ROLE OF INDIVIDUAL IN INTERNATIONAL LAW

SUBMITTED BY:

Mouneesh S (170400142015).

Nakul Vishnu D (17040142016).

BBA.LLB(HONS)2017-22

SUBMITTED TO:

Prof. Ramdhass P

Alliance School of Law

Alliance University, Bangalore

Index

1. Introduction

1.1Introduction

1.2Research Question

1.3 Review of Literature

1.4 Scope and objective of a study

1.5 Research Methodology

2. Subject Matters of the Individual in International Law

3. Right of Individual

4. Duties of Individual

5. Conclusion

6. Bibliography
1.1Introduction

In classical International Law, individuals were regarded as the object of International Law, and
not as its subject. Consequently, they had no legal significance from the International Law point
of view, as they were related to one State through the bond of citizenship or nationality, and this
stood in relation to other States in the role of aliens. If an injury was caused to an individual, it was
the State which alone owed the responsibility under International Law to another State. Thus, there
was no responsibility if the injured individual was stateless, that is, if he had no nationality.
However, the above position of individuals has considerably changed since the establishment of
the United Nations Organization. The Charter of the United Nations by using the words 'People of
the United Nations' in the Preamble has given a place of importance to individuals. However, this
alone did not change the position of individuals in the domain of International Law. Whether
individuals have any place in International Law is a question which is dependent upon another
question, that is, whether they have been bestowed rights and duties under International Law.

It is undisputed that International Law primarily regulates the relationship of States, and they are
the primary subjects of International Law. But they are not the only subjects of International Law.
In addition to them, individuals have also been conferred to certain rights and duties in accordance
with the rules of International Law. While many rules are directly concerned with regulating the
position and activities of individuals, many rules indirectly affect them. That is, rules may also be
applicable to certain inter-relationship of individuals themselves, where such inter-relationship
involve matters of international concern. However, as long as the international community is
composed of States, it is only through the exercise of their will alone rights and duties are conferred
to individuals.

1.2Research Question

 To study and understand how individuals became a subject of international law.

 Individuals rights and responsibility in international law.
1.3Review of Literature

The literature review is based on the individual’s legal position, rights and duties in

international law. The review is written in a narrative manner and it is intended to

basic information and review principles related to the individual in international

law. This review will critically evaluate the information in the journal and will be

discussed with each other.

1.4Scope and objective of a study

In both articles and textbooks, numerous authors have focused on the issues of the

position of the individual in international law. Although the subject seems to be

one of the classic topics of study and research in international law, opinions are

strongly divided over both the status and the legal position of the individual in

international law, as well as what constitutes the background and frontiers of this

legal position.

1.5Research Methodology

The research methodology adopted is a doctrinal research. However, with a view to compliment
and substantiate this research paper corroborated the study with other forms of legal research such
as comparative legal research case studies and also critical analysis. It also trough’s light on the
list of study materials and data and sources, procured by the researcher as the instrument to conduct
the research comparative legal research enable, critically appreciate and compare the legal
interpretation of various courts.
2.Subject matters of the individual in international law

Any entity which possesses international personality is called an international person or a subject
of International Law. Possession of international personality is therefore the determining factor in
deciding as to which entities are the subjects of International Law. An entity may be deemed to
possess international personality if it is capable of possessing international rights and duties and
having the capacity to maintain its rights by bringing international claims.1 Oppenheim says that
an international person is one who possesses legal personality in International Law, meaning one
who is a subject of International Law so as itself to enjoy rights, duties or powers established in
International Law, and, generally, the capacity to act on the international plane either directly, or
indirectly through another Stale (as in the case of a protected State).2 In the Reparations for Injuries
case, it was observed that 'an entity capable of possessing international rights and duties and having
the capacity to maintain its rights by bringing international claim,3 is a subject of International
Law. The concept of international person is thus derived from International Law The question as
to what are the entities which possess the above three capacities, i.e., rights, duties and capacity to
maintain its rights by bringing international claims, is solely determined by the rules of
International Law. Thus, International Law itself selects the different entities to which it grants
international personality by legal functions.

It is significant to note that it is not necessary for an entity to possess all the rights and duties
recognized by Intenational Law. If an entity is competent to perform only a few acts or even a
single act as provided by the rules of International Law, that entity would be regarded as to have
possessed capacity to become a subject of International Law. At the most it can be said that such
entities possess restricted or limited capacity in contrast to unlimited or full capacity which is
possessed by those entities which have been endowed most of the rights and duties, if not all, by
the rules of International Law. It would be improper to say that the former does not possess
personality in International Law at all, since it lacks the capacity to perform totality of rights and
duties recognized by International Law. International Law, being dynamic, has at present granted

1
Brown line, ’principles of public international law ‘, (2003) Sixth edition p.57
2
Oppenheim’s ‘International Law’ vol.1, ninth edition 1992 pp 119-120
3
ICJ reports 1949 p.179
international personality to certain entities, which at a time did not possess it. In future, a few other
entities may be granted personality, as and when they acquire capacity, which at present do not
possess it.

