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Published: Fri, 02 Feb 2018
International Legal Sovereign
International law and globalization
Academic discourse examining the legal subject in the international community has traditionally endorsed the concept of state sovereignty. States, which held exclusive rights and obligations, were consequently seen as the only subjects of international law, or as entities “capable of possessing international rights and duties and endowed with the capacity to take legal action in the international plane. Such an entity is commonly referred to as an international legal person or as having legal personality.”
This classic view in relation to the state is supported by the fact that United Nations membership remains exclusive to states and under certain legislation, states may be the only parties in judicial proceedings affecting international law. This state-centric view resulted in the classification of other entities, such as individual persons, as objects under international law, whose rights only existed through the sovereign power of states. Individuals thus had no international legal status.
However, according to Nicolas Politis, “[F]ormerly the sovereign State was an iron cage for its citizens from which they were obliged to communicate with the outside world, in a legal sense, through very close-set bars. Yielding to the logic of events, the bars are beginning to open. The cage is becoming shaky and will finally collapse.”
Therefore while states remain the most important subjects of international law, a number of factors have been complicit in the individual’s transition from object to subject and in the individual being endowed with legal personality under the law. The following will examine the legal subject in international law and attempt to shatter the assumption that the sole and exclusive subjects of international law are states. The scope of this analysis will be on the recognition of the individual as a legal entity, as is evidenced by the development of human rights doctrines and the emergence of individual responsibility since 1945.
Part I will discuss the historical basis behind viewing the state as a primary subject of international law. Changes in the international community as increasing the recognition of other legal persons will be outlined in the second section. The emergence of the individual as a legal subject will then be demonstrated in the content of human rights developments in Part III. The final part will examine the issue of consent in relation to international sources of law, as well as how the individual has infiltrated traditional legal instruments to establish itself as a legitimate legal subject.
I. Historical Views of International Law
The existence of a secular community of states in Western Europe was first fully revealed to the world by the Treaties of Westphalia in1648. Thus prior to the seventeenth-century, the relations between states in the international community had been largely dictated by nonbinding treaties that were rarely enforced. With the destructive nature of warfare during the period leading up to and including the Thirty Years’ War, state regulation, particularly in conflict situations, became a pressing international concern.
The law of nations was defined in the eighteenth-century by Swiss Philosopher and theorist Emerich de Vattel as relating to the rules governing the conduct of states in their relations with one another. Implicit in this definition was the requirement of consent to international norms and the acceptance of legally binding obligations affecting the actions of states. Consequently, the positivist theory came to dominate legal theory in the eighteenth-century and referred to the legal doctrines settled by the “tacit and expressed consent of the different states.” The positioning of the state as the only subject possessing legal personality was attributed to the dualist approach towards international law, which endorsed state sovereignty through the requirement on states to incorporate international legal principles into domestic statute.
The position of the state as a dominant legal entity was reinforced by the state’s control over territory and population, as well as by its exclusive role in judicial and government processes. The influence of the positivist school of thought was echoed well into the twentieth-century when in 1912 Lassa Oppenheim stated that “since [international law] is based on the common consent of individual states, and not of individual human beings, states solely and exclusively are the subjects of international law.”
In 1928, the role of the individual in international law was outlined by the Permanent Court of International Justice (“PCIJ”) in the Danzig Railway Officials case. The PCIJ concluded that since the ratification of international agreements by state agencies prohibited private persons from possessing direct privileges or having duties in the international arena, the court could not, consequently, endow the individual with direct privileges or allow the acquisition of specific duties.
Despite the strong endorsement of state sovereignty, the separation between state and public lines became increasingly small in the mid-twentieth century due to a number of factors that affected the traditional composition of the international system.
II. Shifts in International Law
The growth of legal actors in the international context can be attributed to the increasing number of states and organizations that entered the global community since 1945. The recognition by the judiciary in 1949 of the rights of other international persons to bring claims was also indicative of the shift away from state-centered thinking. This departure also witnessed an increasing number of claims brought by non-traditional legal subjects and left a number of international tribunals struggling with how to manage such requests.
