The Individual in the Process of

International Law

A Value-Oriented Policy Approach to International Law

by

Curtis Francis Doebbler

© CF Doebbler 2001
The Individual in the Process of

International Human Rights Law

by

Dr. Curtis Francis Doebbler

ii
 The Individual in the Process of International Human Rights Law
A Value-Oriented Policy Approach to International Human Rights Law

iii
The Individual in the Process of

International Human Rights Law

by

Curtis Francis Doebbler

© Curtis Francis Doebbler

2000

iv
 Publisher
…

© Curtis Francis Doebbler 2000

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without the prior written permission of the author.

This book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent,
re-sold, hired out or otherwise circulated without the publisher’s prior consent in any
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including this condition being imposed on he subsequent purchaser.

No responsibility for loss occasioned to any person acting or refraining from action
as a result of the material in this publication can be accepted by the author, editors, or publishers.

This publication may be cited as Doebbler, C.F., The Individual in the Process of International Human Rights Law (2000).

A catalogue record of this book is available from the British Library.

Library of Congress Cataloguing in Publication Data

Doebbler, C.F. (Curtis Francis)

The Individual in the Process of International Human Rights Law
Includes bibliographical references and index.
1. International Law. I Title
JX… 2000

ISBN …

Printed by …..

v
 Acknowledgements

While this thesis reflects my own views and, undoubtedly, errors, it also reflects a project that could
never have been completed without the guidance, assistance and encouragement of numerous other
individuals. Therefore, sincere appreciation is expressed to all of the individuals below and to any others who
may have been overlooked.
Professor Peter Muchlinski of the University of London and for his valuable comments on the
material as well as for his invaluable assistance in finalising the work in its original form as a thesis. Without
Professor Muchlinski’s assistance this book would have never been realised.
Professors Christine Chinkin and Wade Mannsell who provided valuable comments on the version
that as submitted for the degree of Ph.D.. Their carefully attention to points of substance in my arguments
have made their comments very valuable as the thesis was revised for this publication.
Judge Rosalyn Higgins, whose life-long commitment to the international protection of individual’s
human rights, her insight into the comprehensive policy approach to world public order and her pedantic
attention to the correct description and analysis of questions of international law, provided me with excellent
guidance. Most of all her remarkable ability to convey her vast understanding of human rights to her students
with the sincerity and expertise of genuine friend and caring teacher.
Professor Gunther Tëubner, of the University of Frankfurt, for his valuable comments at an earlier
stage of the research.
Professor Lung-Chu Chen, my first teacher of international human rights law who helped develop my
understanding of international law and my interest in the study of the policy approach to international law.
Professor Myres McDougal, for introducing me to the policy approach to law and for his years of
instructive scholarship emphasising the role of human dignity in international law. I shall never forget his
instruction and his magnificent contribution to international law.
Professor Roel Fernhout whose own commitment to his profession and the cause of human rights was
a support by example and for his continued encouragement and support throughout my research was a strong
moral support.
Professor Willem van Genugten for his faith in the relevance of the individual for the protection of
international human rights.
My father who always encouraged me to stay on course and to continue to make relevant arguments.
Also for his reading the lengthy manuscript several times and his invaluable comments on the grammar, style
and logical structure of many arguments.
I also owe a debt of appreciation to several institutions and other the individuals associated with
them, including the London School of Economics and its British Library of Economic and Political Science,
the law library at Katholieke Universiteit Nijmegen, the library of the Institute for Advance Legal Studies,
and the library at the United Nations Office in Geneva. Finally, although additional valuable information
undoubtedly could have been obtained from the United Nations library in New York, the United Nations staff
in New York sought to preserve the library for other purposes.
My appreciation is also extended to individuals all over the world, who recognise, and are trying to
implement, sometimes against tremendous odds, their responsibilities for ensuring others’ human rights.
Some of these friends have even lost their lives trying to ensure the human rights of others, but none of them
have lived their lives in vain. It is for these individuals—more than any others—that this book was written.
Somewhat ironically, it is also necessary to acknowledge the motivation provided by the persons
whom it is hoped this thesis will go some way to convincing of their responsibilities for ensuring others’
human rights. These are the individuals who determine states’ policies and the professionals and the affluent
individuals who can influence these policies towards accomplishing the values of human dignity. I believe
that they should take seriously their responsibility for ensuring human rights.
Finally, my sincere appreciation goes out to Flavia Bustreo, who through her moral support and love
kept me concentrated on my goal despite my having so many distractions.

vi
 Table of Contents
page number
Acknowledgements.................................................................................................vi
Table of Contents...................................................................................................vii
Preface.....................................................................................................................x
List of Abbreviations and Acronyms........................................................................xi
PART I.......................................................................................................................1
The Individual as a Participant.........................................................................8
CHAPTER ONE........................................................................................................12
BASIC CONCEPTS OF INTERNATIONAL HUMAN RIGHTS LAW ANDTHE INDIVIDUAL IN A
SOCIAL CONTEXT...................................................................................................13
Law in its Societal Context.............................................................................13
Law as a Social Process..................................................................................15
The Process of International Human Rights Law............................................19
Social Values in the Process of International Human Rights Law...................20
Policies in the Process of International Human Rights Law............................23
The Interaction of Values and Policies............................................................23
The Process of International Law....................................................................27
Recognizing the Manifestations of International Law.....................................38
A Critique of the Over-Reliance on Article 38 Sources of International Law...42
CHAPTER THREE....................................................................................................44
INDIVIDUAL PARTICIPATION...................................................................................45
The Individual and Forms of Participation......................................................45
Factors Influencing Individual Participation....................................................54
CHAPTER TWO.......................................................................................................56
CHAPTER FOUR......................................................................................................57
FACTORS INFLUENCING INDIVIDUAL PARTICIPATION.............................................58
Individuals in the Process of International Human Rights Law.......................58
The Importance of Considering Influences.....................................................58
Observational Perspectives............................................................................59
Influences Centring on the Individual.............................................................61
Influences Emanating from Society................................................................65
Reconstitutive Influences...............................................................................72
PART II....................................................................................................................74
PAST TRENDS.........................................................................................................75
CHAPTER FOUR......................................................................................................77
THE INDIVIDUAL UNDER INTERNATIONAL LAW......................................................78
Thinking About the Individual in Terms of International Law.........................78
Historical Claims for Recognition of Status in Ancient Society.......................80
Claims to Recognition of the Status of Individuals and Treaties.....................84
Claims Concerning Individuals in Special Positions........................................87
CHAPTER FIVE........................................................................................................93
THE PROCEDURAL CAPACITY OF THE INDIVIDUAL......................IN THE PROCESS OF
INTERNATIONAL HUMAN RIGHTS LAW...................................................................94
Introduction....................................................................................................94
Procedural Status Before Regional Human Rights Bodies..............................99
Representations to International Bodies Concerned With Issues InvolvingHuman
Rights Without Being a Party to Specific Proceedings..................................103
CHAPTER FIVE......................................................................................................105

vii
THE PROCEDURAL CAPACITY OF THE INDIVIDUAL......................IN THE PROCESS OF
INTERNATIONAL HUMAN RIGHTS LAW.................................................................106
Procedural Status in Ancient Society............................................................106
Procedural Status Before International BodiesNot Dealing Exclusively With Human
Rights...........................................................................................................108
CHAPTER SIX........................................................................................................121
Points of Reference and Specific Problems...................................................122
Specific Human Rights Exercised in the Defense of Others' Human Rights. 125
The Horizontal or Drittwirkung of Human Rights..........................................127
Acts of Civil Resistance.................................................................................129
The Concept of Individual Responsibility......................................................135
The Individual and the Tradition of Responsibility Under International Law.135
Early Claims to Individual Responsibility Under International Law...............136
Individuals' International Legal Responsibility for Violations of International Law
.....................................................................................................................138
Claims Expressed in International Human Rights Treaties...........................139
Special Responsibilities of Particular Individuals..........................................146
The Concept of Individual Responsibility Under International Human Rights Law
.....................................................................................................................148
The General Responsibility of Individuals for Ensuring Respect for Human Rights
.....................................................................................................................154
Claims and Authoritative Decisions Made in Regional Contexts...................158
Claims Under International Criminal and Humanitarian Law........................164
Claims Made Under International Criminal Law............................................168
Authoritative Decisions of the International Court of JusticeConcerning Individuals'
Responsibility Under International Law........................................................171
Claims for Individual Responsibility for Violations of International Law Made in
National Arenas............................................................................................172
PART III.................................................................................................................176
CONCLUSIONS:..............................................THE INDIVIDUAL IN A WORLD SOCIETY
..........................................................RESPECTING THE VALUES OF HUMAN DIGNITY
.............................................................................................................................177
CONCLUSIONS:..............................................THE INDIVIDUAL IN A WORLD SOCIETY
..........................................................RESPECTING THE VALUES OF HUMAN DIGNITY
.............................................................................................................................178
Looking Forward...........................................................................................178
Theory: The Individual's Status in the International Community..................178
Process: The Procedural Capacity of the Individual......................................180
Rights: Protecting of Other Individuals' Human Rights.................................180
Responsibilities: Who Will Ensure Respect for International Human Rights Law181
ALTERNATIVES TO THE PRESENT FUTURE....................................................185
Theory: Thinking About Individuals in a Way Which Maximizesthe Achievement of
Human Rights...............................................................................................185
Process: Optimal Individual Access to Procedures in Processes of International
Human Rights Law........................................................................................186
Rights:................................The Optimal Development of Individuals' Ability to
.........Exercise Their Human Rights to Protect Other Individuals' Human Rights. 188
Responsibilities:Holding Individuals Accountable for the Future of the Community
.....................................................................................................................189

viii
 A Final Note..................................................................................................190
Bibliography.........................................................................................................191
Treaties and Declarations.............................................................................191
I.C.J. and P.C.I.J. Cases..................................................................................192
Other International Judicial Bodies...............................................................192
National Cases..............................................................................................193
Publications..................................................................................................193

ix
 Preface

It has been updated and in several places simplified for easier reading. It should not be read as a
comprehensive and exhaustive treatise on the subject of the individual under international law, but rather
as a challenge to established theories, beliefs and concepts in this area of international discourse. It’s
ultimate goal is to suggests alternative policies and actions by which individuals can empower themselves
to responsibly participate in international systems of claims and demands for their most basic values of
human dignity.
The style used for first citations is that suggested in either Turabian, K.L., A Manual for Writers of
term Papers, Theses, and Dissertations (5th ed. 1987); The Harvard Law Review Association, (dist.), A
Uniform System of Citations (13th ed. 1981); or Prince, M.M., Bieber’s Dictionary of Legal Citations (4th
ed. 1992). Where cases are cited, the form in which the case was cited in the original jurisdiction is used
where possible.
Abbreviations have been avoided in initial citations where possible. Citations to material from the
Internet refer to the Internet site at which the information is found and the date that the information was
retrieved. Due to the constantly changing nature of the Internet, the information may not always be
available at the cited location.
All works are cited fully the first time. Subsequently, short forms of citation are used and the work
can be identified by the author’s last name and the year of the work as it appears in the bibliography. The
bibliography lists the author, date, title, city and publisher of the leading works used in the thesis. Not all
the works included in the text appear in the bibliography. However, where a work is not included in the
bibliography it is fully cited.
This study as first undertaken for the degree of Doctor of Philosophy in Law at the Department of
Law at the London School of Economics and Political Science of the University of London under the
supervision of Judge Rosalyn Higgins, Professor Peter Muchlinski and Professor Gunther Tëubner. It has,
however, been extensively edited, in part re-written and new sections have been added.
Finally, it must be reiterated that the text reflects a selection of as is almost always the case, there
is much more research material behind the text than it is possible to expose through citations, notes and
the ideas expressed in the text. Thus, it is hoped that this study will inspire much more research in each of
the areas it addresses and in related areas.

x
 List of Abbreviations and Acronyms
AC Appeals Court Reports (England)
AER All England Law Reports (English)
AJIL American Journal of International Law
ACHPR African Charter of Human and Peoples’ Rights
ACHR American Convention of Human Rights
ADRDM American Declaration of the Rights and Duties of Man
AI Amnesty International
ANC African National Congress
art. article
artt. articles
B.J.I.S. British Journal of International Studies
CACJ Central American Court of Justice
CEDAW Convention for the Elimination of All Forms of Discrimination against Women
CERD Convention for the Elimination of All Forms of Racial Discrimination
CHR Commission on Human Rights
Cmd. Command
C.T.S. Canadian Treaty Series
DEVAW Declaration on the Elimination of Violence against Women
dist. Distributors
ECHR European Convention of Human Rights and Fundamental Freedoms
E.Ct.HR European Court of Human Rights
E.Comm.HR European Commission of Human Rights
ECOSOC United Nations Economic and Social Council
ed. editor
eds. editors
e.g. example given (in cited work)
etc. et cetera
E.T.S. European Treaty Series
F.2d. Federal Reports, Second Edition (US)
FAO Food and Agriculture Organisation of the United Nations
GA General Assembly
GAOR General Assembly Official Records
HDI UNDP Human Development Index
H.R.J. Human Rights Journal
IACW Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women
ICCPR International Covenant of Civil and Political Rights
ICJ International Court of Justice
I.C.J. Reports International Court of Justice Reports of Judgements, Advisory Opinions and Orders
I.C.J.Y.B. International Court of Justice Yearbook
ICESCR International Covenant of Economic, Social and Cultural Rights
id. idem
IGO(s) Inter-governmental organisation(s)
I.L.O. International Labour Organisation
I.L.R. International Law Reports
I.L.M. International Legal Materials
Int’l L. Comm’n International Law Commission
Int’l Org. International Organisation
Iran-U.S.Cl.Trib.Rep. Iran-United States Claims Tribunal Reports
LSE London School of Economics and Political Science
L.N.T.S. League of Nations Treaty Series
L.N.O.J. League of Nations Official Journal
MAT Mixed Arbitration Tribunal
M.L.R. Modern Law Review
N.Q.H.R. Netherlands Quarterly of Human Rights
Ned. Yb. Int’l Law Netherlands Yearbook of International Law
No. number

xi
NGO/NGOs non-governmental organisation(s)
nn. endnote or footnote
N.Y.L. Sch. J.Hum.Rts New York Law School Journal of Human Rights
N.Y.L.S. J. Int’l & Comp.L. New York Law School Journal of International and Comparative Law
N.Y.L.S. L. Rev. New York Law School Law Review
O.A.S. Organisation of American States
O.A.U. Organisation of African Unity
O.J.E.C. Official Journal of European Community
para. paragraph
P.C.I.J. Permanent Court of International Justice
pos. position
P.L. Public Law
PLO Palestine Liberation Organisation
Pt. Part
Publ. Publication
R.C.D.I. Recueil des cours de l’Académe de Droit International de La Haya
SAJHR South African Journal of Human Rights
SC Security Council
SCOR Security Council Official Record
Sec. Section
Sess. session
Supp. Supplement
SWAPO South West Africa People’s Organisation
Tex. Int’l L.J. Texas International Law Journal
T.I.A.S. Treaties and Other International Acts Series (U.S.)
T.S. Treaty Series (U.S.)
U.K.T.S. United Kingdom Treaty Series
U.N. United Nations
U.N. Charter The Charter of the United Nations
UNDP United Nations Development Programme
U.N. Doc. United Nations Documents
UNESCO United Nations Educational, Scientific and Cultural Organisation
UNGA United Nations General Assembly
U.N. GAOR United Nations General Assembly Official Records
UNHCR United Nations High Commissioner for Refugees
UNHR Ctte. United Nations Human Rights Committee
UNHRESC United Nations Committee on Economic, Social and Cultural Rights
UNHCR United Nations High Commissioner for Refugees
U.N. SCOR United Nations Security Council Official Records
U.N.T.S. United Nations Treaty Series
U.S.T. United States Treaties
Va. J. Int’l L. Virginia Journal of International Law
WHO World Health Organisation
Y.B. Int’l L. Comm’n International Law Commission Yearbook
ZLR Zimbabwe Law Reports
Za. Ö.R.V. Zeitschrift Für Ausländisches Öffentliches Recht und Völkerrecht

xii
 Introduction

PART I
INTRODUCTION
DENYING INDIVIDUALS’ RELEVANCE

Humanists and international lawyers have long been concerned with the protection of the fundamental rights
of the individual .... In particular, the subject of the position of the individual in international law has been
discussed ever since the days of the classical writers, although the result has often been to deny him any
position, despite the fact that it was accepted that the individual is the basic unit to which any legal system is
directed.
Daes, E.A., Freedom of the Individual Under Law 1 (1990)

Despite the contemporary currents of global modernism, for the large part, international lawyers have
remained securely tied their anchor of tradition and have failed to take into account the role of the individual
in the prescription and application of international human rights law.
Anonymous

The Study

Traditionally international law has been the concern and domain of state actors. Students of
international law have thus studied the practice and opinio juris of governments acting through their
representatives—heads of state, foreign ministers, diplomats, and other officials of special status who are
identified primarily by their state, government or the international organisation for which they work,
rather than their individual capacity. Because of this tradition there is little doubt that governments are
important actors in the realm of public international law. This is also true in the special area of public
international law that is international human rights law.
Nevertheless, it has been convincingly shown by political scientists and lawyers seeking to
influence the political decision making processes that characterise contemporary international law that
individuals play an important role in the prescription, description and application of this law. 1 Individuals
play important roles as both state actors and in their private capacities. While their roles as a state actors
have received some recognition in traditional studies about international law, individuals acting in their
individual capacity have been largely ignored.
Even in the field of international human rights law where there is greater awareness of the
individual’s role and contribution, the law is often described as treating the individual only as a
beneficiary. For example, the belief persists that the rules continue to emanate only from states. 2 By
perpetuating this belief individuals are automatically excluded from many important decision making
processes that effect the enjoyment of their human rights. Instead individuals are treated as passive
‘objects’, ‘subjects’ or at best ‘beneficiaries’ who are benefited by laws to whose creation, description and
implementation they had little to contribute.
This study seeks to break with this tradition by advocating greater attention to the individual in the
process of international human rights law. While the role of the state is by no means ignored in this book,
it is subordinate to the role of the individual. This terms of reference is not without complications. There
may be harmful consequences of allocating individuals too much attention. For example, it may distract
attention from the common good, if we concentrate on individuals as law making authorities. Another
complication undoubtedly is that the currently prevailing perception that international law is made only by

1
. See, infra, Chapters Four through Nine. Also see McDougal, M.S., Lasswell, H.D., and Chen, L-C., Human Rights and World
Public Order. The Basic Policies of an International Law of Human Dignity 173-179 (1980) and Willetts, P., (ed.), “The Conscience of the
World” The Influence of Non-Governmental Organisations in the U.N. System (1996) (primarily emphasising the role of individuals in non-
governmental organisation, but also pointing out how some of the most important developments in international law were due largely to the
initiatives of private individuals, see, for example, at 16 and 215-218).
2
. See, for example, art. 38 of the Statute of the International Court if Justice and Brownlie, I., Principles of Public International Law 1-30
(1998).
1
 Introduction

states. To suggest otherwise may appear out of touch with reality. Both of these criticisms, however, are
answered by recognising that to date so little attention has been given to the individual as a participant in
the process of international law, that we simply cannot know the consequence of greater attention. In any
case, we cannot know that it will be harmful and we can postulate that it will be beneficial for reason that
will become more apparent in the next two chapters.
Furthermore, because international human rights law—although gaining increasing acceptance—is
still not substantially respected by almost any government, new and creative means of thinking about this
law and its application are needed. One need only look at the apparent incongruity of a developed country
such as the United States of America whose legislatures and courts deny the binding effect of much of
international human rights law, unless they have approved it in a domestic law. Greater focus on the
individual would allow, and indeed require, legal thinkers not only to accept this situation as the position
of the United States government, but to look behind this position to understand who and how this position
is being created, and who and what is responsible for this legal faut de pas.
And finally, it is an uncontroverted fact, that as global modernisation makes the world more
accessible for individuals everywhere, the ability of individuals to participate in influencing authoritative
decisions concerning the values most dear to them has the potential to make dramatic strides forward. In
light of these considerations, it is deemed appropriate and valuable to engage in identifying, describing,
discussing and suggesting alternatives for understanding the individual in the process of international
human rights law.
This study is only a first step in reconsidering how individuals have contributed to international
law. As such it is largely descriptive. After elaborating on some of the points just raised, the following
chapters concentrate on reconsidering the history of individual participation in the processes of
international law, particularly international human rights law. International human rights law—instead of
general public international law—has been chosen as the appropriate focus of this study because of the
self-evident importance that this corpus of international law has for individuals. Nevertheless, both the
analytical framework and many of the substance suggestions apply equally to the larger realm of public
international law.
To accomplish a descriptive re-thinking about international human rights law this work is divided
into three parts. Part I contains Chapters One through Three elaborating on the process of international
human rights law. In these chapters the participation of individuals will be particularly examined together
with the forms of participation and the factors influencing individual participation.
Part II contains Chapters Four through Eight considering the history—or “past
trends”—of the perception of individual participation as well as the substantive
rights and responsibilities of individuals that have been recognised. The object of
these chapters is to catalogue, although certainly not exhaustively, the participation
of individuals in the processes of international human rights to date. Chapter Four
describes the theory of the individual under international law as it has been
developed by some leading legal scholars. Chapter Five describes the procedural
capacities individuals possess under international law. Chapter Six describes
individual’s often enhanced procedural capacities under international human rights
law. Chapter Seven describes human rights that particularly relate to individuals
participation in protecting others individual’s rights. Chapter Eight describes the
responsibilities that individuals have under international human rights law. Chapter
Nine describes the responsibilities that individual have under related areas of law,
such as international criminal law, at points where these area of law have strong
links with international human rights law.
Finally, Chapters Ten and Eleven, respectively, predict the directions in which
the thinking and treatment of the individual will develop in field of international law

2
 Introduction

in the 21st century and suggest alternatives for a world society seriously concerned
with the self-professed goal of achieving respect for values of human dignity
reflected by international human rights law.

The Problem Addressed in this Study

The lack of attention given to the role of the individual in the prescription and application of
international human rights law is not new and it has been recognised as a problem by leading international
legal scholars. Writing in 1994, Judge Rosalyn Higgins of the International Court of Justice noted that
among scholars of international law “rational debate has been constricted” by legal traditions that fail to
adequately consider the individual’s role in the process of international human rights law. 3 Four years
earlier, Erica-Irene A. Daes, the Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, introduced her 1990 study about the individual and
international human rights law by acknowledging that a general problem of international law has been its
failure to sufficiently recognise the participation of individuals.4 And in 1980, Myres McDougal, Harold
Lasswell and Lung-Chu Chen wrote that “[h]istorically, one of the great difficulties in the transnational
protection of human rights has been the notion that only states, and not individuals or their other
associations, are appropriate subjects of international law.”5
The problem is also indicated by the practices of authoritative of decision
making in areas effecting social policy. These authoritative decisions about arms
sales,6 nuclear testing,7 humanitarian intervention,8 development assistance,9 most-
favoured-nation status10 as well as decisions directly concerning individuals’ human
rights11 are often spoken about as if they were taken by governments, states,
international organizations, but rarely individuals. This encourages the individuals
3
. Higgins, R., Problems and Process: International Law and How We Use It 48 and 49 (1994).
4
. Daes, E.A., Freedom of the individual under law: a study on the individual’s duties to the community and the limitations on human rights
and freedoms under Article 29 of the Universal Declaration of Human Rights (1990).
5
. McDougal (1980) at 177. Also see Kothari, R., “Human Rights—A Movement in Search of a Theory” at 19 in Kothari, S., and Sethni, H.,
Rethinking Human Rights: Challenges for Theory and Action (1989) (arguing that even human rights activists have marginalized their value
by trying to confine the human rights debate to the actions of states).
6
. See, for example, Hammond, P.Y., Louscher, D.J., Salomone, M.D., and Graham, A.N., The Reluctant Supplier: U.S. Decisionmaking for
Arms Sales (1983); Fisher, L., Presidential War Power 245 (1995); Landay, J.S., “Boom in the Trade of Small Arms Fuels World’s Ethnic
and Regional Rivalries,” The Christian Science Monitor, 5 April 1995 at p. 1 (most light arms transfers are secret); and Pilger, J.,
“Perspectives: Death for Sale,” The Guardian at p. T12 (12 November 1994) (detailing the dealing of the British arms trade, its secrecy and
its contradiction of basic human values).
7
. See, for example, “Mr. Chirac Honors the Truth,” The New York Times, 18 July 1995 at Section A, p. 12, col. 1 and Beaumont, P., and
Ghazi, P., “UK Marks Hiroshima with appeal for A-Bomb Tests; Uproar as global treaty is threatened,” The Guardian, 2 July 1995 at p. 11.
Both of these articles concern the opposition of international public opinion on the French decision to resume nuclear testing. The decision
itself is an example of policy making that ignores the constituency it effects.
8
. See, for example, Norman, R., and Jochnick, C.A., “The Legitimation of Violence: A Critical Appraisal of the Gulf War,” 35 Harvard
International Law Journal 387 (1994) (discussing the violations of international law in the Gulf War) and Richburg, K.B., “In War on
Aideed, U.N. Battled Itself: Internal Conflict Stymied Decisions on Military Operations,” The Washington Post, Monday, 6 December 1993
at p. A1 (pointing out both the limited sphere of relevant decision makers and the internal problems that decision making might face in the
United Nations). But see Collins, C., “NGOs: they’re everywhere, but what are they? nongovernmental organizations,” 18(2) National
Catholic Reporter 3 (Spring 1995) (arguing that NGOs influence the intergovernmental decision making on the issue of the use of force,
including humanitarian intervention).
9
. See, for example, Ishida, K., “ODA decision-making process secretive,” The Daily Yomuri, 5 January 1995 at p. 12 and Jones, A., “World
Bank, IMF lambasted on their 50th anniversary,” 30(34) National Catholic Reporter 10 (15 June 1994).
10
. See, for example, “The long haul in China,” The Atlanta Journal and Constitution, 21 May 1994 at Sec. A, p. 14 (concerning American
President Clinton’s decision to grant China most-favoured-nation status). Also see “Testimony April 26, 1994 Ralph Nader House Small
Business Uruguay Round Agreements of the General Agreement on Tariffs and Trade,” in the Federal Document Clearing House
Congressional Testimony, Tuesday, 26 April 1994 (referring to the non-public decision making of the World Trade Organization).
11
. For example, the death penalty that is carried out daily in at least one of the almost half of the world’s countries that have retained it.
3
 Introduction

who make up state actors to ignore other individuals except when they are acting in
a collective capacity. At the same time, it also encourages international lawyers to
interpret international law as providing individuals who act on behalf of states a
disguise that they may use to hide from their responsibilities. For example, the
doctrines of ‘sovereign immunity’ and ‘act of state’ are in part a consequence of the
traditional perception of states as separate from the individuals in them. These
doctrines re frequently invoked to protect individuals from their responsibilities for
the violation of other individuals’ human rights.12
Conversely, as free market economic strategies have gained in popularity in
the context of global modernisation, an increasing number of governments are
‘contracting out’ traditionally public tasks, effectively leaving private actors
responsible for the protection (or lack thereof) of basic human rights.
Finally, the exclusion of the individual from authoritative decision making
processes has led to frustration, resentment and sometimes even cumulated in
violence. A recent study, for example, showed that while more and more individuals
exhibit an interest in decisions concerning the values of human dignity, a growing
proportion of these interested individuals are feeling alienated from the decision-
making process.13
These developments argue for a reconsideration of the role that individuals
play in the process of international human rights law. An essential part of this
reconstruction is the realisation that there are specific factors that influence
individual action and decision making. The influence of individual, societal and
reconstructive factors, however, is a subject that has received little attention from
lawyers. By developing a greater awareness of individuals’ participation that take
influencing factors into account, strategies for individual participation may be
recreated whereby individuals’ claims and demands can be come recognised as
equal to those of other actors concerned with achieving a society respecting the
values of human dignity.

