18 Pages Posted: 4 Mar 2008 Last revised: 12 Mar 2008
Legal positivism has long provided the usual theory for comprehending international law. The typical positivist definition of international law is grounded on a subject-based differentiation between international and municipal rules. Positivism views international law as a set of rules with states as its subjects. Municipal law is thought of as pertaining to individuals who are subjects of a single state. This Article rejects the positivist subject based approach to international law and calls for a definition of the discipline that recognizes individuals as subjects of international law.
This Article is divided into three parts. First, it briefly reviews the development of the positivist theory of international law. Second, it tests the subject-based approach against some realities of international practice and shows that international law actually has long involved individual rights and obligations. Finally, it suggests that a different, albeit older, theoretical foundation for international law may be a better way to encompass individuals as subjects of international law.
Keywords: legal positivism, international law, individuals as subjects of international law
JEL Classification: K33
Suggested Citation: Suggested Citation
Janis, Mark Weston, Individuals as Subjects of International Law. Cornell International Law Journal, Vol. 17, No. 61, 1984. Available at SSRN: https://ssrn.com/abstract=1101693 or http://dx.doi.org/10.2139/ssrn.1101693