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The emancipation of the individual from the State under international law

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Return from 'Law governing the relations among States' to 'Droit des gens' ... International Law is the body of rules which ... Positivism Kelsen Verdross ... – PowerPoint PPT presentation

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Title: The emancipation of the individual from the State under international law


1
The emancipation of the individual from the State
under international law
  • Gerhard Hafner, Vienna
  • The Hague 2008

2
Introduction
  • We, the peoples.....
  • Return from Law governing the relations among
    States to Droit des gens ? International Law
    seen from the perspective of the individual
  • Oppenheim-Lauterpacht
  •  International Law is the body of rules which
    are legally binding on states in their
    intercourse with each other. These rules are
    primarily those which govern the relations of
    States, but States are not the only subject of
    International Law

3
  • Method used practice oriented approach
  • individual acting in their own personal
    interest
  • Emancipation ? confrontation of State interests
    and those of individuals (represented also by
    NGOs)
  • phenomenological approach
  • The legal and political context of the status of
    the actors in IL
  • ICJ
  • The subjects of law in any legal system are not
    necessarily identical in their nature or in the
    extent of their rights, and their nature depends
    upon the needs of the community. Throughout its
    history, the development of international law has
    been influenced by the requirements of
    international life, and the progressive increase
    in the collective activities of States has
    already given rise to instances of action upon
    the international plane by certain entities which
    are not States
  • Structure of this discussion
  • Norms adressing individuals (active passive)
    participation in law creating procedures
    participation in law enforcement

4
The doctrine on the status of the individual in
an historic perspective
  • Spanish theological school ? societas humana
  • Grotius
  • Blackstone
  • Emer de Vattel - Jeremy Bentham
  • Hegel
  • Positivism Kelsen Verdross
  • French sociologists like Durkheim , Duguit
    ?Scelle, Krabbe, Politis
  • Soviet theory
  • Anzilotti, Georg Schwarzenberger, Siotti-Pintor,
    Sperduti

5
  • Accountability?
  • States are no longer seen as the power centres of
    international relations, but as legal devices to
    serve the interests of the individuals instead of
    instrument to preserve or increase State power
  • Civil society ? NGOs
  • (a) Policy dialogue
  • (b) Advocacy
  • (c) Mobilizing private funds
  • (d) Information and learning
  • (e) Operational delivery
  • (f) Partnership promotion

6
The development of the formation of rights
directly applicable to individuals
  • The regulation of the active status of
    individuals in International Law
  • 19th cent
  • Regarding health
  • Protection of property rights
  • Protection of intellectual rights (in a very
    broad sense)
  • ? Law of aliens
  • Mandate System
  • Minorities
  • Self-executing nature
  • Universal Declaration of Human Rights ?
    internationally recognized human right
  • Duties against individuals or against other
    States?

7
  • The regulation of the passive status of
    individuals in International Law
  • Piracy
  • War crimes, Crimes against Humanity
  • Lieber Code
  • Hague 1899/1907
  • London Agreement 1945 (Control Council Law No 10)
  • Geneva Convention 1949
  • Additional Protocols 1977
  • Genocide
  • Apartheid
  • Individual responsibility
  • Human duties

8
The participation of individuals in the creation
of Customary International Law
  • Activities of pearl divers
  • Right of Passage over Indian Territory (Portugal
    v. India)
  • Sovereignty over Pulau Ligitan and Pulau Sipadan
    (Indonesia/Malaysia) ? Effectivités
  • Comparison with State responsibility

9
Individuals and the treaty-making
  • Diplomats
  • Civil society
  • ? representativity and accountability
  • Means and instruments available to them

10
Access of individuals to international mechanisms
designed to protect their rights
  • Introduction State and individuals
  • Diplomatic protection
  • Mavrommatis Palestine Concessions Case
  • Seabed Disputes Chamber of ITLOS Article 190
  • Participation and appearance of sponsoring States
    Parties in proceedings
  • 1. If a natural or juridical person is a party to
    a dispute referred to in article 187, the
    sponsoring State shall be given notice thereof
    and shall have the right to participate in the
    proceedings by submitting written or oral
    statements.
  • 2. If an action is brought against a State Party
    by a natural or juridical person sponsored by
    another State Party in a dispute referred to in
    article 187, subparagraph (c), the respondent
    State may request the State sponsoring that
    person to appear in the proceedings on behalf of
    that person. Failing such appearance, the
    respondent State may arrange to be represented by
    a juridical person of its nationality.