Breaking with Tradition

Traditionally, international legal scholars have focused on states’ rights and obligations. 14 This has
been based on the belief that international law is centred on decision making by states. This belief can be
attributed to studying international law as a system of world public order with its own unique terminology
—one of states and inter-state organisations. Textbooks on public international law speak of states as the
predominant actor or subject under international law.15 In so doing they promote a legal tradition
exhibiting a distinct bias for the state-centric description of international relations that has developed over
12
. See, infra, Chapters Eight and Nine.
13
. See L’Abate, A., Research as a tool towards peace education at 244-253 in Balázs, J. and Wiberg, H., (eds.), Peace Research for the
1990s (1993) (research done on school children and young adults in Italy).
14
. See Lotus Case, (1927) P.C.I.J. Reports, Ser. A, No. 10 at 18 and 29; Chen (1989) at 87 and 88; and Eide, A., “National Sovereignty and
International Efforts to Realize Human Rights,” at 3-30 in Eide, A., and Hagtvet, B., (eds.), Human Rights in Perspective. A Global
Assessment at 3 and 4 (1992) (Eide points to the 350 year history of international law as “primarily a law between states, often called nation-
states”).
15
. See, for example, Starke, J.G., Introduction to International Law 58 (10th 1989). Also see Jennings, R. and Watts, A., (eds.), 1 (Pt. 1)
Oppenheim’s International Law, 117 et al (9th ed. 1996) (a treatise accepting this traditional concentration), Brownlie, I., Principles of
International Law (5th ed. 1998) (arguing that although “[there is no general rule that the individual cannot be a ‘subject of international law’
… to classify the individual as a ‘subject’ is [in is opinion] unhelpful.”), and Higgins (1994) 39 (although in general arguing for the
acceptance of broader definition of participants, nevertheless stating the that “[i]nternational law is, for the time being, still primarily of
application to states. States are, at this moment in history, still at the heart of the international legal system.” Id.).
4
 Introduction

the past 350 years.16 This has led to the phrase “national sovereignty” becoming one of the most frequently
used terms of international law.17 The concept of national sovereignty has become embedded in our
thinking about international law in the principle of non-intervention.18 This principle is found in article 2,
paragraph 7 of the Charter of United Nations and reiterated in the Declaration on Principles of
International Law concerning Friendly Relations and Cooperation among States.19 Some legal scholars,
while accepting this tradition, have nevertheless recognised that the individual is actually the main actor in
international affairs, but refrained from a full consideration of the individual as a participant in the
prescriptive process of international law making.20 Other scholars, who are concerned with international
law in its social context have argued for alternative perspectives that consider the individual in the wider
context of the comprehensive social process.21 But even within this latter group the views have varied.
Some treat the individual as only a ‘part-time’ or ‘sometimes’ participant. 22 Others emphasise the
individual as the ultimate participant in authoritative decision making processes.23
For most lawyers the choice has been between acknowledging the reality that the individual is the
ultimate social actor and adhering to the traditions of state sovereignty. Rarely have the consequences of
this dichotomy been evaluated for their effect on law in the social process. Instead, arguments have tended
to remain within a restricted legal domain using the vocabulary of international law that relies on terms
such as “objects,” “subjects,” “states” and “sovereignty.” Even scholars who have ventured beyond these
dogmatic confines in an attempt to reconcile law with the social process in which it exists, for example
through a policy-oriented approach to law, have hesitated to draw too much attention to the radical
revision of traditional international legal thinking that they are advocating. 24 Alternatively, more radical
legal scholars such as those identified with the “critical legal studies”25 movement, only indirectly
advocated an expanded role for the individual by calling upon the individual to become “freed from the
tyranny of abstract social categories.”26 However, neither the policy-approach nor the critical legal studies
movement appear to have had more than a nominal effect on the views of states and writers as concerns
the participation of individuals in international law. Other creative attempts to consider actors other than
states have also failed to substantially influence the realm of international legal thought. 27 International
16
. See Eide, A., “National Sovereignty and International Efforts to Realize Human Rights,” at 3-30 in Eide, A., and Hagtvet, B., (eds.),
Human Rights in Perspective. A Global Assessment (1992) at 3 and 4, Horowitz, M.J., “The History of the Public/Private Distinction,” 130
University of Pennsylvania Law Review 1423, 1425 (1982) and Romany, C., “Women as Aliens: A Feminist Critique of the Public/Private
Distinction in International Human Rights Law,” 6 Harvard Human Rights Journal 87, 97 (1993).
17
. Verzijl, J.H.W., International Law in Historical Perspective, Vol. 1 (1968) at 256-292.
18
. Eide, A., “National Sovereignty and International Efforts to Realize Human Rights,” at 3 and 4 in Eide and Hagtvet (1992).
19
. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the
Charter of the United Nations, UNGA Res. 2625 (XXV) adopted 24 October 1970.
20
. See Kelsen, H., Principles of International Law 96-99 (2nd ed. 1967).
21
. See McDougal, M.S., and Associates, Studies in World Public Order 1010 (1960), Higgins (1994) at 12 and 13 and Chen (1989) at 76-81.
22
. See Higgins (1994) at 12.
23
. See Chen (1989) at 23 and 76.
24
. See McDougal (1980) 95 and 461; Higgins, R., “Conceptual thinking about the individual and international law,” 4 British Journal of
International Studies 1, 5 (1978) and Chen (1989) 23 and 76-81.
25
. The term “critical legal scholars” is used herein to describe the legal scholars who have criticized some of the deeply embedded theories
and principles of international law with the view towards achieving basic community values. Values other than those used in this study have
included democracy, participation and social conflict. See Kennedy, D., and Klare, K.E., “A Bibliography of Critical Legal Studies,” 94 Yale
Law Journal 461-463 (December 1984) (for a bibliography of general critical legal studies work compiled by Professors Duncan Kennedy
and Karl E. Klare).
26
. See, for example, Unger, R.M., “The Critical Legal Studies Movement,” 96 Harvard Law Review 561, 584 (January 1983).
27
. See generally, Machan, T.R., Individuals and their Rights (1989) and Machan, T.R., Individuals and their Rights (1989). And see Tëubner,
G., “The “State” of Private Networks: The Emerging Legal Regime of Polycorporatism in Germany,” [1993] Brigham Young University Law
Review 553, 555 (1993) (arguing that “the communitarian versus individualism dichotomy seems to present misleading alternatives. It
presupposes a simplified image of society as a hierarchical relationship between individuals and an overarching “state” with intermediary
organizations lying somewhere in between. In this conceptual framework, intermediary associations “mediate” vertically individual needs
and collective goals. Consequently, their orientation oscillates between individualists and communitarian concerns.” Id.. He says it is
5
 Introduction

law has thus remained primarily a law between sovereign states and a discourse constrained by traditional
terminology and concepts. The result has been that a theory of international law including individuals as
meaningful participants has failed to emerge.

Language and Practice

The state of modern international law is reflected in part in its language. The terminology of
international legal scholars and state representatives has been most authoritatively expressed in the written
sources of international human rights law concerning the individual in international law. Two of the most
prominent sources are the International Covenant on Economic, Social and Cultural Rights28 and the
International Covenant on Civil and Political Rights.29 Both of these binding legal instruments reflect the
consensus of the international community of states. And both of these instruments begin by emphasising
that it is “States Parties” who are “considering,” “recognising,” and “realising” the necessity of human
rights and who “agree” to ensure respect for human rights. Other human rights instruments both before30
and after31 the Covenants have used similar language acknowledging states as the primary actors under
international law. While this trend indicates a continuation of traditions dating back to the seventeenth
century there are also some notable exceptions that provide some encouragement to observers who are
willing to release themselves from the constraints of tradition. For example, the International Labour
Organisation (ILO) conventions are adopted by “[t]he General Conference of the International Labour
Organisation,”32 which consists of the representatives of employers and employees. These conventions, of
course, are still only binding on “[e]ach Member of the International Labour Organisation which ratifies”
them.33 Nevertheless, both the formal and substantive extension of participation to non-state actors by the
ILO is one reason why some commentators have been able to describe the organisation as the most
effective international human rights body for the protection of economic, social and cultural rights.34
Another apparent contradiction to this restrictive trend is expressed in some of the most important
international human rights instruments right along-side the state-centric language quoted above. The
Universal Declaration of Human Rights, for example, a non-binding instrument that preceded the
Covenants, describes itself in its preamble “as a common standard of achievement for all peoples and all

misleading because the “intermediary organizations would take on a rather impoverished meaning).
28
. International Covenant on Economic, Social and Cultural Rights (ICESCR), 993 U.N.T.S. 3, opened for signature 16 December 1966,
entered into force 3 January 1976.
29
. International Covenant of Civil and Political Rights (ICCPR), adopted by the U.N. General Assembly in a resolution and opened for
signature 16 December 1966 entered into force January 1976, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967).
30
. See, for example, Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 December 1948, U.N.G.A. Res.
260(III), U.N. Doc. A/810, at 174 (1948), 78 U.N.T.S. 277, entered into force 12 January 1951 (referring to “The Contracting Parties”);
Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 12 August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
(1950), Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (1950), Geneva
Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949,
6 U.S.T. 3217, 75 U.N.T.S. 85 (1950), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field, 12 August 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (1950), and Convention Relating to the Status of Refugees, adopted 28 July 1951,
U.N. G.A. Res. 429, 5 U.N. GAOR Supp. (No. 20) at 48, U.N. Doc. A/1775 (1950), 189 U.N.T.S. 137 entered into force 22 April 1954 (all
referring to “The High Contracting Parties”); and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions
and Practices Similar to Slavery (referring to “The States Parties”).
31
. See, for example, American Convention on Human Rights (Pact of San Jose), Pan-Am. T.S. No. 36, 9 I.L.M. 673, 65 A.J.I.L. 679, 3 H.R.J.
151 (1969) (referring to “The American States”); CERD, CEDAW and Convention on the Rights of the Child (CRC), U.N.G.A. Res. 44/25,
U.N. GAOR, 44th Sess., 61st meeting, Annex (20 November 1989), 28 I.L.M. 1457, entered into force 2 September 1990 (all referring to
“The States Parties”).
32
. See, for example, Convention Concerning the Abolition of Forced Labour (ILO No. 105), adopted 25 June 1957, entered into force 17
January 1959, 320 U.N.T.S. 291 (1959).
33
. See, for example, id. at art. 1.
34
. Robertson, A.H., and Merrills, J.G., Human Rights in the World. An introduction to the study of the international protection of human
rights 236-241 (3rd ed. 1989).
6
 Introduction

nations” in prescribing “that every individual and every organ of society, keeping this Declaration
constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms
and by progressive measures, national and international, to secure their universal and effective
recognition.”35 The identical fifth preambular paragraphs in each Covenant, in words similar to the
Universal Declaration, prescribe that “states” also realise “that every individual, having duties to other
individuals and to the community to which he belongs, is under a responsibility to strive for the promotion
and observance” of the rights recognised in the Covenants.36 The examination of the idea embodied in
these preambles is a major focus of this study.
The language that states use in their international agreements must be interpreted and evaluated in
light of the manifested opinions and practice of states. The opinions usually expressed by states show that
the overwhelming majority continue to opt for closed discourses within the tradition structures and
institutions of state sovereignty. The practice of states makes this situation even clearer. In practice states
have continued to adhere to the traditions of state sovereignty by continuing to use fora that exclude non-
state actors or marginalia their influence on the decision making process. As a result, the degree of
participation in international decision making fora is often directly related to the participant having
characteristics of sovereignty. Examples are the North Atlantic Treaty Organisation, the European Union,
the Conference for Security and Co-operation in Europe, the United Nations, the Contact Group on
Former Yugoslavia and the G-7. Non-state actors, including individuals, regularly make claims to
participation in each of these fora, but in response are only given limited rights of participation. Often
these participation claims indicate an increasing dissatisfaction with the existing decision making
structures or institutions. They also recognise that while these fora are increasingly making decisions that
influence the values of human dignity, the decisions are increasingly being made in secrecy or with only
very limited participation by non-state actors.
To succeed as a prescriptive science the study of international law must advance beyond general
description, to the identification and evaluation of acts and actors involved in the invocation and
observance of international law. The starting point suggested for studying process is the actions of
individual participants in the social process. Many fields of domestic law revolve around the rights and
duties of individuals. Similarly many, if not most, domestic lawyers represent individuals as clients. Thus,
most lawyers are trained to think about law as relevant to individuals. Law is thus a social science in
which “[a]n increasingly common theme ... is that if we are going to understand how particular
components of a social system function, we must consider that acts are performed by individuals.”37
A consideration of individuals making decisions as single human beings and together with other
human beings is necessary for an adequate understanding of law. Both these processes begin when an
individual expresses his or her opinion about the international legality of another individual’s or state’s
action. If other individuals consent to this opinion being authoritative, it may become international law.
This consent is expressed as an authoritative decision. Both the acceptance and the initial subjective
evaluation of legality are part of the process of authoritative decision-making.
The individual’s participation in this process is through direct and through indirect interaction with
decision-makers. Through advanced communications technologies, broader educational curricula and the
greater ability to travel, individuals are increasingly able to interact with each other. This interaction
allows individuals to exchange views and information that influence public opinion. Individual journalist
may play an especially important role in this process as they may be the only source of information
concerning an event or society. Ultimately public opinion can—and does—influence government policies.
Often the questions being influenced— include issues such as nuclear proliferation, decisions to go

35
. UDHR at paragraph 8 of the preamble.
36
. ICESCR and ICCPR at the common fifth preambular paragraph. These paragraphs were adopted unanimously. See U.N. Doc.
E/C.4/SR.333 at 9 (concerning the ICCPR).
37
. Gove, W.R., “Why We Do What We Do: A Biopsychosocial Theory of Human Motivation,” 73(2) Social Forces 363, 367 (1994).
7
 Introduction

to war, international trade and development assistance—concern the international public order.
Traditionally these issues have been only directly influenced by individuals in elite positions. This is no
longer the case. Today almost every individual may, at least indirectly, exercise influence over
government decision making. This is a modern social fact despite the ignorance or resignation of many
people about their ability to influence policymaking. Through modern technologies, individuals
everywhere in the world can become conscious of actions that take place anywhere in the world.
Individuals without access to technology may also have their activities transmitted to others by words of
mouth. Furthermore, enough individuals acting in unison—without formal organisation, but based on
shared values—will also often be able to influence a state’s policies. By forming and expressing opinions
about the adherence of those actions to the consensual agreed values of human dignity individuals,
therefore, indirectly influence authoritative decisions about the legality of these actions.

The Individual as a Participant

The focus on the individual is premised on the recognition that it is ultimately the individual who
decides and acts under international law. This participation may take many forms. These forms manifest
themselves in the different roles and capacities that individuals have in the processes of international law.
This study focuses on individuals in their capacity as private individuals, thus not as representatives of
particular states, groups or organisations. Where groups of individuals are considered, attention will be
concentrated on the individuals functioning in these groups as distinct from the group itself. This includes
individuals executing tasks delegated by the group, persons whose own accomplishments have increased
their ability to take responsibility for others in the group and persons who have accepted a special
responsibility in the group or community. The consideration of the individual acting in the comprehensive
social process will, however, be limited to the ratione materiæ of international human rights law. This
study is focused on the individual’s rights and responsibilities for ensuring respect for other individuals’
international human rights. It thus includes the description and evaluation of activities related to the
protection of an individual’s own human rights only in so far as these actions are motivated by, or clearly
result in, the protection of other individuals’ human rights.
To focus on the individual does conflict with recognising that under international law a state may
be responsible for the acts of private individuals within its territory or under its jurisdiction.38 Currently
the “conduct of persons or a group of persons not acting on behalf of the State shall not be considered as
an act of the State under international law”39 while at the same time states have been held responsible for
controlling the acts of non-state actors emanating from their territory.40 If international law is viewed as a
process of authoritative decision making, it becomes apparent that participants or actors may have
different capacities. Individuals may be both nationals of a state and the ultimate actors within the
government of the state. The different capacities of the individual thus exist side-by-side. Because of this
no inconsistency exists in a theory of international law that recognises that it is individuals within

38
. See, for example, Velázquez Rodriquez Case (Honduras), Decisions and Judgments of the Inter-American Court of Human Rights, Ser. C,
No. 4 at 155-158, para. 174-182 (Judgment of 29 July 1988); (1989) 28 I.L.M. 291, (1988) 9 H.R.L.J. 212; Godinez Cruz Case (Honduras),
Decisions and Judgments of the Inter-American Court of Human Rights, Ser. C, No. 5 at page 152, para. 182 (Judgment of 20 January 1989)
(“An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a
private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of
the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required.” id.); and X and Y v. Netherlands,
Judgments and Decisions of the European Court of Human Rights, Ser. A, No. 91 (Judgment of 26 March 1985) (finding that the Netherlands
must provide an effective deterrence to violations of “private life” guaranteed by article 8 of the ECHR).
39
. I.L.C. Draft Articles on State Responsibility, U.N. GAOR, Supp. (No. 10) 239, U.N. Doc A/34/10 (1979) at art. 11, paragraph 1. Articles
12, 13 and 14 of the Draft Articles extend this same reasoning to “the conduct of an organ of a State acting in that capacity, which takes place
in the territory of another State,” “international organizations,” and “an insurrectory movement,” respectively. Id. at artt. 12, 13 and 14.
40
. See, for example, International Law Commission, Draft Articles on State Responsibility, Yearbook of the International Law Commission,
Vol. II, Part One (1989) at pp. 81-82 and Vol. I (1992) at p. 215).
8
 Introduction

governments who make policy choices41 while at the same time recognising that the collective organ of the
government may have separate and distinct rights and obligations. This is true even when specific policies
reflect a combination of choices—compromises and consensus—within a state. In fact, it is just this
recognition that pleads for the description of law as a social process of decision making. It is “because
there is interaction” and “because living beings are the active participants” that law can be described as a
social process.42 The significance of describing law as a social process is in realising that decisions-makers
are constantly taking “one another into account in the making of choices.”43 This attribute of the process is
important to any understanding of the function of law in society as well as for the suggestion of alternative
policies to direct law towards desired policy goals.
Although we often view policies as the exclusive domain of states, it is suggested that it is more
appropriate to understand them in terms of choices made by individuals because this is the framework in
which the collective will of the state can be most meaningfully understood and most realistically
influenced. This is particularly true when one’s objective is to influence state policies in a particular
direction, for example, towards the achievement of the values of human dignity. Viewing the individual as
the centre of law in a social context increases one’s ability to influence law in this social context. Any
understanding of law that does not acknowledge the increasing role of the individual—in his or her
capacity as an individual—in the international social process is destined to be viewed as theory detached
from the practical world.
Another reason for concentrating on the individual is the acknowledgement that law is a willed act
of society and that society is formed and developed through a series of willed acts. This acknowledgement
rests upon the premises that what individuals will and how they act influences the development of
society.44 When the government of a state decides upon a certain policy—for example, to go to war—this
policy is made by a conscious decision of a certain group of individuals who have the authority to decide
for other individuals. Where there is a high degree of democracy in a society the decision may reflect the
will of the majority of the individuals. Where there is a low degree of democracy the decision may merely
reflect the will of a small number of elites thereby resulting in a decision that will be imposed upon the
individuals who comprise the constituency of these elites regardless of their will. To claim that individuals
are always the ultimate decisions-makers does not deny that there may be factors external to the individual
that may influence a decision. The factors may include group dynamics. For example, although the
majority of a population may not vote for a particular candidate, that candidate may still be elected
because the electoral system provides for the election of the candidate with the majority of votes
regardless of how many people vote. Other factors may be environmental, contextual and
multidisciplinary. Furthermore, while there are external factors that individuals cannot control, if these
factors are to be controlled, the individual must exert that control. An example of this is found in countries
in the process of transition to democracy. Such a transition can only come about when individuals suggest
alternatives and wilfully act to implement them. This reasoning leads to the conclusion that social action
and legal action are the result of the willed acts of individuals. Society as we know it is based on the
willing and acting of its individuals. It is only through the willing and acting of individuals that society
can develop and that this development can be understood. Other social groups may be actors together with
the individual. Examples include families, tribes, interest groups, trade unions, commercial enterprises,
non-governmental organisations and governments. However, it is worth repeating that despite the
existence of groups and the role of group dynamics it is always the individual who constitutes the ultimate
actor.
Using the individual as the unit of analysis does not mean that group dynamics are less relevant, it

41
. See Chen (1989) at 76.
42
. Id. at 10.
43
. Id..
44
. Allott, P., Eunomia: New Order for a New World 3-13 (1990).
9
 Introduction

merely means that individuals—who have been relatively ignored in their roles as participants in the
processes of international law—are as relevant as other traditional actors. The relationship between
individuals and groups has frequently been examined in the works of social and political scientists. David
Easton’s prominent theory of “systems analysis” suggests that we consider the individual as a participant
in the political system by analysing the system in which the individual transacts with other individuals.45
While recognising the individual as an important participant, he emphasises that understanding individual
participation is not sufficient. Instead, the higher-order structure of the system must be understood. In his
book The Analysis of Political Structure, he emphasises the systems analysis of political structures.
According To Easton, it is not the individual, but the system that has been neglected in the recent study of
political life.46 Thus, he sees it fit to concentrate on analysing higher structures and the principles that
might be extrapolated from them to explain the actions of lower-order structures, including individuals.
But despite this different starting point there are many parallels in the concepts he uses and those
employed in a policy-oriented approach to law. For example, Easton looks at relationships as influencing
human action and sees rules as manifestations of these relationships.47 He specifically identifies rules as
means of converting input demands into policies.48 He also recognises the notions of interrelation,49
common values,50 and environmental influence on the individual.51 Finally, Easton also recognises that
individuals have the “capacity to change social relationships fundamentally.” 52 Easton’s work combines
many considerations of methodology with practical notions of influence, values and interrelation. The
policy-approach to law advocated in the present work must also relate to the methods and concepts
identified by Easton because these are the methods and concepts by which we understand the working of
political society. The examples of similarities briefly pointed out in this paragraph suggest that there is
such a relationship. The crux of this relationship is between values and human relationships. Whether one
views this relationship from the perspective of the whole or only its most basic part, an understanding of
both perspectives will serve each auditor well.
In the behavioural disciplines, attention has been given to the individual. This has happened to
such an extent that it would be justifiable for an observer to conclude that suggesting individuals can be a
measure of social policy and international human rights needs little explanation to behavioural scientists.
Observers of society who have concentrated on society in its living context have often discussed society
from the perspective of the individual. Ted C. Lewellen, a political anthropologist, argues that
[a] major reason for focusing on the individual rather than on groups is that in the
individual a number of different systems meet. A group may act out a single role at a
particular time, but the individual always embodies conflicting roles, at once father and
son, leader and follower, warrior and peacemaker. The individual thus expresses the
contradictions that may be invisible in studies of groups.53
And Brian Morris and Marcel Mauss, two leading sociologists concerned with examining the role of the
45
. See generally Easton, D., The Analysis of Political Structure (1990) (the comments on political systems are also relevant to social
processes)..
46
. Easton (1990) at 57.
47
. Id. at 263.
48
. Id..
49
. Id. at 284 (explaining that the “higher order so conceived is the whole system that is no more than its parts viewed in their “systematic
interconnection.” Id. And drawing attention to the fact that understanding of structures based on models of interconnectiveness has been
applied to social phenomenon outside the field of political science and citing Lazlo, E., “Systems and Structures—Towards Bio-social
Anthropology,” 2 Theory and Decision 179-192, 180 (1971), id.). Also see Vienna Declaration of the World Conference on Human Rights
held in 1993 (in the context of international human rights, this Declaration recognizes a high degree of interdependency between human
rights).
50
. This notion is implicit in his description of a higher-order structure that transcends the observable low-order structures.
51
. Easton (1990)at 242.
52
. Id. at 242.
53
. Lewellen, T.C., Political Anthropology: an Introduction 114 (2nd ed. 1992).
10
 Introduction

individual in society, point out that “[n]o matter how completely invasive the collective representations
may be, it always ‘leaves the individual a sanctuary, his consciousness’, and it is the individual who is
always the source of action.”54

54
. Morris, B., Anthropology of the self: the individual in cultural perspective 3 (1994) (citing Mauss, M., Sociology and Psychology, (trans.
B. Brewster), at 10 (1979)).
11
 Chapter One: The Process of International Human Rights Law

CHAPTER ONE

THE PROCESS OF INTERNATIONAL HUMAN RIGHTS LAW

No one lives in direct contact either with truth or with reality. Each of us lives in a world actually made by human
beings, in which such things as “the nation” or “Christianity” or “Islam” are the result of agreed-upon
conventions, of historical processes, and above all, of willed human labor expended to give those things and
identity we can recognize.
Said, E.W., Covering Islam 45 (1997)

