INDIVIDUAL UNDER INTERNATIONAL LAW

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CONTENTS

CHAPTER 1

Preface.......................................................

........................................01

Introduction..................................................

......................................03

CHAPTER 2

Rise of Individual under International

Law........................................04

Conventions providing for direct, legal access to

individuals.............04

Status of Private Individuals in the International

Legal Order............06

Possibility of Individuals as subjects of

International Law.................07

CHAPTER 3

Kelsen’s

theory..............................................................

................08

Conclusion..........................................................

..........................09

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LIST OF CASES:

Panevezys – Saldutiskis case, PCIJ, Series A/B, No. 76; 9 AD,

p.308.

Nottebohm case, ICJ Reports, 1955, pp.4,22-3; 22 ILR ,p.349.

US v. Noriega 746 F.Supp. 1506,1533 (1990).

Danzig Railways Officials case PCIJ, Series B, No.15 (1928).

Steiner and Gross. v. Polish State 4 AD p.291.

CONVENTIONS AND TREATIES:

European Convention on Human Rights, 1950.

The European Communities Treaties, 1957.

The Inter American Convention on Human Rights, 1969.

The Optional Protocol to the International Covenant on Civil

and Political Rights, 1966.

International Convention for the Elimination of All Forms of

Racial Discrimination, 1965.

Convention on the Settlement of Investment Disputes, 1965.

Treaty of Versailles, 1919

Vienna Convention on the Law of Treaties,1963.

BOOKS AND AUTHORITIES:

Principles of International Law, Brownlie, 1966 edn.

International Law, Malcolm M. Shaw,6th End., Cambridge,p.258.

Whiteman, Digest, vol. I, p.39.

P.-M. Dupuy, Droit international public (3ème éd., 1995)

The Law Governing Disputes under Economic Development

Agreements: Reexamining in the Concept of

Internationalization’ in R. B. Lillich and Brower (eds.)

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Guide to GATT Law and Practice (6th ed., 1994), at 719-734.

Sereni, ‘International Economic Institutions and the Municipal

Law of States’, RdC (1959, I) 133, at 210.

General Theory, Principles, at 124-148.

‘The Subjects of the Law of Nations’, Law Quarterly Review (1947)

438 and (1948) 97, Lauterpacht.

Grotian tradition of international law.

Preface:

The two cardinal principles that bind International Law, as we see

it today, are Sovereignty and Consent (to put it more simply mutual

understanding) between two sovereign legal entities that acquire the

status of a legal personality. Since the evolution of International

Law, as a legal system encompassing the demographic, cultural and

other social phenomena, a lot of questions have been raised about

its efficacy; validity, relevance and applicability have been

debated upon.

But, in the contemporary world, it is quite evident with the various

explanations given by jurists such as Jeremy Bentham, who laid down

certain pre requisites for a norm to constitute a valid law and John

Austin, who denounced International law to only mean political

relations between two states. Therefore, the literature with regards

to International Law under jurisprudence is enhanced by their views

and conceptions.

The dominant trend during the last five decades has been the issue

of human rights, the innovation of which has literally altered the

boundaries of Public and Private International law. This development

interestingly has pulled us back to the basic question of

subjectivity under International Law. More precisely, Whether

Individuals form an subject of International Law.

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This paper intends to view the development of International Law with

individuals as its subject when it comes to conflict resolution and

attainment of Human Rights. I would like to borrow upon Hans

Kelsen’s theory of Legal Positivism with special reference to the

development of International Law in a positivist angle that

enunciates Kelsen’s need for an international legal order that

provides for sanctions to be imposed upon not only sovereign states

but also individuals. Previously, when International Law was in its

primitive stages, agreements were in the form of state contracts.

But eventually, the nature of contracts went through a transitional

stage from status to right, that is established by a universal legal

order.

