Public International Law/Actors in International Law/Individuals





Author: Jens T. Theilen "Required knowledge: Introduction to Subjects and Actors in International Law" "Learning objectives: To understand the development of individuals' international legal personality, and to understand and critically assess the narratives of progress that often accompany it."

A. Introduction
The role of individuals in international law is complex, contested, and shifting. Whether and what kind of international legal personality individuals possess, in particular, is a much-debated topic that is poised between somewhat technical definitions and doctrinal debates on the one hand and implications for the very foundations of the international legal order on the other. Any stance on individuals’ international legal personality or subjecthood presumes a definition of how such subjecthood is constituted, which in turn reveals a particular theoretical outlook on international law. For example, proponents of the process-based, policy-oriented approach to international law are likely to see individuals as actors or participants rather than subjects. The dominant position as a matter of legal doctrine seems to be that international legal personality is the capacity to occur rights and duties under international law. On that account, the question becomes, empirically, whether and to what extent such rights and duties have, in fact, been imparted upon individuals and, conceptually, what this means for the subjecthood of individuals under international law, especially in relation to the prototypical subject of international law on traditional accounts – the state.

Against this backdrop, the standard narrative regarding the international legal personality of individuals goes roughly as follows. While individuals were included among the subjects of early writings on international law by natural law scholars, the rise of positivism, especially in the late 19th and early 20th century, brought with it a focus almost exclusively on states. Some scholars continued to advocate for a stronger role for individuals, however, and over the course of the 20th century these efforts bore fruit, particularly in light of the legal developments following the Second World War. Nowadays, individuals are acknowledged as the bearers of a broad range of international rights and duties, necessitating their inclusion as subjects – perhaps even the ‘primary’ subjects – of international law. The following sections will trace the different steps of this narrative before questioning, by reference to the related field of global constitutionalism, whether it should be considered a narrative of progress.

B. Origins of individuals’ international legal personality
To legitimise the international legal personality of individuals, some authors point to history: at the very origins of international law, it is said, no distinctions were made between the subjecthood of individuals and communities such as states. Many proponents of individuals’ international legal personality point to the writings of the Spanish theologian Francisco de Vitoria, particularly his treatise De Indis (published posthumously in 1557) on the relations between the Spanish and the indigenous peoples they conquered during their transatlantic voyages. Vitoria is said to have established ‘natural law as the universal law of all humanity’, including individuals among its subjects. He is summarised as arguing ‘that the Native Americans in the territories conquered by Spain and Portugal had rights and claims under both public law and private law, just like Christians’ – hence implicitly recognising individuals including indigenous persons as subjects under international law without distinction, for example, between ‘private’ and ‘public’ wars.

To leave the summary at that and to couch it in celebratory tones – as those who claim Vitoria as an early pioneer of individual rights often do – is misleading, however. Vitoria’s ostensibly humane characterisation of indigenous persons as possessing reason led them to be bound, on his account, to the principles of international law: ‘it is precisely because the Indians possess reason that they are bound by jus gentium’, as Antony Anghie, one of the leading scholars associated with the Third World Approaches to International Law (TWAIL), has put it. The content of jus gentium, although characterised as universal and reason-based by Vitoria, in effect mirrored Spanish norms and cast alternate social practices as uncivilised. Inevitably, the colonised peoples were held to have violated the international norms they now found themselves subject to, which, in turn, legitimated their conquest and other forms of violence against them. So, even if Vitoria’s vision of international law can indeed be conceptualised as a precursor of modern approaches that recognise the international legal personality of individuals, it also serves as a warning that legal subjecthood can fulfil a variety of functions, not all of them benign. For indigenous peoples in particular, the dynamic inherent in Vitoria’s argument still resonates today, with recognition of subjecthood under the law of settler colonial states – or under international law, dominated by those very states – establishing them as ‘subjects of empire’ in a way that runs counter to indigenous sovereignty.