11
Direct access to courts and judicial instruments
  • Individual is in a position of equality with the
    State
  • A. National Courts
  • - Paquete Habana
  • Tel-Oren v. Libyan Arab Republic of 1984
  • Absent authorizing legislation, an individual has
    access to courts for enforcement of a treatys
    provisions only when the treaty . . . expressly
    or impliedly provides a private right of action
  • In re Iraq and Afghanistan Detainees Litigation
  • None of the provisions of Geneva Convention IV
    contain any such express or implied language
    indicating that persons have individual rights
    that may be enforced under the treaty
  • Human Rights (Art 2 ICCPR)
  • Horizontal effect of HR
  • Relative immunity
  • (Council of Europe Convention 1972 and UN
    Convention on Jurisdictional Immunities of States
    and Their Property 2004)

12
Combatting impunity
  • This implies that all victims shall have the
    opportunity to assert their rights and receive a
    fair and effective remedy, ensuring that their
    oppressors stand trial and that they obtain
    reparations.
  • Restrictions to certain rules of law
  • Prescription
  • Amnesty
  • Right to asylum
  • Rule of law is very often tied to access to
    Justice that includes access to courts and
    tribunals and to bring a case.
  • ABA Access to justice means more than being able
    to raise ones case in a court or other relevant
    institution of justice.
  • It must be defined in terms of ensuring that
    legal and judicial outcomes are just and
    equitable.  (UNDP, Access to Justice Practice
    Note (Draft 1), 8/3/2004, at 3)

13
Access to international judicial instruments
  • A. Before 1945
  • Mixed Claims Commission (since 1794)
  • Presentation of claims
  • Either through States or
  • Directly (? Mixed Arbitral Tribunals after WW I)
  • Against foreign States (exception Nicaraguan
    Commission)
  • Central American Court Of Justice
  • ?Protocol of Tegucigalpa Central American
    Court of Justice (CACJ)
  • International Prize Court (XII Hague Convention)
  • Advisory Opinion of the Danzig Railway case
  • Upper Silesian Arbitral Tribunal
  • Mandate System
  • Minorities
  • Petitions under the ILO system
  • B. After WW II
  • Cold War situation HR enforcement ?
    interference into internal affairs

14
  • Universal Declaration on Human Rights
  • Resolution 1235 (1967) (Apartheid)
  • Country specific procedure
  • Thematic procedure
  • 1503 Procedure of the Commission of Human Rights
  • C. The present situation
  • The traditional position
  • The right of petitions
  • The right of complaints ?Human Rights Council
    impartial, objective, efficient, victims-oriented
    and conducted in a timely manner consistent
    patterns of gross and reliably attested
    violations of all human rights and all
    fundamental freedoms
  • Exclusion of political motivations Unreliable
    Abuse - No direct violation  - No direct
    information - Res judicata - Exhaustion of local
    remedies
  • ICCPR Optional Protocol concerning individual
    complaints

15
  • Optional Protocol to the CEDAW
  • Convention on the Elimination of All Forms of
    Racial Discrimination
  • Convention Against Torture and Other Cruel,
    Inhuman or Degrading Treatment or Punishment
  • Articles 26 to 34 of the ILO Constitution
  • complaint procedure
  • representation procedure
  • 4. The position of the individual as an indirect
    participant in judicial proceedings
  • Presentation of the claims to a body before the
    claim can be presented to a Court
  • Formerly European Court of Human Rights
  • American Court of Human Rights
  • African Court of Human and Peoples Rights
  • UNCC

