The debate about the recognition of individual as subjects of international law is as old as international law itself. This topic has been affirmed and rejected from the beginning, owing to different doctrinaire positions. Historically, only states were considered exclusive subjects of international law (IL). Oppenheim opines that since the treaties are based on common consent of states and of individuals, states are solely the exclusive subjects of IL. International law, for centuries did not consider individuals other than in an abstract sense. This is because individuals are citizens of states and international laws are laws between states. Hence, individuals were seen as objects, but not subjects of international law; they were not considered to have rights and obligations under international law. Howbeit, regarding individuals as objects of international law did not take things so far. This is because states could treat their citizens as they liked; they only were obligated to respect citizens of other states. States applied their laws exclusively to their citizens and those within their territory. However, within the first and second world wars, the international community contemplated the possibility of recognising individuals’ legal responsibilty under international law, making them subjects to international law in some respect. Today, individuals are seen as partial subjects of international law as states remain the dominant subjects of IL. It is noteworthy that this recognition is highly controversial. This essay argues that although the role of individuals in IL is yet to be recognised generally, contemporary IL has in some of its fields acknowledged that the individual holds certain rights and obligation. Hence, their roles cannot be underestimated.
This essay is based on a research question which is to critically assess the extent to which individuals can be regarded as subjects of international law. This paper while addressing this question, intends to show the areas of IL that have acknowledged these rights as well as others that are yet to recognise the individual’s legal personality in IL.
HISTORICAL BACKGROUND OF INDIVIDUALS’ RECOGNITION AS SUBJECTS OF INTERNATIONAL LAW (IL)
Traditionally, individual responsibility was not recognised under IL except in limited cases like piracy, which has long been recognised under customary IL as an international crime. The universality of this jurisdiction although contained in articles 100-107 of the United Nations Convention on the Laws of the Sea (UNCLOS), nowhere does it create criminal liability for individual criminal responsibility for piracy. Thus while IL gives jurisdiction to states to prosecute pirates, it cannot be asserted that IL imposes an obligation on states to refrain from piracy. Hence, it becomes difficult to establish the matter because, prior to the 20th century, no tribunals applied IL to individuals.The advisory opinion of the Permanent Court of Justice (PCIJ) in the Danzig Railway Officials where the court established that an exception to the general rule that individuals are not subjects of IL arises only where the intention of parties was to adopt a treaty which creates for rights, and obligations for individuals which are capable of being enforced by municipal courts. The PCIJ emphasised that such intention must be express and not inferred from the treaty as it is an exception to a general rule; the court was held to have contemplated the possibility of a treaty creating an exception to the general rule which holds that individuals are not subjects of IL.
Abass argues that the bold step taken by the PCIJ in the Danzig case, has contributed to IL tilting towards recognising individuals under IL, although it started first in Criminal law before extending to human rights. A significant example is the Charter and judgment of the Nuremberg Tribunal (which prosecuted the Nazi officials and their collaborators) where it held that individuals should be responsible for international crimes. The Court stated that crimes are committed by men and not by abstract entities and punishing such individuals enforces the provisions of IL. This position was reiterated by article 3 of the Draft Code of Crimes against Peace and Security of Mankind which provides for individual responsibility for crimes and punishment commensurate to the gravity of the crime.
The foundation laid by the Nuremberg Trials was consolidated after the Balkan war in 1993 and the 1994 Rwandan genocide, which led to the UN Security Council establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY); the International Tribunal for Rwanda (ICTR) and also the Rome Statute creating the International Criminal Court (ICC). As will be shown subsequently, individual responsibility have since then been increasingly dealt with in national courts using the universal jurisdiction principle as laid down in the Pinochet Case and foreign courts.
