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2018 | OriginalPaper | Buchkapitel

The Evolution of the Status of the Individual Under International Law

verfasst von : Daniel David Ntanda Nsereko

Erschienen in: Nigerian Yearbook of International Law 2017

Verlag: Springer International Publishing

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Abstract

While in their state of nature, individuals lived under constant friction, anarchy and lawlessness. So when individuals left that state to form organised or civil society, their most pressing desire was to ensure security for themselves and the protection of their liberty and property. The Americans echo this desire in their Declaration of Independence (1776):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…

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Vorheriges Kapitel Responding to Terrorism: Definition and Other Actions

Nächstes Kapitel Admission into Diplomatic Buildings As an Alternative or Substitute to Diplomatic Asylum?

See Herbert Lionel Adolphus Hart, The Concept of Law (2^nd edn OUP 1994), at 50 where he describes “the position occupied by the sovereign above the law: he creates law for others and so imposes legal duties or 'limitations' upon them whereas he is said himself to be legally unlimited and illimitable.”

Lassa Oppenheim, International Law: A Treatise (Longmans, Green and Co. 1905) 18.

Statute of the ICJ, 1946, Article 34(1).

See Oppenheim (n 2) 343, where the author states: “Although such treaties mostly speak of rights which individuals shall have as derived from treaties, this is nothing more than an inaccuracy of language. In fact such treaties do not create these rights, but they impose the duty upon the contracting states to call these rights into existence by their municipal law.” Later editions of the book have modified this language.

See Attorney-General for Canada v Attorney General for Ontario [1937] AC 326 (PC); R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (HL); R (on application of Wang Yam) v Central Criminal Court [2015] UKSC 76, paras [35]-[36]. These cases show a practice in some countries that unless treaties concluded by the State have been specifically incorporated into the national corpus, individuals may not be able to successfully invoke them before the national courts.

This happened in cases such as Adolf Eichmann v Attorney General of Israel (1962) 36 Intl L Rep 277; Godfrey Miyanda v The Attorney-General [1983] Zambia L Rep 78; United States v Noriega 746 F Supp 1506 (SD Fla 1990); S v Ebrahim [1991] S Afr 553 (A); and Alfarez-Machain v United States 112 S Ctt 2188 (1992). For a new approach see Prosecutor v Mle Mrksic Miroslav Radic, Veselin Sljivvanchnin and Slavko Dokmanovic, ICTY Case No IT-95-13a-PT, Decision on the Motion for Release by the Accused Slavko Domanovic, 22 October 1997; and R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42.

In re Garbe (1947) 15 Intl L Rep 419 (Case No 125) (Oberlandesgericht of Kiel) 419-20. This language is re-echoed in the decision of the Israeli District Court in Adolf Eichmann v Attorney General of the Government of Israel (n 6).

A/RES/260 (III), 9 December 1948; entry into force on 12 January 1951.

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/39/46, 10 December 1984, entry into force on 26 June 1987, in accordance with Article 27(1).

For instance see Mani Kouraou v Niger, ECW/CCJ/APP.08/07, Judgment of 27 Oct 2008 in which the ECOWAS Community Court of Justice cited Niger for condoning modern forms of slavery.

T Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89 American Journal of International Law 554, 555.

The problem persists even today. See “Kagame attacks ‘other nations’ over third term bid”, Daily Monitor (Kampala, Uganda, 7 December 2015). President Paul Kagame of Rwanda expressed resentment over criticism by the European Union and the United States of the Rwandan Parliament’s action in amending the country’s constitution to make exception only to Mr. Kagame as an individual, allowing him to run for a third term, contrary to the current rule restricting presidential terms to only two. The critics thought that this action undermined democratic principles.

See Harry Roberts Claim (USA v United Mexican States) [1926] 4 UNRIAA 77.

Panevezys-Saldutiskis Railway Case (Estonia v Lithuania) [1936] PCIJ Series A/B No 76, 16.

See The Nationality Decrees in Tunis and Morocco Case, [1923] PCIJ, Series B, No 4.

See, for instance, the Nottebohm Case (Liechtenstein v Guatemala) [1995] ICJ Reports, 4.

Oppenheim (n 2) 344. Due to the changes that international law has undergone, the 9^th edition of the book, (Jennings and Watts (eds) OUP 2008) at 849 (cited in full at n 29) has modified the cited language to read thus: “As far as international law is concerned, there is, apart from obligations (now quite extensive) expressly laid down by treaty – and in particular the general obligation, enshrined in the Charter of the United Nations, to respect human rights and fundamental freedoms – no restriction upon a state maltreating such stateless individuals.”