12
 Chapter One: The Process of International Human Rights Law

THE PROCESS OF LAW IN SOCIETY

Law in its Societal Context

The international community is a complex of many different social processes in which individuals
strive to achieve different values.1 Together these social processes are referred to as the comprehensive
social process of world society.2 World society is the international community of individual human beings
who interact with each other in their interrelated and interdependent roles. At its broadest level this society
includes every one of the approximately 5.7 billion human beings on earth and is constantly fluctuating as
the number of individuals in the world change.3 These individuals participate in the achievement of
values. Sometimes these values are reflective of a basic state of human survival, while at other times the
values might be reflective of a highly developed complex of factors we often refer to as quality of life. 4 As
society develops new values arise while old values may continue to be relevant or may disappear or be
subsumed by modern values. These values are reflected in the claims and demands that individuals make
for specific authoritative decisions. The human rights dimension of these claims are the most basic values.
Through decision making processes using techniques such as consensus, we as individuals in world
society interacting in our institutional and individual capacities strive to optimalise the basic values. The
ultimate goal of our endeavours can be described as the achievement or optimalisation of the values of
human dignity. Human dignity is the result of interaction between individuals by which values are shaped
and shared and manifested in observable form in the comprehensive social process.5
To understand the complex of the comprehensive social process of world society and the function of
international law therein one must be able to map this process. In recent years there have been numerous
suggestions for maps of the social process.6 Whether these descriptions rely on the systems structures,7
distinctions,8 communication9 or as is done here, on entities, a common characteristic of social process
maps is that they describe participants in relation to decision making processes.
Myres McDougal and Harold Lasswell recommend a map of the comprehensive world social
process that seeks to describe the distinguishable and interrelated features of the human being through the
“expansion of the generalised image of ‘man’ striving to maximise ‘values’ by applying ‘institutions’ to
‘resources’.”10 To accomplish this description they suggest the following categories11
1. Participation. Individual and group actors.
2. Perspectives. The subjectivities of actors that give direction and intelligibility to interaction.
3. Situations. The geographic, temporal, institutional, and crisis features of interaction.
4. Base values. The values and resources (potential values) available to different actors in shaping
1
. McDougal (1980) at 94. What is meant by values, how they are formed and their relevance to this study is the subject of Chapter Two.
2
. Id. at 94 (referring to the “comprehensive social process” and “the social setting” of international human rights law).
3
. United Nations Population Fund, The State of the World (1995) (estimating the world’s population at 5.7 billion in 1995 and rising by 86
million until at least the year 2015 at which time it will be between 7.9 and 11.9 billion).
4
. See generally, Sen, A., and Nussbaum, M.L., (eds.), The Quality of Life (1992) (this work includes several articles by various writers
considering the quality of life).
5
. McDougal (1980) at 84.
6
. Wilkins, J.W.N., “Historical Explanation in the Social Sciences,” 8(30) British Journal for the Philosophy of Science 104-117 (1957);
McDougal, M.S., and Lasswell, H., “The Identification and Appraisal of Diverse Systems of Public Order” at 1-41 in McDougal, M.S., and
Lasswell, H., Studies in World Public Order (1960); Easton, D., The Analysis of Political Structure (1990); Easton, D., A Framework for
Political Analysis (1965); Burton, J.W., World Society (1987) and McDougal (1980).
7
. See generally, e.g., Easton (1965) and Easton (1990).
8
. See generally, e.g., Tëubner, G., The “State” of Private Networks: The Emerging Legal Regime of Polycorporatism in Germany (1993);
Luhmann, N., The Unity of the Legal System (1988); and Tëubner, G. Introduction to Autopoietic Law (1988).
9
. See generally, e.g., Habermas, J., Communication and the Evolution of Society (1979).
010
. McDougal (1980) at 95.
11
. McDougal (1980) at 95.
13
 Chapter One: The Process of International Human Rights Law

interactions.
5. Strategies. The modalities employed in managing base values.
6. Outcomes. The shapings and sharings of values achieved.
These categories “emphasize items that may especially affect deprivation and nonfulfillment in the
achievement of values.”12 They form the basis for the study of law in its social context and are an adequate
starting point for the examination of the individual’s role in ensuring human rights in the comprehensive
international social process.
The individual is the principal participant in the world social process.13 This participation is both
willed and unwilled, particular and universal. As Philip Allott points out:
We are born into societies. The first consequence of this fact is that we do not choose the
societies we are born into. The second consequence is that we cannot know what we would
have been, had we been born into other societies. The third consequence is that we enter at
once a relationship of mutual interaction with societies, an interaction which we do not leave
until we die. The fourth consequence is that our participation in every other society is
conditioned by our participation in the societies into which we are born.14
The individual through human thought conceives of all conscious human participation. 15 Through this
participation the individual’s consciousness is “formed by the societies it forms,”16 but it is also through
his or her consciousness that the individual “is not finally and wholly absorbed by society.”17
Influenced by environmental and contextual factors, the individual forms his or her own impressions
of society and of its past. Influenced by these impressions the individual interacts socially, politically and
legally with society. And through this interaction the individual plays a part in the decision making
process. An individual’s participation is thus a function of his or her role in the comprehensive social
process. This role may be more or less active and influential. It may be confined to one area or broad
sweeping. Roles include participation at all levels of the comprehensive social process as diplomats,
lobbyists, politicians, national leaders, grassroots campaigners, ordinary citizens, et cetera. Individuals
may function in each of these roles. They may also combine several roles. The functioning of any
individual in a role may vary greatly from one individual to another. The point being stressed is that it is
ultimately the individual who initiates action and who ultimately feels the results of action. And it is to
protect and fulfil the interests of the individual that other entities have been imagined by individuals.18
Viewing the individual in all of his or her roles, one quickly realises that society as an imagined
entity has developed its own distinct reality. This reality is a function of the conscious perception of other
individuals and may also become a participant in the social process. Thus today, to view the individual as
the only actor in international society is as wrong as ignoring the individual altogether. The other
participants that have been created by our imagination and perception include states, governmental
organisations, non-governmental organisations, corporations, churches and other groups of individuals.
These entities are created not to serve their own existence, but to facilitate the achievement of values of
the individuals create them.
Since the Peace of Westphalia, it has been the “contemporary reality” that the state has been
recognised as the primary participant in international relations. Nevertheless, as reasoned above, the

212
. Id..
313
. Id. at 96.
414
. Allott, P., Eunomia: New Order for a New World 39 (1990).
515
. Id. at 379-389.
616
. Id..
717
. Id. at 379.
818
. Chen (1989) at 80 (“... the “omnipotent” nation-state is but one of many structures or processes that individuals develop to protect and
fulfil their interests”).
14
 Chapter One: The Process of International Human Rights Law

“nation-state is a human institution that does not realistically exist apart from individuals.” 19 Individuals
are not only a constituent of statehood,20 but also the creators of every state. Individuals create states by
their imagination and by their actions.
The consequence of individuals’ actions and imagination is that today other legal entities are
perceived to exist such as states, groups, peoples, populations, governments, corporations, non-
governmental and intergovernmental organisations, etc.. World society has been conditioned to think of
these entities as the primary or sole actors under international law. This has come about in part due to
references made to these entities in laws, education, publications and many other forms of communication
that are experienced in everyday life. Having recognised these new entities and being unable to ignore the
individual in world society, we are confronted with having to develop a theory of international order that
reconciles the various participants in the context of social organisation. Some of these theories have
emphasised the group identity of classes (Marxism) or community (communitarianism) or state (the
Westphalian tradition) or even the human race (‘global communitarianism’). Others have emphasised the
individual, most notably individualism21 and most liberal theories of human rights.22 Most modern theories
combine aspects of the different theories from the past. For example, the policy-sciences recognise that
individuals may be participants in world society together with organised groups, states, intergovernmental
organisations, political parties, pressure groups, private associations, terrorists and gangs and unorganised
groups.23 The consequence of thinking about international law as a process with a wide variety of
participants, all created by individuals or being individuals themselves, is to broaden the relevance of this
‘process’ to society as a whole. Nevertheless, most lawyers have chosen not to exercise this power of
imagination and creativity and have all but eliminated the individual from the theory of international law.
This odd contradiction has come about due to a multitude of factors some of which will be considered in
chapter four. Here it will merely be recognised that despite traditions and theory, individuals do de facto
participate in world society and thereby in processes of international law.

Law as a Social Process

To understand the individual’s role in the process of international human rights law one must
understand the architecture of this process. This architecture is a complex of institutional arenas in which
individuals make claims and demands for values. Within the medium of this complex there are numerous
factors that influence the process. The factors range from actions that can be observed through established
techniques of social science to consciousness forming ideologies and propaganda whose influence may be
more difficult to observe. Below an attempt will be made to map some very basic contours of this
architecture. In succeeding chapters the actors and influencing factors will be identified. The primary
considerations that led to this chapter is the belief that law is an integral and integrated part of a
comprehensive social process. This belief is a cornerstone of a policy approach to international law. It
assumes that one is seeking to say something about law that is relevant to social action, for example, that
one is seeking to understand law as a process that is conducive to achieving certain social values and
919
. Id..
020
. See Montevideo Convention on Rights and Duties of States from 1933 (stating that “a permanent population” is one of the qualities of
statehood). Also see American Law Institute, Third Restatement of the Foreign Relations Law of the United States § 210 (1987) and Chen
(1989) at 26.
121
. See, for example, Dray Parkinson, “Holism and Individualism in History and Social Science” at 53-58 in G.H.R. and Burke, T.E., An
Encyclopedia of Philosophy (1988); Dray, W.H., On History and Philosophers of History (1989); Machan, T.R., Individuals and their Rights
(1989); Morris, B., Anthropology of the self: the individual in cultural perspective (1994); Shain, B.A., The Myth of American Individualism.
The Protestant Origins of American Political Thought (1994); Weinberg, J., “Broadcasting and Speech,” 81 California Law Review 1103
(October 1993); and Wilkins, J.W.N., “Historical Explanation in the Social Sciences,” 8(30) British Journal for the Philosophy of Science
104-117 (1957).
22
. Dworkin, R., Taking Rights Seriously (1984).
323
. McDougal (1980) at 96-107.
15
 Chapter One: The Process of International Human Rights Law

policies.
To examine the process of international human rights law it is valuable to identify various elements
relevant to the making of decisions. There is no one correct way going about this enterprise. Numerous
books have been written that attempt to achieve an explanation of the processes of law in society. Often
they are descriptive histories of social traditions and institutions.24 At other times they are contemporary
maps of the social process with aims of influencing that process or providing the architecture blueprint
necessary for the reader to intellectually infiltrate social structures with the goal of influencing them.25
The policy-oriented approach to international law also suggests that a map of comprehensive world
social process be drawn as a necessary intellectual task. This map should include the identification of the
six categories of characteristics identified above, namely:
1. Participation. Individual and group actors.
2. Perspectives. The subjectivities of the actors that give direction and intelligibility to
interaction
3. Situations. The geographic, temporal, institutional, and crisis features of interaction.
4. Base values. The values and resources (potential values) available to different actors in
shaping interactions.
5. Strategies. The modalities employed in managing base values.
6. Outcomes. The shaping and sharing of values achieved.26
The six categories contribute to understanding the process of international human rights law. They are a
key to this process. They are “an explicit and economic categorisation” that
facilitates a detailed clarification of base community policies in relation to particular problems
and allows one to analyse past trends in decision in terms of their approximation to preferred
policies, to identify the important factors affecting decisions and outcomes, to assess the probable
costs and benefits of the different options in decision to common interest, and to develop better
alternatives to implement preferred policies.27
Their relevance is drawn from a broad base of social theory, especially political science and international
law. They are the result of a detailed study of the comprehensive social process wherein communal values
are sought to be achieved through social policies.28 Thus they were not designed for a value-neutral
description of world society, but for a description that would provide information upon which future
trends could be postulated and alternative policies could be suggested for achieving a world public order
optimalising the values of human dignity.29
There are many other ways to conceive of world society or the comprehensive social process and the
process of international human rights law that may serve as the basis for a map of the architecture of the
process of international law. Policy theorists, for example, have often directed greater attention to the
structures and institutions that individuals form. One such policy scientist is David Easton whose work
concentrates on social structures and not the individuals that create and operate them.30 For Easton it is the
structures that contribute to the formation of values more than individuals. Descriptively the concentration

424
. See, for example, McDougal, M.S., and Bebr, G., “Human Rights in the United Nations,” 58 A.J.I.L. 603-641 (1964); Verzijl, J.H.W.,
International Law in Historical Perspective, starting with volume 1 in 1968; Kelly, J.M., A Short History of Western Legal Theory (1992);
Wronka, J.M., Human rights and social policy in the 21st century: a history of the idea of human rights and comparison of the United
Nations Universal Declaration of Human Rights with United States federal and state constitutions (1992) and Nussbaum, A., A Concise
History of the Law of Nations (1992).
525
. Unger, R.M., Law in Modern Society. Towards a Criticism of Social Theory (1976); McDougal (1980) and Falk, R.A., Human rights and
state sovereignty (1980).
626
. McDougal (1980) at 95.
727
. Chen (1989) 17.
828
. See Lasswell, H.D., Politics: Who Gets What, When, How (1936).
929
. See McDougal (1980)at 95.
030
. See generally, for example, Easton (1990) at 265 and 268.
16
 Chapter One: The Process of International Human Rights Law

on structures instead of individuals is only of marginal importance because both are participants in the
decision making process which is being examined. Thus the decisions will be the same. The difference,
however, is great when one analyses the prescriptive processes and seeks to suggest alternative strategies
to individuals—whether or not they are part of a organisation—who are trying to influence this process.
This is the case because ‘structures’ make decisions primarily through choices made by individuals.
Consequently, any attempt to influence a structure is well served by strategies for influencing the
individuals that are part of that structure. More relevantly, the initiative for influencing a decision making
process may emanate from private individuals. This is particularly the case when individual values are at
stake. This being the case, it is logical to attempt to understand how the individuals who are part of a
structure function because they are the more plausible point of contact for other individuals seeking to
influence the decision making process than the vague abstraction of the structure itself. It is perhaps such
recognition that Easton tries to account for when he admits that “structure is just a property of things in
space and time, and not a concrete entity in itself.” 31 He goes on to warn that “a theory about political
structures is only part of systems analysis, not identical with it.”32 If this is so, might one not assume that
we must look beyond systems structures and attempt to understand individuals, their values and their
policies?
Another alternative to the policy approach is a model that concentrates more on actions than actors. In
such a model, “although the actors participate in and influence the outcomes, the final payoffs depend on
some determination by the external enforcer.”33 Jack Knight is a proponent of such a social theory. For
Knight “the fundamental goal of institutional development is to establish social rules that produce
favourable expectations, rules that, through those expectations, constrain the actions of those with whom
they interact.”34 In such a system the institutions or structures themselves might be described as conflict
resolution units. They are part of the external forces that influence participants and produce outcomes that
form our expectations. Knight, however, like McDougal and associates, also recognises the necessity of
positing goals. “To understand the effects of social institutions,” he writes, “we need first to see the task
facing an actor seeking to achieve his or her goals in a strategic world.”35 The goals posited by Knight
presumably would emanate from the task of conflict resolution. As he explains it:
Social institutions are sets of rules that structure social interactions in particular ways. These rules
(1) provide information about how people are expected to act in particular situations, (2) can be
recognised by those who are members of the relevant group as the rules to which others conform
in these situations, and (3) structure the strategic choices of actors in such a way as to produce
equilibrium outcomes.36
Knight’s explanation of social institutions would have us examine social actions without emphasis on
any particular preconceived value-orientations. Thus at best the determination of common value and
policy orientations would have the descriptive worth of defining isolated and time-bound contributions to
a more real life world. The methodology thus appears to be obsessively observational and only marginally
prescriptive. Decisions, it is suggested would turn on the momentarily prominent strategic choice and not
on more communal value orientations or consistently determined rational policies. Nevertheless, the
suggestion that value orientations derive from situational contexts is something that Knight shares with the
value-oriented policy approach.
A less rule bound social conflict based theory of society can be found in the critical legal studies
tradition. This tradition is described by Roberto Mangabeira Unger through a constant theme of social

131
. Id..
232
. Id..
33
. Knight, J., Institutions and Social Conflict 62 (1992).
434
. Id. at 49.
535
. Id. at 50.
636
. Id. at 54.
17
 Chapter One: The Process of International Human Rights Law

conflict.37 Unger encourages social conflict in the belief that it is the most appropriate vehicle for social
development. In his words it releases the “transformative possibilities built into the very mechanisms of
social stabilization.”38 As a result Unger’s description of society seeks out the elements that will lead to
this conflict. Among these are the individual’s consciousness. Consequently, for Ungerian, as well as most
of contemporary critical legal theory, it is possible to conclude that at the heart of this social theory “lay
the belief that the weakening of social divisions and hierarchies would reveal deeper individual and
collective identities and liberate productive and creative powers.”39 This is relevant to the present study in
so far as the weakening of social division and hierarchies—or what Knight refers to as ‘institutions’—is a
result of “the elaboration of alternative institutional forms” by individuals whose awareness of “life
chances and life experiences ... [has been] freed from the tyranny of abstract social categories.” 40 Through
its encouragement of individual awareness the critical legal studies movement thus reinforces the
relevance of the individual as a participant in the process of international human rights law.41
Both the critical legal studies movement and the value-oriented policy approach agree that the
individual has the ability to influence the achievement of social development. Neither denies the relevance
of other participants, including the state, but each with different emphases argues that the concept of
‘participant’ should be enlarged to include individuals. The critical legal studies movement has attempted
to include individuals by emphasising the central importance of individual consciousness. The value-
oriented policy thinkers strive to emphasize the methodological consistency with which different forms of
individual participation are observed. Central to both approaches is an understanding that legal processes
are part of more comprehensive social processes.
There are also similarities in the between value-oriented policy thinking and at least one leading legal
positivist. Hans Kelsen, one of the leading legal positivists of post World War II international law,
stressed the relevance of individuals in his book Principles of International Law writing that:
[l]ike all law, international law, too, is a regulator of human conduct. It is to men that the norms
of international law apply; it is against men that they provide sanctions; it is to men that they
entrust the competence of creating norms of the order. If international law lays down duties,
responsibilities, and rights (it must do so if it is a legal order), these duties, responsibilities, and
rights can have only human conduct for content. For a duty which would not be the duty of a man
to behave in a certain way would not be a legal duty; a responsibility which would not consist in
a sanction executed by men and directed against men would not be a legal responsibility.
Similarly, a right which would not consist of a power, competence, or capacity which must
manifest itself by some human action would not be a legal right. If duty, responsibility, and right
do not refer to the conduct of men, duty, responsibility, and rights would be only empty formulas,
meaningless words.42
Kelsen is in effect arguing that all entities in the process of international law are ultimately individuals. He
is laying the grounds for an attack on the fashionable assumption that it is exclusively states that should be
the concern of international lawyers. But even Kelsen himself is not willing to extend his thesis to its
logical consequence: that individuals must be treated as full participants under international law. Instead,
he avoids this consequence by maintaining a strict distinction between social realities and the normative
sphere of law. To Kelsen only the normative sphere is of relevance to international lawyers. Nevertheless,
737
. See generally, Unger, R.M., Law in Modern Society. Towards a Criticism of Social Theory (1976).
838
. Unger, R.M., “The Critical Legal Studies Movement,” 96 Harvard Law Review 561, 583 (January 1983).
939
. Id. at 584.
040
. Id..
141
. Critics who argue that the Critical Legal Studies movement (CLS) is based on Marxism have failed to realize the emphasis that Marx puts
on individual participation. Individual participation, according to Marx, is unavoidable. Often the confusion arises from Marx’s criticism of
the egotistical individual. But this is not a criticism of the individual per se. Instead Marx seeks to convert the individual’s self-centredness to
a concern for the community. See Marx, “Die Heilige Familie,” in Marx-Engels Gesamtausgabe, vol. I, sect. 3 at 288, 291-293.
242
. Kelsen, H., Principles of International Law 97 (2nd ed. 1967).
18
 Chapter One: The Process of International Human Rights Law

elsewhere in this work he unequivocally expresses the opinion that doctrines reserving the application of
international law to states are “untenable” because the “subjects of international law, too, are
individuals.”43
Kelsen also draws attention to the fact that saying that individuals have a status under international
law is not equivalent to saying that individuals are the same as states under international law. The
International Court of Justice echoed this distinction in the Reparations Case.44 Perhaps it is this
distinction that reconciles Kelsen’s views of law as rules applying between states with the insistence upon
recognising individuals as the legitimate concerns of international law. If individuals are different kinds of
participants they might be considered as participating in different ways than those traditionally considered
by legal writers.
Subsequent to Kelsen, however, several writers have argued for different levels of recognition of the
individual under international law. For example, Sir Hersch Lauterpacht argued for the normative
recognition of the individual as a subject of international law.45 More recently Rosalyn Higgins has
explained the general role of the individual by writing that international law is a “particular decision-
making process” in which there are “a variety of participants, making claims across state lines, with the
object of maximising various values.”46 She goes on to conclude that “[i]ndividuals are participants”
together with states, international governmental organisations, multinational corporations and private non-
governmental groups.47 This view is at the centre of the work of McDougal and associates which
examined international law as a process of authoritative decision making that is influenced by a variety of
participants. McDougal and Lasswell argue that the “participants in the world social process are acting
individually in their own behalf and in concert with others with whom they share symbols of common
identity and ways of life of varying degrees of elaboration.”48

The Process of International Human Rights Law49

The above brief descriptions of different mapping strategies of the social process indicate that there
are several aspects that are vital to the topic of this study that should be considered in a map of the
architecture of the process of international human rights law. The first topic is the general contours of the
structural or institutional framework in which authoritative and effective decisions concerning
international human rights law are made and applied. Often this is considered in courses on international
human rights as topography or institutions for the protection of international human rights law. The

343
. Id..
44
. See Reparations for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. Reports 174, 178 (Advisory Opinion of 11 April
1949).
545
. See generally Lauterpacht, H., International Law and Human Rights (1950).
646
. Higgins (1994) at 50.
747
. Id..
848
. McDougal, M.S., and Lasswell, H., “The Identification and Appraisal of Diverse Systems of Public Order” at 11 in McDougal, M.S.,
Studies in World Public Order (1960).
949
. While this studies relies predominately on the policy approach to decision making processes developed by the New Haven School of
Myres McDougal and associates, there are many other perspectives on appropriate maps of the architecture of the decision making processes
in world society. See, e.g., Etzioni, A., Public policy in a new key (1993); Easton (1965); Anderson, J., Public policy making (1975); Birch,
A., The concepts and theories of modern government (1993); Curtis, M., (ed.), Introduction to Comparative Government (1990); Danziger, J.,
Understanding the political world (1991); Dror, Y., Public policy making re-examined (1989); Evans, G., and Newnham, J., The dictionary of
world politics: a reference guide to concepts, ideas and institutions (1992); Grindle, M., and Thomas, J., Public choices and policy changes
(1991); Hall, P., Land, H., Parker, R., and Webb, A., Change choice and conflict in social policy (1975); Harrop, M., (ed.), Power and
policies in liberal democracies (1992); Hogwood, B., and Gunn, L., Policy analysis for the real world (1984); Justice, J., Plans, policies and
people (1986); Kingdon, J., Agendas, alternatives and public policies (1984); McGrew, A., and Wilson, M., Decision making (1982);
MacShane, D., “The new age of internationals,” New Statesman & Society 23-26 (30 April 1993); Manor, A., Re-thinking third world politics
(1991); Graber, D.A., (ed.), Media power in politics (1990); Willetts, P., Transnational actors and changing world order (1993); Wright, P.,
“Gesture Politics,” New Statesman 16-20 (1 June 1990); and Wright Mills, C., The power elite (1956).
19
 Chapter One: The Process of International Human Rights Law

second topic is the means or strategies by which individuals participate in the process. This will entail a
description of how individuals act to influence international human rights law. The third topic concerns
the factors that affect the participation of individuals in various arenas and in the different roles in which
they may participate in these arenas.
This chapter includes a brief description of the architecture of process of international human rights
law. However, this process should not be taken out of context. It is process that is part of the
comprehensive social process of world society. It resembles this more comprehensive process and
depends on it for its resemblance. The relationship is organic, interdependent, interrelated and dynamic. It
may be best understood in terms of the phenomenon of resemblance itself:
Resemblance never remains stable within itself; it can be fixed only if it refers back to another
similitude, which then, in turn, refers to others; each resemblance, therefore, has value only from
the accumulation of all the others, and the whole world must be explored if even the slightest of
analogies is to be justified and finally take on the appearance of certainty.50
Resemblance describes the relationship between processes. This relationship must be understood in the
unity of social processes and the imperfection of description of our knowledge of social process. The
sketch below strives to provide glimpses into one part of this process, the process of international human
rights law. The description provided can be compared a distant star whose light reaches our eyes without
us knowing whether the star in fact still exists, has changed, or perhaps, has even disintegrated. We must
recognise the limits of our knowledge by recognising that world society is a comprehensive social process
with a complexity beyond one’s individual control. At the same time, however, we must recognise that as
individuals we progress daily, pro re nata, through this process.