This purpose of this paper is to acknowledge the rise of Individual

as an important and the most primary stakeholder of International

Law (both private and public). I have borrowed Kelsen’s theory to

substantiate because Kelsen holds a unique place in the theory of

international law as the only great legal theorist to have placed

international law and its relations with domestic law at the

centre of his considerations. Kelsen consistently defended the

idea that international law was law in its own right. This he did

in a paradoxical way, viewing war and reprisals as sanctions that

gave international law a positive character. But that was just a

first step in his argument. It led on to the prohibition of the

use of armed force in international conflicts and the necessary

creation of international justice to settle international

disputes as the only means of taking international law out of a

state of infancy. But, particularly fascinating point of Kelsen’s

thinking is not only the cogency and rigour of his reasoning but

also the fact that his work, which was reputed to be theoretical,

even dogmatic, and remote from the concerns of the real world,

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provides us with the sharpest conceptual tools with which to

think through the contemporary developments of international law.

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Introduction :

The problem of international legal subjectivity remains contestable

until today. The reason for this state of affairs is the fact that

none of the norms of international law defines the very term of

subjectivity or contains a catalogue of entities subject to this

law. What is more, these norms hardly ever refer to the term

“subject of international law”. As a result, there is no consensus

about the

uniform criteria of international legal subjectivity. It is commonly

accepted, however, that a subject of international law is an entity

that has rights and obligations resulting directly from

international law. Legal capacity defined as above is supplemented

by one more component that is referred to in the doctrine as

capacity to act (capacity to perform acts in law), and that consists

in one’s capability to shape their own position within the sphere of

international law by means of their own actions. Full international

legal subjectivity therefore encompasses the capacity to have rights

and obligations resulting directly from international law.

An example of a change in this trend and a sign of incorporating the

indicated term

into the acts of international law can be, e.g. Art. 3 of Vienna

Convention on the Law

of Treaties, which refers to “other subjects of international law”1.

Brownlie has asserted, ‘There is no general rule that the

individual cannot be a “subject of international law”2, and in

particular contexts he appears as a legal person on the

international plane’3 Indeed it does make sense to shift the

1 1155 U.N.T.S. 331; 8 I.L.M. 679 (1969)2 Principles of International Law, Brownlie, 1966 edn.3 (7th edn, 2008), at 65.

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discussion from subjectivity to personality, and from general theory

to particular contexts4. But this still begs the question: what

exactly does this appearance of the individual on the international

scene bring with it in term of rights and obligations under general

international law?

“Rise of the Individual as a subject of International law.”

The question of status in international law of individuals is

closely bound up with the rise in international protection of human

rights. The essence of international law has always been its concern

for the human being and this was clearly manifests in the natural

law origins of classic international law.5

The growth of positivist theories, particularly in the nineteenth

century, obscured this and emphasised the centrality and even

exclusivity of the state in this regard. Nevertheless, modern

practice does demonstrate that individuals have been increasingly

recognised as participants and subjects of international law. This

has occurred primarily but not exclusively through Human Rights Law.

4 Shaw's discussion in the 6th edition of his International Law (2008), at 258,asserts that ‘modern practice does demonstrate that individuals have becomeincreasingly recognised as participants and subjects of international law’,but the subsequent paras are confined to recalling those treaties which allow individuals to appeal directly to an international body, and he recalls at 259 that it is now established that international law proscribescertain heinous conduct so that it the‘imports direct individual criminal responsibility’.5 International Law, Malcolm M. Shaw,6th End., Cambridge,p.258.

