Since the institution of international law, numerous scholars have focused on the subject of the status of the individual in the international legal framework. This subject elicited numerous debates in the legal field. The main reason for these debates is due to the imprecise nature of international law.
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Evolution of legal personality of the individual in international law
Over the years, the position of the individual in the international legal scene has been steadily evolving and developing. According to Parlett (47), the evolution of international law is such that it gradually broadens the pool of its subjects. The designers of international law, Hugo Grotius, Francisco Suarez, and Francisco de Vitoria, held that a universal society of individuals existed and that the individual acted as the reference point for rights and duties (Parlett 48).
In the 19th century, Hegel’s philosophy led to the growth of positivist theories. According to Hegel’s philosophy, the individual was secondary to the state in international matters. In the international arena, the rights and liabilities rested solely on the states, while individuals relied totally on the will of the state, and were completely subject to its laws (Henderson, 149). This formed the period of classical international law, distinguished by interstate relationships, where the individual existed as a mere object rather than the subject of international law. Under this system, states had unlimited freedom on how they treated their subjects (Authors, 784).
Since the 19th century, Economic stress, mobility of the population, political divisions and inequalities that span across boundaries has established a chain of events in which the classical legal model becomes redundant (Parlett, 48). During the end of the 19th century, the ideology that the individual was a subject of international law emerged. The ideologies that held international law only conferred rights to nations were first challenged in 1919 with the creation of the International Labor Organization (I.L.O.). With its focus on worker’s rights, this institution laid the foundation for a universal human rights protection system (Clapham 2010).
The end of World War II saw the need to develop a system to protect the human rights of individuals regardless of the political structures of the time. This saw the creation of the United Nations and the elevation of the individual in the international legal sphere. During this time, new nations emerged from the decolonization process as well as other important players. Several organization was conferred the capacity to operate across the border. This led to the full acknowledgment of the international personality of international organizations. The establishment of organizations possessing international capacity led to the expansion of the categories of subjects of international law. In 1949, the ICJ held that an international organization is an international person and has rights and duties but not the same as those of the state (Strapatsas 2).
With organizations acquiring legal personality, and the development of systems protecting human rights, a renewed drive regarding the individual as a subject of international law emerged. In 1946, the Nuremberg Charter held that individuals have international duties that exceed obligations placed by the individual nation. It also held that individuals are accountable for all violations of the laws of war while acting on the authority of the state in cases where the state exceeds its rights under international law. According to Paust (1240), individuals violate international law and not abstract entities. He argues that the only way to enforce the provisions of international law is to punish those individuals responsible for committing such crimes.
In 2002, the creation of the International Criminal Court signified a new shift in individual legal personality. The ICC has the jurisdiction to protect international law in issues concerning war crimes and genocide (Strapatsas 2). As of 2015, the court has indicted 39 individuals on charges relating to crimes against humanity under international law. This signifies an important shift in the legal personality of the individual in international law, the individual as a subject of international law, and thus possesses certain responsibilities to the international community. Clapham (27) notes that currently, individuals possess several rights and obligations under general international law but no remedies.
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Over the course of the 20th century, the need to protect the rights, dignity, and freedom of individuals demanded the establishment of international legal rules that focus on humanitarian values. In the past, each nation was responsible for the position of the individual in international law. This relationship, however, experienced several changes after World War II due to the creation of various multi-state organizations as well as the United Nations. Currently, it has become apparent that the rights of the individual exist beyond the boundaries of a nation, and that these rights are a matter of international interest. In cases where grievous violation of individual rights occurs, the United Nations can take direct military or non-military action to ensure the cessation of these activities. This development shows the evolution of the rights of the individual in international law over the years and the development of legal personality in international law.
Authers, Benjamin. “The Individual Is International: Discourses of the Personal in Catherine Bush’s The Rules of Engagement and Canada’s International Policy Statement”. University of Toronto Quarterly 78.2(2009): 782:799.
Clapham, Andrew. “The Role of the Individual in International Law”. The European Journal of International Law 21.1(2010): 25-30.
Henderson, Conway. Understanding International Law. Malden, MA: Wiley-Blackwell. 2010.
Parlett, Kate. The Individual in the International Legal System: Continuity and Change in International Law. New York: Cambridge University Press. 2011.
Paust, Jordan. “The Reality of Private Rights, Duties, and Participation in the International Legal Process”. Michigan Journal of International Law 25(1989): 1240.
Strapatsas, Nicolaos. “Universal Jurisdiction and the International Criminal Court”. Manitoba Law Journal, 29(2002): 2-3.