Social Values in the Process of International Human Rights Law

Determining the optimal participation of individuals based on their contribution to achieving a society
respecting the values of human dignity depends on the values, policies and norms of international human
rights law being an accurate reflection of the values that individuals themselves hold to be important for
the functioning of world society. The designation of a ‘concept’,a ‘Begriff’,b or ‘idée’c as a ‘value’ (‘wart’d
or ‘valeur’e or ‘waarde’f) carries with it connotations related to language and culture. This has often led
lawyers to feel uncomfortable with the terms ‘values’, ‘warten’, ‘valeurs’ or ‘waarden’. These terms have
been more familiar to social scientists from the disciplines of anthropology, sociology, psychology,
political science and policy science or management. In these social sciences values have played a crucial
role in the development of an understanding of society.58 A concentration on the English term ‘values’ will
illustrate the point.
The International Encyclopedia of the Social Sciences defines the term “values” as “interests,
pleasures, likes, preferences, duties, moral obligations, desires, wants, needs, aversions, and
attractions ... .”59 It goes on to state that values “are found in the large and diverse universe of selective
050
. Foucault, M., The Order of Things. An Archaeology of the Human Sciences 30 (originally published under the French title Les Mots et les
choses, translated and first published in Great Britain in 1970).
a
French and English.
b
German.
c
Dutch.
d
German.
e
French.
f
Dutch.
858
. See, for example, Sullivan, M.J., Measuring Global Values. The Rankings of 162 Countries. (1991); Morris, C.W., Varieties of Human
Values (1956); and Williams, R.M., Jr., “Values: The Concept of Values” at 283-287 in Wallis, W.A., (Chairperson of the Editorial Advisory
Board), International Encyclopedia of the Social Sciences, Vol. 16 (1968).
959
. Williams, R.M., Jr., “The Concept of Values,” at 283 in Sills, D.L., International Encyclopedia of the Social Sciences, Vol. 16 (1968).
20
 Chapter One: The Process of International Human Rights Law

behaviour,” but not merely “reflex behaviour.”60 This definition contains at least two elements. The first is
that values are related to the will of the entity who holds the “values”. And the second is that values are
manifested in behaviour. Taking these two elements into consideration one may describe shared values as
beliefs61 that an overwhelming majority of the population hold to be true because they are beneficial to
society and which society has manifested in observable behaviour to which it accords a high degree of
respect.
The relevance of values to decision making has also been recognised in the discipline of philosophy.
The Oxford Dictionary of Philosophy62 describes a “value” as something to be taken “into account in
decision-making,” something that one is “inclined to advance ... as a consideration in influencing choice
and guiding oneself and others.”63 This definition attaches practical relevance to the meaning of values for
social processes. Such practical relevance has often been echoed by practitioners of decision making. For
example, many observers of British politics are familiar with the then Prime Minister Margaret Thatcher’s
1982 statement that “Victorian values ... were the values when our country became great” which was a
rallying call to reintroduce these values into the processes of decision making and led to concrete policy
decisions. Decision making, both prescriptive and authoritative, in the process of international human
rights law are perhaps the prominent central examples of decisions where the consideration of values are
important. Perhaps this is because human rights themselves refer to ‘beliefs’ or ‘conditions’ that
individuals hold to be important, and which, to a relevant degree, are shared by all individuals.
Values combine the above features. Functionally, they are best described as relevant aspects of
humanity to be taken into account in matters concerning individuals’ relationships in world society. They
are the common ground of beliefs held by billions of individuals in different degrees. Although they may
theoretically be identified in the consciousness of each individual and all individuals in world society, this
is a formidable task that is not currently within the realm of possibilities for world society. Nevertheless,
there are formal manifestations of values that world society respects. These formal manifestations include
the claims commonly referred to as international human rights. These claims may be expressed by a
consensus of the international community in written instruments and decisions relating to the basic values.
These instruments are initially claims by state participants, but they are not devoid of participation by
individuals. This corpus of law is not an ideal reflection of human values, but only an approximation of
these values based on manifested consensus.
International human rights law may thus be said to rely on the assumptions, that individuals can
express value preferences and that these value preferences can be manifested as norms. This simplistic
explanation of international human rights law does not explain how to deal with conflicts between these
norms. To do this it is not necessary to have a concept to describe the aggregate of these expressions. This
concept is the ‘values of human dignity’. This is a concept of the values as separable or independent or
singular values. By its very nature this concept assumes the existence of several singular or severable
elements, qualities or values, although they may still be joined at the point of interdependence or
interrelation. One observable manifestation of this concept is international human rights as expressed in
international instruments where phrases such as “universal human rights” or “universal human rights and
fundamental freedoms” or merely “human rights” are commonly used to express consensual values. What
is meant is that there is a common appreciation among the participants in world society that a collection of
Compare Allott in Eunomia at 49, para. 3.30 (stating that “[v]alues are expressed in different grammatical forms—as adjectives, adverbs,
nouns: good, well, the good, just, justly, justice, useful, usefully, utility, free, freely, freedom.” id.).
060
. Id.. But see Bourdieu, P., The Logic of Practice (translation by Richard Nice of the French language Le sens practique 1980) (1990) (a
post-modernist defense of the philosophical-anthropological technique of observation of practice or the practical as the declaration of social
thought). For Bourdieu habitus is the reinforcement of human action by human action. Discounting rational actor explanations for social
action, Bourdieu claims that the closest that we can get is to observe practice, apparently making little distinction between subjective action
and reflective action).
161
. In this definition the word “beliefs” indicates a broad understanding of ideas that individuals hold to be worthwhile.
262
. Blackburn, S., The Oxford Dictionary of Philosophy 390 (1994).
363
. Id..
21
 Chapter One: The Process of International Human Rights Law

specific human rights have been consensually accepted and should be respected in relation to every
individual. Agreement is at a level of generality of manifestations that may be implemented or applied
with different interpretations. Nevertheless, there is common shared understanding, belief or value
orientation that transcends the various influences concerning application and provides a consensus on the
words with which human rights are expressed in international human rights instruments. It is in these
expressions that the values of human dignity are found.
Parallel to the expression of values as separable is the expression of values as inseparable. To describe
this concept the Vienna Declaration and Programme of Action adopted at the World Conference on
Human Rights in 1993 uses the words “universal” and “indivisible.” 64 In this study the phrase “the value
of human dignity” is used to express the aggregate of human rights in their inseparable and inseverable
form. Although very similar to the “values of human dignity,” the use of the singular word “value”
emphasises that all consensually accepted human rights are part of one whole. Without denying that they
may be separated it is the acknowledgement that they should not be separated, that is important and
evident in the phrase “the value of human dignity.” This phrase describes human dignity as an aggregate
of human rights. It is an optimalisation of the enjoyment of the aggregate of human rights that is the
achievement of the value of human dignity.
In this process ‘optimalisation’ refers to a goal of the social process. It is the goal of balancing
competing claims concerning various rights and duties. In the easy cases this balancing involves
competition between the human rights that are part of international human rights law and other interests of
society. In these cases optimalisation can be achieved, at least in isolation, by a decision that provides for
the respect of human rights. In the more difficult cases respect for human rights or duties collide with
other human rights and duties. In these cases, optimalisation can not be achieved by merely favouring
human rights, but must be achieved by appealing to other criteria. Criteria for achieving optimalisation in
these cases have included the principles of utilitarianism and majoritarianism. These forms of decision
making themselves reflect values that a society has chosen to govern decision making processes
concerning their basic values. Both these forms of decision making can serve as the basis for decisions in
concrete cases. Both forms of decision making also reflect a deference to the communal good. As such
they lead toward the problem of deciding what is best for the community. An answer to this problem is
given by international human rights law in its claim to universality. But what is good for any given
community is a function of dynamic interpretation. Among the factors effecting this interpretation will be
the integrity and abilities of the individual decisions-maker in specific cases. But perhaps more
importantly, is the recognition that as concerns the basic values necessary for co-existence of all human
beings, the determination must be made for a constituency which includes all individuals in world society
and not merely a sub-group of this society. It is only world society is defined in its broadest global terms
that the legitimacy of the human rights can be defended in world society.
A value must satisfy the criteria expressed above and it must do so taking in account its social context
if it is to have social relevance. For this to be the case the belief must be shared by the population to which
it applies. Thus, while a certain belief may be held by a portion of a population, it may not be a value of
the total population if there is no agreement among the larger population. This, of course, is relevant to the
determination of common community or universal values in world society, which includes all human
beings. A belief that is not held by a large consensus of the whole population cannot express a universal
value. This proposition in turn emphasises the element of consensus. The concept of consensus has been
described above in chapter one. Here the concentration will be on identifying the results of consensus that
we refer to as international human rights law.
To suggest that there are shared values that are important factors influencing the determination of
actions and policies in world society, and, even more importantly, to suggest these values are appropriate
for evaluating authoritative decisions requires one to show how values are translated into international

464
. Id..
22
 Chapter One: The Process of International Human Rights Law

human rights law. This in turn requires the accomplishment of the intellectual tasks of identifying and
clarifying the concept of shared values or even more specifically the concept of values in terms that show
their relevance to the process of authoritative decision making that is international human rights law.

Policies in the Process of International Human Rights Law

Policies, in contrast to values, are the result of the prescriptive decisions of authoritative decisions-
makers that suggest how best to achieve particular values. Policies take the form of normative
pronouncements, budgets, campaigns, rules, regulations, proclamations, laws, series of laws, etc.. Policies
reflect the strategies that authoritative decisions-makers employ to achieve specific value outcomes. There
are important contrasts between values and policies. For example, while the policies with which we are
concerned are outcomes of the decision processes of authoritative decisions-makers, values should
emanate from the claims of a much wider group of individuals in society. And the authoritative decisions-
maker who determines policy in a specific problem situation should be acting on behalf of the wider group
of individuals. It is the inherent responsibility of the policy maker involved in the process of international
human rights law to balance the interests of world society and his or her legitimacy as a policy maker
depends on the honesty of this undertaking.
Another difference is that values are generally vaguer than policies. An obvious reason for this is the
greater number of individuals involved in the formation of values. The process by which compromise
leads to consensus must often be satisfied with agreement on a vague outcome because specification
would lead to further disagreement. The vagueness of values has been considered above in the discussion
of the manifestation of values as human rights norms. The specificity of policies is a result of their
necessity to provide concrete outcomes. Policies which are vague may lead to inaction or inappropriate
action in the realm of human rights, in part, because of the already vague values they aspire to implement.
However, policies that are sufficiently specific may be able to accomplish the implementation of even
vague norms by contributing to the creation of a consciousness of these norms and by encouraging their
expression through certain behaviour.
And finally, values differ from policies in their point of reference. Values may be referenced to the
autonomy of the individual actor. They emanate from the interests of the individual. Thus, although
communal values have to be determined by taking account of the consensus of individuals, it is the actual
interest of a single individual that is the lowest constitutive element of the value. Policies, in contrast, are
referenced to the communal interest. The policies of international human rights law are claims based on
common community goals. This does not mean that the individual is unimportant, indeed policies are set
and implemented by individuals. What it means is that the ultimate points of reference for policies are the
processes of authoritative decision making and not the individuals behind these processes. It is a matter of
emphasis that indicates it is necessary to look both at the individual and at the institutional environment in
which the individual functions. Thus to observe the policy making process one needs to view the roles, the
claims, demands and expectations of the particular individuals who are involved.

The Interaction of Values and Policies

Just as there may be a multitude of means for values and policies, there are also different perspectives
on the relationship between values and polices. As organisational studies such as international relations
developed after the Second World War, it became fashionable to examine values and policies within the
structure of decision making processes. An example is the work of David Easton. In developing his
systems-theory approach for describing international policy making, he describes values as guides for
policy decision-making that are generated by the systems structure. 105 The central questions he asks are (1)

5105
. Easton (1990).
23
 Chapter One: The Process of International Human Rights Law

“[t]o what extent does the political system itself, as a specific and identifiable set of relationships (the
overall political structure), also help to generate, shape, or limit the ways in which individual members of
and organised units in a political system use their power to make and implement policies?” and (2) “how
might the overarching political structure affect the regime structure, that is, that substructure of the
political system through which policies are shaped and implemented?”106 The substance of these enquiries
have been discussed above as related to legitimacy. What is important to recognise at this point is that
systems analysis, as used by Easton, views values as a function of the structure that participants use to
make decisions. This contrasts with the policy-oriented approach that focuses on values as dependent
upon the manifested acts and ideas of individuals, which are only influenced in varying degrees by social
structures.
In the process of international human rights law a good case study is the debate around universality
and cultural relativity. Although this debate is often viewed as being a debate about either values or
policies, distinguishing between these two concepts provides a means of better understanding the
relationship between them as well as the debate with which they are concerned. Furthermore, this example
is relevant to the central question of this study—participation of the individual in the process of
international human rights law—because it examines the question of legitimacy of an international
consensus on basic manifestations of basic values. The basic values at stake are those agreed to by states
in the three instruments that are the International Bill of Human Rights.107 A cross-sectional view of the
debate can be seen in the events and claims made at and leading up to the Second World Conference on
Human Rights in 1993.
The example might start by reference to the argument against the universality of human rights made
by the Chinese government. In a well-known policy statement the government argued that
China has always maintained that human rights are essentially matters within the domestic
jurisdiction of a country. Respect for each country’s sovereignty and non-interference in internal
affairs are universally recognised principles of international law, which are applicable to all fields
of international relations, and of course applicable to the field of human rights.108
The 1993 Bangkok Declaration of the preparatory committee of Southeast Asian states reiterated this
sentiment in paragraph 5 stressing that the “principles of respect for national sovereignty and territorial
integrity as well as non-interference in the internal affairs of States, and the non-use of human rights as an
instrument of political pressure.”109 These two instruments have been used to argue that human rights are
not universal and do not reflect the values of world society.110 If the statements are viewed as both an
expression of policy and values they may justify this conclusion. However, if the statement is viewed as
policy statements which must be tested for their conformity with values, the situation is different. Then it
cannot be assumed that the policy being pursued by the Chinese and Southeast Asian governments is
legitimate. The question of legitimacy depends not only on these governments, but also on the values
claimed, demanded and expected by their constituent populations.
The response of Southeast Asian non-governmental organisations and individuals to the governmental
Bangkok Declaration expressed a set of values that were not in accord with the government policies
described above. Instead a declaration released by the non-governmental community indicates that the

6106
. Id. at 266.
7107
. The Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights and the International Covenant of
Economic, Social and Cultural Rights.
8108
. Information Office of the Chinese State Council, Human Rights in China, Section X (1991).
9109
. Para. 5 of the Bangkok Declaration reprinted in 14 Human Rights Law Journal 370 (1993).
0110
. See Kausikan, B., “Asia’s Different Standard,” 92 Foreign Policy 24 (1993). Also see Edwards, R.R., Henkin, L., and Nathan, A.,
Human Rights in Contemporary China (1986) (making a similar argument in the context of China’s general practice and statements). And
compare Gangjian Du and Gang Song, “Relating Human Rights to Chinese Culture: The Four Paths of the Confucian Analects and the Four
Principles of a New Theory of Benevolence,” in Davis, M.C., (ed.), Human Rights and Chinese Values, Legal, Philosophical and Political
Perspectives 35 (1995).
24
 Chapter One: The Process of International Human Rights Law

values shared by individuals in these societies are adequately reflected in international human rights law.
The declaration response reads in pertinent part
We can learn from different cultures in a pluralistic perspective. ... Universal human rights are
rooted in many cultures. We affirm the basis of universality of human rights which afford
protection to all of humanity. ... While advocating cultural pluralism, those cultural practices
which derogate from universally accepted human rights, including women’s rights, must not be
tolerated. As human rights are of a universal concern and universal value, the advocacy of human
rights cannot be considered to be an encroachment upon national sovereignty.111
This declaration reinforced ideas that had been expressed ten years earlier by another non-governmental
organisation of prominent lawyers and human rights campaigners, the Regional Council on Human
Rights.112 These statements by non-governmental organisations and individuals can be described as
expressions of values of the community of individuals within and transcending states.113 And they were
not without impact.
At the Vienna Conference the Chinese government reversed its position and contributed to the
consensus whereby human rights were declared universal in expressing its support for the Vienna
Declaration and Programme of Action. This Declaration clearly states that
all human rights are universal, indivisible, and interdependent and interrelated. ... While the
significance of national and regional particularities and various historical, cultural and religious
backgrounds must be bourne in mind, it is the duty of State, regardless of their political,
economic and cultural systems, to promote and protect all human rights and fundamental
freedoms.114
Second, although there is a “starke disjunction between the rights promised in the Chinese Constitution
and what actually happens in practice ... [the] Constitution contains a rather long list of standard human
rights guarantees.”115 The inclusion of such a lengthy list of human rights in the Chinese constitution
indicates, despite the failure to implement it in practice, the government’s opinio juris in that human rights
are legal rights. And finally, the Chinese government “has demonstrated an increasing tendency to attempt
to justify its policies in human rights terms.”116 As Michael Davis has pointed out, “[i]n doing so it has
embraced the standards it often rejects on ideological grounds.”117 This consensus may be limited by the
time, place and circumstances under which it was achieved, but it still reflects a statement of common
policy to achieve common values. Methodologically this example is relevant because it indicates that by
separating state policies from values, which may be expressed by a broader base of participants, an
observer is better able to account for the apparent change of policy by China and other Southeast Asian
countries at the Vienna Conference.

111
. Bangkok NGO Declaration on Human Rights, reprinted in Our Voice, Reports of the Asian Pacific NGO Conference on Human Rights
and NGO’s Statements to the Asian Regional Meeting (1993) (more than 150 South East Asian non-governmental organizations expressed
their support for the Declaration).
2112
. Declaration of the Basic Rights of ASEAN Peoples and Governments, reprinted in Patel, E.M., and Walters, C., Human Rights
Fundamental Instrumental and Documents 149-160 (1994).
3113
. See generally, Ghai, Y., “Human Rights and Governance: The Asian Debate,” 15 Australian Yearbook of International Law 1 (1994)
(discussing the legitimacy of the claims of non-governmental organizations concerning human rights in Asia).
4114
. Para. 5, sect. I of the Vienna Declaration.
5115
. Davis, M., Chinese Perspectives in the Bangkok Declaration and the Development of Human Rights in Asia, presented at the Annual
Meeting of the American Society of International Law, 6 April 1995 in New York City [unpublished manuscript] at 3.
6116
. Davis (1995) at 6.
7117
. Davis (1995) at 6.
25
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

CHAPTER TWO

AUTHORITATIVE DECISIONS IN THE PROCESS

OF INTERNATIONAL HUMAN RIGHTS LAW

All law is private in the sense that it is always about individuals who are present and acting: but more
importantly, all law is public, in the sense that it is a social function and that all individuals are, whatever their
various titles, functionaries of society.
Durkheim, E., The Division of Labour in Society 68 (1964)

26
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

AUTHORITTIVE DECESIONS IN THE PROCESS

OF INTERNATIONAL HUMAN RIGHTS LAW

It is from the point of the individual and the perspective of the common interest that the international
lawyer should begin to examine the processes in which individuals may participate in ensuring respect for
internationally recognised human rights. Law is created by uniformities in individuals behaviour and
through communications by individuals.36 Traditionally, however, we have grouped the displays of
uniformity together as the practices and opinions of states. In so doing we have identified the concept of
international law with the international community of states. Below the tradition and realities of what we
call international law will be discussed to set the stage for the consideration of the individual’s role in this
process.

* * *

International law has often been divided into private and public international law. Private
international law has developed so as to order the relations of individuals in areas that are largely, but not
entirely, left to the discretionary regulation of individuals themselves. Public international law, however,
is the area in which international human rights law has developed because it is concerned with standards
established for the public good and beyond the discretion of particular individuals. This is particularly
evident in the frequently repeated description of international human rights as inalienable rights. By
describing human rights as inalienable we indicate that they are so valuable that even the individual to
whom they accrue may not dispense with them. This idea is very close to that concerning the preservation
of certain natural resources. It is under public international law that the international lawyer, trying to
determine the appropriate relationship of the individual to the social process, finds the relevant
authoritative decisions, claims, demands and expectations that are manifested in custom, treaties and
general principles.
There is no single description of public international law that is accepted by a majority of scholars.
Instead there are various schools of thought with numerous small variations. Many of the different
definitions are based on philosophies that can be traced back to religious or cultural traditions. Often the
meaning that a society ascribes to a process such as international law is affected by the perspective of the
individual viewing the process. This is not to say that there is no common perception of international law.
Instead, one may say that there are different perceptions of international law with some elements that are
common among them.37 The common elements may often be the least common denominators and they are
often recognised by the ability of the international community to reach a consensus on them.
Much of modern thought concerning international law owes its foundation to natural law. According
to theories of natural law, law emanates from a higher authority, a sort of moral authority above human
beings. This authority is often identified as God or a concept of supreme morality. Natural law theorists
vary in their approaches to identifying the ultimate foundation of the law. Some credit authority to a
rational moral position, for example, Immanual Kant.38 Others link authority to religion such as Thomas
Aquinas.39 Throughout history, undoubtedly encouraged by the wide acceptance of natural law as a
source of authority as well as its malleability to interpretation, many leaders appealed to divine
appointment to legitimise their law-making authority and their political power. Today, few people are
convinced by a purely natural law theory partly because of the way in which it has been used to legitimise
authority that was contrary to basic public interests. Additionally, this disenchantment with natural law
737
. McDougal has expressed this realization through his distaste of false claims to universalization. See McDougal, M.S., and Associates,
Studies in World Public Order 4-7 (1960). I prefer to describe this state of the social development of a common destiny more positively as a
modest claim to be able to identify some common consensual values.
838
. Kant, I., Foundations of the Metaphysics of Morals (re-printed 1959).
939
. Aquinas, T., Summa Theologiae (1266).
27
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

can probably be attributed to the development of the natural sciences, which provided evidence that many
things that had been previously accredited to divine intervention were merely the work of humans. Parallel
to this, education began to spread and many more people began to understand the nature of their
government and the natural sciences. Through this awakening large numbers of people became aware of
how majorities or elites have imposed—sometimes for centuries—immoral policies, for example, slavery,
genocide, or poverty on populations. Many natural law theories provided for restriction on a government’s
authority. Some, however, by legitimising the authority of the sovereignty of government, gradually
contributed to the demise of natural law as a widely accepted foundation for international human rights
law.40 Today natural law is more an historical phenomenon than a modern explanation of international
human rights law.
Another way of thinking about a theory of law is the tradition of positive law or law as positive
rules. For positive lawyers, laws are rules.41 Theories of positive law have concentrated on the normative
or prescriptive character of international law. This concentration on rules has prompted a concentration
on the formalities of the law-making process. One of the most noted proponents of positivism was John
Austin. The basic position of Austinian positivists is that law is positive norms promulgated by the
constitutional authority.42 In other words law is rules that are established by the accomplishment of
certain formal tasks agreed to by legitimate decisions-makers. The positivist views of international law
have usually concentrated on a strict adherence to the constitutionality of the decision that is called law. In
this way they have also contributed to legitimising the authority and power of the state. Hans Kelsen, for
example, describes international law as rules emanating from authorised decisions-makers who have
constitutional authority.43 Law is the clearly and formally enunciated norms arrived at in accordance with
the constitutional structure particular to the specific system of law. Authority is the accepted and clearly
stated power to be able to make the norms. In the international legal order authority is vested by the
practice of states in recognising each other’s sovereignty.44 Kelsen’s Grundnorm emanated from the
foundation of consent of constitutional legitimacy in the international order—the consent of sovereign
states. Oppenheim, whose treatise on international law was widely used after it appeared in 1905, wrote
that the sovereignty of the state is the “supreme authority, an authority which is independent of any other
earthly authority.”45
By concentrating on formal rules as the only restrictions on power, positivists deny that law is a
process. According to the majority of positivists, non-state actors, including individuals, can only be
correctly considered participants in the authoritative decision making processes of law at the pre-law
stage. Nevertheless, even some staunch positivists have recognised that state entities that establish
authoritative norms or laws are fictions.46 Kelsen is an example. Although championing positivism he also
recognises that states are merely the vehicles through which individuals act.
The present study rejects the narrow view of international law as either vague naturalistic norms
based on equally vague values or as normative rules based on formal authority. Instead, international law
is viewed as an organic process directed by values which are based on the consensus of the community to
whom it applies. In other words, it is suggested that law exists for a reason: to accomplish agreed to

040
. See Gierke (1934) at 137-162 and Hobbes (1983) (illustrating how natural law might legitimize authority).
141
. See generally, Kelsen (1967). Also see Kelsen (1945) at 369-70. Also see Whitman (1963) at 1, (arguing that international law is rules for
states and not considering individuals as participants except in so far as they may have some very limited rights), Schwarzenberger (1976) at
3; Starke, J.G., and Shearer, I.A., Introduction to International Law (11th ed. 1994); and Phleger, H., “Some Recent Developments in
International Law of Interest to the United States” (remarks at a conference of the Pennsylvania Bar Association held in Harisburg,
Pennsylvania, on 22 January 1954), Department of State Document No. 763.
242
. See generally Austin, J., and Brown, W.J., The Austinian theory of law (1931).
343
. See Kelsen, H, Principles of International Law (1952) at 303-304.
44
. See Kelsen (1952) at 438-442.
545
. Oppenheim, L., International Law 100-101 (1st ed. 1905).
646
. See Kelsen, H., General Theory of Law and State (1945). at 342.
28
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

community policies.47 This definition realises both the value-orientation of law as well as its quality of
being a process. The view of law as a process related to a larger more comprehensive social process has
been stressed by McDougal and Lasswell when they express their belief that:
an appropriate conception of law will include not merely certain allegedly autonomous
technical rules, inherited from the past, but also a whole contemporaneous process of decision
—a process in which decisions are taken through orderly procedures by authorised decision-
makers, not by naked force or calculation of momentary expediencies, but by the reasoned
relation of alternatives in choice to fundamental community expectations about how values
should be shaped and shared.48
Other writers, who are convinced of the relevance of law for the social process have built upon the
elements of the above definition giving more attention to the influence of power, as for example, Rosalyn
Higgins has written that law is “decision-making by authorised decision-makers, when authority and
power coincide.”49 Others have considered the relationship between the participants. For example, Richard
Falk suggests the adoption of a concept of law that is “broad enough to include horizontal as well as
vertical forms of legal order.”50 He describes law as norms that “provide predictable boundaries for
conflict and competition among international rivals.”51 Perhaps Philip Allott characterises the
phenomenon of law in its social context best, explaining that “[t]hrough legal relations the willing and
acting of individual members of society is integrated with the willing and acting of society as a whole,
within the systematic process contained in the constitution, generically as a constitution, specifically as the
constitution of a particular society.”52
Two terms of art are used to describe the particulars of this concept of law. The first is the term
“values”. This term refers to a belief, held by an individual or shared by a group of individuals, that
something is desired as very important to the value holder. A value is eudaimonia,53 the most fundamental
—although not necessarily a sufficiently concrete—goal to be achieved in a particular context. The second
term of relevance is “policy”. A policy is the result of a decision by a group of individuals. A policy has
authority that provides for its implementation in practice. A policy may reflect value goals or normative
goals, but is, in both cases, guided by the foundational values themselves. It is these two terms that will
assist in understanding the other concepts described in this chapter and used throughout this study.
In this study law is viewed as an authoritative decision making process wherein a variety of
participants make claims and demands and express expectations for authoritative decisions. They do this
in accordance with identifiable values and interests. Claims, demands and expectations are the concepts
which form the vocabulary of this process and facilitate its description. An understanding of how these
concepts are used in this study is now necessary.
Authoritative decisions are decisions made by individuals who have been authorised to make these
decisions. There are two constituents of this definition. The first is that of authority and the second is that
of choice or decision. A decision may be prescriptive, thus expressing generalities that are to apply to
numerous cases, or they may be particular authoritative decisions applying to specific claims and demands
that have been brought before the decisions-maker. In this study authoritative decisions refer to both types
of decisions unless a distinction has been made with the designations: “prescriptive decisions” and
“specific decisions.”
747
. See Romany, C., “Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law,” 6
Harvard Human Rights Journal 87, 88 (1993) (arguing that values can have a strong, but sometimes negative, effect on the realization of
human rights).
848
. McDougal, M.S., and Burke, W.T., The public order of the oceans: a contemporary international law of the sea 1006 and 1007 (1987).
949
. Higgins (1994) at 15.
050
. Falk (1970) at 37.
151
. Id..
252
. Allott (1990) at 162.
353
. This term is borrowed from Book X of Aristotle’s Nicomachean Ethics.
29
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

The decisions-makers may be “anyone whose choice about an event can have some international
significance,” according to McDougal and Reisman, “[i]n addition to politicians and diplomats,
businessmen, journalists, religious leaders, labour leaders, intellectuals and many others may sometimes,
and perhaps frequently, find that they are making international decisions.”54 While not all the
internationally relevant decisions made by these individuals will constitute law, “[o]ne of the functions of
international decisions-makers is that of assessing the lawfulness of those claims and activities which have
significant transnational characteristics.”55 The assessment of claims is the process of decision making.
This concept of decision denotes an element of choice. An authoritative decision is a choice among
various alternatives. The authority to make this choice or decision is an attribute that may be analysed by
examining the attributes of manifestation, consensus, legitimacy, values, sources of legitimacy, adherence
and influences. These attributes establish a basis for the scientific analysis of the authoritative decision
making process we sometimes refer to as international law. Other attributes are possible depending on
one’s perspective of international law and its processes. For example, a more positivistic approach might
add the attribute of enforcement or validity. These attributes are not considered in this study. The
attributes of authoritative decision making considered in this study are necessary for viewing international
law as part of the comprehensive social process. These attributes will now be considered in more detail.
Manifestations refer to the observable characteristics of the outcomes of prescriptive and authority
decisions. Manifestations, however, may be present at several levels. At a general level they are the
observable characteristics of expressions of value preferences. At a more particular level they may be the
actions through which state practice and opinio juris are manifested; that is, the actions and statements of
states in the international community that have been recorded by historians, legal scholars, legal records,
social records or the popular media. Manifestations are the generic outcome of a strategy that has been
applied by participants who are influenced by various environmental and contextual stimuli. A
manifestation is itself value-neutral, although its subsequent evaluation in accordance with standards may
lead to a conclusion about the values that a particular manifestation promotes.56
Consensus is the strategy most often used in the authoritative decision making process of
international human rights law. Consensus is the strategy that helps to recognise the outcomes we
commonly refer to as norms of international law.57 As a concept of the process of authoritative decision
making it both accounts for the harmony of outlooks and ideals, while recognising limits imposed by the
conflict of interests.58 And although it may be feared that consensus might “sanctify whatever standards
happen to prevail in a given collectivity,”59 its ability to provide a lowest common denominator in a given
collectivity of individuals is necessary to development that is directed by common values.60