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The link between the state and the individual for international law

purposes has historically been the concept of nationality. This was

and remains crucial, particularly in the spheres of jurisdiction and

the international protection of the individual by the state. It is

often noted that the claim of an individual against a foreign stat,

for example, becomes subsumed under that of his national state.6

Each state has the capacity to determine who are to be its nationals

and this is to be recognised by other states to accept this

nationality there has to be a genuine connection between the state

and the individual in question.7

Conventions providing for direct, legal access to Individuals:

Individuals as a general rule lack standing to assert violations of

international treaties in absence of protest by a state of

nationality8, although states may agree to confer particular rights

on individuals which will be enforceable under international law,

independently of municipal law. Under Art. 304(b) of the Treaty of

Versailles, 1919, for example nationals of the Allied and Associated

Powers could bring cases against Germany before the Mixed Arbitral

Tribunal in their own names for compensation, while the treaty of

1907 between five Central American states establishing the Central

American Court of Justice provided for individuals to bring cases

directly before the Court9 .

The proposition was reiterated in the Danzig Railways Officials case,10 BY

THE Permanent Court of International Justice, which emphasised that

under international law treaties did not as such create direct

rights and obligations for private individuals, although particular

6 Panevezys – Saldutiskis case, PCIJ, Series A/B, No. 76; 9 AD, p.308.7 Nottebohm case, ICJ Reports, 1955, pp.4,22-3; 22 ILR ,p.349.8 US v. Noriega 746 F.Supp. 1506,1533 (1990)9 Whiteman, Digest, vol. I, p.39.10 PCIJ, Series B, No.15 (1928)

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treaties could provide for the adoption of individual rights and

obligations enforceable by the national courts where this was the

intention of the contracting parties. Under the provisions concerned

with minority protection in the 1919 Peace treaties, it was possible

for individuals to apply directly to an international court in

particular instances. Similarly the Tribunal created under Upper

Silesia Convention of 1922 decided that it was competent to hear

cases by the nationals of a state against the state.11

Since then, a wide range of other treaties have provided for

individuals to have directly and have enabled individuals to have

direct access to international courts and tribunals.

One may mention as examples:

European Convention on Human Rights, 1950.

The European Communities Treaties, 1957.

The Inter American Convention on Human Rights, 1969.

The Optional Protocol to the International Covenant on Civil

and Political Rights, 1966.

International Convention for the Elimination of All Forms of

Racial Discrimination, 1965.

Convention on the Settlement of Investment Disputes, 1965.

However, the question of the legal personality extends to questions

of direct criminal responsibility also. It is now established that

international law proscribes certain heinous conduct in a manner

that imports direct individual criminal responsibility.12

11 Steiner and Gross. v. Polish State 4 AD p.291.12 International Law, Malcolm M. Shaw, Ch. 8 6th Edn., Cambridge,pp.397 - 440.

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Status of Private Persons in the International Legal Order

As stated earlier, the question of the status of individuals in

international law is mostly addressed by examining international

humanitarian and human rights law. The question is whether

individuals have the capacity of (limited) subjects of international

law. The most prudent response is to observe that private persons

are increasingly the addressees of rights defined by international

instruments, which makes them passive subjects of international law.

Their capacity as active subjects is still exceptional.

As P.M. Dupuy13 remarks:

In order to be considered an active subject of a legal order an

entity must of course first be invested by that order with clearly

defined rights and obligations. But that is not enough. There must

also be the possibility of acting directly through appropriate

procedures to ensure effective observance of the exercise of the

rights one enjoys. The capacity to act is the decisive criterion of

legal personality. This same problem of the importance of the

individual in international law will be addressed here by showing

that Kelsen’s theory of international law accounts for phenomena

that many hesitate to categorize as public international law. Of

the areas where the question of changes in international law has

been raised in the second half of the twentieth century, that of

contracts between states and private persons is probably one of the

most controversial14. More specifically, this concerns not all the13 P.-M. Dupuy, Droit international public (3ème éd., 1995); and see also thevaluable analysis by Combacau of the international personality of subjects of domestic law in J. Combacau and S. Sur, Droit international public (3ème éd., 1997), at 307-318.14 ‘Retour sur la notion de contrat d’État et sur le droit applicableà celui-ci’, in Mélanges H. Thierry

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contracts between states and individuals but only those

characterized as state contracts which for some commentators may be

governed by public international law. Other scholars consider this

to be impossible because of the nature of international law. They

argue that it is strictly inter-state law, the legal order of which

cannot accommodate individuals15 However, if we examine the points of

fact, i.e. contract practice and also the provisions contained in

some international conventions, individuals do indeed appear in the

international legal order, and not in connection with the question

of human rights (a well-surveyed area) but in that of international

investments, relating to trade, commerce and diplomacy.