C. From state-centric to human-centric international law
But for now, let us return to the standard narrative of the development of individual subjecthood under international law over time. In contrast to the position of early natural law scholars like Vitoria, classical legal positivism brought with it a state-centric view of international law. The orthodox position regarding international legal personality at the beginning of the 20th century was aptly summed up by Lassa Oppenheim, one of the most famous positivist international lawyers: ‘Since the law of nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are subjects of international law’. Individuals were said to be ‘objects’ rather than ‘subjects’ of international law. On this view, even when treaties or other sources of international law seemed to provide rights to individuals, they were, in fact, not granted to the individuals themselves but rather to their state of nationality. It was only through the mediation of the state that the individual could appear on the international scene – provided that their state of nationality was willing to engage on their behalf, for example by exercising diplomatic protection but also, potentially, by the use of force. This was particularly relevant in the case of foreign investments, where – despite protest by Latin American states in particular – it was increasingly regarded as legitimate for the investor’s home state to intervene on their behalf in cases of expropriation or public debt.

Over the course of the 20th century, the exclusively state-centred position lost ground significantly.

In the decades that followed the Second World War, human rights came to be seen as an increasingly important sub-field of international law, and a vast number of human rights treaties were concluded. Nowadays, their number is so immense and their interpretation by various human rights bodies covers so much ground that some scholars even speak of undue human rights ‘proliferation’ or ‘inflation’. This proliferation of individual rights also includes fields which were traditionally viewed as merely the purview of states, such as consular relations. In the famous LaGrand case, the ICJ was seized of a dispute regarding consular law: two German nationals, the LaGrand brothers, had been sentenced to death in the United States of America without being informed of the possibility of contacting and communicating with the consular post of their state of nationality. Germany contended that this entailed not only a breach of its own rights, but also those of the LaGrand brothers themselves. In its 2001 judgment, the ICJ came to the following conclusion:"Based on the text of these provisions, the Court concludes that Article 36, paragraph 1 [of the Vienna Convention on Consular Relations], creates individual rights, which, by virtue of Article I of the Optional Protocol [of that Convention], may be invoked in this Court by the national State of the detained person. These rights were violated in the present case."The ICJ thus read the Vienna Convention on Consular Relations as granting certain individual rights of information and communication to detained foreign persons, based not on the original intent of the states parties but on the wording of the provisions at issue.

Besides this landmark judgment and the field of human rights as the paradigm of individual rights, proponents of individuals’ international legal personality point to developments in many other fields of international law, including but not limited to humanitarian law, the law of the sea, and economic law. The field of investment law, previously the poster-child of individuals being perceived on the international legal scene only when mediated through action of their home state, now provides a prime example of individuals not only being accorded their own rights under international law, but of participating in the law-making process through ‘state contracts’ between investors and host states and of individuals enforcing their rights before arbitral tribunals. Thus, unlike the situation in the LaGrand case where individuals were held to have rights under international law but only their state of nationality could procedurally invoke these rights before the ICJ, in some cases individual rights also include standing to bring cases before regional or international courts or other quasi-judicial bodies. This possibility is seen by some authors as in turn enshrined within international law as an individual right of petition and characterized as ‘the most luminous star in the universe of human rights’ and an expression of the individual as the ‘ultimate subject’ of international law.

In terms of duties, too, there have been clear developments since the Second World War. Already in its immediate aftermath, the trials of Nuremberg brought together individual duties, penal sanctions, and international law; the Military Tribunal noted:"That 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."

While the idea of long-recognized individual duties as pronounced here was certainly a product of the specific post-war context, it has since spread, with the growing importance of the field of international criminal law, to a number of other contexts. Most notably, the Rome Statute brought the International Criminal Court (ICC) into being at the turn of the century – although it has to be said that the duties which the Rome Statute imposes have, in practice, fallen only on some individuals, particularly those from Africa, while others seem exempt. A number of other courts such as the International Criminal Tribunal for the former Yugoslavia have likewise dealt with individual penal duties under international criminal law.

This brief overview has merely scratched the surface; a great many other legal developments could be mentioned. Taking them all together, it is easy to understand why the dominant position on the international legal personality of individuals has shifted: if legal personality is understood as the capacity to have international rights and duties, then the sheer volume of individual rights and duties under modern international law makes the recognition of individual subjecthood inevitable by implication. Denying international legal personality to individuals entirely has, accordingly, become a minority position based on highly restrictive readings of international law and additional prerequisites for legal personality such as significant participation in international law-making processes.