REGULATORY FRAMEWORKS ON THE RECOGNITION OF INDIVIDUALS IN IL
Following the bold step taken by the Nuremberg Tribunal, contemporary IL started recognising the capacities of individuals under IL. The Preamble of the UN Charter 1945 reaffirms its faith in fundamental human rights and also the dignity and worth of the human person and resolved to achieve certain rights provided in its articles 1 and 55. By article 1, the UN aims to protect and encourage respect for human rights, and in its article 55, it aims to promote universal respect for and to observe human rights and fundamental freedoms. Also, since the 1948 Universal Declaration of Human Rights (UDHR) which reaffirms the UN Charter and recognises the equal and inalienable rights of persons in its preamble, human rights have transformed being state centric to one which now empowers individuals in their capacity as human beings and by which they can bring claims against states. Other notable instruments which affords individuals procedural capacity are: the eleventh Protocol to the 1950 European Convention on Human rights (which changed the optional permission for which a state must grant to an individual’s application to a mandatory one under its articles 34 and 34); article 44 of the American Convention on Human Rights which provides that any person may lodge petition with the commission concerning violations of the convention; the 2008 Protocol on the Statute of the African Court of Justice and Human Rights; the first Optional Protocol to the International Covenant on Civil and Political Rights (here, the human rights committee is competent to receive and consider communications from persons who claim to be victims of any violations of rights provided under the covenant); the International Convention for the Protection of All Persons from Enforced Disappearance provides for an optional complaints mechanism for individuals to seek assistance in locating disappeared persons and ; the 2011 UNGA approved optional Protocol to the UN Convention on the Rights of the Child, which provides for an individual complaints mechanism.
Additionally individuals enjoy procedural capacity, although limited, before the European court of justice. Although most international tribunals are not open to individuals for example, article 34 of the Statute of the International Court of Justice (ICJ) recognises only states as parties to contentious matters before the court; there are a few exceptions such as the International Centre for the Settlement of Investment Disputes (ICSID). These instruments signifies the paradigm shift from the traditional state-centric position of IL.
A CRITICAL ANALYSIS OF ‘INDIVIDUALS AS SUBJECTS OF INTERNATIONAL LAW’
The rights and obligations of individuals under IL has been recognised in some areas such as: international investment law, international human rights law, international humanitarian law and most popularly, international criminal law.
Under IL, two early 20th century tribunals gave individuals legal standing to bring claims before international forums; it provided for individuals to participate fully in proceedings. The first was the proposed International Prize Court (IPC) which was never ratified and as a result, the court never came into existence. The second was the Central American Tribunal which had jurisdiction over cases involving violation of treaties between states and individuals of another state as long as such individual had exhausted local remedies or proved denial of justice. In the Nunez case, a national of Nicaragua who was granted asylum and later organised a rebellion into Nicaragua, had been expelled from Costa Rica argued that his expulsion was not justified locally and under IL. Here the claimant argued that he was entitled to certain rights under the Central American Peace Treaty, which imposed on states to confine persons involved in revolutionary movements. The Court did not agree with the claimant’s view that international treaties conferred any right to asylum as states had the right to deny asylum exercised in accordance with IL. The court rather interpreted the treaty as giving states the right to apply measures to nationals of any Central American state. Here, the court mentioned no right of individuals under IL or treaties. Parlett, argues that in the 19th and 20th Century, individual claims brought before the IL tribunals were treated haphazardly; the procedure applied by these tribunals were characterised as inter-state state claims, rather than individual claims against a foreign stateThe majority of the claims conventions provided that awards were payable to states of nationality.Although these claims were seen to be on inter-state basis, some tribunals engaged individuals in specific ways for instance, by allowing them to be represented in a limited capacity. Therefore, even when claims were instituted on the basis of diplomatic protection, individuals were given some capacity in relation to their claim. Parlett posits that this procedural aspect of the practice in the 19th century signifies viewing international claims as fitting somewhere along a spectrum from claims which were instituted on a strict diplomatic protection basis to which claims were instituted directly by individuals. This research argues that here, the role of the individual, although partly recognised, the courts still tried these claims based on the inter-state relations.
In the Mavrommatis case, the court recognised Greece as the complainant in respect of a claim brought by Mavrommatis, a Greek subject against Britain. Here the dispute fell within the PCIJ’s jurisdiction which dealt with disputes between states. This same principle was subsequently applied by the PCIJ in the cases of Serbian Loans and the Panevezys-Saldutiks Railway case. In the Panevezys-Saldutiks case, the court asserted that the claim was a corollary of the nature of diplomatic protection in which a state was in reality asserting its own right, the right to ensure its nationals’ respect for IL.
