, which dealt with reservations to treaties,
  • THE $NOTTEBOHM CASE$, which considered the role and characteristics of nationality, and the range of cases concerning maritime delimitation.
• Of course, it does not follow that a decision of the Court will be invariably accepted in later discussions and formulations of the law.
• One example of this is part of the decision in the $LOTUS CASE$, which was criticised and later abandoned in the Geneva Conventions on the Law of the Sea.
• But this is comparatively unusual and the practice of the Court is to examine its own relevant case-law with considerable attention and to depart from it rarely.
• At the very least, it will constitute the starting point of analysis, so that, for example, the Court noted in CAMEROON V. NIGERIA (PRELIMINARY OBJECTIONS) that “the real question is whether, in this case, there is cause not to follow the reasoning and conclusion of earlier cases.”
• As has already been seen, the decisions of municipal courts may provide evidence of the existence of a customary rule.
• They may also constitute evidence of the actual practice of states which, while not a description of the law as it has been held to apply, nevertheless affords examples of how states actually behave, in other words the essence of the material act which is so necessary in establishing a rule of customary law.
• British and American writers, in particular, tend to refer fairly extensively to decisions of national courts.

Teachings of the Most Highly Qualified Publicists in Public International Law

• Historically, of course, the influence of academic writers on the development of international law has been marked.
• In the heyday of Natural Law it was analyses and juristic opinions that were crucial, while the role of state practice and court decisions was of less value.
• Writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were the supreme authorities of the sixteenth to eighteenth centuries and determined the scope, form and content of international law.
• With the rise of positivism and the consequent emphasis upon state sovereignty, treaties and custom assumed the dominant position in the exposition of the rules of the international system, and the importance of legalistic writings began to decline.
• Nevertheless, books are important as a way of arranging and putting into focus the structure and form of international law and of elucidating the nature, history and practice of the rules of law.
• Academic writings also have a useful role to play in stimulating thought about the values and aims of international law as well as pointing out the defects that exist within the system, and making suggestions as to the future.
• Because of the lack of supreme authorities and institutions in the international legal order, the responsibility is all the greater upon the publicists of the various nations to inject an element of coherence and order into the subject as well as to question the direction and purposes of the rules.
• States in their presentation of claims, national law officials in their opinions to their governments, the various international judicial and arbitral bodies in considering their decisions, and the judges of municipal courts when the need arises, all consult and quote the writings of the leading juristic authorities.
• Of course, the claim can be made, and often is, that textbook writers merely reflect and reinforce national prejudices, but it is an allegation which has been exaggerated.
• It should not lead us to dismiss the value of writers, but rather to assess correctly the writer within his particular environment.

Codification of Norms of Public International Law

• The codification of norms in public international law refers to the systematic process of organizing, clarifying, and formalizing existing legal principles and customary practices into written legal codes or treaties.
• This process not only enhances the accessibility and clarity of international law but also promotes its progressive development to address evolving global challenges.
• Efforts to codify international law began in earnest during the late 19th and early 20th centuries:
  • HAGUE CONFERENCES (1899, 1907): Early attempts to codify the laws of war.
  • LEAGUE OF NATIONS (1920S): Established committees to address issues like nationality laws and state responsibility, though with limited success.
  • UNITED NATIONS (1945): The UN Charter explicitly tasked the General Assembly with promoting the codification and progressive development of international law under Article 13(1)(a).
• The establishment of the International Law Commission (ILC) in 1947 marked a significant milestone.
• The ILC has since drafted key treaties, such as the Vienna Convention on the Law of Treaties (1969), which codified principles governing treaty relations
• Codification typically involves three stages.
  • First, identification – grouping customary rules and principles on a given subject.
  • Second, revision – correcting outdated norms and incorporating new developments.
  • Third, legislation – transforming these norms into binding treaties or conventions through negotiation among states.

UN International Law Commission

• The International Law Commission was established by the General Assembly in 1947 with the declared object of promoting the progressive development of international law and its codification.
• It consists of 34 members from Africa, Asia, America and Europe, who remain in office for five years each and who are appointed from lists submitted by national governments.
• The Commission is aided in its deliberations by consultations with various outside bodies including the Asian–African Legal Consultative Committee, the European Commission on Legal Cooperation and the Inter-American Council of Jurists.
• Many of the most important international conventions have grown out of the Commission’s work.
• Having decided upon a topic, the International Law Commission will prepare a draft.
• This is submitted to the various states for their comments and is usually followed by an international conference convened by the United Nations.
• Eventually a treaty will emerge.
• This procedure was followed in such international conventions as those on the Law of the Sea in 1958, Diplomatic Relations in 1961, Consular Relations in 1963, Special Missions in 1969 and the Law of Treaties in 1969.
• Apart from preparing such drafts, the ILC also issues reports and studies, and has formulated such documents as the Draft Declaration on Rights and Duties of States of 1949 and the Principles of International Law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal of 1950.
• The Commission produced a set of draft articles on the problems of jurisdictional immunities in 1991, a draft statute for an international criminal court in 1994 and a set of draft articles on state responsibility in 2001.
• The ILC's primary objectives include:
  • Codification (the ILC has produced significant texts, such as the VCLT, ARSIWA).
  • Progressive Development (the ILC also seeks to adapt international law to contemporary challenges by developing new legal norms. This includes addressing issues such as state responsibility, environmental law, and human rights).

