Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge Studies in International and Comparative Law, Series Number 126)

A paradigm change is occurring, in the course of which human beings are becoming the primary international legal persons. In numerous areas of public international law, substantive rights and obligations of individuals arguably flow directly from international law. The novel legal status of humans in international law is now captured with a concept borrowed from constitutional doctrine: international rights of the person, as opposed to international law protecting persons. Combining doctrinal analysis with current practice, this book is the most comprehensive contemporary analysis of the legal status of the individual. Beyond Human Rights, previously published in German and now revised by the author in this English edition, not only deals with the individual in international humanitarian law, international criminal law and international investment law, but it also covers fields such as consular law, environmental law, protection of individuals against acts of violence and natural disasters, refugee law and labour law. Cover Half-title page Series page Title page Copyright page Contents Preface to the German Edition of 2014 Preface to the English Edition List of Abbreviations Table of Cases 1 Definition of the Question 1.1 Individualization of International Law? 1.2 Backlash in the Age of BRICSs? 1.3 The Legal Acquis Individuel: Structure of the Book 1.4 Scope of Investigation: “The Individual” 2 Historical Theory and Practice of the International Legal Status of the Individual 2.1 History of Ideas 2.2 Historical Legal Practice 2.3 Conclusion 3 The Doctrine of the International Legal Personality of the Human Being 3.1 Basic Terminology: International Legal Subject and International Legal Person 3.2 Traditional Classification of International Legal Subjects: The State and Everyone Else 3.3 Decoupling Substantive and Procedural Individual Rights under International Law 3.4 Legal Capacity and the Power to Create Law 3.5 Individualism, Monism, and Dualism 3.6 Conclusion 4 International Individual Obligations 4.1 Definition of the Problem 4.2 Basic Categories 4.3 Partially Corresponding Individual Claims 4.4 The Normal Case of Merely Indirect Imposition of Obligations upon Individuals through State Duties of Protection 4.5 Direct International Individual Obligations as an Exceptional Case 4.6 The Need to Close Regulatory Gaps as a Reason for and Limit to Direct International Individual Obligations 4.7 Further Limitation of Individual Rights by the Transnationalized Principle of Legality 4.8 Legal Bases of Specific Individual Obligations 4.9 Individual Obligation to Observe International Human Rights? 4.10 No “Fundamental Duties” of Individuals under International Law 4.11 Conclusion 5 The International Responsibility of the Individual 5.1 Foundations 5.2 The International Criminal Responsibility of Individuals 5.3 The International Non-criminal Responsibility of the Individual 5.4 Conclusion 6 Individual Rights Arising from International Responsibility 6.1 Definition of the Problem 6.2 Law of International (State) Responsibility 6.3 Human Rights and International Humanitarian Law: Remedy and Reparation 6.4 Rationale and Necessity of Individual Rights Arising from International Responsibility 6.5 Conclusion 7 Individual Rights and Duties in the Law of Armed Conflict 7.1 Individual Rights at the Primary Level 7.2 Secondary Rights of Individuals de lege lata 7.3 Secondary Claims of Individuals de lege ferenda 7.4 Ownership of Claims and Waiver 7.5 Individual Enforcement of Secondary Claims in the Law of Armed Conflict 7.6 Individual Obligations in the Law of Armed Conflict 7.7 Conclusions 8 Protection against Acts of Violence and Forces of Nature 8.1 Definition of the Problem 8.2 Obligations Arising from the Responsibility to Protect (R2P) 8.3 Obligations to Protect in the Event of Natural Disasters 8.4 Appraisal 8.5 Conclusion 9 The International Legal Status of Victims of Crime 9.1 The Duty to Prosecute and Punish 9.2 The Legal Status of Victims in International Criminal Proceedings 9.3 No Privatization of the Right of Punishment 10 Rights and Duties in Investment Protection Law 10.1 Definition of the Problem 10.2 The Procedural Right of Investors under International Law: Power to Institute Arbitration Proceedings 10.3 Substantive Rights of Investors Arising from Contracts (Contract Claims) 10.4 Rights Arising from Inter-State Investment Protection Treaties: The “Direct”/“Derivative” Rights Debate 10.5 Investor Rights Are Not Human Rights 10.6 Practical Consequences of Individual Rights (“Direct Rights”) Arising from Treaties 10.7 Secondary Claims of the Investor under International Law 10.8 Obligations of Investors under International Law 10.9 Conclusion 11 Individual Rights in Consular Law 11.1 The Right to Consular Contact 11.2 Rights of Detained Foreigners 11.3 The Quality of Individual Rights Arising from Article 36 of VCCR 11.4 Enforcement of the Individual Right 11.5 Legal Consequences of the VCCR Violation, Especially in Criminal Proceedings 11.6 Conclusion 12 Individual Rights in Diplomatic Protection 12.1 Foundations and Definition of the Question 12.2 Rights against the Injuring State: The End of the Vattelian Fiction 12.3 International Right to Diplomatic Protection vis-à-vis the Home State? 