Debates now rage, rather, on the question of how to qualify individuals’ subjecthood. One position is that states continue to be the primary subjects of international law, and that individuals’ international legal personality is partial and derivative – in other words, restricted to those rights and duties that states have bestowed upon individuals by way of treaties and other sources of international law. On the other hand, the idea that individuals rather than states are in some sense the ‘primary’, ‘principal’, ‘original’ or ‘natural’ subjects of international law is gaining ground and can increasingly be viewed as the new orthodoxy. Proponents of both views typically tell the story of international legal personality’s development over the last century or so as a success story: from being on the fringes of international law in the heyday of legal positivism, the individual has now emerged as a subject of international law in its own right, forming part of the overall ‘humanisation’ of international law. Those who see the individual as international law’s primary subject tend to place particular emphasis on the aspect of humanisation. In this narrative of progress, the international legal personality of the individual merges into a claim about the normative importance of the human being which, it is implied, makes for a more just and ethical international legal order. State-centrism has thus become a pejorative concept, whereas its critics associate themselves ‘with a progressive and enlarged angle of vision’.

D. Individualisation, humanisation, and global constitutionalism
It is worth pausing here to ask ourselves why the increasing individualisation of international law is, often without further reasoning, seen as progressive in this way. After all, there is a long line of critique, reaching back at least to Karl Marx and further developed for example in Marxist perspectives and critiques of human rights, that problematises individualisation as giving way to egoism and self-interest, disregarding ‘species-life’ in society, and constituting a set of social relations that prevent emancipation. Feminist critique, too, has long grappled with the ambiguities of individual rights and the ‘standing’ that comes with them: ‘rights secure our standing as individuals even as they obscure the treacherous ways in which that standing is achieved and regulated’, they ‘promise increased individual sovereignty at the price of intensifying the fiction of sovereign subjects’, in brief: they form part of historically specific power structures and entrench subordination even as they offer limited redress.

Part of the answer to the continuing popularity of individuals as subjects of international law presumably lies simply in the positive feelings that speaking of an ‘international law for humankind’ evokes. By contrast, a state-centric international legal order might seem rather abstract and austere – and hence become associated with an old-fashioned, less humane standpoint. This can lead to quite dramatic statements:"It is thus extremely problematic to have at the centre of our legal order something which amounts to nothing more than a figment of our imagination. The universe of which earth is part exists only because the planets which constitute it have mass, a substance consisting of rock and dirt and gas. For international law to hold together, for gravity to work for us, we too need a substantive core – that of flesh and blood."While more evocative than reasoned, this kind of association with individual subjecthood should not be disregarded as irrelevant simply because it has no immediately discernible practical impact on specific international legal rules. As a mindset, the notion of an international law for humankind could nonetheless have notable impact on the interpretation and development of international law over time. Debates over the international legal personality of individuals, then, may function primarily as a placeholder for broader debates on the nature and ultimate function of international law as such.

This hypothesis is confirmed by the connection often drawn between the international legal personality of individuals and the constitutionalisation of international law. The field of global constitutionalism is itself a broad church, but can be summarised as an attempt to give meaning and legitimacy to international law by understanding it as a constitutional order imbued with certain foundational values. Particular emphasis tends to be placed on the ‘holy trinity’ of human rights, democracy and the rule of law. It is striking that several if not all of these concepts tend to be associated with individuals and that human rights, in particular, constitute one of the primary fields of law used to argue for the international legal personality of individuals. There is thus significant overlap between both the empirical reference points and the broader rationales of those arguing for individuals as the primary subjects of international law and those advocating for global constitutionalism as a prism through which to understand it.

But if the approaches share ground in this way, they are also open to similar objections. Global constitutionalism has been rightly criticised for the active neglect of its own history, particularly colonialism, slavery, and their legacies – in much the same way as the colonial origins of individuals’ international legal personality are commonly glossed over, as described above. Another crucial shortcoming of global constitutionalism is the way in which it reinscribes liberal values as universal, including the liberal distinction between politics and economics. Indeed, global constitutionalism tends to take the market as a given and to relegate economic matters to the private sphere, untouched by the public law principles it propounds for international law – thus legitimising structures of global capitalism and shielding them from democratic contestation.

