International Law: Can Individuals Be Subjects?

The question of whether an individual can be a subject of international law is a complex one, with a variety of perspectives. Traditionally, international law was seen as a set of rules governing relationships between nations, with states considered the primary subjects. However, the evolution of international law, particularly after World War II, has led to a growing recognition of individuals as subjects with certain rights and duties. While some scholars argue that only states possess full international legal capacity, others, like Prof. Kelsen, assert that individuals are the only true subjects of international law, as the duties of states ultimately fall on their citizens. This debate revolves around the nature of international law, its relationship with domestic laws, and the increasing incorporation of humanitarian principles.

Individuals as objects, not subjects

The notion that individuals are objects, not subjects, of international law has a long history in legal theory. Legal positivism, for example, views international laws as a set of rules with states as their subjects. This perspective draws a clear distinction between international and municipal rules and regulations, with the latter concerning individuals as subjects of a single state. Jeremy Bentham, who coined the term "international law" in 1789, defined it as relating to "the mutual transactions between sovereign states" and concluded that states are the sole subjects of international law. Early positivists, such as Joseph Story and John Austin, further emphasized this state-centric view, with the former creating the concept of private international law to parallel public international law, which deals with matters between states.

The view of individuals as objects, rather than subjects, of international law is also reflected in the traditional understanding of international law as governing relationships between nations. This perspective sees individuals primarily as citizens of states, with their rights and duties derived from their respective nations. Before 1945, international law did not recognize individuals as direct subjects, even though it acknowledged them in an abstract sense. The primary concern of international law was seen as the rights and duties of states, with individuals considered objects in this broader framework.

However, this perspective has been challenged, particularly after the First and Second World Wars. The international community began to contemplate the need to recognize individuals' legal responsibility and rights under international law. This evolution in thinking led to significant transformations in the international legal order, and individuals are now recognized as possessing certain rights and duties under international law. While states remain the primary subjects, individuals have gained limited legal capacity in the international arena.

Despite this progress, it is important to note that individuals still face limitations in their legal capacity under international law. They do not possess the same comprehensive rights and obligations as states, and their ability to bring international claims or be held responsible for breaches may be restricted. Nonetheless, the recognition of individuals as subjects of international law, even in a limited capacity, marks a significant shift from their historical treatment as mere objects in the international legal system.

The evolution of international law

Early examples of treaties and cooperative agreements between sovereign entities can be found in the ancient world, such as the treaty between the rulers of the Mesopotamian city-states of Lagash and Umma around 2100 BCE, which established a prescribed boundary between their territories. Another notable example is the agreement between Ramses II of Egypt and the king of the Hittites, signed around 1000 BCE, which pledged "eternal peace and brotherhood" and established a defensive alliance between the two nations.

The fall of the Roman Empire and the collapse of the Holy Roman Empire into independent entities marked a significant turning point in the development of international law. Without a dominant empire or religious authority to moderate international dealings, Europe looked to the code of law established by Justinian of the Roman Empire and the canon law of the Catholic Church for guidance. The expansion of international trade, exploration, and warfare further emphasised the need for standardised rules and customs between states, particularly in the realm of maritime law.

The concept of "consent" has also evolved in international law. Before World War II, a nation was not considered bound by a rule unless it had formally agreed to abide by it or if it was already customary. Today, mere consent to an international practice is often sufficient to bind a nation to it, without the need for a formal treaty. This evolution reflects the positivist approach and is an element of customary international law, which is based on state practices and the opinio juris of what states believe international law requires of them.

While states have traditionally been regarded as the primary subjects of international law, the evolution of the international legal order has led to a growing recognition of individuals as subjects with certain rights and duties. This shift gained momentum after World War II, as the international community recognised the need to address individual legal responsibility and protection under international law.

Legal rights and duties of individuals

The concept of individuals as subjects of international law has evolved significantly over the years. Before 1945, international law recognised individuals as subjects, but they were not afforded the same rights and duties as sovereign states. In the traditional view, international law was seen as governing the relations and conduct of sovereign states, with individuals regarded as objects rather than subjects.

However, after the First and Second World Wars, the international community began to recognise the need to confer certain rights and duties directly to individuals under international law. This evolution was driven by the increasing importance of humanitarian principles and the recognition that international law should take precedence over domestic laws.