1. Realist Theory: According to the followers of this theory the only subject of the
international law is the Nation States. They rely that Nation States are the only entities for whose
conduct the international law came into existence. The Nation States, irrespective to the individuals
composing them, are distinct and separate entity capable to have rights, duties and obligations and
can possess the capacity to maintain their right under international law. So, the Nation States are
the ultimate subjects of International law.

2. Fictional Theory: According to the supporters of this theory the only subjects of
international law are the individuals. For the reason, that both the legal orders are for the conduct
of human being and for their good well. And the Nation States are nothing except the aggregate of
the individuals. Though the rules of international law relate expressly to the Nation States but
actually the States are the fiction for the individuals composing them. Due to this reason
individuals are the ultimate subjects of International law.

3. Functional Theory: Both the Realist and Fictional theories adopted the extreme course
of opinions. But Functional theory tends to meet both the extremist theories at a road of new
approach. According this theory neither states nor individuals are the only subjects. They both are
the subjects of modern international law. Because for states being primary and active subject of
international law have recognized rights, duties and obligations under international law and are
capable to maintain the same by bringing international claim. At the other hand in the modern
international law individuals have also granted certain rights, duties and obligation under
international law and maintain the same by bringing direct international claims. Even, not only
states and individuals are the subjects of international law but several other entities have been
granted international personality and became the subjects of the international law. This is because
of the increasing scope of international law.

If all the above theories are to be analyzed philosophically then it may be concluded that Functional
Theory seems to be more accurate because due to modern scope of the international law and world
trend. It is obvious that there are many actors in international law, which have been granted rights,
duties and obligations, and also to secure their rights and have been provided with capacity to bring
international claims. So along with states and individuals neither, certain other entities which have
been given international personality shall be treated as subjects of international law but also all
those new entities which with due course of time are going to be given international personality.

3.RIGHTS OF INDIVIDUALS

A number of rights have been given to individuals in International Law through the adoption of
international conventions which are as follows

Human Rights:

One of the principles of the United Nations is to promote and encourage respect for human rights
and fundamental freedoms for all. The Universal Declaration of Human Rights was adopted by
the General Assembly in 1948 which provided various rights to the individuals. However, since
the Declaration was adopted by the General Assembly, it did not impose any legal obligations on
the States to give effect to its provisions after, two Covenants : the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social and Cultural Rights,
along with an Optional Protocol to the Covenant on Civil and Political Rights were adopted in
1966, wherein the contracting parties declared that they would provide different rights as stipulated
in the Covenants to the individuals. Further, International Convention on the Rights of the Child
adopted on November 20, 1989 by the General Assembly, provided a number of rights to a child
below the age of eighteen years? Convention on the Elimination of all Forms of Discrimination
Against Women adopted by t General Assembly on December 18, 1979 provided rights to women.

Right to Make Petitions:

The rise of human rights consciousness has given rise to the individual's right to make petitions
before the international forums if their rights are violated. For instance, the Optional Protocol to
the Covenant on Civil and Political Rights of 1966 provides for the petitions by the individuals
before the Human Rights Committee against its own State. Similarly, the Convention on the
Elimination of All Forms of Racial Discrimination of 1966 also provides under Article 14 that the
Committee on the Elimination of Racial Discrimination shall receive communications from
individuals or group of individuals for the violations of the rights mentioned in the Convention.
Later, Article 22 of the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment of 1984 and Article 75 of the International Convention on the Protection
of the Rights of all Migrant Workers and Members of their Families of 1990 also provided for the
individual's petitions. It is to be noted that the rights of individuals to make petitions before the
international forums are available only at the instance of the States. In other words, an individual
cannot generally assert his own rights against a State unless a State has become a party to the
convention where in the rights have been provided to the individuals.

In addition to the International Conventions, some regional Conventions have also provided for
the petition mechanism. For instance, the European Convention for the Protection of Human
Rights and the Fundamental freedoms of 1950, lays down under Article 25 that the Commission
may receive petitions from any person, non-governmental organizations or group of individuals
claiming to be the victims of a violation by one of the High Contracting Parties provided the State
concerning which a petition is made, has declared that it recognizes the competence of the
Commission to receive such petitions. American Convention on Human Rights of 1969 has a
similar system to that of the European Convention, except that its individuals' petition clause is
not optional. Further, those American countries which have not ratified the Convention are still
subject to another complaint system of the Inter-American Commission, on the broad basis of the
Charter of the Organisation of the American States and the American Declaration on the Rights
and Duties of Man of 1948.

