Position of Individuals in International Law

Introduction

This research article discusses the position of individuals within the framework of International Law. The subject of International Law is a classic topic of study and research, with opinions strongly divided over both the status and legal position of individuals in International Law, as well as the scope of this legal position. The international legal system, which developed significantly after World War II in the 20th century, has increasingly focused on protecting individuals and groups from violence, ensuring their freedom and dignity. This has become a central concern of the international community, and the evolution of individual rights within International Law has been substantial.

International Law

International Law, often referred to as the law of nations, is a set of rules, agreements, and treaties that bind countries to certain standards. While each country has its own laws, International Law promotes peace, justice, common interests, and trade among nations. It is a unique part of the broader structure of international relations and operates as an independent legal system, existing outside the legal frameworks of individual states.

Position of Individuals in International Law

As discussed earlier, International Law is recognized by many authors as having a multiplicity of subjects. For example, Lee Swepston considers indigenous peoples as unique virtual subjects of International Law, as they have successfully advocated for international conventions to protect their rights. Traditionally, International Law governs the relationships between independent states. It originates from individual judicial competences and is based on agreements where a group of individuals come together to form a state that represents their interests, creates and enforces a legal system, and interacts with other states on their behalf. Individuals are integral to the formation of states, and states themselves are created by individuals.

Over time, individuals have become increasingly recognized as subjects of International Law in various areas. Rights are typically vested in the state, which can require other states to grant rights to individuals. In some cases, states may exercise diplomatic powers to represent an individual's claims against another state, making the claim the state's responsibility, with any remedies awarded to the state. In other instances, individuals must possess a certain nationality to access specific international courts and tribunals. Overall, International Law governs the relations between independent states.

International Law Making and the Individual

An important aspect of international personality is the ability to participate in the creation of norms within International Law. This is evident from the treaty-making capacity of states and international organizations, which is granted by International Law. There is a growing trend in theory and practice that favors placing contracts concluded between a state and foreign private individuals or corporations on equal footing with international agreements, assuming that such state contracts may be governed by International Law. The reasoning behind this is the significant political and economic implications of these contracts on both the state's economy and international political relations.

The need to apply International Law to state contracts arises from the high level of discretion host states have, which allows them to amend legislation in ways that may be unfavorable to private contracting parties. The traditional approach of International Law to state contracts is illustrated by the Permanent Court of International Justice's decision in the Serbian Loans Case, where the court ruled that the contract was not an international treaty and declared itself incompetent to hear the matter.

Direct Applicability of International Law to Individuals

One of the key considerations in determining whether individuals are subjects of International Law is whether International Law can directly govern their rights and duties. The direct applicability of International Law to individuals has been supported by the primacy of International Law over domestic law, as advocated by the monistic doctrine, and the language and structure of treaty obligations designed to protect individuals. Human rights treaties, for example, aim to safeguard the rights of individuals, not the interests of states, and their primary objective is to protect human beings rather than create rights for the contracting parties.

This principle has been widely discussed in international jurisprudence. Human rights treaties are distinct from other international agreements and can be directly applicable to individuals, but only if the state’s constitutional legislation recognizes the primacy of international treaties over domestic law and permits their direct application by national courts.

Individual Criminal Responsibility Under International Law

Although International Law is not directly applicable to individuals in general, it does provide rights for them, as discussed earlier. However, International Law does directly apply to individuals in certain limited instances, particularly when they are subject to international criminal responsibility for crimes against the peace and security of mankind. In cases of crimes against humanity, individuals can be tried directly under International Law, regardless of the will and domestic laws of their home state.

This concept is often cited as evidence of the international personality of the individual. The law-making concept is based on the principle of "locus standi," allowing individuals to participate in law-making processes. However, the rules governing individual criminal responsibility do not necessarily support the idea of international personality for individuals. When international criminal responsibility is imposed on an individual, it usually means that the acts committed are not expected to be punished within any national legal system. If a state is able and willing to fulfill its international obligations regarding the punishment of those committing crimes against peace and security, the individual would not be punished through direct application of International Law.