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b) State as the main subject of international law
Establishment of law by consent (approval)
Finally, for the establishment of law in the interstate system, there is no alternative to consent (approval) as the sole mechanism since, in the international order, there exists no legal superiority (subordination) in relations between the subjects.
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b) State as the main subject of international law
notion of the subject law-making process right to apply the legal norms other subjects of international law people sui generis territorial entities sui generis non-territorial entities international organisations universal subjectivity limited subjectivity subjectivity of individuals
In international law, the notion of the subject of international law is defned in rather complex terms, which primarily state that a subject is a person who participates in the law-making process and affords itself the right to apply the legal norms. 89
A state as the main subject of international law
On the whole, international law indeed is an interstate law. Hence, a state is a principal subject.
Other subjects
However, the international legal order is also maintained by the other subjects (international law actors), namely:
• The people in the process of self-determination (usually, the people on the road to independence), based on the principle of equal rights and self-determination of peoples;
89 The notion of the subject of international law will be addressed more precisely later in this book.
• The sui generis90 territorial entities; • The sui generis non-territorial entities; and • International organisations (intergovernmental organisations).
Scope of subjectivity
The scope of subjectivity depends on the type of subjectivity to which a given entity belongs (a state, a sui generis territorial entity, and so on). Only states obtain unlimited and universal subjectivity.
The subjectivity of the other actors of international law is limited and corresponds to the degree of their accommodation at the interstate level (limited subjectivity).
This limitation is determined by the role (mission, functions) of a given entity. Namely, the scope of subjectivity:
• for the people is defned by the process of self-determination, which means that they are entitled to participate in international legal activities only concerning the issues related to their self-determination process; • for the sui generis territorial entities is ensured in areas where their international status is recognised by other subjects of international law; • for the sui generis non-territorial entities is stipulated by their mission; and • for the international organisations is determined by the assigned functions and competencies stemming from their foundational treaties (or other instruments).
Subjectivity of individuals
At the same time, in the scholarship dedicated to international law, the problem of subjectivity of individuals persists. However, individuals per se are not actors at the interstate level, and respectively, of international law, since they, as individuals, are not entitled to participate in the law-making process and the execution of international norms.
For example, regardless of the existence of international law norms with direct reference to the humans, establishment and application of these norms through the power mechanisms is indeed reserved for the interstate level. Hence, in this regard as well, the states (and other subjects of international law) hold the responsibility to the other states (and other subjects of international law) on the interstate level.
90 ‘SUI GENERIS [L. sui + genus, generis / class, kind] Of its own kind. Unique; in a class by itself. Different from others.’ Lazar Emanuel, Latin for Lawyers (1st edn, Emanuel Publishing Corp 1999) 402.