Yash P Ghai, ‘Remarks on “Expulsion and Expatriation in International Law”’ (1973) 67 Proc ASIL 122.

Mavrommatis Palestine Concessions (Jurisdiction) Case [1924] PCIJ Series A, No 2, 12.

Rustomjee v The Queen [1876] 2 QBD 69. This decision was cited with approval by the House of Lords in Civilian War Claimants’ Association v The King [1932] AC 14 (HL), 26, wherein Lord Atkinson stated, “… when the Crown is negotiating with another Sovereign a treaty, it is inconsistent with its sovereign position that it should be acting as agent for the nationals of the sovereign State, unless indeed the Crown chooses expressly to declare that it is acting as agent.” For a similar position see: Giscwind v Swiss Confederation [1931-32] Ann Dig 242 (No 120) (Federal Court); William Parker (USA) v United Mexican States (1926) 4 UNRIAA 35; US v Weld (1886) 127 US 51.

Giscwind v Swiss Confederation (n 20). See also the more recent case of Abbasi & Anor. v Secretary of State for Foreign and Commonwealth Affairs & Anor. [2002] All ER 70 in which the appellant, a British national and detainee at the Guantanamo Bay in Cuba, sought (through his relatives) by judicial review to compel the British Government to make representations on his behalf to the US Government regarding his continued detention. The English Court of Appeal declined to do so, saying that this was a matter that involved conduct of foreign policy with which the courts do not interfere. It stated: ‘On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.’ The UK Supreme Court approved and followed this decision in Youssef v Secretary of State for Foreign and Commonwealth Affairs & Anor. [2016] 261 All ER 70.

First National City Bank of New York Claim (1957) 26 ILR 323; James Crawford (ed), Brownlie’s Principles of Public International Law (8^th edn, OUP 2012) 700.

ibid Crawford.

Israel intervened in Uganda in 1976 to rescue Israeli nationals held hostage from a high jacked Air France plane; the United States (US) intervened in Iran in 1980 in an attempt to rescue American nationals detained in Teheran; the US intervened in Liberia in 1990 to rescue US nationals and certain other foreign nationals; the US intervened in Somalia in 1991 to rescue American nationals there; France and Belgium also intervened in Zaire (now the Democratic Republic of the Congo) in 1991 to rescue their nationals whose lives were in mortal danger.

Generally see Vincent O Nmehielle, ‘A Just World under Law: An African Perspective on the Status of the Individual in International Law’ (2006) 100 ASIL 252-57.

See Hart (n 1) Chapter X; See also Dennis Lloyd, The Idea of Law (Penguin Books 1983) 170–80.

See Brierly, The Law of Nations (5^th edn, OUP 1954) 50-57; Brierly, ‘The Basis of Obligation in International Law’ (1959) 17 Cambridge Law Journal 1, 121-23, Chapter 1; Hart (n 1) Chapter X.

Elihu Root, ‘A Requisite for the Success of Popular Diplomacy’ (1922) 1 Foreign Affairs 3, 8. Reprinted in (1937) 15 Foreign Affairs 405, 410.

Robert Jennings and Arthur Watt, Oppenheim’s International Law (Vol 1, 9^th edn, OUP 2008) at 16 now reads that “States are the principal subjects of international law.”

ibid 14 now reads “It is … in accord with practical realities to see the basis of international law in the existence of an international community the common consent of whose members is that there shall be a body of rules of law – international law – to govern their conduct as members of that community… This ‘common consent’ cannot mean, of course, that all states must at all times expressly consent to every part of the body of rules constituting international law, for such consent could never in practice be established…”

Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Reports 174, 178.

This view was echoed in a recent statement by the England and Wales Court of Appeal in Belhaj & Anor. v Straw [2014] EWCA, Civ 1394, para [115], that “a fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of states among themselves on the international plane has long been discarded. In its place has emerged a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects…”

Hersch Lauterpacht, International Law and Human Rights (Archon Books, New York, 1968) 36.

Eduard Reut-Nicolussi, ‘Displaced Persons and International Law’ (1948) 73 Le Recueil des cours 14.

See UN Charter, Articles 1(3), 55(c), 62(2), and 76(c).

Vienna Convention on the Law of Treaties (1969) Art 26.

Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] ICJ Reports 16, 57.

