Individuals as a Subject


 Individuals

INDIVIDUALS
• nothing inherent in international law that denies legal personality to individuals.
• stakeholders for whom all laws are created and enforced – individuals?
• The increased international personality of individuals in the second half of the twentieth century has seen something of a rupturing of the state-centric conception that has endured since the Peace of Westphalia.
• their participation remains very much dependent on the will of states.
• International Duties of Individuals
– recognized that an individual caught engaging in piracy is punishable in the national courts of any state
• international crime, in the sense that states had recognized extraterritorial jurisdiction under international law to try private individuals for committing robbery on the high seas.
– piracy could only be committed by private individuals and their capture and trial was an established exception to the freedom of the high seas, where no state could perform acts of sovereignty over foreign ships.
– ‘universal jurisdiction’ a state is under an obligation to prosecute or extradite an individual who has committed these most heinous of international crimes.
– individuals possess international duties and are thus cognizable under international law

Individual criminal responsibility
– in international criminal law is to capture all of the methods and means by which an individual may contribute to the commission of a crime, or be held responsible for a crime under international law.
– ICTY / ICTR / ICC

• certain jurists who have expressed the view only individuals are the subjects
• duties and rights of the States are only of the men who compose them.
• By Kelson, Individual alone are the subjects of international law.
– Kelson analyses the notion of a state, and affirms that it is purely a technical
legal concept.
– according to Kelsen, there is no real distinction between state law and international law. Both systems bind individuals, although international law as a matter of technique does so only mediately and through the concept of the state.
• Many modern treaties do confer rights or impose duties upon individuals.
• Although the statute of the ICJ adheres to the traditional view that only states can be parties to international proceedings, a number of other international instruments have recognised the procedural capacity of the individual.
• Criticism
– BUT, an individual cannot generally assert his own rights against a state before an international tribunal or be answerable to a state in the same jurisdiction for failing in his/her obligations, but only through the state of which he/she is a national.
• States, Individual and certain non-state entities as subject.
• Arguments
– Presently, several treaties has conferred upon individuals certain rights and duties
– In Danzing Railway Official case, PCIJ — if any treaty has intention of parties to confer certain rights upon some individuals, then int’l law will recognize such rights and will enforce them.
– Some have been individually conferred upon individuals : 1949
Geneva Conv. On Prisoners of War
– Nuremberg/ Tokyo/ ICTY / ICTR : propounded principle that int’l law can impose direct obligation upon individuals.
– Also reinforced in Genocide Convention (punished no matter whether they are head of state, high officials or individuals)
– Individuals can bring cases of human rights violation on UN Commission on Human Rights
– Generally agreed that int’l organization are also subjects
Place of Individuals in International Law.
– In recent times, several treaties have been concluded where rights have been conferred and duties have been imposed upon individuals.
• Pirates : considered as enemies of mankind and state is entitled to apprehend and punish them
• Harmful acts of individuals : individuals should not be involved to involved in act which may be proven detrimental for the good relation among states (person causing harm to ambassador of another state)
• Rights of foreigners : duty of state to give foreigners those rights which it confers upon own citizens
• War Criminals
• Under some treaties individuals have given a right to claim compensation or damages against states
– UN charter – preamble : Peoples of UN (deliberate and meaningful)
– ICCPR / CEDAW Optional Protocol : Individual Complain mechanism

International Rights of Individuals
• Individual rights : Diplomatic Immunity
– particularly in the area of international human rights, the character of such rights and the capacity of individuals to exercise them vis-a-vis states remains attenuated
– BUT,
• under the ICJ Statute, only states may bring case
• Some hold the view that a right without a remedy is no right at all
• Human Rights