Considerations on the Legal Status of the Individual in Public International Law

• Author: Senior Lecturer Jana Maftei, PhD - Assistant Professor Varvara Licuta Coman, PhD in progress
• Position: "Danubius" University of Galati

1. Introduction

This paper analysis a subject that generated numerous controversies in the academic environment but not only in this environment and towards which a unanimous point of view hasn't been reached so far: the private person and its quality of subject of international law. Performing a short analysis of the evolution of this concept from an historical perspective we have underlined the passing from the concept according to which only the states can have the quality of subject of international law (the individual having in essence the quality of subject of internal law) to the opinions of certain authors that include the individual - private person- among the subjects of international law. More than that, we have brought to attention also the point of view of other authors that place the individual at the centre of the norms of international law.

Although combated, these latter opinions raise questions such as: If the intergovernmental international organizations or the national liberation movements are exceptions in the international capacity, why the individual- subject of law couldn't benefit from the same statute?

In the positive law, the term person is susceptible to two relational meanings: on one side, the human individuality and on the other side, the collectivity. "In the judicial thinking the person represents the quality of the individual or collective human to be subject of law with various names in the branches of positive law: private person- judicial person (in civil law), employee (in labor law), citizen (in constitutional law), public servant (in administrative law), offender (criminal law) etc" (Mihai & Mihai, 2005).

In the context of intensification of the relations between the states, an aspect that generated numerous controversies is the relation between the person- subject of internal law and person- subject of international law. Within the international society, many categories of entities are manifested, acting as actors of international relations: states, governmental and non governmental international organizations, nations or people fighting for recovering independence, transnational societies and private persons. In the international judicial order, the designation of the quality of subject of law is justifies by the need to identify among these only those entities with the capacity to acquire international rights and obligations to participate at drafting the norms of international law, to participate at the reports governed by the judicial norm of international law.

The concepts regarding the quality of subject of international law relations have evolved in time and if at the beginning of the 19^th century it was considered that the states are the only subjects of international law (Blüntschli, 1881, p. 64), the 20^th century registers the theories of some authors like Georges Scelle and Leon Duguit, who asserted that only the individuals can be subjects of law, that the state as a person is a product of fiction, the only reality being the private person taken individually and the inter individual relations based on the so called "social solidarity" so that the international relations become relations between the individuals and groups of individuals, that the state is not a judicial person nor sovereign person but the historical product of a social differentiation between the classes, those who govern and those governed, thus the individuals, another distinct person does not exist but only a federalism of the classes (Dumitrescu, 2008, p. 72). This theory was rejected by H. Triepel, D. Anzilotti, W.G.F. Philimore and other positivist doctrinaires. Beginning with the post war period, the plurality of the subjects of international law theory is admitted (Moca & Duțu, 2008, p. 128). The issues of the quality of subject of international law of the states and intergovernmental organizations was solved, the first being qualified at the moment as being main subjects and the second category as being "derived subjects" of international law.

The term state was formulated in very precise terms in the Montevideo Convention in 1933, concluded between the United States of America and the Latin American states, on the rights and obligations of the states, which provisions in article 1 that "the states is a subject of international law with the following characteristics: a) a population, b) a territory, c) a government, d) the capacity to develop relations with other states". In the same context is placed the notification no.1 of the Arbitration Commission of the Peace Conference for the former Yugoslavia on November 29^th, 1991, in which the state is defined as being "a collectivity comprising a territory, a population subordinated to an organized political power". The international judicial personality of the state reflects its double quality, of creator and recipient of the international judicial norms. The doctrine established without equivoque that only the states have the capacity to acquire and assume the totality of the international rights and obligations in their quality of "original, typical and fundamental subjects of international law" (Anghel, 2002, p. 53).

The international organization is a judicial creation, defined by the International Law Commission of the UN as "an association of states constituted by treaty, provided with a constitution and common organs and possessing a distinct judicial personality from the member states'". The Vienna Convention in 1969 on the right of the treaties restrains this definition, expressly mentioning in article 2, i) that the collocation "international organization" defines an intergovernmental organization, clearly delimitating these entities from the non governmental organizations that are considered in general as being subjects of internal law, even if some authors state that some would benefit from a partially international statute or would have a certain degree of normative power (Carreau, 1994, pp. 29-30). If until 1945 there was still a contradiction in opinions regarding them as well in what concerns their judicial personality of international law, at present the fact that the international organizations have a "certain" international position is accepted, of course different from the one of the states. The content of the judicial...