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment [2005] ICJ Reports 168, 280. The Court found, that “the Republic of Uganda, by the conduct of its armed forces, which committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict and failed to take measures to put an end to such conflict; as well as by its failure, as an occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri district, violated its obligations under international human rights law and international humanitarian law.”

ibid 168, para [219].

See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Order of 1 July 2015, [2015] ICJ Reports, para [8].

ibid Declaration of Judge Cançado Trindade, para [4].

Ibid para [7].

Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections: Judgment) [2007] ICJ Reports, para [39].

Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Compensation owed to the Democratic Republic of the Congo to the Republic of Guinea: Judgment), [2012] ICJ Reports, para [57].

See North American Dredging Company of Texas (United States v Mexico) (1926) 4 UNRI AA 26. Generally see Chittharanjan F Amerasinghe, Diplomatic Protection (OUP 2008) 191-211.

See ECOSOC Resolution 75 (V) of 5 Aug 1947, confirming the view of the Human Rights Commission that it had no power to entertain complaints. See also Resolution 728 F (XXVIII) of 30 Jul 1959 by which ECOSOC reaffirmed its previous stand. It also instructed the UN Secretary-General to inform complainants that the Commission had no power to act on the complaints.

The Sub-Commission on Prevention and Protection of Minorities, on authorisation from ECOSOC adopted the procedures on the admissibility of the complaints by Resolution 1 (XXIV) 13 Aug 1971.

See Reservations to the Genocide Convention, [1951] ICJ Reports 15.

For instance see the following cases in which the Southern African Development Community Tribunal ordered Zimbabwe to pay compensation to Zimbabwean farmers whose farms had been compulsorily seized without compensation: Fick and Anor v Republic of Zimbabwe (SADC (T) 01/2010) [2010] SADCT 8 (16 July 2010); Mike Campbell (Pvt) Ltd Anorv Republic of Zimbabwe (2/2007) [2008] SADCT 2 (28 November 2008); Campbell and Another v Republic of Zimbabwe (SADC (T) 03/2009) [2009] SADCT 1 (5 June 2009).

African Charter on Human and Peoples’ Rights, Articles 47 and 56.

See Karen J Alter, Laurence R. Helfer and Jacqueline R. McAllister, ‘A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 AJIL 737.

In situations of armed conflict, the International Committee of the Red Cross may carry out humanitarian operations in areas not under the control of the government of the country concerned without the consent of that government. It did so during the Nigerian-Biafran war. See LC Wiseberg, ‘Humanitarian Intervention: Lessons from the Nigerian Civil War’ (1974) 7 HRJ 61.

Daniel D Ntanda Nsereko, ‘Victims of Abuse of Power, with Special Reference to Africa’ (1994) 28 University of British Columbia Law Review 171-192, 183. Reprinted in (1998) 60 The Review of the International Commission of Jurists 199-219.

The Constitutive Act of the African Union (2000/2001), Article 4(h), Lome, Togo, July 2000, entry into force in May 2001.

Generally see The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, Ottawa, Canada (2001).

Nsereko (n 53) (1994) 184.

S/RES/1970 (2011).

S/RES/1975 (2011).

S/RES/2127 (2013).

S/RES/2248 (2015). See also the Communiqué of the Peace and Security Council of the African Union PSC/PR/COMM (DLXV) of 17 December 2015. Under paragraph 15 of the Communiqué the AU Peace and Security Council requested the UN Security Council “to adopt, under Chapter VII of the UN Charter, a resolution in support of the present communique.” At the time of writing the UN Security Council had not responded to the request.

For instance, in 2014 sixty eight States, including the United States, co-sponsored a resolution before the UN Security Council (UN Doc S/2014/348 of 22 May 2014) that would have referred the situation in Syria to the ICC for investigation and action. China and the Russian Federation, two out of the five permanent members of the Security Council vetoed the resolution.

See Jennings and Watts (n 29), 16, indicating that “[D]uties which might necessarily have to be imposed upon individual human beings according to international law are, on the traditional view, not international duties, but duties imposed by a state’s internal law in accordance with a right granted to, or a duty imposed upon, the state concerned by international law.”

‘Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal’, Yearbook of the International Law Commission 1950, 97.

See for example, Articles 25, 27 and 28 of the Rome Statute; Articles 1 and 7 of the Statute of the ICTY; Articles 1 and 6 of the Statute of the ICTR; Articles 1 and 6 of the Statute of the SCSL.

International Military Tribunal, Trial of Major War Criminals, Trial of Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany (1947) vol 1, 223.

Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Reports, 14, 136. The Court decided, inter alia, that “the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983; an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State.”