However, the ICJ in the post 1945 era affirmed that individual rights may arise directly under treaties especially in the two death penalty cases of LaGrand and Avena. The court in the case of LaGrand held that the US had violated the rights of certain German nationals by not informing them of their rights under the Vienna Convention on Consular Relations. The ICJ held that Article 36 (1) of the Vienna Convention created individual rights which could be invoked by Germany. Two judges of the Court entered reservation; according to Judge Oda, the Vienna Convention did not grant individuals direct rights but thought them to be limited to rights borne by states. Parlett argued that the approach of the ICJ was contrasted with the holding of the Court in Danzig case, Which required that in order to create individual rights, state parties to a treaty must have intended to confer rights on individual; the court made no inquiry as to the intention of the parties, but concluded that individuals had rights on a bare reading of its provisions.
Individual personality has to a great extent been recognised in Investment law; although the ICSID Convention does not contain any provision with regards to foreign investment, it provides for a complaint procedure for any legal dispute arising out of an investment between a contracting state and a national of another contracting state. Most Bilateral Investment Treaties (BITs) contain an arbitration mechanism for inter-state disputes which is yet to be invoked to bring a claim on an investor’s behalf which still characterises inter-state relations. This has raised arguments as to whether investment claims are characterised by diplomatic protection. The ICJ in the case of Ahmadou Sadio Diallo implied that an investment treaty claims were not diplomatic protection claims as the practice of the former could not contribute to the creation of Customary IL rules which is applicable to diplomatic protection claims. It has been stated that the procedural right to commence arbitration for investment claims suggests a direct individual right. Parlett argues that the language of the dispute resolution suggests that the investor has a right to commence arbitration.However, whether a BIT confers an individual right will depend on its terms. This shows the recognition of individual right to bring investment claims by any individual who qualifies under the BITs. The procedural right of an individual to commence arbitration was affirmed by the English Court of Appeal in Occidental v. Ecuador; the Court of Appeal upheld the High Court’s judgment which held that “the state parties intended to give investors the right to pursue in their names and for themselves”. The NAFTA Tribunal also affirmed this decision in Lowen’s case, by holding that an investor can bring a claim on its own behalf. From the foregoing, it can be said that the substantive obligations in the BIT are carried out on an inter-state basis while the procedural rights are owed directly to investors (individual rights). Douglas argues, using his ‘procedural-direct theory’ that investment treaty claims are diplomatic claims controlled by investors. However, since BITs differ in language, the question as to whether investors acquire direct substantive rights can be determined by looking at the case in question. Apropos the above, there is a tendency to view IL claims as diplomatic protection practice but looking at the ICJ’s decision in Avena, a more nuanced approach to categorising IL claims might suggests individuals have been engaged in IL claims.
Under International humanitarian law (IHR), many rules governing international armed conflict are directed towards the protection of individuals. Its framework establishes standard treatment for individuals rather than creating direct rights. IHR law which is applicable in armed conflict is expressed as inter-state obligations. She posits that although human rights law has been applied in international armed conflict, and thus may create individual rights, it has not yet impacted upon the normative framework of IHR. Although IHR applicable in armed conflict stays consistent with the 19th century framework of inter-state rights, international criminal responsibility for violations of IHR law suggests the imposition of direct claims on individuals, which is consistent with the post-1945 international legal systems. It has been stated that IHR law applicable in armed conflict creates a hybrid framework, which establishes standards of treatment rather than individual rights on the one hand, and imposes obligations on individuals on the other. Hence, the position of the individual in IHR is dependent on the type of conflict which makes it difficult to make general assumptions. Nevertheless, in international and internal armed conflicts, individuals are protected by rules that spell out standards of treatment without necessarily conferring direct rights upon them. Hence, in both conflicts, individuals may be subject to direct obligations.
The role of the individual in international criminal law has been widely acknowledged since the statement of the Nuremberg Tribunal The treaty of Versailles, implied the possibility for individual responsibility arising directly under IL. This suggested that individual had direct obligations under IL which could be enforced in domestic courts. However, Wallace and Ortega argues that it although it provided for the espousal of claims by individuals against governments and nationals of defeated states, as part of peacekeeping, it did not represent a major enhancement of the individual’s role under general IL.
