This article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan. The article aims to discuss the status of an individual under Public International Law.
It is the law that provides rules and principles to govern the relations of States with each other, as well as the relations between individuals and States, and the relations between international organizations. The term ‘international law’ is also known as the Law of Nations. It was given by Jeremy Bentham, who was an English philosopher, in the year 1780. In International law, a country is referred to as ‘State’.
International law is of two types – Private International Law and Public International Law. These two are as discussed below :-
- Private International Law: Private International Law governs the relationship and dealings between individuals of different countries. These dealings may sometimes lead to controversies that affect the relationship between nations.
- Public International Law: Public International Law governs the issues arising as a result of the dealings between several nations or nations and the citizens or subjects of other nations.
In the last few years, the distinction between public and private international law has become uncertain. Issues of private international law may also come under the purview of public international law or have international significance.
“Individual” under International Law
When we speak of individuals with regard to their status in public international law, i.e. individuals entitled to rights and duties under international law, the term “individual” here has a broader scope. “Individual” in the legal sense means any subject of international law, thus it includes not only a human being, but also a commercial enterprise with a legal personality, and a foundation. This does not mean that all individuals have the same rights, it simply indicates that the term “individual” is taken in the broader sense.
Status of Individual
- Before 1945 : Before 1945, the individual did not have any special status in the public international law. He could be regulated under international law, but he did not enjoy any rights and duties as an individual under the international legal order. This was because public international laws are laws governing states, and individuals are the citizens of those states, thus they were deemed to be objects instead of subjects. They were not considered to be competent to have rights and duties under international law.
However, there were a series of treaties and customary rules concerning individuals, such as treaties protecting minorities, there were a series of rules in customary law known as the “minimum standard”. These rules provided for the way in which foreigners should be treated by the States.
These regulations may have been for the benefit of the individual, but he could not claim them directly on the basis of customary rules or treaties due to the lack of direct rights or obligations under international law.
Earlier, States did not grant rights and duties directly applicable under international law which the individual could claim on his or her behalf from international organizations. It was provided that States would ratify the treaties and incorporate them into their domestic laws, and it was under the scope of this domestic law that the individual could claim the rights provided in those treaties.
- After 1945 : The United Nations Organisation was established in the year 1945 after the end of the Second World War. It was during this time that the concept of International Law developed and became widespread. The experience of the war showed that cultural states could fall into relative barbarism and domestic laws could be deficient or dysfunction or be used for obscure purposes. Thus, the international community began considering the need and possibility of making an individual a subject under international law, thereby granting him legal responsibility and rights.
Thus the belief, that the international law is only concerned with interstate relations and an individual is merely an object of the State, has now changed since rights are granted and obligations are being imposed on individuals directly under the public international law. These rights are fundamental subjective rights that come under human rights, on the other hand, the obligations which are imposed on the individuals come under international criminal law, which is concerned with major crimes that can directly hold an individual accountable.
- International Treaties directly regulating individual rights : The rules of Public International Law have evolved to address individuals directly and now entail rights and obligations. The Charter of the United Nations of 1945 established the principle of respect for human rights, which was a relatively new concept in international law and international relations. The Charter led to the emergence of international human rights law and dozens of other international instruments that dealt with fundamental freedoms and various aspects of human rights. Some of those instruments are :
- Universal Declaration of Human Rights, 1948
- International Covenant on Civil and Political Rights, 1966
- International Convention on Economic, Social and Cultural Rights, 1965
- International Convention against Torture, 1989
- International Convention on the Child Rights, 1989
These international instruments have led to the establishment of human rights generations which are as given below :
- The first generation of civil and political rights
- The second generation of economic, social and cultural rights
- Third generation of solidarity rights
The developments in international legal relations led to the emergence of legal systems for the protection of human rights at the global and regional levels, thereby enhancing the status of the individual in public international law.
- International Treaties that directly impose obligations on the Individual :
The establishment of the principle of international criminal responsibility has increased the obligations imposed on individuals by the rules of public international law.
An individual who commits serious crimes against the international community is prosecuted before the relevant international criminal tribunals regardless of his official status.
International crimes against which individuals are prosecuted are classified as :
- War Crimes
- Crimes against humanity
- Crimes of aggression
Some international treaties address individuals directly and impose obligations that must be met under international criminal responsibility. These treaties include :
- International Convention for the suppression and Punishment of the Crime of Genocide of 1948
- The four Geneva Conventions of 1949
- International Convention against War Crimes of 1968
- Rome Statute of the International Criminal Court of 1988
- The Right to Submit Complaints and Claims at the international level : With unprecedented developments in international law, an individual can now file complaints and allegations directly with international judicial bodies and institutions to lift violations and obtain compensation for damages.
The status of individuals has significantly improved and they are now being recognised as participants and subjects of Public International Law. This has occurred mainly through the Humanitarian and Human rights laws coming together with the evolution of the Traditional International Law. Individuals are now granted certain rights and obligations directly under International Law.
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