16
5. The position of a direct party in judicial
proceedings
  • Proceedings against foreign States
  • Iran-US Claims Tribunal
  • ICSID Convention of 1965 Amco v. Indonesia
    ICSID arbitration is in the interest not only of
    investors but also of host States
  • Proceedings against International Organizations
  • The institutions accessible to the staff members
    to protect their rights
  • The institutions accessible to other individuals
    for the protection of their rights
  • Matthews case
  • World Bank Inspection Panel
  • Targeted sanctions of the SC
  • Bosphorus decision
  • Yusuf Case Kadi Case
  • Behrami and Saramati case

17
6. The individuals involved in international
judicial proceedings against their own State
  • Regional systems
  • ECHR
  • African Court for Human Rights and Peoples Right
  • 7. The participation of NGOs in proceedings
  • ECHR, the Inter-American Commission of Human
    Rights, the African Commission for Human and
    Peoples Right and the African Court (? actio
    popularis )
  • CIS Commission for HR
  • Other participation presentation of a technical
    view on points of law or facts (NAFTA Methanex
    corporation v US case)
  • PCIJ ICJ
  • amicus curiae

18
The participation of individuals in compliance
mechanisms
  • Participation in international compliance
    mechanisms
  • Aarhus Convention on Access to Information,
    Public Participation in Decision-making and
    Access to Justice in Environmental Matter
  • Protocol on Water and Health
  • Alpine Convention
  • Right to trigger activities of compliance
    mechanisms
  • Aarhus Convention
  • Use of information provided by NGOs
  • Kyoto Protocol
  • the Water and Health compliance committee

19
The position of individuals in the enforcement
of individual responsibility
  • Development leading from national enforcement to
    international centralized institutions
  • Reasons for the establishment of a centralized
    international body
  • Little confidence in the exercise of national
    criminal jurisdiction by other States
  • absence of effective criminal jurisdiction
    (failed States)
  • externalization of criminal jurisdiction
  • protection of fundamental humanitarian principles
    in face of the most cruel and heinous crimes of
    massive extent
  • greater preventive effect
  • From Hagenbach Trial in 1474 to Nuremberg and
    Tokyo and thereafter
  • Role of the Prosecutor

20
  • International Criminal Court
  • de-politicization of the ICC Statute ICC.doc
  • Prosecutor proprio motu Article 15 ICC Statute
  • 1. The Prosecutor may initiate investigations
    proprio motu on the basis of information on
    crimes within the jurisdiction of the Court.
  • 2. The Prosecutor shall analyse the seriousness
    of the information received. For this purpose, he
    or she may seek additional information from
    States, organs of the United Nations,
    intergovernmental or non-governmental
    organizations, or other reliable sources that he
    or she deems appropriate, and may receive written
    or oral testimony at the seat of the Court.
  • controlled by the Pre-Trial Chamber
  • By early 2008, 1732 such communications from 103
    different countries ...only 20 were identified
    as warranting further analysis
  • ICC and SC Article 16 of the ICC
  • Deferral of investigation or prosecution
  • No investigation or prosecution may be commenced
    or proceeded with under this Statute for a period
    of 12 months after the Security Council, in a
    resolution adopted under Chapter VII of the
    Charter of the United Nations, has requested the
    Court to that effect that request may be renewed
    by the Council under the same conditions.

21
Concluding remarks
Rational calculation of a States interests ?
REMM hypothesis v
Individual oriented interests, concentrating on
personal needs of human beings, if possible
maximising the personal well fare
Through the NGOs Individuals can participate in
the shaping, but not creating of treaties
Individuals are only exceptionally admitted in
law enforcing mechanisms such as international
judicial institutions
Individuals are granted such a direct access in
cases against foreign States as emanation of the
law of foreigners
22
Engagement of civil society, represented by the
NGOs, in either law creation, law enforcement
mechanisms or compliance structures, in relation
to values that are protected by erga omnes norms
Problems encountered by the NGOsabsence of
reliable accountability and transparency. Risk of
creation of a three layer situation of
interests those of the States - those of NGOs -
those of individuals.
Individuals -- subjects of International Law? No
access to the creation, amendments, or
termination of the primary norms nor access to
the mechanisms of enforcement notwithstanding
few exceptions
Definition of International Law ? only
distinctive criterion the process of creation
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