454
. McDougal, Myres, S., and Reisman, Michael, W., International Law in Contemporary Perspective. The Public Order of the World
Community. Cases and Materials 2 (1981).
55
. Id.
656
. See Becker, G., “Altruism, Egoism and Genetic Fitness: Economics and Sociology,” 14(3) Journal of Economic Literature 817-826
(1976) (on the relationship between manifestations or actions and values). Also see Burch, T.K., “Decision-making Theories in Demography,”
at 1, 8-10 in Burch, T.K., (ed.)., Demographic Behavior. Interdisciplinary Perspectives on Decision-making (1980).
757
. Higgins (1994) at 2 (posing these two questions).
858
. Roberto M. Unger has argues that consensus does not account for the “existence of conflict” because “[w]ithin this framework of thought,
conflict can never be more than a mark that something is missing.” Unger (1976) at 31. Unger’s obvious point of comparison is a decision-
making system in which there is a high degree conflict. If he had observed for example the prescriptive work of United Nations human rights
working groups he would see that while consensus is a means of making measured progress it mitigates conflict to make this progress rather
than eliminates it.
959
. Unger (1976) at 32. Also see Chomsky, N., and Herman, E.S., Manufacturing Consent: the political economy of the mass media (1988)
(arguing that liberal democracy serves only to legitimate the dominance of the entrenched power structure by creating an image of consensus
through free speech that undermines real change).
060
. Note that one explanation for Unger’s dissatisfaction with the concept of consensus it that he postulates the attainment of social conflict as
his highest value. For Unger, other values such social justice, the practice of which he values highly as evidenced by his committed support of
the popular democratic movement in his native Brazil, are subservient to the value of conflict. See Unger, R.M., False necessity:
anti- necessitarian social theory in the service of radical democracy: part 1 of politics, a work in constructive social theory 404 (1986) (the
30
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

The importance of consensus as a technique of authoritative decision making is recognised by

participants in numerous fora.61 Recognised publicists have noted the ascent of consensus to the forefront
of the decision making process of international law. 62 Rosalyn Higgins has pointed out that “[a]s notions
of natural justice were replaced by consent, so consent has gradually been replaced by consensus.” 63
Discussing the specific case of the United Nations, Richard Falk has observed how the voting rules of the
United Nations “have come increasingly to allow consensus to replace consent as a basis for action.” 64
And, the latest edition of Part I of Oppenheim’s International Law, edited by Sir Robert Jennings and Sir
Arthur Watts, draws attention to the “emergence of ‘consensus’ as an appropriate procedure for the
adoption of many decisions at international conferences.”65 Consensus is a means of making choices. It is
thus a means of decision making in the process of international law. Anthony D’Amato has even gone so
far as to dub it the definition of “what we mean by the expression international law.”66 Consensus has been
applied in both prescriptive processes from which generally applicable norms emerge as well as in
authoritative decision making in particular cases.
Social policy scholars have recognised the relevance of consensus for decision making in the
comprehensive social process. As decision making in the realm of international human rights law is part
of the decision making in the comprehensive social process it is valuable to reflect on ideas about
consensus from social policy scholars. Kurt Bayertz, for example, a social policy scholar who has written
on the role of consensus in social decision making. He has postulated three questions that need to be asked
to determine if the process of consensus is to be understood: 67 Who agrees? What is agreed upon? And
how is agreement reached? These questions are also relevant to the social policies with which
international human rights law is concerned. The preliminary answer to these questions, in the context of
this study, is as follows:
*Who? Consensus is the agreement of individuals who have the legitimacy necessary for the making of
decisions affecting others.
*What? Consensus can be reached on any subject relating to the rights or duties of participants involved in
the processes of international human rights law.
*How? Consensus is expressed by the manifestations of authoritative decisions-makers whereby there is
no more than a minimum level of dissent among both the decisions-makers and those who influence the
decision process.
As used in this study, the concept of consensus means the expressed will of authoritative decisions-
makers without a substantial number of objections. Consensus is not unanimity, but rather the absence of
significant dissent among the decisions-makers.68 It is also becoming common practice that consensus

ideal society is “a society broken open to everyone’s will”). Also see (referring to Unger’s vision as a society “in which even our profoundest
accomplishments in personal relationships and social justice would be subject to radical overthrow and rejection” id.. at 1027).
161
. Jennings (1992) at 23 (“[t]he sources of international must not be confused with the basis of international; this ... is to be found in the
common consent of the international community”).
262
. Also see Falk (1970) at 19-23 and at 181 (stressing the necessity of both political and parliamentary consensus for authoritative decisions
in the international forum of the United Nations).
363
. Higgins (1994) at 16.
464
. Falk (1970) at 21 (Falk also points out that the shift from consent to consensus has done little to alleviate the situation that “power remains
concentrated in the dominant states and in alliances among these states.” Id.).
565
. Jennings (1992) at 15.
66
. D’Amato, A., On Consensus, 8 Canadian Yearbook of International Law 122 (1970).
767
. See Bayertz, K., “Introduction: Moral Consensus as a Social and Philosophical Problem” at 3 in Bayertz, K., The Concept of Moral
Consensus (1994) (although the questions are asked in the context of a medical-philosophical inquiry about moral consensus, they are
valuable to this legal inquiry because the consensus required for an authoritative decision in the legal realm follows a similar process).
868
. The phrases “not a substantial number of objections,” “no more than a minimum level of dissent,” and “the absence of significant dissent”
all refer to dissent by individuals or groups of individuals that is controlling in the particular circumstances. Often in practice, especially in
United Nations human rights fora, this will mean that no country expresses its being against the adoption of a particular text or standpoint.
31
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

must be based on the democratic accountability of decisions-makers.69 This development has been
stimulated by the increasing acceptance by the international community of democracy as a vital
component of a state’s political structure and an emerging principle of international law.70 This
development is reflected in a comparison of the texts that emanate from the two world human rights
conferences that have been held to date. In the Declaration adopted at the end of the 1968 Teheran
Conference there is no mention of democracy. However, in the Declaration of the Second World
Conference on Human Rights held in Vienna in 1993, states both declare democracy to be interdependent
and mutually reinforcing to development and respect for human rights,71 and commit themselves “to the
process of democratization.”72 Even before the Vienna Conference, however, Thomas Franck
convincingly argued that democracy “is on the way to becoming a global entitlement, one that
increasingly will be promoted and protected by collective international processes ... democracy is
beginning to be seen as the sine qua non for validating governance.”73 The principle of democracy calls
for decisions to be taken by the representatives of a population affected by a decision. Such
representatives may be political or judicial, but it is important that they are acting for a constituency. Their
constituency is the population of individual human beings who authorise an authoritative decision. This
may be the population upon whom an authoritative decision is binding or a population who adhere to an
authoritative decision by consent. A broader based constituency will be more probable in a society where
a large portion of the population participates in the decision making process. The constituency
establishing a consensus authorising a decision that can be called international law may also include elites
who are self-nominated or nominated by a limited majority of voters. For many international lawyers the
relevant constituency for the formation of international law consists only of states. While this study is also
primarily concerned with constituencies that are made up of states that authorise decisions, it is recognised
that entities other than states might authorise decisions. Civil society, non-governmental organisations or
even consenting individuals who are acting without the expressed authority of states are some examples of
non-state entities who may authorise decisions. They may do so by making claims and demands and by
expressing expectations both as individuals as well as in groups.
Legitimacy is a term that can be used to describe the process by which a consensual decision
acquires the character of an authoritative decision.74 Legitimacy may be described as “free public reason”
969
. See ICCPR, art. 25, stating:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take part in the conduct of public affairs...
(b) To vote and be elected...
(c) To have access, on general terms of equality, to public service in his country.
Also see generally UDHR (with a provision in art. 21 that is similar—but not identical—to the Covenant of Civil and Political Rights);
Vienna Declaration at paras. 8 and 9 (recognizing the interdependence of human rights, development and democracy); CERD at art. 5;
CEDAW at art. 7; Fox, G.H., “The Right to Political Participation in International Law,” 17 Yale Law Journal 539 (1992); Franck, T., “The
Emerging Right to Democratic Governance,” 86 A.J.I.L. 46 (1992) (drawing attention to the right of self-determination in article 1 of the two
U.N. Covenants from 1966, the right of political expression and the right to participate in government as evidence of the growing role of
democracy as well as its constituents); Meron, T., “Democracy and the Rule of Law,” 153 World Affairs 22 (1990); and Steiner, H., “Political
Participation as a Human Right,” 1 Harvard Human Rights Yearbook 77 (1988). Also note that the United Nations Human Rights Committee
has increasing viewed democracy as an indication of a regime’s respect for human rights during its consideration of states reports.
070
. See generally Crawford, J., Democracy in International Law (inaugural lecture delivered 5 March 1993).
171
. Vienna Declaration at para. 8.
272
. Vienna Declaration at para. 9.
373
. Franck (1992) at 46.
474
. Legitimacy has meant many things to many people. The definition used in this study is based on an extrapolation of factors from different
writers in so far as these factors are relevant to a policy approach to law. See generally Hyde, A., “The Concept of Legitimation in the
Sociology of Law,” Wisconsin Law Review 379-426 (1983) (for a good review of the doctrine concerning legitimacy and the author’s
conclusion rejecting legitimacy in favour of a concept of rationality). Also see Bos, M., “Friede Druch Volkerrecht—Order Durch
Volkerlegitimitat?” 17 Nederlands Tijdschrift voor International Recht 1 (1970) and Weber, M., “The Types of Legitimate Domination.” in
Roth, G., and Wittich, C., (eds.), Economy and Society: An Outline of Interpretive Sociology, vol. 3, 212-232 (1968) (where Weber speaks of
legitimacy according to its source, i.e. “charismatic” legitimacy based on the peronsality of a leader, “traditional” legitimacy based on
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 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

or “the ideal of a society whose institutions can always be publicly and mutually justified to and by all it
members.”75 As such “[i]t has been a central feature of democratic culture, from ancient Greek “agora”
onwards to Kant.”76 It is a central feature of individual participation in institutional decision making. Yet it
is at once a valuable and a dangerous element of authority. The value of legitimacy is its contribution to
the consistency of developments in the legal system: “a legitimate order deserves recognition.”77 For
better78 or for worse79 the consistency promoted by legitimacy provides a safety net for society as it moves
towards its future. But legitimacy is also a limit on the reconstructive capabilities of individuals within
society. It is a personification of the “dangers of dependence and depersonalization” that might “belittle
and enslave” the enterprising individual attempting to reconstruct law in society.80 It is in the context of
these two faces of reality that the element of legitimacy must be considered as part of the process of
authoritative decision making. Legitimacy is characterised by the manner in which it is manifested, the
exercise of authority it supports and the values upon which it is based. Legitimacy is the convergence of
power and authority. Commenting on the history of the concept of legitimacy, Jürgen Habermas points out
that the concept has been “used above all in situations in which the legitimacy of an order is disputed”
whereby one side asserts legitimacy and the other refutes it.”81 Habermas’ comment draws attention to the
relationship between the concept of legitimacy and the social process. Legitimacy is a process within the
comprehensive social process and at the same time within the process of authoritative decision making. 82
It assists in identifying the part of the process of authoritative decision making that provides the
justification for the decisions-maker’s action.
Because international law does not always recognise a single authoritative decisions-maker for every
decision, the factors determining the operation of the system of legitimacy are not so easily recognised.
Perhaps in reaction to this difficulty, definitions of legitimacy frequently begin by defining the manner of
its manifestation. Thomas Franck, for example, after defining the purpose of legitimacy as to secure
compliance by the “perception of a rule as legitimate by those to who [sic] it is addressed” 83 goes on to
define the concept in terms of “that quality of a rule which derives from a perception on the part of those
who it addressed that it has come into being in accordance with right processes.”84 Franck is drawing
attention to two important characteristics of legitimacy. The first is that legitimacy is subjective. This is
similar to Max Weber’s characterisation of legitimacy as an individual’s belief that a particular order is
obligatory.85 This subjectivity signals that a choice is necessary. Authoritative decision making necessarily
involves choice. The element of choice also serves to illustrate the prominence of the principle of
democracy as the basis for decision making in groups. The second characteristic is the formality of
legitimacy. This requires that rules come into existence through the correct procedure or through the “right
authority, and “legal-rational” legitimacy based on the observance of norms.
575
. Audard, C., “The Idea of “Free Public Reason,” 8(1) Ratio Juris 15, 16 (March 1995).
676
. Id..
77
. Habermas (1979b) at 178.
878
. See Luhmann, N., “The Unity of the Legal System” at 12 in Tëubner, G., (ed.), Autopoietic law: a new approach to law and society
(1988) (who argue that consistency is an important value of the legal and social discourse).
979
. Unger (1976) at 166-176 and Unger, R.M., False necessity: anti-necessitarian social theory in the service of radical democracy. Part 1 of
politics, a work in constructive social theory 213 (1986) (who, by rejecting the binding force of traditional legitimacy of the state, is arguing
that consistency of tradition is an evil that limits the individual’s capacity to reconstruct the society around him or herself).
080
. See Powell, J.H., “The Gospel According to Roberto: A Theological Polemic,” Duke Law Journal 1024 and 1025 (1988) (quoting Unger
(1987) at 155 and Unger (1986) at 231-232). Also see Unger, R., “Legal Analysis as Institutional Imagination,” 24th Chorley Lecture 1995 at
London School of Economics and Political Science on 23 May 1995.
181
. Habermas (1979b) at 178.
282
. See also Franck, T., “Legitimacy in the International System,” 8 A.J.I.L. 705, 706 (1988) (identifying rule legitimacy with “right
process”).
383
. Franck (1988) at 706.
484
. Id..
585
. See Weber, M., Max Weber on Law in Economy and Society 5 (translated by Shils, E., and Rheinstein, M., 1954).
33
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

process.”86 This is a quality that is emphasised by Hans Kelsen.87 As an example, Kelsen points out that an
important requirement of procedural correctness is that the right legislator has acted stating that “Das
Völkerrecht besteht aus Normen, die ursprünglich durch Akte von Staaten—das heißt von den nach den
einzelstaatlichen Rechtsordnungen hierzu zuständigen Organen—zur Regelung der zwischenstaatlichen
Beziehungen erzeugt wurden, und zwar im Wege Gewohnheit.”88 Franck’s final quality is the clarity in
which a rule is expressed. “The degree of determinacy of a rule,” he says, “directly affects the degree of
its perceived legitimacy. A rule that prohibits the doing of “bad things” lacks legitimacy because it fails to
communicate what is expected, except within a very small constituency in which “bad” has achieved a
high degree of culturally induced specificity.”89 On the other hand, a rule that is “highly transparent—its
normative content exhibiting great clarity—actually encourages gratification deferral and rule
compliance.”90 These elements—subjectivity, process and clarity—identified by Franck, are valuable for
arguing for or against the legitimacy of a particular decision, but they are not sufficient for explaining the
decision or developing a strategy to influence the ongoing process of authoritative decision making and
direct it towards achieving the values of human dignity. For this purpose it is necessary also to take into
account values.
Values are important to legitimacy in at least two ways. First, they affect the legitimacy of the
decisions-maker’s authority, what Alan Hyde refers to as “substantive order legitimation.” This is what
Jürgen Habermas appears to have in mind when he defines legitimacy as “a political order’s worthiness to
be recognized.”91 A sentiment shared by Thomas Arnold, recognises that there must be “something behind
and above government” that engenders respect.92 For Habermas the value legitimating authority to make
decisions is the existence of free and equal discourse. Legitimacy, Habermas’ says, is concerned with
“good arguments for a political order’s claim to be recognised as right and just.”93 He also notes that this
claim is a “contestable validity claim” for which “[i]t is a question of finding arrangements which can
ground the presumption that the basic institutions of the society and the basic political decisions would
meet with the unforced agreement of all those involved, if they could participate, as free and equal, in
discursive will-formation.”94 The second way in which values are important to legitimacy concerns the
decision. A decision that is in accordance with value goals is legitimate, one that is not is illegitimate. All
individuals have values. Values are basic concepts about society and the individual’s relationship to
society. Values are different from interests. They are the basis of interests, although it may be that this
distinction is sometimes difficult to make in practice. Interests help to define values. And interests are in
turn influenced by other participants’ interests and by common values. Values agreed upon by consensus
at the level of world society are a reflection of a balance between different interests.95 These interests can
be identified at the state or local community level and at levels that transcend state boundaries. The values
agreed upon by a consensus of the international community also transcend state boundaries. These values

686
. Franck (1988) at 711 (explains his approach to procedural correctness with a sort of internal consistency principle stating that “the
underlying hypothesis [is] ... that rules, to varying degrees, contain the determining elements of their own legitimacy.” Id.).
787
. See generally Kelsen (1945) and Kelsen (1967). Also note that Franck does not suggest a positivistic interpretation of the formal content
of rules, referring to the positivistic arguments of John Austin and their refutation by Anthony D’Amato, who compares international law to
domestic law, as “irrelevant.” See Franck (1988) at 706 and nn. 3 and 4.
88
. Kelsen, H., Reine Rechtslehre. Einleitung in die Rechtswissenschaftliche Problematik 129 (1934). Also see Kelsen (1945) at 351.
989
. Franck (1988) at 716.
090
. Id..
191
. Habermas (1979b) at 179.
292
. Arnold, T., The Symbol of Government 44 (1935).
393
. Habermas (1979) at 178.
494
. Id. at 186.
595
. Franck appears to attribute the error of those that pursue an overly positivistic or formalistic approach to legitimacy as based on attempts
to compare international law to national law. Certainly this is a characteristic underlying the thinking of the leading positivists such as Hans
Kelsen. See Kelsen, H., Principles of International Law 401-403 (2nd ed. 1967).
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 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

are relevant to the international lawyer. These values are the basic beliefs that establish the foundation of
human dignity. Values that are common to the world society are at once the lowest common denominator
of humanity as well as the expression of an aspiration of human dignity. 96 The phrase human dignity
denotes the totality of conditions necessary to provide a minimum level of humanity among human
beings. The meaning of human dignity is authoritatively enunciated in the aggregate realisation of
consensually agreed upon international human rights. The comprehensive social process of the world
community is the environment where these values become realised. The manifestations by which values
are recognised are numerous. These include, for example, expressions of the threat or use of violence or
persuasive arguments that embed certain beliefs in the thinking of individuals.
The values used in this study will be defined below;97 at this juncture it is only necessary to
understand how these values affect the evaluation of the legitimacy of authoritative decisions. The effect
of values can be described either as a measure of the theoretical legitimacy of a particular decision or by
its practical effect. As a measure of the legitimacy of authoritative decisions, values are a standard by
which to judge if a decision is “good” or “bad”. The judgment will depend on how the decision is
consistent with an applicable value. As a practical consideration, legitimacy helps to determine how much
influence is accorded different interests. Legitimacy is part of the identity of the “strength of the
compliance pull” in the words of Jürgen Habermas.98 He argues that this “pull” is a result of informed and
open communication and that “what are accepted as reasons and have power to produce consensus ...
depends on the level of justification required in a given situation.” 99 What Habermas is explaining is
something different from the rationality approach of Max Weber100 or Alan Hyde101 who claim that an
universal or absolute rationality exists by which the impact of decisions can be measured. Habermas’
suggestion makes a complex rationality inevitable. Such a rationality could, for example, be a
combination of societal values and argumentation. The legitimacy of the arguments would then depend on
their adherence to the values that form the foundation of the public order. This reasoning indicates that
legal decisions and arguments are relevant for the public order of a world society because they are a
means of clarifying fundamental policies and evaluating society’s progress toward the achievement of
these policies.
Sources of legitimacy may emanate from political accountability, such as the numerical majority in
an election by which the majority of voters authorise a particular decisions-maker to make decisions.
More traditional legal sources of legitimacy include the agreements of states, the opinio juris of states, the
writings of highly qualified publicists and the practice of states. In the social process these sources of
legitimacy may be evidenced by institutional structures of political accountability such as the rules
requiring—and the actual realisation of—a numerical majority in an election by which the majority of
voters authorise a particular result. In the field of law sources of legitimacy include the agreements of
states, the opinio juris of states, the writings of highly qualified writers and the practice of states. These
sources of authorisation conform with widely held perceptions of law in the international community.
They are often identified in the policies and policy goals of authoritative decisions-makers. In this sense
policies bring values to life and provide legitimacy. The whole process might be summed up as authority
and the decisions that emanate therefrom as authoritative decisions.
Adherence is another element of authoritative decision making.. This refers to the consistency with
which an authoritative decision is followed in the practice of states. It is the threshold between authority

696
. Boutros Boutros-Ghali, “Address delivered at the opening of the World Conference on Human Rights,” U.N. Doc. A/CONF.157/22 (12
July 1993).
797
. See Chapter Two.
898
. Franck (1988) at 708 and 712.
99
. Habermas (1979b) at 183 quoted in Franck (1988) at 710, nn. 11.
0100
. See Weber (1954) at 5.
101
. Cited in Hyde (1983) at 394 (stating that “at best “legitimate” means “rational...[a]t worst it means “popular”).
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 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

and power whereby values are claimed, demanded, expected and decided. It is also the recognition that the
threshold at which a decision gains or loses its authoritativeness is influenced by the response of relevant
international participants to the decision. The recognition of this point of intersection between authority
and power is at the centre of the policy-approach to law.102 The relevance of power to authority is
described by Rosalyn Higgins, who writes, that103
[t]he authority which characterises law exists not in a vacuum, but exactly where it intersects
with power. Law, far from being authority battling against power, is the interlocking of
authority with power. Authority cannot exist in the total absence of control. Of course, there
will be particular circumstances when power overrides authority. On such occasions we will
not have decision-making that we can term lawful. But that is not to say that law is about
authority only, and not about power too; or that power is definitionally to be regarded as
hostile to law. It is an integral element of it. [footnotes omitted]
In an earlier work Higgins shed more light on this topic, stating that “power and authority are
closely related, but by no means identical.” 104 Richard Falk has further pointed out that power “assures
compliance with commands and thereby fulfils claims to control behaviour posited by law.”105 Lung-chu
Chen has stated that power is the “making and influencing” of community decisions.106 And McDougal
has stated that law in the policy perspective requires emphasis “not upon authority alone or control alone,
but upon authority and control.”107
Adherence is a measure of the continuous struggle in the process of law between rules and power or
authority and control or practice. On the one hand, it is the recognition that the failure of a large number of
individuals acting on behalf of states, or in other capacities, to adhere to a supposedly authoritative
decision undermines the authority of the decision. On the other hand, it is the recognition of the
manifested willingness of actors, both state and non-state, to adhere to a decision that contributes to
endowing the decision with legitimate authority.
To date, the struggle between authority and power, thus the measure of adherence, has been
perceived almost exclusively in terms of relations between states. International human rights law has
broadened this perception extending it to individuals in their relationships to states. But this broadened
perception has avoided two further developments: the extension to relations between individuals and the
recognition of individuals as full participants. The traditional view of human rights law restricts the
application of this law to hierarchical relations between the individual and the state.108 The individual is
considered a national or an object or a subject of the state.109 The traditional view is based on the
presumption that it is the abstract entity of the state that is the main violator of human rights. But this view
no longer represents the reality of a society whereby non-state actors, including individuals, often
influence the measure of adherence and thereby the authoritativeness of a consensually agreed upon
decision.110 In this study the influence of the individual in the authoritative decision making process is
considered. Both power and authority and their point of intersection are viewed in relation to the

2102
. McDougal (1960) at 12 and 13 and Higgins, R., “Integrations of Authority and Control: Trends in the Literature of International Law and
International Relations,” at 79-94 in Reisman, M.W., and Weston, B.H., Towards World Order and Human Dignity. Essays in Honor of
Myres McDougal (1976).
3103
. Higgins (1994) at 4.
4104
. Higgins (1976) at 81.
5105
. Falk (1970) at 509.
6106
. Chen (1989) at 16.
7107
. McDougal (1960) at 169.
8108
. See, for example, Lauterpacht, E. and Collier, J.G., (eds.), Individual Rights and the State in Foreign Affairs. An International
Compendium (1977).
9109
. See below where the general status of the individual under international human rights law is discussed.
0110
. See, for example, Wiseberg, L.S., Defending Human Rights Defenders: The Importance of Freedom of Association for Human Rights
NGOs 24-27 (1993).
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 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

individual. And it is the individual who is the crucial determinate of both power and authority.
Influencing factors are another element of the process of authoritative decision making. A
comprehensive list of these factors may be impossible, but it is useful to enumerate at least some of them
to provide as complete a picture as possible of the individual in society. These factors affect the human
process of decision making by both individuals and collectives of individuals.111 They include
multidisciplinary environmental factors, for example, biological, psychological, logical, metaphysical,
technological, anthropological, political, historical and traditional influences as well as contextual factors,
for example, the situation, the temporal setting, the identity of the decisions-makers, their language and
their perspectives. The impact of these many variables on the decision making process will vary due to
their degree of interrelationship and interdependence with each other and with the decision making
process itself.
It is through the recognition and examination of these variables that an understanding of the
relationship between law and society can be achieved. And it is through this understanding that the law
can be used to better achieve the realisation of community policies.
Claims are arguments advanced in favour of a particular authoritative decision by participants in the
process of authoritative decision making. A claim may be advanced formally in a judicial forum and less
formally in a civic forum. The anti-Vietnam war demonstrations in the United States in the 1960’s and
70’s are examples of individuals making claims that are relevant to the authoritative decision making
process in an informal civic forum. Claims are manifested through actions or the observable evidence of
opinions. The claims that are relevant to international human rights law are those that relate to the
achievement of the values of human dignity. A prima facie point of reference for these claims is the
aggregate of human rights found in widely accepted human rights instruments. This study will consider
claims for human rights found in international agreements, but it will also consider claims that are
necessary to the realisation of these basic human rights. In each case the claims considered will be those
made by or affecting individuals who are not acting on behalf of states as well as those made by states in
respect of individuals. Finally, it is necessary to note that authoritative decisions may become claims at
different times or in different forums.
Demands, like claims, are arguments advanced in favour of a particular choice by one or more
participants in the international social process of authoritative decision making that gives rise to
international law. Demands differ from claims only in their intensity. While a claimant may be satisfied
with an authoritative decision that decides that their claim cannot be acknowledged, a participant making a
demand will not be satisfied with this result. A participant making a demand that is relevant to our enquiry
will further the demand by direct reference to the human rights found under the treaties or customs of
international law. Demands are not the same as ‘power politics’ in that demands rely for their legitimacy
on the consensus expressed in international law not on other political criteria.
Expectations are the expression by participants of the claims and demands that they value and
expect their governments or other collective authoritative decisions-makers to secure for them.
Expectations themselves do not form international law; but some expressions of expectations by states
may contribute to forming international law.112 This is particularly true when expectations are followed by
claims and demands manifested through state practice and opinio juris. When this is the case expectations
act as the catalyst for the formation of international law.
Means by which states may manifest their expectations for authoritative decisions are the

111
. In the future some decision making processes may be delegated to inanimate machine with artificial intelligence. This may not only add
participants with the unique ability to remain aloft of the social process while making decisions which effect it, but may also serve to allow
better identification of influences on the particular decision making process.
2112
. Myres McDougal has pointed out that community expectations as to the nature and character of law may generate norms. In such cases,
these expectations would be elevated to the level of claims or demands in the view of this author.
37
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

resolutions113 and declarations114 of international organisations, the public statements of their

representatives,115 including unilateral declarations and public statements by responsible politicians.