Subjects of International Law: Definition and Classification

• An entity possessing international rights and obligations and having the capacity
  • to maintain its rights by bringing international claims, and
  • to be responsible for its breaches of obligation by being subjected to such claims
• Subjects of int law – those who have the ability of an entity to acquire rights and obligations directly based on international law, meaning the capacity to participate in international legal relations and those entities whose conduct is directly regulated by international law and who possess rights and obligations under it.
  • According to A. Verdross, "Subjects of international law are persons whose behavior is directly regulated by the international legal order."
  • R.A. Müllerson states: "…It is quite possible to define as a subject of international law any person or entity that possesses rights and obligations arising from the norms of international law."
  • I.I. Lukashuk writes: "International legal personality is the legal expression of membership in the international community. A subject must have an independent international status and be directly subordinated to international law. If the connection with international law is mediated by some other political-legal entity, then at best, one can speak of some special, derivative legal personality."
  • According to S.V. Chernichenko, international legal personality "simultaneously means subjection to the direct influence of international law, possession of international rights and obligations, and the ability to participate in international legal relations."
• Some authors consider the capacity to create norms (i.e., the ability to establish international obligations) as an essential attribute of international legal personality.
• This quality is possessed by states, intergovernmental organizations, state-like entities, and nations fighting for self-determination.
• Accordingly, only these entities are recognized as subjects of international law.
  • I.I. Lukashuk notes: "A fundamental characteristic of the status of subjects of international law is that they directly participate in the creation and implementation of its norms."
• This approach reflects the consensual nature of international law norms: based on the generally correct thesis that international legal norms are primarily created through agreements, the conclusion is drawn that only the parties to such agreements can be considered subjects of international law.
• Secondly, in some cases, an agreement may create rights and obligations for entities that are not parties to it. While an international treaty cannot impose rights and obligations on third states without their consent, it can have effects on other entities, such as individuals or organizations. In such cases, these entities acquire the status of subjects of international law.
• Of course, there are relatively few international legal norms that have direct effect on entities that did not participate in their creation, but they do exist. Moreover, there is a clear trend toward an increasing number of such norms.
• In the Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, issued on April 11, 1949, the International Court of Justice (ICJ) recognized the United Nations (UN) as a subject of international law. The Court noted that the UN has the capacity to "possess international rights and obligations" and to "protect its rights through the submission of international claims."
• 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. Throughout its history, r;ie development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable. – ICJ Reparation for Injuries Suffered in the Service
• However, the question on whether individuals can be subjects of IL remains.
  • I.I. Lukashuk rightly points out: "Recognizing the individual as a subject of international law would require a transformation of the very nature of this law. Moreover, there are significant doubts as to whether such recognition would be the best way to ensure human rights. An individual is unlikely to be able to exercise their rights on an equal footing with states. It is necessary to take into account the specific legal status of the individual, who operates within the sovereign power of the state, as well as their actual ability to defend their rights at the international level."

Classification of Subjects of International Law

• Based on the type and scope of international rights and obligations, unlimited and limited or partial subjects of international law are distinguished.
• Only states are endowed with unlimited international legal personality, since only they are the bearers of all international legal rights and obligations.
• They are also called primary or original subjects of international law, since as an association possessing internal political organization, they are participants in international legal relations.
• Derivative or secondary subjects of international law are those whose legal personality derives from the authority established by states, usually in the form of a constituent treaty.
• These participants in international relations are also called partial or limited subjects of international law, since they are granted only certain rights and obligations.
• The legal status of limitedly capable subjects of international law is determined by the scope of tasks and the type of delegated powers. This approach makes it possible to include participants as diverse as, for example, rebels recognized as a party to a military conflict, lands that are part of a federal state, and the Universal Postal Union in this category.
• International legal personality should be distinguished from legal capacity, despite the fact that these elements are usually combined.
• For example, the German Empire did not collapse as a result of the transfer of supreme state power to the Allies in the anti-Hitler coalition in accordance with the Declaration of June 5, 1945. The scope of legal capacity corresponds to the scope of legal personality. An action carried out beyond the scope of authority (ultra vires) cannot entail international legal obligations.
• In addition, legal personality and capacity under international law should be distinguished from legal personality and capacity under domestic law.
• Thus, according to Article 104 of the UN Charter, on the territory of each member state, the United Nations possesses the legal personality and capacity necessary for the performance of its purposes and tasks. Article 335 TFEU provides that the EU "…shall enjoy in each Member State the most extensive legal capacity accorded to legal persons under national law; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings."
• James R. Crawford,