【牛津本科国际法考试题目】国际法的主体问题

本文作者担任牛津大学本科生国际法Tutorial课程的教师，针对关于国际法主体的考试题目写了这篇范文，并在一些关键句子上作了批注，希望能方便学生理解牛津的学术要求，并给有兴趣了解英国国际法授课及考试标准的同学一些参考。

‘Due to the historical development of international law, its primary subjects are states. It is on states that most obligations rest and on whom the burden of compliance principally falls.’ (Crawford and Olleson) Discuss. [FHS 2019]

The historical development of international law has witnessed a paradigm shift from states being the sole subjects of international law to more non-state actors, including international organizations and even individuals, being included as subjects of international law[MX1]. However, the expansion of subjects of international law to non-state actors does not imply that states are no longer important. Examined under the framework elaborated in Part I, states (with a few exceptions, such as the collectively non-recognized states) remain the ‘primary subjects’ not only in the sense that, as the quote puts, they have more obligations and burden of compliance than other actors, but also because they have more substantive rights, and more capacities in enforcing and making international law[MX2]. (Part II) 

However, the reference to ‘historical development’ by Crawford and Olleson as a reason explaining the central role of states overlooks some opposite and more nuanced views.[MX3] This essay examines these views, but nonetheless supports the position in the quotation by Crawford and Olleson that the historical development of international law reinforces the primary role of states in international law. (Part III)

I. Building a Framework to Evaluate the Role of States, IOs and Individuals in International Law

As defined in Reparation of Injuries Advisory Opinion, subjects of international law are entities that possess rights and obligations under international law, and can use international legal proceedings to make claims on their own behalf to implement their rights and obligations. In addition to this view, Orakhelashvili adds that to constitute ‘subjects’ of international law, the entities concerned should also have law-making capacities. This is because international law does not have a central legislative organ, thus it is left to the subjects of international law to make law. Although the capacity to make international law is not generally accepted as a necessary feature of all subjects of law, this can nonetheless be an important factor to evaluate whether states have primacy over other actors in international law. This is also supported by Parlett who proposes to evaluate the relative importance of subjects by reference to the fact whether they have the capacity to control the receipt of the rights, obligations, capacities of their own and other subjects of international law.

Building on these definitions and approaches, the following part seeks to evaluate the status and relative importance of states, IOs and individuals from three aspects:

(1) the scope of their rights and obligations under international law, 

(2) their capacities to participate in international proceedings to enforce their rights and obligations, including the capacity to hold other subjects accountable, and to be held responsible for their own wrongful acts, and 

(3) their capacities to make international law, including determining the acquisition of legal personality, and the scope of rights, obligations, capacities of their own and those of other actors of international law. The fuller range of rights, obligations, and capacities an entity has, it is more qualified to be called ‘primary subjects’ of international law. The following part will apply the framework to evaluate the role of states, IOs and individuals. [MX4]

II. Analysis of the Role of States, International Organizations and Individuals[MX5] under the Framework

(1) States

In principle, states can possess the full range of rights and obligations under international law as long as they consent to them, can be held responsible for the internationally wrongful acts attributable to them, and have the capacity to enforce their claims by participating in international proceedings. Also, states are sovereigns in the sense that there are no authorities above them, and it is themselves who determine their own rights and obligations via the international law-making process recognized by Article 38 of the ICJ Statute. In addition, the grant of statehood to states does not depend on the will of other subjects of international law, as long as the objective facts under the criteria of statehood are established. It might be argued that states may be subject to the authority of some other subjects of international law. For example, states are obliged to carry out the decisions of the UN Security Council. (Art. 25 of the UN Charter) But this is not because states are inferiors to IOs. The arrangement at the UN Security Council is a result of the fact that states have voluntarily delegated their power to maintain international peace and security to the UNSC. (Sarooshi)

An exception[MX6] to the principle might be the collectively non-recognized states, which do not enjoy the full range of rights and capacities under international law. According to the Montevideo Convention whose definition of statehood is generally accepted as reflecting customary law, states are defined as entities which possess a) a permanent population, b) a defined territory, c) government, and d) the capacity to enter into relations with other states. Based on this standard of statehood, collectively non-recognized states (e.g. Manchukuo, Southern Rhodesia, ‘Homeland States’ in South Africa, Turkish Republic of Northern Cyprus) are still states as they satisfy the four criteria. The collective non-recognition can be considered as ‘collective countermeasures’ in response to a violation of some fundamental rules of international law in the process in which these states were established, such as the prohibition of aggression, apartheid, the right of self-determination. (Talmon) The result of such collective non-recognition is that these non-recognized states could not claim the full range of rights and capacities like other states. Thus, not all states can be considered to have the full range of rights, obligations, and capacities so as to constitute the ‘primary subjects’ as defined in the framework of this essay.

