International Law and Human Rights: Individual and Collective Rights
A. Individual Subjectivity in International Law
Active Subjectivity: Claiming Rights and Accessing International Jurisdictions
When a foreign individual experiences a violation of international law by a U.S. entity, they typically must first seek redress within the U.S. legal system. If this fails, they can request their own country’s government to exercise diplomatic protection. However, diplomatic protection involves state-to-state interaction. Within domestic legal systems, individuals can access courts to assert their rights. For example:
- The UN Administrative Tribunal addresses disputes between the UN and its staff.
- Within the European Communities, individuals and legal entities can challenge the legality of certain acts by EU bodies.
The international subjectivity of the individual is most clearly recognized in the field of human rights. Key international human rights instruments include:
- Universal Declaration of Human Rights (UDHR) (1948)
- International Covenant on Civil and Political Rights (ICCPR) (1966)
- International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)
- Geneva Conventions (1949) and Additional Protocols (1977)
- Regional instruments like the European Convention on Human Rights (ECHR) (1950), European Social Charter (1961), American Convention on Human Rights (1969), and African Charter on Human and Peoples’ Rights (1981).
These instruments establish a minimum standard of rights, including the right to life, physical and moral integrity, freedom from inhuman or degrading treatment, legal personality, and due process, all rooted in human dignity, equality, and freedom. While international law is generally applied through states, individuals are increasingly able to file complaints or communications with international bodies, and sometimes even submit complaints to international courts.
Examples:
a) Within the UN human rights framework, individuals can bring proceedings before the Human Rights Council (formerly the Commission on Human Rights). The Council investigates human rights violations globally and can apply international pressure.
b) In Western Europe, the European Court of Human Rights (ECtHR) allows individuals to file complaints under the European Convention on Human Rights (ECHR), provided domestic remedies are exhausted and other conditions are met.
c) In the American system, the Inter-American Commission on Human Rights can consider individual complaints, but only states and the Commission can submit cases to the Inter-American Court of Human Rights.
Passive Subjectivity: Individual Responsibility for International Crimes
While states are generally responsible for breaches of international law, individuals can be held criminally liable for certain crimes under international law, such as piracy, unlawful acts on aircraft, war crimes, crimes against peace, genocide, and crimes against humanity. However, the enforcement of international criminal law often relies on domestic legal systems due to resistance to international criminal tribunals.
B. Collective Rights: The Right to Self-Determination
Contemporary international law recognizes the right of all peoples to self-determination. This includes the right to permanent sovereignty over natural resources and the right to development. Self-determination primarily applies to peoples under foreign domination, racial discrimination, or gross human rights violations. It involves the free expression of a people’s will to govern themselves, potentially through:
- Becoming an independent state
- Associating with an independent state
- Integrating into an independent state
National Liberation Movements (NLMs) often represent peoples struggling for self-determination. These movements have limited international personality, particularly in matters related to their liberation struggles. They may participate in international organizations and are subject to the laws of armed conflict.
The right to self-determination is limited by the principles of state sovereignty, territorial integrity, and non-intervention. However, the principle of respect for human rights may justify self-determination if a state uses force against a people seeking peaceful self-determination.
Other Economic Rights Related to Self-Determination
The right to permanent sovereignty over natural wealth and resources is a key aspect of self-determination.