Changing views of the state also began to take prominence in legal discussions. According to legal philosopher Hans Kelsen, the state is but “an abstract agglomeration of individuals” and consequently duties imposed on the state directly bind its population. Recently, Robert McCorquodale has argued that the composition of the state as separate from its people is an unnecessary distinction. He notes that the state is an artificial construct that cannot act on its own behalf. Fundamental to its survival is the individual who essentially serves as the states body. Additionally, central to the recognition of the state as a legal person in the international community is the requirement of a population. McCorquodale thus advocates for the inclusion of a conceptual approach towards the international legal system as individuals are inherently central to the theory, survival and actions of a state. The main force affecting the emergence of the individual into a legal subject however, was the growth of human rights treaties and their emergence as fundamental concerns in the international forum.
III. Human Rights in the International Arena
The atrocities committed by individuals during the Second World War were crucial to the rise of individual responsibility for acts committed against the interests of international law. The traditional position of the state as the only legal subject created no direct obligations on non-state actors and displaced any legal accountability away from the individual. Therefore, prior to World War I, human rights were viewed as the exclusive domain of the state. However the events of World War II led to a demand for the punishment of those particular individuals who perpetrated gross human rights violations.
By the fall of the German empire in 1945, approximately twelve million persons had already been forcibly exterminated by the Nazi regime. The dilemma thus faced by the international community was who to hold responsible for the brutal acts of genocide. The Nuremberg trials, held in Germany following the war, were the cooperative effort of state powers seeking punishment for war-crimes. Twenty-four individuals were charged for their roles in crimes against humanity, nineteen of whom were convicted and eleven of whom were sentenced to death.
The shift from individuals being viewed solely as objects in the international community to being viewed as subjects with legal status was expressed by the International Military Tribunal (“IMT”) at the trial of the major war criminals; “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The IMT went on to say that
the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He
who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.
Although Nuremberg dealt solely with Nazi military officials implicated in war crimes, those accused in Tokyo witnessed the conviction of both military and non-military personnel because of their failure to prevent or punish gross human rights violations during World War II. It is important to note that the principle of individual responsibility for international law breaches has been maintained by the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Both UN bodies, implemented in the early twentieth century, were designed to prosecute individuals for war crimes and crimes against humanity. In 2002, the International Criminal Court was also established to prosecute individuals for human rights violations.
In the aftermath of World War II, the Universal Declaration of Human Rights was adopted and in 1951 the Convention on the Prevention and Punishment of the Crime of Genocide was ratified. Acts of genocide were deemed crimes under international law and offenders would be punished as specified under Article IV, “whether the persons committing it are constitutionally responsible rulers, public officials or private individuals.”
Despite evidence of the individual emerging as a legal subject of international law following the prosecution of individuals in the aftermath of the Second World War, the object theory still remains a prominent argument among jurists. It has been advanced that while the individual does have certain independent duties and privileges in the international system, as evidenced by legal accountability, these rights are inherently limited.
Consequently it has been argued by critics that the individual cannot be a subject of international law, as it lacks the full procedural capacities possessed by the state. International bodies have prohibited non-state actors from bringing claims relating to international law and traditionally these groups, which include individuals and organizations, have only been able to assert their rights by persuading the executive to bring a claim on their behalf. This lends further support to the object theory as it is the state’s legal right’s, not the individual’s that are being asserted. However, it is important to note that in the latter part of the twentieth century, the individual has gained significant legal personality including the power to bring claims directly to an international forum, without the aid of the state.
IV. The Individual As Subject
One of the strongest arguments supporting the contention that the individual is but a limited subject of international law, rather than a bona fide subject like the state, has been the assertion that the legal personalities of these actors are largely contingent on state actions and on the agreements concluded by the state on their behalf. While this position may have traditionally held weight, non-state actors have been able to assert direct claims since the late twentieth-century. The growth of human rights organizations has played a fundamental role in assisting and launching claims against individuals on behalf of different groups and, more importantly, international bodies, such as the International Labor Organization, allow complaints to be brought by non-state actors.