Right to Conciliation and Arbitration Proceedings:

The Convention for the Settlement of Investment Disputes between States and Nationals of other
States concluded on March 18, 1965 provided for the machinery of conciliation and arbitration on
a consensual basis so that private foreign investors might have direct access thereto to settle legal
disputes with investment-receiving States.

4.DUTIES OF INDIVIDUALS:

International Law has imposed direct responsibility upon individuals for the offences committed
by them. In customary international law piracy and slavery were the only recognized offences
where individuals could be given punishment, presently they are responsible for a number of
crimes.
Offence of Piracy:

The offence of piracy has been traditionally regarded as a crime against International Law. It is
punishable by any State which seizes the offender.4 Every State has a right to arrest, trial and
punish the pirates, and the vessels involved in the act of piracy may be seized. The Convention on
the Law of the Sea of 1982 has transformed the above customary rule into treaty rule by stating
under Article 101 that 'Piracy consists of any of the following acts: (a) any illegal acts of violence
or detention, or any act of depredation, committed for private ends by the crew or the passengers
of a private ship or a private aircraft, and directed : (i) on the high seas, against another ship or
aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft,
persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary
participation in the operation of a ship or of an aircraft with knowledge of facts making it a private
ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in sub-
paragraph (a) or (b). Under Article 100, the Convention further provides that all States shall co-
operate to the fullest possible extent in the repression f piracy on the high seas or in any other place
outside the jurisdiction of any State.

Violations of the Rules of Warfare:

Individual members of armed forces of belligerent States are cqriminally liable for violations of
the rules of warfare, and may be given punishment by other belligerents. In some cases, sanction
is imposed upon individuals committing offences by the States having custody of them by the
exercise of domestic jurisdiction, and in a few cases by the international procedure. After the
Second World War, certain cases occurred in which responsibility under International Law has
been imputed directly to the individuals, who have been punished under an Intenational procedure.
According to the Charter of the Intenational Military Tribunal, the jurisdiction of the Tribunal
extended to individuals for crimes against peace, war crimes and crimes against humanity, whether
or not they violated the domestic law of the country in which they were perpetrated. The official

4
In re Piracy Jure Gentium case the Privy Council was asked to consider whether the actual robbery committed by
Chinese nationals on the high seas has an element of piracy jure gentium. The Council was of the view that a person
guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national but "hostis
humani generis" and as such he is justiable by any State anywhere....(1934) AC 586.
position of the accused whether as Heads of States, or responsible officers of government, of the
armed services, was no considered as freeing them from responsibility though it might mitigate
punishment. The Tribunal in its judgment delivered in 1946 justified the concept of individual's
responsibility in the following terms

The International Law imposes duties and liabilities upon individuals as well as upon States
has long been recognized......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........5

The trial of Japanese major war criminals (Tokyo Trial) was also conducted upon the same
principles. It is to be noted that the General Assembly has affirmed the principles recognized in
the Nuremberg Charter. International Law Commission has prepared a Draft Code of Offences
Against Peace and Security of Mankind in 1950 wherein individual's responsibility for certain
crimes were expressly laid down.

Individual responsibility has also been confirmed with regard to grave breaches of the Geneva
Conventions of 1949 and the Additional Protocols I and II to Geneva Conventions of 1949 which
dealt with armed conflicts. It has been specifically provided that the High Contracting Parties
undertake to enact any legislation necessary to provide effective penal sanctions for persons
committing or ordering to be committed any of a series of grave breaches.6 Such grave breaches
include willful killing, torture or inhuman treatment, extensive destruction and appropriation of
property not justified by military necessity and carried out unlawfully and want only, unlawful
deportation and transfer of protect persons and the taking of hostages.

Offence of Espionage:

Espionage is an act of a soldier or other, individual who clandestinely, or under false pretence,
seeks to obtain information concerning a belligerent with the intention of communicating it to the
other belligerent. Article 24 of the Hague Regulations enacted the old customary rule that the
employment of methods necessary to obtain information about the enemy and the country is
considered permissible. However, it has not protected those individuals from punishment who are

5
AJIL vol.41 (1947) pp.172 and 220
6
Article 49,50 ,129 and 149 of the first, second, third and fourth Geneva convention respectively.
engaged in procuring information's. Individuals committing espionage and war treason are
considered war criminals and may be punished.7

The usual punishment for praying is hanging or shooting, though less severe punishments are, of
course, admissible and are sometimes inflicted.8

Crime of Genocide:

Genocide was regarded as a crime under International Law, for which the perpetrators, whether
they were statesmen, public officials or private individuals were punishable. The above rule was
made by the General Assembly in a resolution adopted on December 1l, 1946.9Further, a
Convention on the Prevention and Punishment of the Crime of Genocide, commonly known as
Genocide Convention, was adopted by the General Assembly on December 9, 1948 which came
into force on January 12, 1951.10 The Convention under Article 1 provides that the contracting
parties confirm that genocide, whether committed in time of peace or in time of war is a crime
under International Law, which they undertake to prevent and punish. The Convention also
provided that those who are guilty of committing genocide must be punished whether they are
constitutionally responsible rulers, public officials or private individuals.

