This article is written by Prakhar Rathi, pursuing B.A.LLB (Hons) from the Department of Law, Aligarh Muslim University. This is an exhaustive article which deals with the place of Individuals under International Law.
In the Twentieth century and especially after World War II, the evolutionary growth and development of the International legal system has caused a significant increase in the importance of Humanitarian values in the process of development of International Laws. One of the most essential objectives of the International community is the protection of the freedom and dignity of all and to stop any all sorts of violence. The Aim and objectives of the Universal Declaration of Human Rights and UN Charter have considered respect for Fundamental and Human rights as their priorities which is reflective under its various provisions and articles and is an essential part of jus cogens.
Individuals in International Law
Individual, in a legal sense, is a broader term and in international law, individuals include human beings, foundations, and legal commercial enterprises. Though not all individuals have the same rights, it is considered in a broader sense. Before 1945, international law could recognize individuals as a subject but still didn’t provide rights and duties as a direct individual. In an overview, International law did not consider Individuals other than in an abstract sense for centuries and the reason was that international laws are laws between states, and individuals are the citizens of states, therefore, individuals were seen as objects rather than subjects. They were not considered competent to have rights and duties under international law. However, after the first and second World wars, the international community contemplated the need and possibility of recognizing an individual’s legal responsibility under international law and to make them subjects of international law in some respect. Even today, individuals are seen as only partial subjects of international law as states still remain the dominant subject of international law.
Legal Positivism and Individuals
For a long time, Legal positivism has provided the usual theory for comprehending international law. The positivist definition of international law is mainly grounded typically on a subject-based differentiation between international and municipal rules and regulations. Positivism views international laws as a set of rules with the states as its subjects. Municipal law is generally perceived as concerning individuals who are subjects of a single state.
Before positivism, there was no any sort of theoretical insistence that the rules of the international laws applied only to states. William Blackstone has reflected the common sentiment of the middle eighteenth century.’ For Blackstone, both individuals and states were proper subjects of international laws. He drew no dividing line which later came to be called public and private international law. Blackstone distinguished his law of nations from other sorts of law because of its sources and not on the general basis of its subjects. He saw the rules of the international laws or law of nations as universal, sourcing either from natural justice or from the practice of states. Municipal rules, however, emanated from a single state.
In 1789, Jeremy Bentham coined the term international law and defined the international laws which relate to “the mutual transactions between sovereign states as such and concluded that states are the sole subject of the international laws.” The assumption to categorize rules solely on the basis of the subjects to be governed is logical enough, it plainly was wrong for Bentham to assume that international law so defined was similar to the traditional law of nations.
Two early nineteenth-century positivists viewed that the individual was an improper subject of international law. Joseph Story created private international law to parallel Bentham’s public international law with Public international law supposed to affect international matters of states, while private international law dealt with international matters between individuals. John Austin emphasized that because public international law claimed to regulate the matters between sovereign states which as sovereigns are independent and could not be regulated by any outside authority, international law was just a sort of positive morality and not really a law.
Legal positivism had transformed eighteenth-century law of nations into public and private international law, a law common to individuals and states with former being supposed to apply to states while the latter to individuals. The positivist definition of international laws had an enormous impact on the modern perceptions concerning both the individual and international law. With so few exceptions, the theory rejects the notion that individuals are proper subjects of public international law.
Opinion of Scholars
There are many views on the extent and nature of the position of the individual in international law. Opinions vary from completely rejecting the individual as the international subject to the recognition of the individual as the only subject of international law. The assertion of the individual as the subject of the international law emerged at the end of the nineteenth century and after World War II, it gained substantial weight. There are many reasons asserting the individual as the international personality which are mainly based on consideration like the primacy of international law over native/domestic laws, direct regulation by the international law over individual’s rights and duties, progressive evolution of the international legal order, nature of international law, increasing incorporation of humanitarian principles and notions.
French scholar, George Scelle, in his view, considered a state as a fiction and individual human being as the only real subject of international law. There were several criticisms regarding this view including Wolfgang Friedmann who commented that it could be understood in a moral and figurative way rather than practical and legal sense. Humphrey Waldock also criticized by saying that this view abandons the law for philosophy.
Opinions regarding the individual under international law are divided. Hersch Lauterpacht is the one who has linked international law with the need and recognition of individual legal personality in human rights and humanitarian aspects. He argues that the conventional position of the individual has changed by certain developments which result in strengthening the individuals to safeguard their rights before international tribunals and imposing obligations directly under international law. While taking into account the lacking of the rules that would permit the exercise of individual’s international personality and the deciding role of state action in formulating the rights and duties for the individuals, recognizes that like other rule, Individuals are the object of the law of nations and he makes the assertions this fact that individuals are the object of international law does not mean that they are not the direct subject thereof. Also, he does speak about the exceptions which gives confirmation to the general rule.
