Position of Individual in International Law
In this research article I am explaining about position of individual in International Law. The subject of International Law seems to be one of the classic topic of study and research. The opinions are strongly divided over both the status and the legal position of individual in International Law as well as what constitutes the background and frontiers of this legal position. The international legal system was developed after world war -2 in 20th century. The protection of both individuals and groups from any kind of violence, guaranteeing their freedom and dignity and it has become one of the essential concerns of the international community. The evolution of individual rights in International Law has been extensive.
International Law means law of nations. Every country has their own laws. International Law is a set of rules, agreements and treaties that are binding between countries. International Law promotes peace, justice, common interests and trade. International Law is a distinctive part of the general structure of international relations. It is an independent system of law existing outside the legal orders of particular states.
Position Of Individual In International Law:-
As I have discussed above about International Law. Many authors recognize that modern International Law is characterized by a multiplicity of subjects. For example: Lee Swepston believes a unique virtual subject of International Law to be indigenous peoples who had insisted on and succeeding drawing up a number of international conventions on the protection of their rights. International Law regulates relations between independent states. International common law was to originate from individual judicial competences as its source. International Law is as all legal systems are, based on a agreement, where upon a group of individuals coalesce to create a recognized entity the state that represents their interests creates and enforces a legal system and acts on their behalf or other states. Individual are a necessary component of states. States are created by individuals. The individual has become an increasingly recognized t of International Law in many areas. Rights are vested to the state and the state has the right to require other states to grant rights to individuals. In some areas, states may still exercise their diplomatic powers to represent an individual claims against a state. In these situations the claim becomes the states and any remedies are awarded to the state. In other areas, the individual must possess a certain nationality to access certain international courts and tribunals. International Law governs relations between independent states.
International Law Making And The Individual:-
An important aspect of international personality is the ability to participate in the norm-creating process in International Law. This proposition can be confirmed by the fact that all kinds of entities whose international personality is beyond doubt (in theory and in practice) posses such a capacity. First of all the treaty making capacity of states and international organizations, which is conferred upon them by international law, should be mentioned. There is a considerable trend in theory and in practice that favors placing the contracts concluded between a state and a foreign private individuals or corporations because such agreements are regulated by the domestic legal system that the contract is mainly connected. There is a considerable trend in theory and in practice that favors. Placing the contracts concluded between a state and a foreign private corporation on an equal footing with international agreements by assuming that state contract is, or may be, governed by International Law. The main reason for such thinking is the wide political and economic implications of such contracts, both on the economy of the state concerned and on international political relations in general. The necessity of applying international law to state contracts arises from the high level of discretion possessed by host states that permits amendments to their legislation might be unfavorable to a private contacting party. The classical approach of International Law to the status of state contract is manifest in the decision of the permanent court of international justice in Subian Loans Case. The court held that this contract was not an international treaty and declared itself incompetent to hear the matter.
Direct Applicability of International Law to Individual: –
The issue whether the rules of International Law can directly govern the rights and duties of individuals has been one of the important considerations for answering the question whether an individual is the subject of International Law. The main points as evidence of direct applicability of International Law to individuals have been the primacy of International Law over domestic law as perceived by monistic doctrine and language and structure of treaty obligations established for protection of individual. The human rights treaties do not aim to safeguard the interests of states. The main objects of the treaties are to protect to protect human being not to create the subjective rights of contracting parties themselves. This principle has been discussed in many times in international jurisprudence. Human rights treaties are distinct from other types of treaties international agreements have many similarities. International human rights instruments can be directly applicable to individuals only if the constitutional legislation of the state concerned recognizes the primacy of international treaties over domestic law and thus permits their direct application within its domestic legal order by its national courts.
Individual Criminal Responsibility Under International Law:-
Although international law is not directly applicable to individuals, it does as concluded in the previous section provide rights for individual. International Law does directly apply to individuals in some limited instances. The most common instance is when individuals are subjected to international criminal responsibility for crimes against the peace and security of mankind. When accused of crimes against humanity, individuals may be tried directly under international law, regardless of the will and domestic laws of the state of their nationality. This concept is therefore often invoked as important evidence of international personality of the individual. The law making concept is based on “ locus standi”. The individual can participate in law making by this. The foregoing analysis shows that the content and context of rules governing individual criminal responsibility do not provide evidence in favor of the international personality of the individual. In every case when international criminal responsibility is imposed on the individual it appears that acts that are committed by the individual are not expected to be punished within one or another national legal order. If the state concerned is able and willing to fulfill its international obligations with respect to punishment of persons committing crimes against peace and security of mankind, an individual is not be punished through direct application of International Law.
Contributed by: Kritika Oberoi