Commonly Perceived Manifestations of International Law

Manifestations are identities of actions. Through the exercise of our senses we are aware of the
constituent elements of international law. Manifestations thus contribute to defining the sources of
international law. The most common forms of manifestations of international law have come to be known
as the sources of international law. These sources have been explicitly recognised in article 38, paragraph
1 of the Statute of the International Court of Justice.116
Article 38 provides a normative enumeration of sources that the International Court of Justice shall
take into account in deciding a case before it. It is “a directive to the Court to decide disputes before it in
light of these sources.”117 Outside of the International Court of Justice Article 38 is only of analogous
application. Article 38 does not define the principles of law to be applied, but merely their form. About
these forms or sources much has been written and it is inappropriate to re-open the discussion here. 118
Nevertheless, it is appropriate to mention a few elements of each source enumerated in article 38 and in
doing so to focus on the relevance of the particular sources for international human rights law.
By definition conventions and treaties are written agreements between two or more states or
between states and international organisations or between two international organizations. 119 They are
expressions of claims and often demands by states on other states. They are also often an expression of
how the states party to an agreement expect other states to act. Thus, although there are states that are not
members of the United Nations, the United Nations Charter may still create rights and duties for these
states.120 According to the policy approach to law, international agreements are the “most deliberate form
of prescription.”121 Nevertheless, they are a source of law that derives from custom and must be
“interpreted and applied against the background of customary international law.”122 One of the general
rules, that is widely accepted as a principle of customary international law, is the principle that is
frequently identified by the Latin phrase pacta sunt servanda. This principle emanates from the
expectations of states, as collectives of individuals, holding that they—as states—are bound to the
international obligations to which they have agreed. This expectation must be interpreted to mean that
states believe that at least in so far as human rights treaties are concerned, the individuals under their
jurisdiction are bound by the treaties that a state has ratified. 123 This interpretation reflects the genuine
expectations of states when they conclude international human rights treaties.124 It is the consequence of

3113
. See Legal Consequences for States of the Continued Presence of South Africa in Nambia (South West Africa) (Advisory Opinion), (1971)
I.C.J. Reports 31 at 50; Higgins, R., The Development of International Law Through the Political Organs of the United Nations 2 (1963) and
Higgins (1994) at 22-24.
4114
. See Higgins (1994) at 22-24.
5115
. See Nuclear Tests Case (Australia v. France), (1974) I.C.J. Reports at paras. 32-41.
6116
. See, e.g., Higgins (1994) at 18.
7117
. Falk (1963) at 141.
8118
. See generally, Falk (1970) at 87-174 and Higgins (1994) at 17-38.
9119
. This description is the result of a combination of the definitions in article 2(1)(a) of the Vienna Convention on the Law of Treaties
(VCT), adopted 22 May 1969, opened for signature 23 May 1969, entered into force 27 January 1980, U.N. Doc. A/CONF.39/29 and article
2(1)(a) of the Vienna Convention on the Law of Treaties between State and International Organizations or between International
Organizations, 25 I.L.M. 543 (May 1986).
0120
. Jennings (1992) at 33.
121
. Chen (1989) at 360.
2122
. Jennings (1992) at 31.
3123
. See VCT at art. 18 (requires that states who have signed a treaty not act contrary to it).
4124
. See generally, McDougal (1994). Also see VCT at artt. 31 and 32.
38
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

states’ good faith in entering into such treaties. It is also a conclusion that emanates from the “genuinely
shared expectations”125 of the international community. These expectations are manifested through their
practice of repeatedly reconfirming their support for international human rights. Although there is to some
degree a contradiction in this practice with the continued insistence of some states that individuals are not
full participants under international law, even states making this argument have often participated side-by-
side with individuals in the prescriptive processes of international law.126
Custom is evidence of a general practice accepted as law. Custom is an expression of a claim,
demand or expectation. The two constituent elements in customary international law are practice and
opinio juris sive necessitatis or opinio juris.127 It is commonly agreed that custom refers to the practice
and opinions of states, and not individuals and other collective entities,128 but this is not apparent from
article 38(1) which only refers to “international custom” as being “evidence of a general practice accepted
as law.” Read literally this provision could refer to the practice of non-state actors, even individuals.
When this practice is accepted by a consensus of other participants in world society, who may also be
individuals, who believe that it creates a legal obligation it would become an authoritative decision we call
international law. There is a sound logic in this reasoning. It gives an accurate description of how
international law is sometimes created. The formal act of states agreeing to a law is often only an
occurrence after the fact. Unfortunately most legal scholars have been willing to ignore this reality and
have been satisfied with perpetuating the Westphalian tradition of a state-centred international community
by looking only to state practice and opinio juris. In part this course of reasoning is vindicated by the
difficulty in obtaining evidence of non-state practice and a consensus of opinio juris. But even a review of
the traditional evidence of custom, state practice and state opinio juris shows that it is actually individuals
who often have the ultimate responsibility for establishing these conditions for customary international
law. For example, Ian Brownlie lists as evidence of state practice “policy statements ... the opinions of
official legal advisors ... executive decisions and practices.” 129 Each of these forms of evidence are actions
by individuals, albeit usually in their official capacity, but nevertheless very influenced by their individual
personalities and perspectives. Added to Brownlie’s examples could be indirect forms of influence on
authoritative decision making such as advice from third parties, including academics and other specialists.
Opinio juris is also traditionally derived from state opinions. Here relying only on state opinions seems
even more problematic. In light of the diverse views as to how and when state opinion is expressed, “there
is not a common view among States about the idea of consent.”130 Despite this, however, states and the
representatives of states continue to interpret international law to be concentrated on state actors.
In a world where non-state entities are increasingly making, or involved in the process of making,
decisions that affect world public order it, may be asked if states can continue to deny individuals—or
groups of individuals who do not identify with states—formal recognition in the processes of authoritative
decision making. Indeed, this study argues that individuals and groups of individuals, have already gained
access to many of these processes and that the continued denial of formal recognition distances the law

5125
. McDougal (1994) at 39-45.
6126
. For example, the United Kingdom participates in international fora, most notably the United Nations, where non-governmental
organizations have (at least) limited personality.
7127
. See generally Higgins (1994).
8128
. See, eg., Lotus Case, (1927) P.C.I.J. Reports, Ser. A, No. 10. at 28, Anglo- Norwegian Fisheries Case (U.K. v. Norway), (1951) I.C.J.
Reports 116 at 191 (the opinion of Judge Read), North Sea Continental Shelf Case (Germany, Denmark, and the Netherlands), (1969) I.C.J.
Reports 3 at 44, para. 77 (Judgment of 20 February 1969) and Case Concerning Military and Paramilitary Activities in and Against
Nicaragua (Nicaragua v. United States of America), (1986) I.C.J. Reports 13. at p. 108-109, para. 207. Also see generally, Elias, O., “The
Nature of the Subjective Element in Customary International Law,” 44(3) I.C.L.Q. 501-539 (July 1995).
9129
. Brownlie (1990) at 5.
0130
. Lobo de Souza, M., “The Role of State Consent in the Customary Process,” 44(3) I.C.L.Q. 521-539 (1995). at 539 (Lobo de Souza uses
the term consent as something very close to the traditional concept of opinio juris that is required for customary international law, thus
making the cited conclusion relevant to the present study. The opinions of non-state actors, especially writers that he cites also show that the
disagreement transcends state thinking and involves differences of opinion by individuals).
39
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

from the reality of the social process and causes non-state actors to deny the relevance of international law
and to resort to extra-legal means to force authoritative decisions-makers to take cognisance of their
claims.131 Whatever one’s view of the ambit of participants in the process leading to an authoritative
decision about customary international law, it must be recognised that of the various sources of law
enumerated in article 38, paragraph 1, “international custom is the most flexible, the most fluid,
and...perhaps the most ‘political’ form of international law, reflecting the consensus of the great majority
of states.”132
A rule of customary international law is created “where there has grown up a clear and continuous
habit of performing certain actions in the conviction that they are obligatory under international law.”133
Of great importance for the conviction or opinio juris is the belief that an obligation is binding upon the
entity to which it is directed. As indicated above, traditionally this belief must be proven by reference to
states’ opinions. Evidence includes “international dealings as manifested by their diplomatic actions and
public pronouncements” although also “votes and the views of states have come to have legal significance
as evidence of customary law.”134 Some terms recognised by the International Court of Justice as
expressing more than an opinio simpliciter, include “recognition”, “conviction”, “sense of duty” and
“consciousness.”135 But one must remember that a state is individuals acting in their collective capacity.
As such individuals contribute to forming opinio juris. The collective of individuals are represented by
diplomats, heads of state or other such individuals. Individuals may contribute to forming opinio juris by
acting as highly qualified publicists, academic observers, advisors, as members of private lobbying groups
or merely as concerned individuals. Lung-chu Chen has pointed out that136
[t]he decision functions in which individuals as individuals have long played a significant part
transnationally include the intelligence, promoting, and apprising functions. Under the concept
of “custom” that creates law through widely congruent patterns of peoples’ behaviour and
other communications, individuals and their private associations have always participated in
the prescribing function.
Individual participation may range from modest advice to forcefully expounded claims, demands or
expectations, which if expressed widely enough and with enough conviction, may form the basis of the
opinio juris necessary for the formation of customary international law. Advice, claims, demands and
expectations are means by which participants exert influence on the authoritative decision making process
through a complex of communications, legitimacy and authority in a social context. 137 If the majority of
the world’s governments believe that a particular act is legal, while the majority of the individuals in the
world express a contrary belief through, for example, petitions, protest, demonstrations and writings, these
expressions of individuals cannot be ignored. It is the substance and the acceptance of these claims,
demands and expectations that is important. When they are in accordance with the values of human
dignity and accepted by a large majority of individuals in the world society they cannot be ignored in the
consideration of the sources of international law. If international law fails to recognise the expectations of
the individuals and to invoke the authoritative decisions demanded by individuals who are affected by the
decision, it may well lose its functionality for the comprehensive social process. Customary law is a

131
. This, for example, is often the reason behind terrorist action. And it is also the reason behind non-violent direct action, for example, the
anti-nuclear actions that took place around the world during the summer of 1997.
2132
. Higgins (1963) at 1.
3133
. Higgins (1963) at 1 and 2.
4134
. Id. at 2.
5135
. Elias, O., “The Nature of the Subjective Element in Customary International Law,” 44(3) I.C.L.Q. 501, 511 (July 1995) (observing that
these terms were referred to by various judges of the ICJ in the North Sea Continental Shelf Case “seem to imply a declaratory view of opinio
juris” id. at 511).
6136
. Chen (1989) at 80.
7137
. See McDougal (1980) at 176-179 (for a variant of this idea, which identifies some of the ways individuals may contribute to the creation
—or in McDougal’s words, prescription—of international law).
40
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

means by which international law—and the authoritative decisions-makers—can take into account the
influence of non-state actors. But this requires that decisions-makers choose to do so.
General principles and other sources of law have often been neglected in favour of the above
sources, nevertheless, these subsidiary sources have been considered to form part of international law not
only by the International Court of Justice who is bound by article 38, 138 but also by jurists who have
considered it without such binding obligations to do so. Often general principles are related to customary
international law, but while custom requires a widely accepted practice, general principles of law require
something less. Bin Cheng identifies this different character as follows:
the definition of what constitutes a custom lies not in the rule involved in the general practice,
but rather in its being part of objective law as a whole ... there is also the element of
recognition on the part of civilized peoples but the requirement of general practice is absent.
The object of recognition is, therefore, no longer the legal character of the rule implied in an
international usage, but the existence of certain principles intrinsically legal in nature.139
Despite this explanation, however, it remains difficult to see how general principles could be recognised
as sources of international law unless the “general practice” is such that the principles have become
customary international law. Nevertheless, accepting Cheng’s explanation one might suggest that certain
general principles have become international human rights law because they reflect the “prevailing legal
sensibilities”140 and are consistent with the values of human dignity and the policies for implementing
these values.
The judicial decisions of national141 and international judicial bodies142 also provide guidance for
determining the existence of a rule of international law. The International Court of Justice has frequently
referred to its own or the Permanent Court of International Justice’s opinions to conclude that a rule of
international law exists.143 The ICJ has done so despite the fact that by virtue of its statute its own judicial
opinions do not form binding precedents.144 The numerous examples of the Court reliance on its reasoning
in prior cases indicate that its own, and the Permanent Court of International Justice’s, prior decisions are
more than mere influencing factors.145 They indicate that in the opinion of the ICJ judicial decisions at the
very least provide evidence of international law. Although the ICJ is only one of many authoritative
decisions-makers in world society, it recourse to the writings of highly qualified publicists and judicial
decisions is evidence that the processes of authoritative decision making are influenced by individuals.
Other examples include the legal and political affairs departments or advisors of states, governmental and
non-governmental organisations. It may be that the groups or individuals giving advice will establish an
authoritative decision. Thus, in some cases individuals may be asked to make decisions that are effectively
authoritative decisions in that they have direct consequences for the rights and responsibilities of other
individuals. This realisation may lead one to question the limited scope of sources of international law

8138
. See, e.g., Chorzów Factory (Indemnity) Case (Germany v. Poland), (1927) P.C.I.J. Reports, Ser. A, No. 9, p. 13 and Norwegian Loans
Case (France v. Norway), (1957) I.C.J. Reports 9 (individual opinion of Judge Lauterpacht). Also see Legal Consequences for States of the
Continued Presence of South Africa in Nambia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory
Opinion), (1971) I.C.J. Reports 16, para. 336 (comments by Phillmore and Descamps). But see Rosenne, S., The Law and Practice of the
International Court 611 (1985).
9139
. Bin Cheng (1987) at 24.
0140
. Ford, C.A., “Judicial Discretion in International Jurisprudence: Article 38(1)(c) and “General Principles of Law”,” 5 Duke Journal of
Comparative and International Law 35, 44 (1994).
141
. See Brownlie (1990) at 23.
2142
. For example, the decisions, advisory opinions and comments of the United Nations Human Rights Committee (a quasi-judicial body), the
Inter-American Court of Justice and the European Court of Human Rights all contribute to forming principles of international human rights
law although they are not binding or are only binding on the parties to a case.
3143
. See Jennings (1992) at 41.
4144
. Art. 59 of the Statute of the International Court of Justice. Also see Tunisia-Libya Continental Shelf Case, [1981] I.C.J. Reports at 20 and
Jennings (1992) at 41.
5145
. See Brownlie (1990) at 21 and 22, especially nn. 35.
41
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

referred to in article 38 of the ICJ’s Statute and the way in which it has been interpreted.

A Critique of the Over-Reliance on Article 38 Sources of International Law

Despite being helpful as an introductory guide, article 38 of the Statute of the ICJ and the
interpretation it has been given, does not contain an exhaustive definition of international law. Article 38
is thus a mere starting point, an indicator of “some” of the sources of international law. As such it may be
compared to a road sign and the decisions-maker to a traveller who makes use of this road sign to arrive at
his or her final destination. To travel the full distances, the complex decision making processes of
international law require a traveller to have a vehicle that article 38 does not provide. This vehicle must be
able to respond to the political realities of world society and balance the numerous claims, demands and
expectations that influence authoritative decisions-makers in their arriving at a decision that optimises the
values of human dignity. Article 38 cannot provide this facility. One reason is that article 38 will only be
applied within the restrictive preview of the ICJ. As the Statute of the ICJ points out the “decision of the
Court has no binding force except between the parties and in respect of that particular case.”146
Furthermore, the overwhelming majority of international legal disputes do not even reach the International
Court of Justice because they are not referred to it. This is especially the case as concerns the human rights
of individuals; because the International Court of Justice has no jurisdiction over individual complaints,
matters of human rights rarely arise before the Court.147 The existence of bodies dedicated to international
human rights law goes some way towards improving the situation, but still leaves the overwhelming
majority of decisions concerning human right to be decided by participants at other levels and in other
forums of the comprehensive social process. If law is to have any relevance for these participants it must
provide a means of deciding between choices of behaviour or choices of opinion as to obligations and
rights.
There are also serious problems with relying on article 38 by analogy outside the International Court
of Justice. The major problem that is of concern to this study, is that article 38 does not provide adequate
guidance for the many complex decisions that may arise in the field of human rights today. Article 38 and
its tradition of interpretation suggests that law is something that can be found by looking almost
exclusively at the practice and opinions of states. In contemporary international society and especially in
the field of international human rights law, states are only one of the categories of participants who
contribute to authoritative decisions that affect individual human beings. Furthermore, states are not the
only participant whose decision making is viewed as legitimate. Today more and more non-state actors,
including individuals, are legitimately making authoritative decisions.
The outcomes that we refer to as rules or norms of international law are reflections of the values of
individual participants in the comprehensive social process. This is especially the case as concerns
international human rights. Judge Christopher G. Weeramantry has explained the national phenomenon
whereby “[s]ome of the community’s values have, over the last two centuries, in particular, been
translated into law in the form of written constitutions ... as well as in various statutory provisions and
judicial decisions.”148 Although Weeramantry is considering national forums, similar developments have
taken place on the international plane. These developments reflect a consolidation of consensus, but they
are not the same as the values upon which the consensus is based. Thus Weeramantry warns that “[t]he
concept of human rights is a concept distinct from the concept of law, for human rights exist at the level of
philosophy rather than law. True, they are constantly in the process of translation into law, but the concept
6146
. Art. 59 of the Statue of the International Court of Justice.
7147
. See Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, (1970) I.C.J.
Reports p. 3 at paras. 33-34, Nottebohm Case (Liechtenstein v. Guatemala), (1955) I.C.J. Reports 4 (Judgment on Second Phase of 6 April
1955)., Asylum Case (Columbia v. Peru), (1950) I.C.J. Reports 266 (Judgment of 20 November) and Flegenheimer Claim, (Italian- United
States Conciliation Commission) 25 I.L.R. 91 (1963).
8148
. Weeramantry, C.G., The Slumbering Sentinels. Law and human rights in wake of technology 15 (1983).
42
 Chapter Two: Authoritative Decisions in the Process of International Human Rights Law

of human rights is not dependent on legal formulation or enactment for its validity.”149 This reasoning
stresses the need to ensure a high degree of consistency between law and values. Divorcing law from its
contemporary influencing factors, including political motives and power, alienates legal norms and
impairs the achievement of the values of human dignity. To provide a valuable definition of the sources of
law, a social process characterised by the confluence of power and authority, it is necessary to apply a
policy oriented approach to law that takes into account the function and functioning of law in the social
process. Identifying law as part of the social process based on authority where it intersects with power
draws attention to an important question: Who decides?150 Claims and expectations influence not only the
substance of international law, they also determine who makes the authoritative decisions we call
international law by suggesting the appropriateness of a democratic model of decision making.
When hard decisions arise in which the community has not specified its policies in an identifiable
and understandable way, the decisions-maker must rely on the common community values to make
decisions. The importance of choosing which values to use as standards will be discussed in chapter three.
In chapter two attention will be given to the individual’s role in the process of achieving values through
authoritative decisions which we refer to as international human rights law.

9149
. Id..
0150
. McDougal (1960b) at 13. Also see Falk (1970) at 171.
43
 Chapter Three: Individual Participation

CHAPTER THREE

INDIVIDUAL PARTICIPATION

Man is the measure of all things.1

Protagoras, Theaetetus 160d

It is in vain to talk of the interest of the community, without understanding what is in the interest of the individual.
Bentham, J., An Introduction to the Principles of Morals and Legislation, Chap. I, para. V (1824)

The self is not a passive entity, determined by external influences; in forging their self-identities, no matter how local
their specific contexts of action, individuals contribute to and directly promote social influences that are global in
their consequences and implications.
Giddens, A., Modernity and Self-Identity 2 (1991)

We are not beings that lack will or individuality because we are affected by a vast number of influences. On the
contrary, we are highly individual because all these influences impinge on us, evoking different responses simply
because we are different.
Curle, A., Another Way. Positive response to contemporary violence 17 (1995)

1*
Today this must be read: “The individual is the measure of all things.” Translated from the ancient Greek:
“Π α ν τ ω ν χ ρ η µ α τ ω ν α ν θ ρ ω ο ν µ ε τ ρ ο ν ε ι ν α ι ”.
44
 Chapter Three: Individual Participation

INDIVIDUAL PARTICIPATION

The Individual and Forms of Participation

There are a variety of participants in the process of international human rights law. They include
international organisations, governments, non-governmental organisations, courts, commissions, ad hoc
commissions, special rapporteurs, working groups, special processes, non-state groups, individuals—
indeed the list could go on for quite some length. The concentration in this study is on the individual. The
institutional participants that are considered provide a context to the participation of the individual.
Details of the arenas and the structural arrangements for individual participation in the prescriptive
and authoritative decision making processes of international human rights law are considered in chapters
four through seven. This chapter discusses several general points concerning the relevance of the
individual as a participant and the forms that this participation may take.
First, and foremost, it is important to recognise that all social institutions depend on individuals for
their decision making and participation. The judges, politicians, administrators, policy experts, etc., are all
individuals. The identity of these individuals is important in decision making in various fora despite the
role of precedent, tradition or group dynamics. International law traditionally, however, has failed to
recognise this and thus avoided a close inspection of individual participants in either their institutional,
organisational or private capacities. It is predominately the policy-oriented scholars influenced by the New
Haven School who have consistently viewed individuals as participants with whom they need be
concerned when discussing the prescriptive and authoritative decision making processes of any field of
public international law, including international human rights law.
Second, the role of the individual varies widely according to the particular strategies being employed,
the individual’s abilities and knowledge, the type of decision being made, and the type of outcome sought.
Individuals may be lobbyists, initiators, advisors, technical assistants, judicial claimants, academic
observers, etc.. The natural variance that makes each individual unique is reflected in each individual’s
contribution to the process of international human rights law.
Third, the manner in which an individual participates in world society invariably influences the
process of forming and applying international human rights law. Whether this influence is great or
insignificant it is worthy of at least superficial recognition by the scientific observer merely because it is
influence. It is the characteristic of influencing the process of international human rights law that makes
one a participant. And it is the degree of influence that is one feature of the qualitative evaluation of the
individual as a participant.
Fourth, although it has been noted that all decisions in prescriptive or authoritative decision making
processes concerning international human rights law are ultimately made by individuals, it is often the
case that these decisions are greatly influenced by group dynamics. Group dynamics may affect a decision
to such a degree that the decision will no longer reflect the views held by any significant proportion of the
group. Whether this is often the case in the process of international human rights law is a question worthy
of further research.
Fifth, within world society it is extraordinary to find individuals who place too much reliance on
international human rights law as a means of ensuring respect for the values of human dignity. Often
individuals do not even have concrete expectations about values. The popularity of ‘needs-based’
perspectives of human rights is probably due to its being the most appropriate description of the
perspective of the majority of individuals towards international human rights law. But according to this
perspective values are ascribed to individuals almost despite themselves. In other words special attention
is given to the participation of individuals who make claims, demands and express expectations.
Additionally, the claims, demands and expectations of these individuals are more likely to result in
authoritative decisions then are those of other individuals who are not able or willing to express their
preferences. This situation indicates the existence of inequalities between individuals when they function
45
 Chapter Three: Individual Participation

as social actors. Some individuals due to wealth, education, connections, attraction, psychology, etc., are
better able to catch the attention of authoritative decisions-makers and to influence the manifestations of
values, the formulation of policies and the prescription of norms as well as authoritative decisions in
individual cases. The fact that some individuals are able to participate more substantively than others in
the decision making processes of international human rights is a fault that has been accepted in these
decision making processes. For the participation of the individual to be consistent with the value of
equality and the prohibition of discrimination requires that society strive to correct this imbalance and to
provide all individuals with meaningful participation.
Finally, although it is impossible to query every individual as to their preferred values, there are
significant expressions by individuals of preferences for values that require consideration. Five categories
of these expressions are identified below.