The Possibility for Individuals to be Limited Subjects ofInternational Law - Various theories:

The main argument of those who object to including state contracts

in the legal order of public international law is a theoretical one.

For Mayer international law “has as its sole object relations

between constituents of that society: states and the legal entities

they form” (international organizations)16

15 ‘The Law Governing Disputes under Economic Development Agreements:Reexamining in the Concept of Internationalization’ in R. B. Lillichand Brower (eds.)16 Focus (WTO), no. 21, August 1997, which announces that the 100thdispute was reported on 19 August 1997. All proceedings broughtunder Article XXIII of the GATT (1947) are listed in Guide to GATT Lawand Practice (6th ed., 1994), at 719-734.

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Similarly, back in 1959 A. P. Sereni wrote, ‘Each legal system

serves the purpose of regulating the status and relations of social

entities for which and among which it exists. An attempt at applying

international law to private relations would be tantamount to

seeking to apply the matrimonial laws of France or England to

relations between cats and dogs’ 17

One could retort, of course, that state contracts are not ‘private

relations’, but Sereni’s cutting criticism was indeed aimed at

discussions about the law governing petroleum concessions. We are

confronted here with two irreconcilable conceptions of what

international law should be and could be. On the one hand are

commentators who consciously or unconsciously profess a dualist

vision of relations between domestic law and international law.

Thus in his 1923 lectures at The Hague, Triepel maintained that

‘international public law governs relations between states and only

between perfectly equal states. The private person, from the point

of view of a community of law uniting states as such, cannot be

endowed with his own rights and duties, deriving from a legal system

of that community.’ 18

17 Sereni, ‘International Economic Institutions and the Municipal Lawof States’, RdC (1959, I) 133, at 210.18 Sereni, ‘International Economic Institutions and the Municipal Lawof States’, RdC (1959, I) 133, at 210.

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Kelsen ‘s theory:

When lecturing three years later on this same subject, Kelsen

asserted on the contrary that the fact that international law

applied immediately to states and only mediately to individuals ‘…

is not inherent to international law [and] is not a necessary

character of its norms…’ 19 The demonstration was made still more fully

in the 1932 lectures with the same conclusion: ‘International law

has, as a general rule, states as its subjects, that is to say

individuals in a mediate way [i.e. individuals whose action or

inaction will be counted as actions or inactions of the state as the

state can only act through individuals] - and exceptionally too

individuals in an immediate way. It is not contrary to the nature of international

law that what is today an exception should one day become the rule ’ 20

In the face of these two theories that are so different in their

very basics, the legal scholar would observe facts to decide which

conceptualisation provides more accurate account of reality. After

looking at these facts, returning to the difference between Treipel

and kelsen regarding the nature of international law and its

capacity or incapacity to bestow rights and liabilities on

individuals, kelsen had already observed, in relation to the

question of whether the individuals can be direct subjects of

international rights that “ Individuals can have international

rights only if there is an international court for them to appear as

19 ‘Les rapports de système’, supra note 12, at 283-286, citation at 284.20 ‘Théorie générale du droit international public. Problèmes choisis’, RdC (1932, IV) 121, esp. at 141-172, citation at 170 (emphasis added).

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plaintiffs.21 Such a situation came about after World War One, when

the peace treaty stated that subjects of allied powers can claim

reparations under Mixed arbitral tribunal22.