A similarly liberal outlook on economic matters is also often implied, although rarely made explicit and certainly not politicised, in the insistence on international legal personality of individuals. An awareness of how individual subjecthood relates to economic matters is crucial to fully understand its political implications. The liberal outlook shines through, for example, in the analogization of the individual under international law to ‘a global bourgeois in the dual sense of an economic actor and bearer of so-called unpolitical international rights that secure his or her personal freedom and development’. The individual here becomes individual-as-free-economic-actor. Simultaneously, most proponents of individuals as the primary subjects of international law relegate market structures and economic matters to the unquestioned background in much the same way as global constitutionalists – for example, the complex economic phenomenon of globalisation and the social relations of racialised and gendered exploitation that accompany it are reduced to a manifestation of humans’ ostensible nature as a ‘social animals’, with an emphasis on communication and technological innovation.

Against this backdrop, it becomes vital to question which individuals are ascribed international legal personality, and which of them stand to profit from it. While the rhetoric of humanisation and of ‘flesh and blood’ leads us to equate the individual and the human being, the technical meaning of ‘individuals’ on most accounts is by no means restricted to natural persons. As the inclusion of investment law alongside other fields in which the rights of individuals are enshrined in international law shows, the term also includes juridical persons constituted by private law under its ambit – and it is notable that investment law, commonly acknowledged as particularly important to the entrenchment of imperialist, capitalist structures through international law, forms one of the crucibles in which the international legal personality of individuals was forged. For that matter, human rights doctrine likewise recognises juridical persons as bearers of ‘human’ rights. Although transnational corporations tend to be discussed separately under the rubric of international legal personality, then, there is a significant but underacknowledged area of overlap with discussions of the international legal personality of individuals and their (economic) rights. The ostensible humanisation of international law of which individual subjecthood is said to form part thus turns out to include the kind of economic freedom that underlies a liberal capitalist order which serves the interests of corporations in the Global North.

E. Outlook
The doubts canvassed above are intended to contextualise the debates on individuals’ international legal personality, not to argue against it – states are no more ‘natural’ candidates for international legal personality than individuals, and no less entangled with civilizational hierarchies and the structures of global capitalism. In any case, that individuals possess some form of subjecthood under international law is nowadays almost indisputable. Its form and extent hinges not only on one’s definition of international legal personality but also on various precommitments as to the nature and ultimate function of international law. What stands out about the new orthodoxy emphasising the development from state-centric to human-centric international law, however, is its self-presentation as a narrative of progress – a characterisation which not only elides the downsides of individualisation and the politics of claiming primary subjecthood for individuals, including juridical persons, but also delegitimises broader doubts about the concept of international legal personality as such. Against this narrative of progress, it is worth asking: why individualise, which ‘individuals’, and who profits from approaching international law in this way?

Further Readings

 * Peters A, Beyond Human Rights. The Legal Status of the Individual in International Law (Cambridge University Press 2016)
 * Cançado Trindade AA, ‘The Emancipation of the Individual from his own State: The Historical Recovery of the Human Person as Subject of the Law of Nations’ [2006] Revista do Instituto Brasileiro de Direitos Humanos 11
 * Buszewski SE, ‘The Individual, the State and a Cosmopolitan Legal Order’ in Weiß N and Thouvenin J-M (eds), The Influence of Human Rights on International Law (Springer 2015) 201
 * Kjeldgaard-Pedersen A, ‘Global Constitutionalism and the International Legal Personality of the Individual’ (2019) 66 NILR 271
 * Nmehielle VO, ‘A Just World Under Law: An African Perspective on the Status of the Individual in International Law’ (2006) 100 ASIL Proceedings 252
 * Grear A, ‘Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights’ (2007) 7 HRLR 511

Summary

 * The orthodox position regarding international legal personality at the beginning of the 20th century was that states were the sole subjects of international law. Individuals were ‘objects’ rather than subjects and could appear on the international scene only through the mediation of their state of nationality.
 * Over the course of the 20th century, developments in a large range of fields including human rights law, economic law and international criminal law led to the increasing acceptance of individuals as themselves subjects of international law. Debates now turn on their international legal personality is partial and derivative or whether they constitute the primary or ‘natural’ subjects of international law.
 * International legal personality for individuals is often viewed as part of the ‘humanisation’ of international law and narrated as progress on the basis of the liberal distinction between politics and economics. This perspective fails to question what progress is actually achieved and for whom.