Under the Westphalian construct states assert sovereignty over individuals within their jurisdiction and there is little scope for the recognition of the individual in international law. International rights and/or obligations are not conferred on individuals directly. The events of the Second World War created renewed impetus to protect human rights and freedoms at the international level. The UDHR 1948 and subsequent conventions codified human rights for the first time at an international level; states are obliged to respect the rights of individuals. However, there are few mechanisms for enforcement of their rights by individuals. The right of challenge of infringements of international human rights is invariably via the state and/or by an international organisation’s application to the relevant international tribunal. In this sense individuals remain the objects of international law, rather than subjects with the right to take action.
On some occasions individuals may be able to institute criminal proceedings against those accused of international crimes in their national courts.
Example of war crimes in national law
The War Crimes Act 1991 allows prosecution of a person who is now a British citizen or who is now resident in the UK, for murder and related crimes in respect of violations of the laws and customs of war committed in the Second World War.
Under this Act the English courts have been given jurisdiction over matters which are offences in international law.
In practice, this type of remedy cannot be relied on by individuals who live in repressive regimes and in states with a record of poor governance.
Some treaty regimes provide for an individual right to petition an international body: this is referred to as ‘procedural personality’.
Examples of the right to petition international bodies
The European Convention on Human Rights (ECHR) 1950 permits individuals to make a claim to the European Court of Human Rights (ECtHR) alleging infringements of the rights embodied in the Convention.
Article 24 of the International Labour Organization (ILO) Constitution 1919 provides that employee and employer representatives can submit a complaint to the ILO Office demanding that member states comply with the terms of a ratified ILO Convention.
Individuals can bring the alleged infringements to the attention of the Prosecutor of the International Criminal Court (ICC), but they cannot institute proceedings.
The UN International Covenant on Civil and Political Rights (ICCPR) 1966 provides that an individual has the right to petition the Human Rights Committee directly as a victim of a violation of human rights – so long as the state of his/her nationality has signed the Optional Protocol.
These types of mechanism provide limited individual redress as in most cases they rely on the will of another body to act on them and are not available unless the state concerned is a party to the treaty providing the right of petition. Also, a state can, in theory, decide to terminate its membership of the treaty provisions, although the political and diplomatic ramifications of taking this step means that in practice withdrawal from treaty provisions are rare. Despite these reservations, if measured by the number of applications made to it, the ECtHR is a great success. There were approximately 151,600 applications pending on 1 January 2012. Many applications raise similar legal issues and are then considered jointly. In 2011 the ECtHR delivered 1157 judgments (ECtHR, 2012).
Example of affirmation of human rights by ICJ: the Palestinian people
In a 2004 advisory opinion the ICJ confirmed the right of the Palestinian people to self-determination and also Israel’s obligations under humanitarian and human rights law. It was considered that the construction of a wall in the Occupied Palestinian Territory severed and displaced Palestinian communities, restricted the movement of Palestinians, and reduced access to vital services and to work and amenities. Israel was required to make reparation for the damage suffered by individuals affected by the construction of a wall (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion ICJ Rep 2004, 136)
Antonio Cassese aptly sums up the current position of the individual in international law:
they have a lopsided position in the international community. As far as their obligations are concerned they are associated with all the other members of the international community; in contrast, they do not possess rights in relation to all members of that community. Plainly all States are willing to demand of individuals respect for some fundamental values, while they are less prepared to associate them to their international dealings, let alone grant them the power to sue States before international bodies.(Cassese, 2005, p. 150)
On some occasions international law imposes obligations on individuals separately from the obligation placed on the state which they represent and/or of which they are nationals/citizens. For instance, individuals may be personally accountable for war crimes, genocide and crimes against humanity.
Individual accountability is imposed regardless of the provisions of the national legal system to which the individual is subject, and in this way international law impinges directly on the individual.