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (n 38) at 280, the Court found that “the Republic of Uganda, by engaging in military activities against the Democratic Republic of the Congo on the latter’s territory, by occupying Ituri and by actively extending military, logistic, economic and financial support to irregular forces having operated on the territory of the DRC, violated the principle of non-use of force in international relations and the principle of non-intervention”.

See for instance, the International Convention on the Suppression and Punishment of the Crime of Apartheid, General Assembly Resolution 3068 (XXVII) of 30 November 1973. Article V vests jurisdiction in the courts of States Parties or “an international penal tribunal having jurisdiction with respect to those States Parties which shall accept its jurisdiction.”

For example, see National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre & Others, CCT 02/14, 30 October 2014. Generally see Manuel J Ventura, ‘The Duty to Investigate Zimbabwe Crimes against Humanity (Torture) Allegations’ (2015) 13 Journal of International Criminal Justice 861–89.

Nuremberg Trials (n 65) [Emphasis added].

Prosecutor v Kallon &Anor, SCSL-2004-15-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004, para [71].

See for instance Article 27 of the Rome Statute: ‘(1) This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. (2) Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’

See Article 7(2) of the Statute of the ICTY. See also Prosecutor v Slobodan Milošević (Decision on preliminary Motions) ICTY -99-37-PT (8 November 2001), paras [27]-[33], where the Trial Chamber rejected any insinuation that this provision was invalid. It stated: ‘There is absolutely no basis for challenging the validity of Article 7, paragraph 2, which at this time reflects a rule of customary international law.’ See also Article 6 (2) of the Statute of the ICTR; and Article 6 (2) of the Statute of the SCSL.

See the Yerodia case - Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Reports, 3, para [54]. The ICJ concluded that the ‘functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.’

See Prosecutor v Al Bashir (Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir) ICC-02/05-01/09-139-Corr (13 December 2011), para [41]. Pre-Trial Chamber I stated as follows: “[A]ll the States referenced above have ratified this Statute and/or entrusted this Court with exercising ‘its jurisdiction over persons for the most serious crimes of international concern.’ It is facially inconsistent for Malawi to entrust the Court with this mandate and then refuse to surrender a Head of State prosecuted for orchestrating genocide, war crimes and crimes against humanity. To interpret Article 98(1) in such a way so as to justify not surrendering Omar Al Bashir on immunity grounds would disable the Court and international criminal justice in ways completely contrary to the purpose of the Statute Malawi has ratified.”

See Article 26 of the Vienna Convention on the Law of Treaties: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” The Convention codifies customary international law.

Prosecutor v Taylor (Decision on Immunity from Jurisdiction) SCSL-03-01-0059 (31 May 2004), para [51]. The Appeals Chamber while confirming the Trial Chamber’s decision stated as follows: ‘the principle of state immunity derives from the equality of sovereign States and therefore has no relevance to international criminal tribunals which are not organs of a State but derive their mandate from the international community’.

Prosecutor v Taylor (Sentencing Judgment) SCSL-03-01-1283 (30 May 2012), para [70].

ibid, para [97].

ibid para [102].

See National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre & Others, CCT 02/14 (30 October 2014), para [37], where the Constitutional Court of South Africa stated that: “Along with torture, the international crimes of piracy, slave-trading, war crimes, crimes against humanity, genocide and apartheid require states, even in the absence of binding international treaty law, to suppress such conduct because all states have an interest as they violate values that constitute the foundation of the world public order.”

ibid, para [78]. Ordering the National Commissioner of the South African Police to investigate complaints of torture in Zimbabwe by the Zimbabwe Exiles’ Forum, the Constitutional Court of South Africa stated as follows: “Given the international and heinous nature of the crime, South Africa has a substantial connection to it. An investigation within the South African territory does not offend against the principle of non-intervention and there is no evidence that Zimbabwe has launched any investigation or has indicated that it is willing to do so…”

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Hart HLA (1994) The concept of law, 2nd edn. OUP

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Kagame attacks ‘other nations’ over third term bid, Daily Monitor (Kampala, Uganda, 7 December 2015)

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Titel: The Evolution of the Status of the Individual Under International Law
verfasst von: Daniel David Ntanda Nsereko
Verlag: Springer International Publishing
Buch: Nigerian Yearbook of International Law 2017
Print ISBN: 978-3-319-71475-2

Electronic ISBN: 978-3-319-71476-9

Copyright-Jahr: 2018
DOI: https://doi.org/10.1007/978-3-319-71476-9_3