It is noteworthy that the Nuremberg principles were suggested to be made a permanent part of the IL. The UN General Assembly (UNGA) adopted a resolution to this effect affirming the principles of IL recognised by the Charter of the Nuremberg Tribunal. This led to the UNGA directing the IL Commission (ILC) to prepare a draft code of offences against the peace and security of mankind. These principles have been hugely contested by jurists such as Amado who argued that this was a crystallisation of the efforts made by many jurists to weaken the traditional doctrine which recognised states as the only subjects of IL. Fitzmaurice argued that individuals could be subject to trial and punishment for international crimes without adopting the theory of the individual’s responsibility under IL. Parlett argues that if individuals are to be punished for crimes without the interpretation of domestic law, then their responsibility must arise under IL, therefore suggesting that individuals are not subjects of IL and that states are the sole subjects of IL, is unsustainable.
As highlighted above, it can be stated that Parlett’s work has shown that the individual has gained a legal status entitling it to hold rights and responsibilities under international criminal law, individual human rights law and also investment law, but the role of the individual under IHR and the law of diplomatic protection is yet to materialise into acknowledging the individuals’ right under IL. While Parlett argues that the ‘object-subject’ dichotomy cannot explain the complex status of the individual under contemporary IL, asking for such binary reasoning to be overcome, Muller posits that Parlett seems to sympathise with the ‘state-interest ‘oriented approach to IL rather than intensely theorising the individual’s status in IL. Parlett postulates that the IL does not appear to be developing along a smooth trajectory from a state-centric IL system to a more inclusive system. She argues further that the international legal system has experienced a transition that is structural, resulting from the need to manage and address practical problems rather than resulting from any deliberate attempt to bring about a structural transformation. To her, changes are made as solutions to practical problems which are fashioned by states instead of employing any particular theoretical model of IL or any preconceived notions of fixed goals for IL. Although, Parlett believes that the individual has gained certain rights and obligations under IL, they remain passive subjects while state are the main subjects of IL: since they do not control how they receive rights and obligations and have no control on how to access the international legal system. She posits that if state-centrism is to be used in a pejorative way and celebrate individualism on the other hand, it seems legitimate to question whether some aspect of IL which have stood strong should be celebrated rather than condemned.Hence, states retain the driver’s seat.
Muller argues that Parlett concedes that the individual’s position may go beyond that of a mere passive subject, but she did not look deeply into the potential manifestation of this phenomenon. Muller questions Parlett’s view of states as having autonomy as subjects of IL; he asks whether there are no indications that the individual and the entities have some form of autonomy under IL. To him, individuals have actively contributed to the formation of IL through initiating and conducting litigation in various IL forums and bodies. Also, individuals have acquired a particular status as active subjects in the EU as electors or candidates to the European Parliament or even as potential participants in a citizens’ initiative created by the Lisbon Treaty. Muller argues further that the adoption of the Rome Statute at the conference shows effective participation of NGOs in the law making process of an inter-state treaty, although they did not participate in the formal voting. It can be said looking at the ICJ’s ruling in its Kosovo Advisory Opinion that the Security Council now imposes international obligations on non-state entities (individuals). Muller concludes by saying that individual rights can arise from all sources of law : not just treaties, but also customary law, security council resolutions and also, general principles of law.
It is noteworthy that the recognition of individuals as subjects of IL is surrounded by limitations. Cassese argues that the procedures individuals are authorised to apply are different from those existing in domestic law. This is because some of the bodies responsible for considering petitions are opt judicial in nature, the proceedings are quite rudimentary; although they appear to conform to judicial rules, the outcome of the procedure is not a proper judgment (this is however without the exception of the American and European Convention on Human Rights). Also, individuals are only given procedural rights as stated above without the ability to enforce any international decision, and not all states that are parties to treaties accept accountability to individuals. Notwithstanding the deficiencies stated above, the role of the individual cannot be underestimated.
This essay has shown that contemporary IL recognises the rights and obligation of individuals. They are granted procedural rights but only towards stated that are parties to treaties creating such rights or to international organisations which have adopted resolutions that envisages such rights. Therefore, they have a unique status in IL. It can be stated that while states have proper international legal personality, individuals possess a limited locus standi in IL. However, this paper believes that the fact that the individual has over a number of decades evolved from an illegitimate child to an accepted family member in IL, shows the extent of the transformation of the legal order. Hence, if the IL wants to give the individual its proper place, it must look for an undisputed rise of the individual on the positive international plane.