But this situation, which was the exception after 1918, has now

become commonplace and Kelsen emphasizes in the Pure Theory of Law that

‘the tendency of [contemporary] international law to lay down direct

rules of obligation and authorisation of individuals must

necessarily be reinforced to the same degree as it increasingly

extends to subjects of areas that were previously governed by state

law alone.

After looking at these facts we can return to the difference between

Triepel and Kelsen regarding the nature of international law and its

capacity or incapacity to bestow rights and duties on individuals.

Kelsen had already observed, in relation to the question of whether

individuals can be direct subjects of international rights, that

‘individuals can have international rights only if there is an

international court before which they can appear as plaintiffs23 Such

a situation came about after World War One when the peace treaties

provided that the subjects of the allied powers could claim

reparations in mixed arbitration tribunals24

But this situation, which was the exception after 1918, has now

become commonplace and Kelsen emphasizes in the Pure Theory of Law that

21 General Theory, Principles, at 124-148. 22 ‘The Subjects of the Law of Nations’, Law Quarterly Review (1947) 438 and (1948) 97, Lauterpacht23 Grotian tradition of international law.24 Ibid 22.

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‘the tendency of [contemporary] international law to lay down direct

rules of obligation and authorisation of individuals must

necessarily be reinforced to the same degree as it increasingly

extends to subjects of areas that were previously governed by state

law alone’25

In writing these lines Kelsen was probably not thinking of

investment law, but there is no escaping the fact that they apply

perfectly to the development of this law. It is also worth recalling

Kelsen’s position expressed above26 that it is possible to consider a

subject of international law any person capable of entering into dispute directly

with another subject of international law as such and, possibly, of bringing that subject

before an international court (provided consent is given in one form or

another).

From these premises it can be understood how the change which has

come about with state contracts means that the individual can be

considered as the (limited) subject of international law. But if we

look closely, it is in fact in the entire field of international

investment law that individuals benefit increasingly, through

bilateral or multilateral treaties, from the privilege of bringing

actions against states directly, and thus obtain the same status of

subjects of international law. Under these circumstances, there is

no reason other than dogma for continuing to reuse to face up the

reality of modern international law.

25 Théorie pure du droit (transl. C. Eisenmann, 1962), at 429 (emphasisadded). 26 ‘Les rapports de système’, supra note 12, at 283-286, citation at 284

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CONCLUSION

Mryes McDougal, in Human Rights and World Public Order, states that

"The notion that states are the only appropriate 'subjects' of

international law is belied by all the contemporary facts...about

participation in the global processes of effective power and

authoritative decision. This notion, unknown to the founding

fathers and deriving from certain parochial misconceptions of the

late nineteenth century, lingers on to impede the protection of

human rights merely because it sometimes serves the power purposes

of the state elites Historically, the greatest difficulty concerning

participation in the world constitutive process has been this

exaggeration of the role of the nation-state as the principal

subject of international law. Because of the overwhelming emphasis

of the 'sovereignty' of nation-states, there has been a great

reluctance to recognize other participants in world social process

as in fact active subjects of international law."

Thus the new "international citizen," recognized implicitly by

international law by virtue of the above-mentioned instruments, is,

ipso facto-- in the absence of international government-- both

empowered and compelled by the necessity of sheer survival to form

such a government as the sovereign human person directly concerned.

The answer therefore to the title question of whether the individual

is a subject of international law must be answered in the

affirmative if both the human race and the individual are to

survive. For survival in the nuclear age enjoins the categorical

imperative of a "world public order" or world government and

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government itself, we have seen, derives always from the sovereign

people.

On the other hand, if states alone are international law subjects,

then humankind is doomed to extinction through a final test of

"strength" via nuclear arms between equally sovereign states.

As positive law itself, however, reflects and follows natural law,

as members, one and all, of the human "global village," born of a

human womb, we arrive finally at the concept and actuality of a

positive world citizenship transcending national citizenship as the

sine qua non of world peace, human freedom and general as well as

individual wellbeing and happiness.

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