The ability of the individual to raise legal claims on an international level was presented in the Optional Protocol to the International Covenant on Civil and Political Rights, whereby individuals whose fundamental rights had putatively been violated could bring this issue to a formal committee. The individual must belong to and must be lodging a complaint against a state that has ratified the International Covenant on Civil and Political Rights (“Covenant”), but does not need the support of their state in order to launch a claim. The Covenant proceeded on the premise that every participating state “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind.”
The individual was endowed with further international legal power in 1953 by the European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”), which became the first major human rights treaty to include significant enforcement mechanisms for the individual. The European Convention empowers an individual to bring claims against a government for human rights violations and breaches of the European Convention.
The European Convention was a striking departure from the pre-second world war international legal environment in which a state was required to formally ratify an international law, or at the very least already be a partisan of it, before being bound by its regulations. Because all states must ratify the European Convention before they can enter the European Union (EU) and under EU law, treaty rights are directly transmitted to European citizens, persons can no longer be prevented from raising private claims.
Article 34 of the European Convention also stipulates that persons can voluntarily consent to the Commission’s authority; applications can be brought before the Commission against states, by other states and by individuals or groups, or representatives thereof. While individual states are still needed to put human rights and EU law into play, an increasing number of individuals are bringing cases before international and regional tribunals.
This legal personality of the individual is further solidified by additional international agreements under which applications could be filed against a state directly by non-state actors. In the midst of this myriad of treaties, peremptory norms, lend further credence to the individual as a legitimate international subject, as it places limitations on the power of the state and forces the state to protect certain rights. Peremptory norms or jus cogens, as defined by Article 53 of the Vienna Convention on the Law of Treaties, outlines permissible and impermissible acts by states, including prosecution for human rights violations.
More importantly, this variation of traditional customary law does not need the consent of states to hold international bodies accountable. In spite of these limitations on state sovereignty, the state is still considered an international legal subject. By the same argument, the individual cannot be denied subject status because of its finite authority.
The effects of globalization and the increasing role of organizations in the international community, have all affected the composition of the legal system. The emergence of human rights doctrines post-1945, have, most notably, been complicit in changing customary views of the legal subject. Traditionally, states were viewed as possessing full legal personality, being the primary impetus behind international law, which seeks to govern the relations between states.
Under this doctrine, individuals and other non-state actors were considered “objects” in the international framework, exercising power solely through the actions of the state. Consequently, international norms were seen as only affecting traditional subjects, thereby ignoring issues of individual accountability. Following the atrocities committed in World War II, liability for such gross violations of human rights was not easily pinpointed. Because the acts of individual persons were responsible for human torture, this led to changes in traditional international legal doctrines.
The following decades witnessed the emergence of numerous case law and legislative agreements confirming that individuals could no longer hide behind the state and would be held personally accountable for any acts contravening international norms. Despite the recognition of individuals as possessing legal status, critics were quick to point out that individuals still lacked many of the rights endowed to states and consequently could not be seen as subjects in the traditional sense of the word.
The critics main arguments centered on the inability of individuals to bring claims in judicial proceedings and on how the status of the individual was contingent on the state. This notion of consent in the ratification of international agreements is no longer valid in the context of customary law, which binds states irregardless. Furthermore, towards the latter end of the twentieth-century, the role of individuals became recognized in legislative agreements and they were able to bring claims in the international forum. It is evident that the adoption of human rights doctrines lends support to the emergence o the individual as a legitimate legal actor. Individuals now have the power to assert their rights by bringing claims independently of states.
It is apparent that although boundaries exist on the status of individuals as legal actors, it is no longer correct to refer to them solely as objects. Changes in human rights approaches have significantly altered the international environment, particularly in relation to traditional views of the legal subject. While limitations do exist in non-state actors lacking full legal capacity, the statement made by Lassa Oppenheim in 1912 is no longer valid in the context of contemporary international law.
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