Theories of International Law

According to J.G. Starke, International law maybe defined as “that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:

  1. The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals.
  2. certain rules of law relating to individuals and non-state entities so far as the rights or duties of such individuals and non-state entities are the concern of the international community.

The term subjects of international law refer to entities endowed with legal personality, capable of exercising certain rights and duties on their account under the international legal system. Personality in international law necessitates the consideration of the international system and the capacity to enforce claims.

According to Starke, the team “subject of international law” means:

  1. An incumbent of rights and duties under international law
  2. The holder of procedural privileges of prosecuting a claim before an international tribunal.
  3. The possessor of interests for which provision is made by international law.

With the increasing scope of international law, the question of who to consider as subjects arose. Various theories regarding the same are discussed below. Jurists of the world are divided into two groups. However, some moderates try to bring about a compromise between them. The difference of opinion among jurists as to what entities are deemed to be the subjects of international law had led to the emergence of three popular theories. The sum-up of these theories can be summarized as follows:

  1. States alone are subjects of international law. (Realist theory)
  2. Individuals alone are subjects of international law. (Fictional theory)
  3. States, individuals, and certain non-state entities are subjects. (Functional Theory)


This theory asserts that states alone, as sovereign political entities, are bearers of rights and duties under international law. The nation states, irrespective of the individuals that they consist of, are separate entities having rights, duties and obligations and possess the capacity to maintain their right under international law, therefore nation states are the ultimate subjects of international law. The state as a subject is endowed with rights and duties like; the right to equality, right to coexistence and self-determination, right to independence, right to respect, dignity etc,. This theory has been subjected to various criticism by jurists. It does not talk about certain rights bestowed upon the individuals and certain international offenses for which an individual may be punished.


In this theory, Jurists believe that Individuals are the only subjects of international law as states do not have soul or capacity to form an autonomous will. Prof. Kelson opined that the laws ultimately apply to the individuals and are for the individuals alone. As per this theory, the welfare of an individual is the ultimate goal of international law. Prof. Kelson is the chief exponent of this theory and he reiterated that notion of the state is purely a technical legal concept serving to embrace the totality of legal rules applying to a group of persons living in a defined territorial area. The difference between international law and state law dissolves, both laws ultimately apply to individuals and they are for the individual alone. While the former applies to them directly and the latter is applied indirectly that is through states.

This theory regarded the state as fiction and based on the fiction that rights and duties of the state are only the duties and rights of men who compose them and therefore it is ultimately individuals who were the subjects of international law. From the purely theoretical standpoint, and in logic, Kelson’s view is undoubtedly correct. But so far as regards the practice of states is concerned, the primary concern of the international law is with the rights and duties of the states. 


Both the Realist and Fictional theories adopted the extreme course of opinions. But Functional theory tends to meet both the extremist theories at a road of new approach. According this theory neither states nor individuals are the only subjects; both are an inseparable part of international law and therefore, both are considered to be subjects of international law. Even, not only states and individuals are the subjects of international law but several other entities have been granted international personality and became the subjects of the international law. This is because of the increasing scope of international law. There is very little to criticize in this theory as it rightly includes, not just states and individuals, but also international organizations and non-state entities as subjects of international law. The functional theory truly reflects the inclusive approach of modern international law. 


Aishwarya Says:

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