1. Individuals participating in international conferences and the forming of a consensus on what should
be considered part of international human rights law

The role of individuals in the prescriptive processes of international human rights law is older than
this law itself. One need only cite the famous book, Un Souvenir de Solferino, by Genevese Henry Dunant
from 1862 and his subsequent relentless campaigning leading to the creation of the International
Committee for Aid to the Wounded1 and several subsequent conventions protecting victims of wars.2
Similarly the anti-slavery movement, which began in the eighteenth century and which ultimately led to
the adoption of several conventions prohibiting slavery,3 owes much of its success to individuals such as
Thomas Clarkson, William Wilberforce and William Pitt.4
When countries ultimately reacted to the cascade of individual and private group initiatives claiming
human rights as the entitlement of all human beings, it was individuals who provided the driving force
behind intergovernmental initiatives. Introduction of a concern for human rights in the Charter of the
United Nations was the initiative of non-state actors, both individuals and NGOs.5 And, among the means
that NGOs used to convince the San Francisco Conference drafting the Charter about the importance of
human rights was a petition with the signature of 1300 prominent individuals.6
An even more striking example of the role of an individual in the development of international human
rights norms is the prohibition of genocide that is often credited to the inter-governmental Convention on
the Prevention and Punishment of the Crime of Genocide.7 More than being the result of efforts of the
states that actually signed and ratified the Genocide Convention, it was the initiative of a single individual
named Raphael Lemkin.8 Lemkin coined the phrase genocide—giving it its contemporary meaning and
drawing world attention to atrocities aimed at destroying ethnic or national groups of people. He
convinced government representatives and other non-state actors that such actions were contrary to
international law through his constant campaign of public speeches, written material and private visits.
1
. The forerunner to the International Committee of the Red Cross.
2
. For example the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864.
3
. For example, the Slavery Convention, opened for signature 25 September 1926, entered into force 9 March 1927, 60 L.N.T.S. 253, T.S. No.
778 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 266
U.N.T.S. 3, adopted by a conference of Plenipotentiaries convened by Economic and Social Council resolution 608 (XXI) of 30 April 1956
and done at Geneva on 7 September 1956, entered into force 30 April 1957.
4
. Archer, P., “Action by Unofficial Organizations on Human Rights,” at 160-182, especially at 162-164 in Luard, E., (ed.), The International
Protection of Human Rights (1967).
5
. Gaer, F.D., “Reality Check: Human Rights NGOs Confront Governments at the UN” at 51, 51-53 in Weiss, T.G., and Gordenker, L., (eds.),
NGOs, the UN, & Global Governance (1996).
6
. Id. at 52.
7
. Adopted 9 December 1948, G.S. Res. 260(III), U.N. Doc. A/810, at 174 (1948), 78 U.N.T.S. 277, entered into force 12 January 1951.
8
. See generally Lemkin, R., Axis Rule in Occupied Europe (1947) and Lemkin, R., “Genocide as a crime under international law,” 41(1)
A.J.I.L. 145-151 (1947). Also see Kuper, L., Genocide 22-23 (1981).
46
 Chapter Three: Individual Participation

And he finally succeeded in having his views recognised in an international convention. Certainly, he
could not have achieved the end result without substantial support from others, but this cannot distract
from the conclusion that his initiative was the causal nexus between the idea and its manifestation in a
consensually accepted instrument.
Even the ‘grandparent’ of modern human rights instruments, the Universal Declaration of Human
Rights, was strongly influenced by individuals, both working as consultants to NGOs and as private
individuals without particular attachments, but merely affinities with claims to values of human dignity.9
The UNESCO study in 1947 that preceded the drafting of the Universal Declaration of Human Rights by
the Commission on Human Rights relied on the opinions of individual writers to argue for the universality
of human rights. Without contributions from individuals many human rights would never have been
brought to the notice of larger groups. Consequently they would not have been adopted as societal
standards nor could the rights reflected in international human rights instruments be considered reflective
of the values of individuals. Ken Booth describes an example of the impact of individuals, abet guided by
the influences of their cultures, on the Universal Declaration of Human Rights explaining that
a Chinese philosopher argued that the idea of human rights had taken shape very early in the
Middle Kingdom, based on the recognition of all individuals having equal desires and equal
rights; and an Islamic philosopher from India argued that the ideas of democratic theory from
which Western ideas of human rights had supposedly sprung have long been accepted in Islam.10
More recently, the drafting of the Vienna Declaration at the Second World Conference on Human Rights
included 6412 individuals participating at the meeting in Vienna and more than twice this number when
the regional preparatory meetings that preceded the conference are included. While many of these
individuals were attached to NGOs some of them participated in their private capacity attending both the
non-governmental and governmental conferences.11 Additionally, thousands of individuals visited the non-
governmental conference that was open to the public. And both individuals and private groups also
participated in manifestations, demonstrations and a variety of other means that brought their concern for
human rights situation to the attention of the governmental representatives at the Vienna Conference.
Finally, the participation of non-state actors in the regular meetings of bodies that consider human
rights issues cannot be ignored. For example, although not technically a conference, the annual spring
meeting of the United Nations Commission on Human Rights in Geneva, Switzerland, draws numerous
non-state actors. These individuals and NGOs come to lobby the government officials and sometimes the
large NGOs about human rights concerns. The individuals who attend these meetings in their private
capacity and without affiliation to NGOs are usually academics, researchers, human rights activists,
environmental activists, country specialists or students. Usually they are confined to the visitors’ gallery
and are merely observers, but sometimes they have been vocal, demonstrating outside the Geneva Office
of the United Nations in large numbers, lobbying delegates through meetings, distributing petitions or
information about human rights abuses or in other ways expressing their concerns. As the Commission
considers the texts of international human rights law instruments, the participants have been able to
influence this process of decision concerning the texts of these instruments. And furthermore, because
human rights are necessarily the concern of every human being, individuals who do participate must be
considered to have an interest in participating in the work of international bodies dealing with
prescriptions of human rights.

2. Individuals expressing their preferences for particular values and outcomes for specific authoritative
decisions by making claims in human rights litigation
9
. See Archer, P., “Action by Unofficial Organizations on Human Rights,” at 168 in Luard, E., (ed.), The International Protection of Human
Rights (1967).
010
. Booth, K., “Human Rights and Human Wrongs,” 71(1) International Affairs 103, 114 (1995).
11
. This was observed by the author who also participated in the conference in his private capacity and spoke to other similar persons.
Participation in the conference was confined to observation and more active participation was prohibited.
47
 Chapter Three: Individual Participation

Perhaps the example of individuals contributing to the formation of values through processes with
which lawyers are most familiar are the claims made by individual petitions, communications,
applications or complaints. As of June 1996 more than 700 applications had been filed with the United
Nations Human Rights Committee,12 although less than 50 complaints have been considered by the
Committee Against Torture and the Committee on the Elimination of Racial Discrimination combined. In
the European system for the protection of human rights almost 10,000 claims of human rights violations
are made every year by individuals, although only about 20% of these are ultimately registered and only
approximately 5% are actually found to be admissible.13
Human Rights may also be raised before national courts. This is the case whether or not the
jurisdiction is one such as that of the Netherlands, which makes international human rights law part of the
law of the land and requires judges to apply it, or merely because of the requirement that domestic
remedies must be exhausted, according to which an individual may have to raise human rights issues
before national courts even if these courts refuse to consider them. National forums are surely the most
travelled avenues of pursuing claims for international human rights. The combined totals of cases
concerning human rights that are raised before national courts and tribunals is many times that which
reach international tribunals. Individuals participate in these processes as plaintiffs or petitioners, legal
representatives, experts witnesses on civil or human rights law, and as judges.
Individuals also appeal to bodies, which, although they may not be able to decide individual cases,
can make decisions about general situations of human rights abuses.14 The United Nations Human Rights
Commission and Sub-Commission, for example, receive around 300,000 complaints per year from private
individuals and NGOs complaining about the human rights situation in particular countries.15 It is hard to
classify the effect of some of these communications on decision making because they are not made public.
Nevertheless, those that have been made public in the reports of Special Rapporteurs or through the
ECOSOC Resolution 1235 procedures have sometimes led to public debate. Individual communications
can at least indirectly influence the decision making in the process of the Commission and Sub-
Commission.
Individuals may also play an indirect role in the process of authoritative decision making in particular
cases by encouraging groups of individuals, even international governmental organisations to start
litigation. Two of the most notable cases before the International Court of Justice were instigated by
individuals and concerned their human rights. In the Nottebohm Case16 it was the denial of Mr.
Nottebohm’s right to property that caused him to lobby the government of Liechtenstein, through his
lawyer, to bring the matter to the ICJ. Although the claim was decided on the technicality of Mr.
Nottebohm’s nationality, the initial claim involved basic human rights. Mr. Nottebohm claimed that his
human right to property was violated by the confiscation of his property by the government of
Guatemala.17 Later in 1971, in Barcelona Traction Case,18 the ICJ was asked to resolve a dispute between
Spain and Belgium in which both parties to the initial dispute were private persons. In this case Belgium
was acting to protect the human right to property of Belgian shareholders in a company that was operating

212
. Annual Report of the Human Rights Committee to the General Assembly through the Economic and Social Council Under Article 45 of
the Covenant and Article 6 of the Optional Protocol, U.N. Doc. CCPR/C/57/CRP.1/Add.6/PartI (26 June 1996).
313
. Based on figures in Harris, D.J., O’Boyle, M., Warbrick, C., Law of the European Convention on Human Rights 717 and 718 (1995)
(figures are for 1993 and 1994).
414
. These procedures include those under ECOSOC Resolution 1503 (XLVIII)(1970) and 1235(XLII)(1967); communications to Special
Rapporteurs and communications to working groups.
515
. Alston, P., and Steiner, H., International Human Rights in Context. Law, Politics, Morals 380 (1996).
616
. Nottebohm Case (Liechtenstein v. Guatemala), [1955] I.C.J. Reports 4 (Judgement of 6 April 1955).
717
. Id.. The government of Guatemala argued that it was justified in confiscating the property because Mr. Nottebohm was an enemy national
—being German and not a national of Liechtenstein.
818
. Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, [1970] I.C.J. Reports 3.
48
 Chapter Three: Individual Participation

in Spain. These shareholders constituted 88% of the company’s shareholders. These shareholders had
approached their government to request it to fight their cause after the Canadian government, where the
company was registered, decided not to pursue the claim to a conclusion. The Court held that Belgium
could not bring a claim on behalf of its nationals because the Canadian company suffered the injury and
Canada may still exercise diplomatic protection. Despite the Court’s resolution of the cases on
jurisdictional grounds, both cases illustrate how private individuals can contribute to claims made before
international institutions, even when these institutions specifically and significantly restrict the
involvement of individuals.
Most recently, the Advisory Opinion of the ICJ, which was requested by the World Health
Organisation and the United Nations General Assembly, involved individuals both in initiating the request
and in influencing the authoritative decision itself. The initiation was largely due to the lobbying and other
efforts of the World Court Project (WCP), which is a co-operative effort of International Physicians for
the Prohibition of Nuclear War (IPPNW) and Lawyers for Peace. Over many years, the WCP, through
collective action and through the action of its prominent individual members or outside sympathisers,
lobbied governments about the harm done by the threat, possession, or use of nuclear weapons. Finally, in
1994 the World Health Organisation (WHO), which under article 96(2) of the Charter of the United
Nations is empowered to ask the International Court of Justice for advice on any issue within the scope of
its activities, voted at its annual meeting of the World Health Assembly to ask the Court whether the use
of nuclear weapons in war or other armed conflict was a breach of international law. Despite the lack of
support from the legal counsel of the WHO and consequently only a slight chance of success as concerns
this request, the WCP did not stop its activities but instead lobbied the United Nations General Assembly
to ask a more expanded question about the legality of the use or threat of nuclear weapons. And during the
more than one year that the Court was considering its opinion the WCP continued to accumulate evidence
and lobby world public opinion. And finally, since the Court’s ruling the WCP and many individuals have
continued to push for states to respect the most optimistic tenor of the Court’s rather unclear opinion.19
The influence of the involved individuals and NGOs was noticeable. The initiative caused the
overwhelming majority of the world’s governments and citizens to come out with strong calls for the
illegality of nuclear weapons. Not only did the great majority of states submitting written and/or oral
evidence to the Court call for the illegality of nuclear weapons, but millions of private individuals also
expressed their view that nuclear weapons were illegal. For example, 3,700,000 people—among them 700
non-governmental organisations were represented—signed and delivered a petition to the International
Court of Justice urging it to advise that nuclear weapons were illegal.20

3. Individuals expressing their preferences for particular values and outcomes for specific authoritative
decisions through published work
919
. See Legality of the Threat or Use of Nuclear Weapons, (Advisory Opinion of 8 July 1996), I.C.J. Reports, No. 95 (1996) (especially
dispositive paragraph E in which the Court quizzically opined that “the threat or use of nuclear weapons would generally be contrary to the
rules of international law” (emphasis added)). Also see Green, R., “The World Court’s Advisory Opinion on the Threat or Use of Nuclear
Weapons, Some Personal Impressions,” 10 INESAP-Information Bulletin 28 and 29 (August 1996); Weiss, P., “Notes on a Misunderstood
Decision: The World Court’s Near Perfect Advisory Opinion in the Nuclear Weapons Case,” 10 INESAP-Information Bulletin 29 and 31
(August 1996); Moore, M., “World Court says mostly no to nuclear weapons. Ten of 14 judges condemned the use of nuclear weapons. What
happens next?” The Bulletin of the Atomic Scientists (September/October 1996) and Weiss, P., “And now, abolition,” The Bulletin of the
Atomic Scientists (September/October 1996). Also see Legality of the Use by a State of Nuclear Weapons in Armed Conflict, (Advisory
Opinion of 8 July 1996), I.C.J. Reports, No. 93 (1996) (holding that the WHO’s request was inadmissible because it was not, according to the
Court within the scope of this specialized agency’s mandate).
020
. There were many other manifestations of public opinion. These included: (1) a sample of the 100 million signatures behind the Appeal
from Hiroshima and Nagasaki to have all nuclear weapons declared illegal and banned; (2) numerous demonstrations, including those by
Greenpeace—on 28 October 1995, ITAR-TASS reported that Greenpeace presented the French government with a petition by seven million
people who were protesting the testing of nuclear weapons; (3) 11,000 signatures to the MacBride Lawyers’ Appeal Against Nuclear
Weapons; and (4) a vigil of between 20 and 50 people outside the Peace Palace during each day that the Court heard oral statements.
Additionally, there has been more than fifty years of campaigning by the Campaign for Nuclear Disarmament and other groups of civil
society.
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 Chapter Three: Individual Participation

The use of the written word is an aspect of many different forms of individual participation. This is
perhaps most clearly displayed in judicial decision making concerning human rights in national courts.
For example, in the recent South African Case, The State v. T. Makwanyae and M. Mchunu,21 Justice
Clarkson referred to numerous writers from several different countries in searching for a consensus of
comparative international practice concerning the death penalty.22 And in Filartiga v. Peña-Irala,23 Judge
Irving R. Kaufman relied on several authors in holding that torture was prohibited by customary
international law.24
The value of writers has been given formal recognition in the Statute of the International Court of
Justice which specifically recognises individuals’ writings as one of the subsidiary sources of international
law.25 Nevertheless, the Court has never referred to individual writers in any of its majority opinions. 26
The case is otherwise as concerns dissenting and separate opinions. Judge Christopher Weeramantry, for
example, has often used an extensive variety of materials from writers to capture the variety of cultural
perspectives that often pervade legal problems, yet evade standard legal analysis.27 Like the International
Court of Justice, tribunals, including international human rights bodies, have followed this experience
usually referring to writers only in the separate or dissenting opinions of individual judges. For example,
in the Human Rights Committee individual members have referred to writers in their separate opinions.28
Finally, it is necessary to briefly mention the most frequent form of individual participation relevant
to the process of international human rights law: the claims individuals make in domestic courts. In the
United States individuals have initiated civil suits under the Alien Tort Act29 and the Torture Victim
Protection Act30 claiming that other individuals, whether state actors or individuals, have violated their

121
. Constitutional Court of the Republic of South Africa, Case No. CCT 3/94, (Judgment of 6 June 1995 of Clarkson, P.).
22
. Among the many authors cited were: Rotunda and Nowak, Treatise on Constitutional Law: Substance and Procedure (2d ed. 1992);
Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 315 (1989); Seervai, H.M., Constitutional Law of India (3rd
ed. 1983); Starke, Introduction to International Law (10th ed. 1989); Niekerk, B., van, “Hanged by the Neck Until You Are Dead,” 86 South
African Law Journal (1969); Kahn, E., “The Death Penalty in South Africa,” 33 THRHR 108 (1970); Devenish, G., “The historical and
jurisprudential evolution and background to the application of the death penalty in South Africa and its relationship with constitutional and
political reform,” SACJ 1 (1992); Amnesty International, When the State Kills: The Death Penalty v. Human Rights (1989); Amnesty
International, The Death Penalty: List of Abolitionist and Retentionist Countries, AI Index ACT 50/02/94 (December 1, 1993); Amnesty
International, Update to Death Sentences and Executions, AI Index ACT 51/02/94 (1993); Dugard, J., Rights and Constitutionalism: The New
South African Legal Order (1994); Curlewis, J., 7 SAJHR 229 (1991); Thompson, E.P., Whigs and Hunters, The Origin of the Black Act;
Grimm, D., “Human Rights and Judicial Review in Germany,” in Human Rights and Judicial Review: A Comparative Perspective (1994);
Currie, The Constitution of the Federal Republic of Germany (1994); Price, J., De Rebus 89 (1995). The citations that were incomplete have
been reproduced as they appeared in the Opinion.
323
. 630 F.2d 876 (2nd Cir. 1980).
424
. Among the writers cited were: Sohn, L., “A Short History of United Nations Documents on Human Rights” in Commission to Study the
Organization of Peace, The United Nations and Human Rights (18th Report 1968); Waddock, H., “Human Rights in Contemporary
International Law and the Significance of the European Convention,” II.C.L.Q., Supp. Publ. No. 11 (1965); and Brierly, J., The Outlook for
International Law (1944).
525
. See art. 38(1)(d) of the Statute of the International Court of Justice.
626
. See Jennings and Watts (1996) at 42 and 43, §14.
727
. See, e.g., Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports, No. 95 (8 July 1996) (citing almost
one hundred different sources from almost the same number of writers from a variety of countries).
828
. See, e.g., Individual opinion (dissenting) submitted by Mr. Kurt Herndl pursuant to rule 94, paragraph 3, of the rules of procedure of the
Committee on Human Rights, concerning the Committee’s views on communication No. 412/1990, Auli Kivenmaa v. Finland, (referring to
Humphrey, J.P., “Political and Related Rights” in Meron, T., (ed.), Human Rights, International Law, Legal and Policy Issues 188 (1984))
and Individual opinion submitted by Mr. Kurt Herndl (dissenting) concerning Communication No. 469/1991, Charles Chitat Ng v. Canada
(views adopted 5 November 1993, forty-ninth session) (quoting Bassiouni, C., International Extradition and World Public Order 465 (1974).
929
. Alien Tort Act in Judiciary Act of 1789, ch. 20 §9(b), 1 Stat. 73, 77 (1789), codified at 28 U.S.C. §1350.
030
. Public Law No. 102-256, 106 Stat. 73 (1992) codified at 28 U.S.C. §1350, note (Supp. V 1993).
50
 Chapter Three: Individual Participation

human rights.31 Similar cases have also been initiated in other national courts with mixed results,32 most
notably in the United Kingdom,33 and Spain.34 Individuals may also be able to make claims in national
courts against states35 that are violating their human rights if these claims are not prohibited by obstacles
such as the act of state doctrine36 or sovereign immunity.37 In the 1980’s and 1990’s there has been a
proliferation of claims by individuals. Thus while courts—influenced by governments—continue to rely
on doctrines such as ‘sovereign immunity’ and ‘act of state’ to immunise human rights violators from
responsibility, individuals have not been deterred and continue to claim that human rights abusers can not
be protected by formal doctrines.

4. Individuals publicly demonstrating against human rights abuses by exercising their freedoms of
association, assembly and expression.

The examples of individuals demonstrating against human rights abuses are numerous. They include
grassroots demonstrations like the Greenham Common Women38 or the Gulf Peace Team39 or larger mass
131
. See, e.g., Dolly M.E. Filartiga and Joel Filartiga v. Americo Norberto Peña-Irala, 630 F.2d 876 (2nd Cir. 1980) (hereinafter this case
may be referred to as Filartiga v. Peña-Irala) (under the Alien Tort Act); S. Kadic, on her own behalf and on behalf of her infant sons
Benjamin and Ognjen, Internationalna Inciativa Zena Bosne i Herecgovine “Biser,” Biser and Zene Bosne i Herecgovine v. Radovan
Karadzic, joined with Jane Doe I, on behalf of herself and all others similarly situated; and Jane Doe II, on behalf of herself and as
administratrix of the estate of her deceased mother, and on behalf of all other similarly situated v. Radovan Karadzic (hereinafter this case
may be referred to as Kadic v. Karadzic) (relying on both the Alien Tort Act as well as the Torture Victim Protection Act; recently Mr.
Karadzic has informed the court that he will not appear to defend the case) and, most recently, a children’s welfare organization has filed suit
against the Guatemalan government for the mistreatment of street children, see Derechos Human Rights (hr@derechos.org), “Subject:
Guatemala : CIVIL SUIT AGAINST GOVERNMENT,” posted Wednesday, 12 March 1997, 14:44:21 -08:00 GMT (plain text US-ASCII)
(hard copy on file with author). Also see Saudi Arabia, King Faisal Specialist Hospital and Royspec v. Scott Nelson et U.S., 61 U.S. Supreme
Court Law Week 4253 (23 March 1993) (holding that the acts alleged to constitute torture were acts of state and that Saudi Arabia could thus
claim sovereign immunity).
232
. See Campione v. Peti-Nitrogenmuvek NV and Hungarian Republic, Italian Court of Cassation (1972) reprinted in 65 I.L.R. 287 (1984);
Inter-Science v. Mozambique, South African Supreme Court (1979), reprinted in 64 I.L.R.689 (1983); and Oder-Neisse Property
Expropriation, Oberlandesgreicht Munich (1975) reproduced in 65 I.L.R. 127 (1984) cited in Bianchi, A., “Denying State Immunity to
Violations of Human Rights,” 46 Austrian Journal of Public and International Law 195, 201 at nn. 21 (1994).
33
. Most notably, was a case concerning alleged acts of torture perpetrated by private individuals and state actors, which was dismissed by the
English courts on the grounds of sovereign immunity. Al-Adsani v. Kuwait and three individuals, decided by the Court of Appeal on 15
March 1995, upheld by the Court of Appeal 12 March 1996 and refused leave to appeal by the House Lords on 27 November 1996 (in March
1997 an application was filed with the European Commission claiming violations of articles 3 (torture), article 6 (failure to provide a fair
procedure for determination of one’s civil rights), and art. 13 (failure to provide an effective remedy)).
434
. On 4 July 1996 the Association of Detainees and Disappeared, represented by Joan E. Garces y Ramon, instituted a suit for genocide and
other grave breaches of human rights against former Chilean President Pinochet and other leaders of the Pinochet regime in the civil court in
Valencia, Spain. Another case was brought by the Union of Progressive Prosecutors against members of the Argentine junta for violation of
human rights committed between 1973 and 1990. Documentation concerning these cases is on file with the author.
535
. For example, in the United States, the Federal Tort Claims Act, 28 United States Code §1346, 1402(b), 1504, 2110, 2401 and 2402, 2411
and 2412, 2671-2680 (1988), allows suits against the United States government may be sometimes based on violations of rights that are
protected as international human rights. The cause of action will, however, have to be based on one of the substantive provisions in the above
provisions of the United States Code and not on a common law tort or the law of nations. Suits against foreign governments can be brought
under the Foreign Sovereign Immunities Act of 1976, Public Law No. 94-583, 90 Stat. 2891, as amended by Public Law No. 100-669 (1988),
28 United States Code §1604 (United States)
636
. See, e.g., Underhill v. Hernandez, 168 U.S. 250 (1897) holding that the act of state doctrine prohibited an United States court from
awarding damages to an individual who had been detained by the government of Venezuela despite the fact that the detention appeared to
violate the plaintiff’s human right to liberty of person and the prohibition of arbitrary detention.
737
. See, e.g., the Foreign Sovereign Immunities Act of 1976, Public Law No. 94-583, 90 Stat. 2891, as amended by Public Law No. 100-669
(1988), 28 United States Code §1604 (United States); the State Immunity Act of 1978, entered into force 22 November 1978 or the European
Convention on State Immunity, United Kingdom Treaty Series No. 74 (1979) (a regional treaty). Also see Jennings and Watts (1996) at 341-
355.
838
. The Greenham Common Women, which numbered not more than fifty at their peak, were women who demonstrated against militarization
in Great Britain—especially the placing of nuclear armed missiles—because they believed such activities by the British government violated
the right to peace and threaten world society with even more wide-spread and greater violations. See generally Liddington, J., The Road to
Greenham Common. Feminism and Anti-Militarism in Britain since 1820 (1991).
939
. This group of about a hundred and fifty individuals protested not only against Iraq’s invasion of Kuwait and the allied use of force against
51
 Chapter Three: Individual Participation

protests like the civil rights marches in the United States in the 1960s or marches in France in the 1990s
calling for respect for social and economic rights or the rash of Campaign for Nuclear Disarmament
demonstrations which swept Europe in the 1980’s. Often these activities are examples of individuals
expressing preferences for particular values either expressly or as subsidiary to their immediate concerns.
They are activities that influence decisions-makers who are attentive to the claims and demands of their
constituents. When formal means of petition do not exist, are not appropriate, or are ineffective these
means of making claims and demands are often used. When these strategies are being exercised in the
name of protecting basic human rights the individual participants are fulfilling their responsibility to
ensure respect for human rights. This responsibility is recognised in the preambles of each of the
instruments which make-up the International Bill of Human Rights. There are almost no forms of
government whose public policy cannot be influenced by public demonstrations of discontent. Even in
cases where the right to participate in government or the right of democratic government is at stake, this
has sometimes brought the fall of undemocratic governments,40 whatever affect it may have had on other
human rights. Nevertheless, the influence of demonstrations has been mixed. As John Litchfield has
recently pointed out as concerns economic boycotts of international commercial enterprises while “[t]he
history of consumer protests—from Barclays and South Africa onwards—is littered with examples of
companies being discomfited by association with repressive regimes ... [i]t is harder to prove any serious
example of successful consumer pressure on the regimes themselves.”41

5. Individuals expressing their opinions through the mass media.

One of the most powerful manifestations of individual participation is the expression of opinion
through the mass media. The importance and effectiveness of strategies utilising the mass media to
influence decision making is evidenced by the practice of states.42 For example, Douglas Kellner argues
that “the Bush administration and the Pentagon’s activities before, during and after the Gulf War
demonstrates ... one of the most successful public relations campaigns in the history of modern politics in
the use of media to mobilise support for the war.”43 In the realm of human rights the importance of
expression is perhaps foremost evidenced by the panoply of provisions in international 44 and regional45
human rights treaties guaranteeing the right to freedom of expression. Furthermore, several of these
instruments express the concern of states that freedom of expression is so powerful an ideological
instrument that certain forms of expression must be controlled or prohibited. 46 The relevance of these
provisions for the activities of individuals protecting other individual’s human rights has been recognised
in the Draft Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms. During the