Hans Kelsen is also sympathetic to individual personality under international law. Though he recognizes the general rule about the state being the subject of international law, he speaks about general exceptions that are limited to the possibility that the individuals can be held liable under international law for a violation of a rule of conduct imposed by international law itself. Regarding the acceptance of the position of an individual under international law, Wolfgang Friedmann has made an evaluation of the opinions of scholars which is helpful in taking up their real essence of the issue, he said that Lauterpacht and Jesup, one of the greatest advocates of an active position of the individual in the international law were well aware of the strict legal sense, the individual limits cannot be a subject of the law of nations except within very specific and definite limits and for special purposes. So they have drawn a distinction between the individual, as the subject matter of enforceable claims on the international level and the individual as the beneficiary of a system of international law, in which states are the subjects and sole actors but in which they are directed to take action on behalf of the individual.
These authors believe in the monistic doctrine of international law, but the scholars who don’t believe in the monism of international laws are more sceptical about the individual as the subject of international laws. Oppenheim rejects this proposition stating since the laws of nations are the laws of states only, so in that respect only states are the sole subject of the international laws. Waldock and Friedmann also rejected the proposition after acknowledging the progressive development in international law in favor of individuals and their rights. Brownlie disfavors the individuals as the subject of the international laws by saying that it would mean to acknowledge the rights which don’t exist.
Schwarzenberger, a non-monist says that the individual personality is merely a question of facts and not of principle. He considers the creation of rules of any character between permissible states by an agreement, therefore allowing the states to have unlimited discretion and neither public policy nor jus cogens. Myres McDougal states that main power comes from nation-states so other participants should act through state or state policies while Rosalyn Higgins proposes to abandon the concept of the subject of international law altogether.
Role of Individuals
Traditionally, individual responsibility was not recognized under international law except in limited cases like piracy, which has very long been recognized under customary international law as an international crime. International Law gives jurisdiction to states to prosecute pirates, but it cannot be asserted that International law imposes an absolute obligation on states to refrain from piracy. It was only in the Twentieth century and especially after World War II, the evolutionary growth and development of the International legal system has caused a significant increase in the importance of Humanitarian values in the process of development of International Laws.
The advisory opinion given by the Permanent Court of Justice (PCIJ) in the case of Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway Officials who have Passed into the Polish Service, against the Polish Railways Administration), Advisory Opinion, (1928) PCIJ Series B no 15, ICGJ 282 (PCIJ 1928), 3rd March 1928, Permanent Court of International Justice where the court held that an exception to the general traditional rule that individuals are not subjects of International Law can subsist only where the intention of parties was to only adopt a treaty which creates for rights and obligations for the individuals which are capable enough of being enforced by municipal courts. The PCIJ also emphasized that such intention must have been expressed and not inferred from the treaty as it is an exception to a general rule. It is taken as that the court had contemplated the possibility of a treaty creating an exception to the general rule which maintains that individuals are not subjects of International Law. Abass argues that the bold and undaunting step taken by the PCIJ in the Danzig case has contributed to International Law tilting towards recognizing individuals under International Law, even though it started first in Criminal law before extending to human rights.
The General Assembly of the United Nations in 1946 allowed them to become part of the International Law. Bearing individual responsibility, the Assembly also stated in 1946 that genocide was a crime under International Law which was also reaffirmed in the Genocide Convention, 1948. This position was also reiterated by article 3 of the Draft Code of Crimes against Peace and Security of Mankind which grants individual responsibility for crimes and punishment according to the gravity of the crime.
After the Second World War, International law became also bothered with individuals in the field of human rights and the fundamental freedoms. The Charter of the U.N started this trend in 1945 by calling upon member states to observe human rights and fundamental freedoms for individuals and peoples. In the Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, the court held that international rights and duties are an integral part and basis of being an international personality. It was also held that the United Nations Organization was the subject of international law, where it is able to sue for the vindication of its interests. After which, several conventions have ended up to define fundamental freedoms and human rights which individuals and peoples are entitled to and to ensure their respect and protection. These conventions also include the International Covenant on Civil and Political Rights of 1966 and the International Covenant on Economic, Social and Cultural Rights of 1966.
Individual responsibility was also grounded with regard to the grave breaches of the Four Geneva Conventions of 1949 and the Additional Protocols I and II of 1977, which deals with armed conflicts (International Humanitarian Law). It also leads to two specific international war crimes tribunals being established, one for the former Yugoslavia in 1993 and another for Rwanda in 1994, to prosecute the persons responsible for the grave and major violations of International Humanitarian Law, committed in the territory of each of these countries. The Rome Statute of the International Criminal Court was adopted in 1998 at the United Nations Diplomatic Conference. The Statute granting the limited jurisdiction of the Court to the most serious crimes of concern of the international community as a whole, which are the crime of genocide, the crime of aggression, crimes against humanity and war crimes.