(2) IOs

IOs are defined by the International Law Commission as an organization established by a treaty or other instruments, possessing its own international legal personality and whose members include states, and may also include other entities. (ILC Articles on Responsibilities of IOs (‘ARIO’)) They have legal personality recognized by their member states, and may even possess objective legal personality opposable to non-member states (e.g. UN in the Reparation of Injuries case, International Criminal Court in the Al-Bashir Appeal case) However, to say that IOs possess international legal personality does not indicate that the IOs have the same rights and duties as states. In principle, IOs only possess the rights, obligations as entrusted by their members (mainly states) explicitly or implicitly under their constitutive instruments, or granted by non-members on some ad hoc basis. (Sarooshi) In this sense, states remain the primary subjects as compared to IOs, since IOs do not enjoy the full range of rights and obligations as states.

In addition, IOs have limited standings to participate in international proceedings to enforce their rights and obligations compared to states. For example, the rules regulating the responsibility of IOs (e.g. ARIO) are still unclear about the mechanisms through which IOs can make reparations for the injuries caused by their wrongful acts. IOs cannot become contentious parties before international courts and tribunals such as the International Court of Justice, unless states grant them such capacities (e.g. the case of EU in the WTO dispute settlement mechanism).

IOs also have very limited law-making capacities compared to states. The law-making power of the UN Security Council is very exceptional, and is made possible as a result of the delegation of power of states. (Art. 24 of the UN Charter) IOs like the UNSC cannot exercise their law-making power as free as states; they are nonetheless restricted by the general rules regulating delegation and transfer of power in international law. (Sarooshi)

However, a caveat [MX7] should be added with respect to the issue of the distribution of responsibilities between states and IOs. To say that states are the primary subjects does not mean that states should always bear more responsibilities than IOs in their distribution of responsibilities with respect to an internationally wrongful act. For example, when an internationally wrongful act is committed by state armed forces acting on behalf of the UN to perform peacekeeping functions, the UN may be held more responsible than the member state to the extent that it exercises more effective control over the conducts of the forces. (Art. 7 and Article 15 of ARIO) However, such a distribution of responsibilities between states and IOs does not challenge the primary status of states, as it is still states which ultimately determine whether to grant IOs effective control over their forces, and it is states which ultimately determine the rules on distribution of responsibility between states and IOs.

(3) Individuals

Individuals can have some rights, obligations and capacities in international law. Under the European Convention of Human Rights, for example, individuals enjoy rights directly under international law, and can even make claims on their own behalf against states. Based on the Rome Statute, or the Statutes of the ad hoc tribunals established by the UN, individuals may also be held criminally responsible for international crimes before international criminal courts and tribunals. This is the case even though the conducts are not criminalized by the domestic law of the national states of the perpetrators.

Even though individuals can be treated as subjects of international law, the rights, obligations and capacities of them are only limited to some special areas of law, and the scope of them is decided by states. In other words, the rules granting status to individually usually constitute lex specialis without changing general international law. For example, foreign investors, including individual and corporate investors, can bring claims on their own behalf against states to protect their interests based on bilateral investment treaties. But this is only lex specialis as established by a particular regime of bilateral investment treaty, while the general international law remains that it should be the nation-states who act on behalf of their nationals to exercise diplomatic protection. (Barcelona Traction case) As for law-making capacities, individuals can at most influence the content of international law in an indirect and informal way, or assist in ascertaining the content of international law as subsidiary means (i.e. the role of publicists), while their views are not recognized as formal sources of international law under the Art. 38 of ICJ Statute.