12.4 Conclusion 13 The Legal Basis for the International Legal Personality of the Individual and the Question of its Independence from the State 13.1 States as Overlords? 13.2 International Legal Personality Independent of the State? 13.3 Treaty Basis 13.4 Customary International Law 13.5 General Principle of Law 13.6 Natural Law 13.7 Human Right 13.8 Conclusion 14 Human Rights and Other Rights 14.1 Two Groups of International Individual Rights 14.2 Possibility of a Distinction 14.3 Desirability of the Distinction: Against the Trivialization of Human Rights 14.4 Consequences of the Distinction 14.5 Superposition of Human Rights and New Orientation of a Regime: The Example of Refugee Law 14.6 Divergences and Tensions between Simple Rights and Human Rights: The Example of International Labour Law 14.7 A Practical Conception of Human Rights 15 The Individualized Enforcement of International Law 15.1 Individuals as Guardians of the International Legal Order 15.2 Addressees of International Individual Rights 15.3 The Enforcement of International Individual Rights 15.4 International Individual Rights as the Foundation of the Emerging International Guarantee of Access to Justice 16 Direct Effect of Norms Establishing Individual Rights and Duties 16.1 Definition of the Problem 16.2 Terms and Distinctions 16.3 Direct Effect and the Substantive International Legal Status of the Individual 16.4 Traditional Criteria of Direct Effect 16.5 The Direct Effect of Secondary Law 16.6 Rejection of Direct Effect as a Mechanism of Legitimacy 16.7 Direct Effect as the Normal Case 16.8 Conclusion 17 The International Individual Right 17.1 Rights as a Paradigm of Modernity 17.2 The Postmodern Critique of Rights 17.3 The Lack of Global Citizenship 17.4 The Global Bourgeois Bibliography Index The Starting Point For This Study Is The Observation That With Increasing Frequency, International Legal Norms Directly Address And Engage Individuals. For Instance, Individual Rights Under International Law Appear To Arise From Extradition Treaties, Treaties Of Friendship And Establishment, Double Taxation Agreements, Transport Treaties, Intellectual Property Treaties, Investment Protection Treaties, Treaties On The Legal Status Of Foreigners, And The Vienna Convention On Consular Relations. On The Side Of Duties, The Criminal Responsibility Of Individuals Under International Law Has In Recent Decades Been Fleshed Out By The Work Of The Ad Hoc Criminal Tribunals And The International Criminal Court-- Definition Of The Question -- Historical Thory And Practice Of The International Legal Status Of The Individual -- The Doctrine Of The International Legal Personality Of The Human Being -- International Individual Obligations -- The International Responsibility Of The Individual -- Individual Rights Arising From International Responsibility -- Individual Rights And Duties In The Law Of Armed Conflict -- Protection Against Acts Of Violence And Forces Of Nature -- The International Legal Status Of Victims Of Crime -- Rights And Duties In Investment Protection Law -- Individual Rights In Consular Law -- Individual Rights In Diplomatic Protection -- The Legal Basis For The Interantional Legal Personality Of The Individual And The Question Of Its Independence From The State -- Human Rights And Other Rights -- The Individualized Enforcement Of International Law -- Direct Effect Of Norms Establishing Individual Rights And Duties -- The International Individual Right. Anne Peters, Max Planck Institute For Comparative Public Law And International Law, Heidelberg, Germany ; Translated By Jonathan Huston ; Revised And Updated By The Author. Previously Published In German By Mohr Siebeck, 2014. Includes Bibliographical References (pages 556-590) And Index. A historical and doctrinal study about the legal status of individuals in international law. The author arrives at the forceful and well balanced conclusion that there has been a qualitative change in international law, namely that there now is, as underlined by theory and practice, an 'international individual right'. A paradigmatic change is occurring, in the course of which human beings are becoming the primary international legal persons. In numerous areas of public international law, substantive rights and obligations of individuals arguably flow directly from international law