Although, as a general rule, individuals lack standing to assert violations of the above treaties in the absence of the protest by the national state, a wide range of other treaties have allowed the individuals to have direct access to international courts and tribunals. Some of those treaties are the American Convention on Human Rights of 1969, the European Convention on Human Rights of 1950, the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, and also the Optional Protocol to the International Covenant on Civil and Political Rights of 1966.
In summary, it would not be wrong to say that the role of individuals has significantly increased and they are being recognized as participants and subjects of this law. This has occurred mainly through the evolution of and Humanitarian and Human rights laws coming together with the evolution of the Traditional International Law. Individuals now have a sort of legal personality under International Law; they are granted with certain rights and certain obligations directly under International Law. International Law is now applicable to relations of States with individuals and to certain interrelations between individuals themselves where such relations involve matters of international concern.
The issue of direct applicability of International Law to individuals
This issue about the direct applicability of International Law on Individuals has a substantial role for answering whether an Individual is a subject of International law. Arguments for the side that International law directly govern individuals have been monistic doctrine and the overall structure of treaty obligations made for the preservations of Human rights which shows the superiority of international law in comparison to domestic law and also the aim and objective of such treaties is to safeguard the individual rather than to protect the states. Though U.N Convention against torture, Human rights treaties have the objective to protect individual human beings and to develop common enforcement mechanisms for this motive, the human rights treaties make rights and further impose obligations on states, which is also clear from their general obligations.
The analysis of these obligations shows that these instruments do not have direct governance over the individuals. Further, they also give freedom to the state to choose the means by which they will guarantee the individuals to exercise their rights guaranteed in these instruments including the freedom to decide whether to allow the applicability of these instruments directly. Only if the constitutional legislation of the concerned state recognizes the primacy of international treaties over domestic law and therefore permits their direct governance over individuals then only these international human rights instruments can directly govern individual rights but if there is no such clause in the constitution of the state, individuals cannot be directly governed by these institutions. Both of these cases show that there is no predetermination by international law whether international rules can directly affect individuals. Basically, the decisive point is the domestic law of the state and the status of these instruments falls within the hands of the domestic legislator.
Even in those legal systems which recognize the direct applicability of treaties in domestic legal order, this phenomenon exists in the virtue of domestic law and not of international law. Lauterpacht confirms that the rules of international law providing the rights for individuals are not directly applicable. He says that indeed international laws are the background of these rights as duty to grant is imposed on states by international law. So, these rights are in conformity with international laws but it should be remembered that it could not have been enforceable before national courts if states have not created them with their municipal laws. The treaty which confers the rights on individuals might impact them only if the direct applicability of the international treaty is possible within the domestic legal order of the State concerned.
Some arguments which say international human rights treaties directly provide the rights for individuals, the language of some instruments, are invoked. The substantive provisions of the European Convention of Human Rights, and the American Convention on Human Rights, the Covenant on Civil and Political Rights, does not describe the obligations of States, but the rights of individuals. This circumstance does not make the instruments mentioned self-governing if they are not made so according to the domestic law of States. Another group of human rights instruments, including the Genocide Convention; Convention on Elimination of All forms of Racial Discrimination; Convention Against Torture; the Covenant on Economic, Social and Cultural Rights; and the Convention on the Rights of the Child, use different language in their substantive provisions. They do not mention immediately the rights of individuals, but the obligations of States to respect and to ensure these rights. No conclusion can be made on that basis that these two groups of documents differ from each other due to the nature, reach and objective of the obligations. All of these instruments create obligations and rights also for States. The latter reserves the freedom to regulate how these instruments will reach individual human beings.
Current status of the place of individuals in International Law
After the overview of these trends, some of the conclusions are. First, it is normally accepted that the capacity of states and individuals are of a different character and degree. Secondly, It is also conceded by the majority even by them who consider individuals as international persons that individual capacity is based on a treaty which requires the consent of states and it only exists for some exceptional and special cases. There are many instances which shows that individual legal capacity is alleged to be the background of the individual’s international personality such as:
- The international Law rules can be directly applied to the legal relationships and conducts of the individual.
- Rights and duties of individual under international law.
- Along with private transnational corporations, individuals can participate in international law-making.
- Individual being competent to stand before judicial and quasi-judicial international institutions for protection of his rights.
- Under some conditions, in some breach cases of international law, trail can be started against individuals by international law and they can be held liable, by the international judicial Courts, irrespective of the state’s will and its domestic law.
It is quite evident now that International law recognizes the rights and obligation of individuals. It can be concluded that while states have proper international legal personality, individuals possess a limited locus standi in International law. However, it is also true that the individual has over a number of decades evolved from an illegitimate child to a well-accepted family member in International law which shows the extent of the transformation of the legal order. It has significantly helped in raising concern and values of Humanitarian grounds.
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