Aircraft Hijacking:

Individuals may be given punishment for the air-craft hijacking and for the unlawful acts
committed against the safety of civil aviation.

Kidnapping of Diplomatic Personnel and Other Persons:

Convention on Prevention and Punishment of Crimes against Internationally Protected Persons

including Diplomatic Agents of 1973 and Convention on Taking of Hostages of 1979 have
expressly laid down for the punishment to the individuals for the acts mentioned in the above
Conventions.

7
Oppenheim, ’International law’, vol. II, p. 422
8
Ibid., p. 424
9
General Assembly Resolution 96(1), dated December 11 1946
10
78 UNTS, 277
Apartheid:

By the term apartheid, an African term, is meant separateness or segregation. It is an official name
given South Africa to its racial policy. The purpose of apartheid is to perpetuate the domination of
the country by its White minority in the face of rising nationalism throughout Africa.11 The policy
violates the law of human rights, genocide, slavery and it is a crime against humanity. In order to
suppress it and to give punishment a Convention was adopted by the General Assembly12 on
November 30, 1973 which provided under Article III that individuals, members of organisations
and institutions and representatives of States whether residing in the territory of the State in which
the acts are perpetrated or in some other State, irrespective of motive shall be held responsible if
they commit, participate in or directly abet, encourage or cooperate in the commission of the crime
of apartheid. The Convention also provided under Article XI that the issue committed shall not be
considered political crimes for extradition. Article V provided that the persons charged with the
crime of apartheid may be tried by a competent tribunal of any State party to the Convention which
may acquire jurisdiction over the person of the accused or by an international penal tribunal having
jurisdiction to these States Parties which shall have accepted the jurisdiction.

It is to be noted that a number of individuals have been arrested in recent years for committing
different crimes. For instance, in 1998, former Chilean President Augusto Pinochet was arrested
in London following a request for extradition from Spain. The charges were murder,
disappearances and torture committed during his term in office. In January 2000, Hissene Habne,
the former President of Chad, was indicted by the State Prosecutor of Senegal for similar offences.
In May 1999, the Office of the Prosecutor of the International Criminal Tribunal for the former
Yugoslavia issued an indictment for Milosevic, the then President of Yugoslavia.

5.Conclusion

Besides the above rights and duties, individuals have also been given certain benefits in other
States, by the conclusion of treaties, which they would have not acquired otherwise. For instance,

11
General Assembly Resolution 3068 (XXVIII), dated November 30, 1973.
12
Apartheid in south Africa has came to an end with the installation of the non-racial transitional executive council
in December 1993
a duty has been imposed upon all States to grant certain privileges to such foreign Heads of States
and diplomatic envoys, and certain rights of such foreign citizens, as are on their territory. And,
correspondingly every other State has a right to demand that its Head, its diplomatic envoys, and
its citizens be granted certain rights by foreign States when on their territory. Foreign States
granting these rights to foreign individuals do this by their municipal laws. These rights to some
extent are not international rights but rights derived from municipal laws. International Law is
indeed the background of these rights, in so far as the duty to grant them is imposed upon the
several States by International Law13. These rights could not be enforceable before the municipal
Courts had the several States not created them under their municipal law.

It is to be noted that individuals do possess rights and duties in International Law, and they
therefore have a legal significance. They are likely to acquire more rights and duties in future in
view of their enhanced importance given in various international documents. However, their role
would remain limited and their position would remain imperfect as long as they do not have access
before the International Court of Justice. Article 34(1) of the Statute of the Court stipulates that
only States may be parties to the Court. Neither the Statute nor the Rules of the Court permit the
individuals to file a petition before the Court. Presently, the cases of the individuals could be
brought before the Court if they are sponsored by the States. However, the creation of the
International Criminal Court on 17, 1998 has improved the position of the individuals in the sense
that it has been given jurisdiction to decide the most serious crimes committed by the individuals.
The term most serious crimes includes the crime of genocide, the crimes against humanity, war
crimes and the crime of aggression. However, individuals still do not have any right to move the
court in case their rights are violated. If the States, by imposing limitations upon themselves, have
agreed to provide a number of rights to the individuals, there is no reason to prevent the individuals
from providing remedies in those cases where their rights are violated.

13
Oppenheim, op. Cit., Vol. I. P. 637.
6.Bibliography

 The Position of the Individual in International Law according to Grotius and

and Vattel
: Remec, Peter Pavel

 International Law & Human Rights

: Dr. H. O. Agarwal

 https://www.legalbites.in/subjects-international-law/