Thus, granting individuals certain rights, obligations and capacities in some special circumstances does not change the status of states as ‘primary subjects’ of international law[MX8] .

III. Reasons Explaining the Expansion of Legal Personality to Non-State Actors in International Law

The reference to ‘historical development’ [MX9] by Crawford and Olleson as a reason explaining the central role of states is a too general assertion that overlooks some opposite and more nuanced views. Some scholars claim that the trend of historical development of international law actually demonstrates that states should no longer be that important. For example, Hersch Lauterpacht rejects the state-centric view, and explains the expansion of subjects of international law by reference to the humanitarian value of international law. Others explain the relative importance of actors of international law by proposing different theories about the nature of international law. Higgins and McCorquodale, for example, adopt a process-oriented approach to international law, and argue that non-state actors, in certain circumstances, should be treated as more important participants of international law in order to better protect their interests which otherwise could not be properly protected by states.

However[MX10], granting more legal status to non-state actors is not necessarily an inevitable result of the realization of humanitarian values, or of the need to protect the interests of non-state actors in international law. For example, international humanitarian law can grant protection to individuals and non-state actors by imposing obligations on states. The need to protect foreign investors can be realized by the rules of diplomatic protection without granting the capacities to individual investors to make claims on their own behalf (e.g. Barcelona Traction case). Individuals can also resort to domestic courts to protect their interests without being granted with formal status under international law. As argued by Parlett, these state-centric regimes may play a more effective role in protecting the interests of non-state actors than the formal extension of international legal personality to non-state actors.

A closer examination of the historical development of international law demonstrates that the expansion of subjects of international law can still be explained by a state-centric view. As put by the Reparation of Injuries case, the expansion of subjects of international law to IOs is a result of the ‘progressive increase in collective action of States’. As for individuals, granting them rights and obligations is also arguably a by-product of the needs to enforce the obligations of states. As argued by Orakhelashvili, international criminal tribunals are established as a means to cure the defects of states which are unwilling or unable to enforce their obligations to criminalize or punish international crimes. In this sense, the state-centric approach can still justify the expansion of subjects to IOs and to individuals in the historical development of international law. This is also supported by Parlett who argues that the humanitarian value is not an end which in itself justifies the expansion of subjects, but the expansion is simply a by-product of the needs of states.

Conclusion

To summarize, the above analysis demonstrates that the paradigm shift of international law from states being sole subjects of international law to more actors being granted international personality is arguably motivated by the needs of states themselves. States (with a few exceptions, such as the collectively non-recognized states) remain the primary subjects of international law as they possess fuller range of rights, obligations, and the capacities to enforce and to make international law than other actors.[MX11]

Mark: 73.

[MX1]This demonstrates awareness of context while also alluding to the question asked. 

[MX2]This engages with the question asked while signposting an argument that will be made in the essay, in order to connect the two. It is there to clarify that there are two forms of engagement with the question: agreeing that states are the primary subjects, while extending the range of factors relevant to the concept of ‘primary subject’. 

[MX3]This is there to add balance to the argument above and introduce an alternative line of argument. 

[MX4]This section is there to engage with the parameters of the question while demonstrating a deep and detailed understanding of the topic of what it means to be a ‘primary subject’. It is also there to define the scope and focus of the analysis pursued by the rest of the essay – this is important for giving structure and coherence to the essay, and to facilitate the integration of ideas and information. 

[MX5]This division provides structure to the analysis and facilitates ease of comprehension. It provides a logical framework in which to organise information. 

[MX6]This paragraph introduces balance to this sub-section by introducing an alternative line of argument that nuances the claims above. 

[MX7]This paragraph again serves the function of nuancing the above analysis, by introducing an alternative line of argument that balances the overall argument. 

[MX8]It is helpful to keep bringing discussion back to the overall argument pursued by the essay and the question asked. 

[MX9]This section is there to demonstrate attention to all aspects of the question asked – here, in particular, to the connection between historical development and the primacy of states. 

[MX10]The following discussion goes deep into independent critical analysis and goes towards making a personal contribution to the topic. 

[MX11]It is a good idea to keep conclusions short and to concentrate on the body of the essay. 

作者简介

毛晓，“法律竞赛”顾问。

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