Today, individuals are recognised as subjects of international law, albeit with limited legal capacity compared to sovereign states. This recognition grants individuals specific rights and duties, including procedural rights to prosecute claims before international courts and tribunals. The rights of individuals under international law are often protected through international treaties and customary law, which form the backbone of international human rights law.

While international law does not directly enforce these rights and duties upon individuals, it imposes obligations on states to respect, protect, and fulfil human rights. This includes the obligation to refrain from interfering with or curtailing the enjoyment of human rights, protecting individuals and groups from human rights abuses, and taking positive action to facilitate the enjoyment of basic human rights. To meet these obligations, states often adopt domestic measures and legislation compatible with their international treaty obligations.

The impact of World War I and II

The impact of World War I and World War II on the question of whether an individual can be a subject of international law is multifaceted.

The atrocities of World War I and World War II highlighted the need to protect individuals and vulnerable human groups, leading to calls for individuals to be included as subjects of international law. The concept of "crimes against humanity" emerged as a revolutionary legal innovation, aiming to protect civilian populations during peacetime and wartime, even from their own governments. This concept was developed during World War II and refined in its aftermath, becoming a major pillar of international law. The International Military Tribunal in Nuremberg and the International Military Tribunal for the Far East in Tokyo were established to prosecute key actors in Germany and Japan for crimes against peace, war crimes, and crimes against humanity.

The Treaty of Versailles, signed after World War I, marked a significant attempt to hold an individual—Kaiser Wilhelm—accountable for the unlawful resort to major military force. This set a precedent for individual responsibility in international criminal justice. The war also had a significant impact on the development of prisoner-of-war (POW) law, transforming the legal status of POWs from 'disarmed combatants' to 'humanitarian subjects'.

The Permanent Court of International Justice (PCIJ) was established after World War I, and its universal scope in terms of geographical jurisdiction and subject matter made it highly influential. The League of Nations, supported by the PCIJ, facilitated the exchange of minorities between Greece and Turkey from 1922-1934, resulting in the forcible relocation of two million people.

However, the impact of the world wars on the inclusion of individuals as subjects of international law was not without challenges. The Universal Declaration of Human Rights (1948) was deliberately drafted as a non-binding document, and the work of the UN Human Rights Commission proceeded slowly due to suspicions from socialist and third world states. The Cold War further slowed the process of developing international criminal law, as differences arose over the definition of certain crimes, including aggressive war and crimes against humanity.

In conclusion, the impact of World War I and World War II had a significant impact on the development of international law regarding the protection of individuals. The concept of crimes against humanity and the establishment of international tribunals were important steps towards holding individuals accountable for their actions during wartime. However, the process of including individuals as subjects of international law faced challenges and delays, particularly in the form of ideological differences during the Cold War.

International law and municipal law

The relationship between international law and municipal law is complex and depends on a country's domestic legislation. While international law operates at the international level, municipal law is local or national law applicable within a defined territory.

International law is a set of rules, regulations, norms, and principles that govern the relationships between nations and consider individuals and international organisations. It deals with various sectors such as war, diplomacy, human rights, and trade. On the other hand, municipal law is local or national law applicable within a specific territory, typically concerning individuals who are subjects of a single state.

Theories such as dualism and monism attempt to explain the relationship between international and municipal laws. Dualism, supported by Triepel and Anzilotti, contends that international and municipal laws are distinct and independent, with municipal law taking precedence in cases of conflict. According to this theory, international law rules become binding on municipal courts only after being transformed into municipal legislation.

Monism, led by Austrian jurist Kelsen, views international and municipal laws as part of a single legal system, springing from the same grundnorm or standard. Monists believe that international law applies to municipal law without specific delegation, and any local law contradictory to international law is invalid.

The United Kingdom, for example, takes an incorporationist view, considering customary international law as part of common law. However, treaties are seen as purely executive acts, becoming part of domestic law only through relevant legislation. In contrast, the United States Constitution stipulates that treaties "shall be the supreme Law of the Land," highlighting the varying positions on the incorporation of international law into municipal law.

Historically, the recognition of individuals as subjects of international law has evolved. Before the 20th century, individuals were often regarded as objects rather than subjects, with states being the primary subjects. However, after World War I and World War II, the international community recognised the need to confer certain rights and duties directly to individuals, transforming them into subjects of international law.

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