Iraq, but also the violation of human rights in Iraq that was perpetuated by the Iraqi government or caused by constraints imposed upon the
Iraqi government that made it impossible for it to ensure respect for the basic human rights of individuals in Iraq.
040
. A primary example might be the demonstrations in Moscow, Prague, Berlin, and Bucharest during the 1980s and 1990s, which
contributed to substantial changes in the governments of the Former Soviet Union, Czechoslovakia, East Germany and Romania, respectively.
141
. Litchfield, J., “How to save the world without leaving your high street,” The Independent, Monday, 18 November 1996 at p. 11.
242
. See Chomsky, N., and Herman, E.S., Manufacturing Consent: the political economy of the mass media (1988); Fonda, M., “Indigenous to
Cyberspace. The Gulf War, IBM, and Public Relations,” 3(6) The Internet Business Journal 1-4 (June 1996); Chen (1989) at 287-300; and
Murty, B.S., Propaganda and World Public Order: The Legal Regulation of the Ideological Instrument of Coercion (1968).
343
. Fonda (1996) at 1 citing Kellner, D., Media Culture: cultural studies, identity and politics between the modern and postmodern (1995).
Also see Hamelink, C.J. and Mehra, A., (eds.), Communication development and human rights in Asia, Proceedings of a Seminar held in
Bangalore from 9-11 May 1988 (1990) and Altschull, J.H., Agents of Power: the role of the news media in human affairs (1984) (both these
works cite other examples of the effective use of media by governments).
44
. See, e.g., art. 19 of the ICCPR, arts. 13 and 17 of the CRC, and art. VII of the Declaration of the Principles of International Cultural
Cooperation, proclaimed by the General Conference of UNESCO on 4 November 1966.
545
. See, e.g., art. 10 of the ECHR, art. 13 of the ACHR, art. 9 of the ACHPR and the Helsinki Final Document.
646
. See, e.g., art. 20 of the ICCPR, art. 4 of CERD and art. 13(5) of the ACHR.
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 Chapter Three: Individual Participation

eleven years of drafting this declaration many governments, especially those from Western European and
North American countries, have stressed the importance of human rights defenders’ ability to have access
to the media and to sources of information. The following articles from the draft declaration are examples
of the preference that states have expressed with the urging and agreement of non-governmental
organisations involved in the drafting process:47
Everyone has the right, individually and in association ... ,
(b) to publish, impart or disseminate freely to others views, information and knowledge of
universally recognised human rights and fundamental freedoms ... .
Everyone has the right, individually and in association, to study discuss and form opinions as to
whether these rights and freedoms are observed, both in law and in practice ... .
Everyone has the right to develop and discuss new human rights ideas and principles, and to
advocate their universal acceptance.
While the draft declaration does not restate all the rights that human rights defenders have under existing
international law it does, as the above draft articles indicate, restate the right to freedom of expression and
acquisition of information. This is the right most closely associated with access to the mass media. This
illustrates the importance that human rights defenders attach to the ability to communicate their support
for human rights.
Exercises of individual expression usually indirectly influence authoritative decisions. Individuals are
influenced by information they receive and authoritative decisions-makers are no exceptions. They read
books, newspapers and magazines. They listen to radio and television programmes. And an increasing
number of them use other sources of publicly available electronic media to form their ideas of social
problems and to influence their decisions. These modern sources of information include the Internet,
which is accessible to millions of individuals as an interactive means of communicating and receiving
ideas. Used intelligently, both the expression of one’s ideas and the distribution of information of others’
ideas can influence decision making processes relevant to the achievement of the values of human dignity.
For example, campaigns in the 1990’s against nuclear weapons testing by France, the Shell company’s
support of regimes that violate human rights, and the Sudanese government because of its human rights
violations, are just a few examples that have had concrete results in encouraging greater respect for human
rights by the governments concerned. Although the necessary socio-historical research is beyond the
scope of this study, it is safe to assume that demonstrations by individuals acting in their private capacities
with other like-minded individuals are at least as effective a means of ensuring respect for human rights as
the actions of states who use military or economic force for the alleged goal of ensuring human rights. It is
also unquestionably true that the integrity of private actions is often much higher because individuals are
taking risks based on their beliefs in values of human dignity and not based on the political objectives that
drive state action, which is often based on the values of world public order rather human dignity.
The right to express support for human rights through the mass media is utilised in practice, although
to a much lesser degree than is potentially possible. When prominent individuals make statements about
human rights violations they contribute to forming the international policy agenda. Examples are the
statements of the Dali Lama about the human rights of Tibetans or Dawn Aung San Suu Kyi about human
rights in Myanmar which brought these matters to the attention of world society through the mass media.
Under the right circumstances even ordinary individuals may be able to bring an issue into the public eye.
The campaigns of private individuals drew the world’s attention to the famine in Africa in the mid-1980’s
and the violent suppression of pro-democracy demonstrators in China in 1989. The annual reports of
Amnesty International and Human Rights Watch are peppered with similar examples. Greater individual
participation in exposing human rights violators and cases of human rights violations through the mass
media is still substantially lacking in world society. At the same time the potential of mass media for

747
. U.N. Doc. No. E/CN.4/1996/97 of 29 March 1996.
53
 Chapter Three: Individual Participation

influencing decision making have become better known.48

Factors Influencing Individual Participation

Individual participation in the processes of international human rights law takes place under the
influences of a multitude of factors. These influencing factors are external and internal to the individual,
ranging from societal events to a single individual’s perception of events and environmental stimuli. The
range and degree of influences varies according to each individual’s circumstances. Influences have
several functions. They contribute to the forming of individual consciousness and ultimately to the social
actions of every human being. They explain observed events and manifestations and help us to more
carefully observe other facets of individuals’ social action. And they contribute to forming the individual
consciousness that is the starting point of individual values, human rights and the optimalisation of the
values of human dignity.
There are two reasons why it is important to consider the influences on individual behaviour. Each of
these reasons are related to either understanding or influencing the process of international human rights
law. One reason is that to understand the functioning of the individual in the process one must observe the
process as well as the individuals which create it. The norms of law and other outcomes are merely the
end points of a process that begins with the individual consciousness and progresses through social action.
Thus when we say or read that there is a right to life or a prohibition of torture—two of the most widely
accepted human rights—we are describing the outcome of a much more complicated and extended
process. The process we are describing must have begun in the minds of certain individuals. At its most
ancient starting point it may have been a counter-point. Individuals may have agreed that the taking of life
and torture were permitted. Indeed, there is evidence that this was true in ancient times as both these
enterprises were practised with regularity. At some point one individual or a small group of individuals
must have decided that there was something about the taking of life and torture that troubled them.
Although these initial efforts may have met with insurmountable opposition, they were the start of the
prohibition of torture and the right to life under international law. Recognising this, one must ask what
caused people to form their beliefs and influenced their application of these beliefs in practice and through
social action. These questions compliment the technical questions about how community policies and the
norms of international human rights law are created. One must understand what has come before in order
to truly understand the contemporary.
Another reason for considering influences goes beyond understanding and extends to influencing
individual social action. In Analyst, Confucius commented that “[t]he people may be able to follow a
course of action, but they may not be able to understand it.” It is probably often true that individuals claim
human rights, but do not understand what they are claiming. However, by understanding why people act
and what influences their actions towards achieving basic values, observers might be able to become
involved in prescriptive instruction to actors as well as influencing individual action to optimalise the
achievement of the values of human dignity. In simple terms, if we know what makes other individuals act
we can better convince them to respect international human rights law.
Influences may be classified according to several categories of influences: (1) those centring on the
individual, (2) those emanating from society, and (3) those that are reconstitutive.
Influences centring on the individual—broadly and subjectively described as one’s biology,
psychology and logic—are influences that are determined by each individual’s uniqueness. Each
individual will possess attributes that emanate from within themselves, attributes that vary from one

848
. See, for example, Ports, D.L., and McCombs, M.E., (eds)., Agenda setting: readings on media, public opinion, and policy making (1991);
Salmon, C.T., and Glasser, T.L., Public opinion and the communication of consent (1995); Bennett, W.L., and Paletz, D.L., Taken by storm:
the media, public opinion, and U.S. foreign policy in the Gulf War (1994); and Said, E.W., Covering Islam: how media and the experts
determine how we see the rest of the world (1981). Compare Lemert, J.B., Does mass communication change public opinion after all? A new
approach to effective analysis (1980).
54
 Chapter Three: Individual Participation

individual to another and which are unique from one individual to another. These attributes may have
undergone several stages of development. They may have been part of one’s adaptation to an
environment, nurtured through upbringing, decomposed through consciousness building, and affected by
the experience of exposure to the social processes. The influences that are relevant are those that effect an
individual’s decision making capacity.
Influences emanating from society include, for example, those emanating from technology,
anthropology, economics, politics, history, the temporal context and situational factors. The distinguishing
characteristic of these influences is that they are the result of communal activity—what groups do, rather
than individuals. The distinction though is a thin one as all group action may be described as the collective
action of the individuals who form the group. The influences of society on individual participation is an
area of in law that needs further detailed research.
The term ‘reconstitutive’ emphasises the reflexive and fluent interaction between the influencing
factors described above and the individual.49 It is the totality of experience of self and influences. It is part
of what Anthony Giddens refers to when he states that
[s]elf-identity is not a distinctive trait, or even a collection of traits, possessed by the individual. It
is the self as reflexively understood by the person in terms of her or his biography. Identity here
still presumes continuity across time and space: but self-identity is such continuity as interpreted
reflexively by the agent ... the cognitive component of personhood.50
Although relying on the individual’s psychology, it is much more than the cognitive
element of the psychological influences described above because it describes not
only the influences of emotions, but the process by which emotions reconstitute the
values an individual holds. Reconstruction, is thus an aspect of process. An example
of a reconstitutive influence might illustrate this. The value of respect for life is a
good one. An individual who values life and respects others’ lives as a consequence
of this might seek to establish this value as a norm. He or she might call this norm
the human right to life. In so doing the value of the life becomes a normative right to
life. The reconstitutive influence is the affect that the norm now has on the same
individual’s values. Having determined that there is a right to life the individual may
now seek to rely on this right instead of the more basic value to protect his or her,
or another’s, life. Furthermore, others’ perception of the value of life may be
changed. Indeed succeeding generations may refer to the normative right to life to
establish policies for protecting life rather than to the basic value. Over time the
right may even alleviate need to refer to the value. And the right might help to
clarify the value, either restricting it or expanding it. And finally, the right might
influence the interpretation of other rights. All these influences, whereby one factor
reconstitutes other factors or elements of identity, may be called reconstitutive.

949
. See Giddens, A., Modernity and Self-Identity. Self and Society in the Late Modern Age 52-55 (1991) (discussing the reconstitutive
influences as reflexive awareness).
050
. Id. at 53.
55
 Chapter Four: Factors Influencing Individual Participation

CHAPTER FOUR

FACTORS INFLUENCING INDIVIDUAL PARTICIPATION

So fundamental are man, the state and the state system in any attempt to understand international relations that
seldom does an analyst, however, wedded to one image, entirely overlook the other two.
Waltz, K., Man, the State and War 160 (1959).

It is necessary to reverse the common opinion and acknowledge that it is not the harshness of a situation or the
sufferings it imposes that lead people to conceve of another state of affairs in which things would be better for everyone.
It is on the day that we are able to conceive of another state of affairs, that a new light is cast on our trouble and our
suffering and we decide that they are unbearable.
Sartre, J.-P., Being and Nothingness 434 and 435 (1957)

The self is not a passive entity, determined by external influences; in forging their self-identities, no matter how local
their specific contexts of action, individuals contribute to and directly promote social influences that are global in their
consequences and implications.
Giddens, A., Modernity and Self-Identity 2 (1991)

We are not beings that lack will or individuality because we are affected by a vast number of influences. On the
contrary, we are highly individual because all these influences impinge on us, evoking different responses simply
because we are different.
Curle, A., Another Way. Positive response to contemporary violence 17 (1995)

56
 Chapter Four: Factors Influencing Individual Participation

FACTORS INFLUENCING INDIVIDUAL PARTICIPATION

CHAPTER FOUR

FACTORS INFLUENCING INDIVIDUAL PARTICIPATION

57
 Chapter Four: Factors Influencing Individual Participation

FACTORS INFLUENCING INDIVIDUAL PARTICIPATION

This chapter examines the various perspectives and influences on individual social action. It begins with
the recognition that individuals are viewed through various disciplinary perspectives. It also examines some
categories of influences under three headings: (1) those centring on the individual, (2) those emanating from
society, and (3) those that are reconstitutive.

Individuals in the Process of International Human Rights Law

Individual participation in the processes of international human rights law takes place under the
influences of a multitude of factors. These influencing factors are external and internal to the individual,
ranging from societal events to a single individual's perception of events and environmental stimuli. The
range and degree of influences varies according to each individual's circumstances. Influences have several
functions. They contribute to the forming of individual consciousness and ultimately to the social actions of
every human being. They explain observed events and manifestations and help us to observe other facets of
individuals' social action. And, they contribute to forming the individual consciousness that is the starting
point of individual values, human rights and the optimalisation of the values of human dignity.
It is not possible to enumerate all the factors that influence individual participation, but it is possible to
identify some examples. This task has three purposes. First, they indicate that there are a variety of influences
at work that are relative to the attributes of different actors. Second, they direct attention to classifications or
groupings of these actions according to their general features and the perspectives of different disciplines and
observers. Third, they contribute to identifying the elements of individual action that can be considered by an
observer trying to describe or influence the social action of individuals. They do this by providing indications
of how and why individuals act. And fourth, they make it clear that individual participants whether acting in
their private capacity or as members of groups or institutions are always subject to external and internal
influences.

The Importance of Considering Influences

There are two reasons why it is important to consider the influences on individual behaviour. Each of
these reasons are related to either understanding or influencing the process of international human rights law.
One reason is that to understand the functioning of the individual in the process one must observe the process
as well as the individuals which create it. The norms of law and other outcomes are merely the end points of a
process that begins with the individual consciousness and progresses through social action. Thus when we say
or read that there is a right to life or a prohibition of torture--two of the most widely accepted human rights--
we are describing the outcome of a much more complicated and extended process. The process we are
describing must have begun in the minds of certain individuals. At its most ancient starting point it may have
been a counter-point. Individuals may have agreed that the taking of life and torture were permitted. Indeed,
there is evidence that this was true in ancient times as both these enterprises were practiced with regularity. At
some point one individual or a small group of individuals must have decided that there was something about
the taking of life and torture that troubled them. Although these initial efforts may have met with
insurmountable opposition, they were the start of the prohibition of torture and the right to life under
international law. Recognising this, one must ask what caused people to form their beliefs and influenced
their application of these beliefs in practice and through social action. These questions compliment the
technical questions about how community policies and the norms of international human rights law are
created. One must understand what has come before in order to truly understand the contemporary.
Another reason for considering influences goes beyond understanding and extends to influencing
individual social action. In Analects, Confucius commented that "[t]he people may be able to follow a course
of action, but they may not be able to understand it." It is probably often true that individuals claim human
58
 Chapter Four: Factors Influencing Individual Participation

rights, but do not understand what they are claiming. However, by understanding why people act and what
influences their actions towards achieving basic values, observers might be able to become involved in
prescriptive instruction to actors as well as influencing individual action to optimalise the achievement of the
values of human dignity. In simple terms, if we know what makes other individuals act we can better
convince them to respect international human rights law.
This study relies on several perspectives and classifications. The perspectives are the vantage points of
the 'observers'. These are discussed according to several disciplinary perspectives. The classifications are the
identity of distinctions between the 'observed' phenomena. These are discussed according to several
categories of influences: (1) those centring on the individual, (2) those emanating from society, and (3) those
that are reconstitutive.

Observational Perspectives

There are many perspectives from which to view the factors affecting human behaviour. Social
psychologists have tended to concentrate on situational and interpretative factors. Thus a widely used
textbook on this subject instructs its readers that "[s]ocial psychologists emphasize two points .... [t]he first is
the power of a situation to determine a person's social behavior ... [t]he second is the importance of the
person's interpretation of a situation in determining his or her response to it."55 These two observational
criteria allow one to detect a degree of moral intensity within organisational structures.56 The components of
moral intensity have been defined in terms of (a) the magnitude of consequences; (b) the social consensus; (c)
the probability of effect; (d) the temporal immediacy; (e) the proximity of actors and affected individuals to
each other; and (f) the concentration of effect.57 It has also been Recognized, however, that there is an
uncertainty with which such influences may be measured and that "the net effect" of potential or real "biases
in cognitive processes on moral decision making is unknown."58
Other social scientists from biology, history or archaeology have postulated more pre-determined
hypotheses of human behaviour based on the evolution of human beings. They start from the recognition in
the earliest era of human development that the influences on individuals' actions appear to be limited to
immediate stimuli. The first human beings appear to have had perspectives of society that were influenced by
their primitive ideals or goals. Discussing the earliest evidence we have of human life on earth some half
million years ago, historian H.G. Wells suggests that human beings "thought very little about anything but
immediate things."59 The evidence suggests that the earliest individuals merely reacted to their environment
on the basis of immediate situations and stimuli. In so doing they failed to consciously form comprehensive
polices concerning their existence and merely lived from day to day or situation to situation. The social order
of the earliest human beings was probably influenced by their most innate needs for nourishment and
affection and based on selfish instincts of survival nurtured by fears of the unexplained. Many of these needs
are still considered to be relevant to public policy today. Abraham Maslow's theory of a hierarchy of material
and psychological needs starts with the needs of food, clothing and shelter. 60 These basic needs are today
reflected in international human rights law. This reflection illustrates the connection of the past common
heritage of all human beings to our common development today. As small family clans evolved into tribes
and then into larger organisational bodies individuals in society began to think in terms of common values. In
each society customs or rules evolved for the treatment of its members. These customs and rules
55.
Atkinson, R.L., Atkinson, R.C., Smith, E.E., Bem, B.J., and Nolen-Hoeksema, S., Introduction to Psychology 713 (11th ed. 1993) (hereinafter
Introduction to Psychology).
56.
Jones, T.M., "Ethical Decision Making by Individuals in Organizations: An Issue-Contingent Model," 16(2) The Academy of Management
Review 366 (1991).
57.
Id. at 373.
58.
Id. at 389-377.
59.
Wells, H.G., The Outline of History 100 (Revised Edition 1972).
60.
See generally Maslow, A.H., New knowledge in human values (1959) and Malsow, A.H., Motivation and personality (2nd ed. 1987).
59
 Chapter Four: Factors Influencing Individual Participation

encompassed many aspects of our modern concept of law, they were based on the claims, demands and
expectations of individuals in a group and required conforming action carrying with them varying degrees of
sanctions for their non-observance. Most of these customs and rules, however, related to local groups and did
not concern all the groups. This is partially explained by groups' ignorance of each other. As society became
more complex and the number of individuals and individual interests multiplied so did the means by which
claims and demands were made. Most historians gauge the most reliable recorded evidence of this
development to be around the time of the Greek city states.
Still other perspectives have viewed the individual as very much a creature of his or her social
environment. This has often been the case of specialists in political science, international relations and policy
studies who have devoted attention to the factors that influence specific decisions. Attention has usually been
concentrated on influences on institutional actors. Political scientists from Harold Lasswell and Michael
Waltz to Volker Rittberger and Fred Halliday have grappled with explanations for the actions of states. Rare
exceptions to this practice exist, however. For example, in a speech delivered by Michael Leifer at the
London School of Economics,61 Leifer draws attention to the influence of non-state actors on state policies.
His remarks, which are particularly relevant to human rights, implicitly suggested that non-state actors--
which presumably include individuals--can influence how states act. Accordingly he looked at how state
actors influence individual action, but with a rather pessimistic conclusion. Although this gets us only
marginally further than the concentration on institutional entities it is a conscious recognition of other
participants and the interaction of influence.
Among legal scholars, while the majority of the attention has been given to rather formal factors
influencing decision making, there has also been attention to influences on social action both in and outside
particular decision making processes. A poignant example of a scholar grappling with this issue in the context
of judicial decision making is Benjamin N. Cardozo who was an Associate Justice of the United States
Supreme Court. He discusses the influences on judges in his book, The Nature of the Judicial Process first
published in 1921 and based on the Storrs Lectures Delivered at Yale University. In this book Cardozo
describes the functions of the judge as an authoritative decision maker in terms of philosophy, history,
tradition, sociology, and precedent as well as in terms of the function of legislator. 62 These elements, Cardozo
suggests, influence how judges act and the decisions they make.63
Historians have also contributed an array of perspectives on social action. Initially these perspectives
were subsumed below a façade of objectivism, but it has become increasingly popular for historians to admit
and apply their subjective perspectives to which we are exposed to different perceptions concerning the
formation of values. Furthermore, some of the leading historians are contributing to prescriptive history in the
application of their perspectives. Paul Kennedy's Preparing for the Twenty-First Century is frequently cited
as an example of this latter movement. The perspective of the historian has thus become entangled with that
of other social scientists considering both ancient and contemporary events and being as prescriptive as it is
descriptive.
Finally, there are a variety of studies that combine perspectives from numerous disciplines to explain the
origin and future of the actions of individual human beings. These range from astrology, spiritualism and
religion which play a significant part in the lives of many individuals, to globalism, phenomenology and
critical studies which claim to bridge the distinctions between distinctive disciplines by concentrating on
problems, solutions or world society in its broad context. Examples of global studies include the work of Paul
Kennedy, Richard Falk and Roberto Unger that are discussed in the course of this study. These writers take
into account the observational elements and techniques of several different disciplines in their attempts to
inform contemporary policy making.
61.
Leifer, M., "East Asian Values and the Politics of Enlargement," a speech delivered at London School of Economics during the spring of 1995
(unpublished manuscript provided to the author by Michael Leifer). Professor Leifer was considering American policies of enlargement in
Southeast Asia.
62.
Cardozo, B.N., The Nature of the Judicial Process 10-13, 177 (1921).
63.
Id. at 177.
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 Chapter Four: Factors Influencing Individual Participation

The above examples of different perspectives illustrate that the determination of appropriate influencing
factors may vary widely depending on one's perspective. It is important to remember that they are only
examples and that there are many more perspectives that individuals can hold. Furthermore, individual policy
makers, judges and other authoritative decision makers will often have a mixture of these perspectives and
institutional decision making bodies will usually be made up of a number of individuals with a variety of
perspectives.
Below the various influences are discussed in three categories. These categories are (1) influences
centred on the individual, (2) influences centred on society, and (3) reconstitutive influences. These categories
are open to the criticism that they are an incomplete description of the human condition. 64 But they are
justified because they nevertheless, represents a categorisation that facilitates understanding of the intricate
and interrelated connection between an individual and society by providing us a viewpoint through which to
view this relationship. Specific influences will now be discussed according to each of the categories.

Influences Centring on the Individual

Influences centring on the individual--broadly and subjectively described as one's biology, psychology
and logic--are influences that are determined by each individual's uniqueness. Each individual will possess
attributes that emanate from within themselves, attributes that vary from one individual to another and which
are unique from one individual to another. These attributes may have undergone several stages of
development. They may have been part of one's adaptation to an environment, nurtured through upbringing,
decomposed through consciousness building, and affected by the experience of exposure to the social
processes. The influences that are relevant are those that effect an individual's decision making capacity. For
example, minors or mentally handicapped persons might require guardians for their participation. They do not
cease to become participants, but the form in which they participate varies. To take the example one step
further, one might note that the mere existence of a child is a form of participation in the process of
international human rights law, because it provides the focus of others' efforts to achieve children's rights and
provides an individual on whose behalf a petition may be made to bodies that make authoritative decisions
concerning these rights. Even the weakest and most vulnerable participant can serve as a vehicle for others'
participation. And as will be illustrated in chapters seven and eight, certain attributes might provide for
greater ability to use one's rights to participate as well as greater responsibilities for participation.
The three categories of influences that this section will examine are those in the areas of biology,
psychology and logic.
Biological influences are physical traits such as gender, race, age, strength and other physiological
attributes of an individual. Each of these traits may influence an individual's ability to participate in different
ways. For example, women will usually be better able to participate in the protection of their human rights in
a society with a high degree of respect for women, while in a society that does not respect womanhood,
women will undoubtedly show little respect for their human rights. There are also numerous vulnerable
groups who must rely on others for the protection of human rights because society denies them the ability to
participate in processes through which their and others' human rights can be protected.
Differences in personal characteristics may also contribute to an individual's ability to participate in the
social process. An individual with a greater degree of physical tolerance may have to spend less time and
energy acquiring the necessities of life and may, therefore, be better placed to treat others with respect for
their basic human rights and to take steps to promote others' rights. At the same time an individual who has
health problems may spend more time concerned with protecting their own well-being instead of promoting
others. In each case the social responsibilities must be determined by a consensual standard, but the means by
which an individual is able to contribute to and implement this consensus may vary greatly.

64.
See generally, Bourdieu, P., The Logic of Practice (1992). This book is devoted in large part to demonstrating that individuals exist in harmony
and integrated with their social environment.
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 Chapter Four: Factors Influencing Individual Participation

A key to understanding how individual's participate, and can participate, is understanding why
individuals act as they do. Influential writers have argued that it is necessary to examine the biological
characteristics of individual human beings to be able to account for their actions. In The Naked Ape,
Desmond Morris put forward the thesis that it is necessary to study the biological aspects of human kind to
"really acquire a balanced, objective understanding of our extraordinary existence."65 He argues that
biological attributes influence individual participation in society by providing the basis for commonality or a
common affinity and basic traits or habits. Examples are women who feel an affinity with the claims for the
human rights for women or children who have a special affinity with the claims for children's rights. In these
cases the biology of being a woman or a child can be said to influence how claims, demands and expectations
by women or children for their human rights are understood. The affinity within racial groups may lead to a
greater willingness to exclude members of other races. This may lead to racial hatred, and discrimination.
There are also some traits, according to Morris, that exercise extensive influence on social behaviour. For
example, of sex he makes the bold assertion that "the advance of civilization has not so much moulded
modern sexual behaviour, as that sexual behaviour has moulded the shape of civilization." 66 This statement
reflects Morris' preference for a degree of biological determinism: that the individual is determined at least in
substantial part by innate physical characteristics obtained at birth. It is something that can be seen in writings
as diverse as Charles Robert Darwin's The Origins of Species from 1859,67 in his reference to the natural
selection of the species, and Avram Noam Chomsky's Syntactic Structure from 1957, in his reference to the
innate disposition of the human mind. Thus 'biological determinism', in one form or another has retained its
influential supporters well beyond the span of a century. But while it may in some sense seem irrefutable (for
example, we are all human beings and must therefore have common affinities), it is nevertheless
unconvincing as the only explanation for understanding of the social action of an individual. A major reason
this is so is because individual's possess traits that they develop throughout their lifetime that allow them to
account for deficiencies or enhanced endowments of certain biologically determined traits. This will become
apparent as influences from other categories provide ample evidence of their effects on human behaviour. But
before moving on to other determinates, it is wise to reiterate the conclusion that biological factors do
influence our prescriptive and contentious decision making processes and provide us with insight as to how
this process may be influenced. They do so because through our bodies and influenced by their differences,
we as individuals participate in claiming, demanding and expecting certain basic human rights. But the way
in which biological influences contribute to our ability to participate is complex and itself indicates other
influences are at work. Our bodies, as Anthony Giddens tells us, "can no longer be taken as a fixed--a
physiological entity--but has become deeply involved with modern reflexivity."68
Psychological influences compete with biological influences in the decisions that individuals make.
Psychological influences consists of an individual's attitudes and emotions; the morals, fears and courage that
inhibit an individual. They may also include dysfunctional traits or abnormalities, such as the psychiatric
aliments or perceived psychological disorders. Psychological factors develop within the internal environment
of the individual, although they may be influenced by external stimuli. In part they are biological themselves
in that they may depend on the biological balance of chemicals within the human body. But in part they are
also dependent on a mixture of life experience and its internal digestion in the recesses of an individual's
mind. Psychological influences are predisposition’s established over one's lifetime; influenced by the
biological and contextual factors which influence one's life. They are reflected in the statement that "every
individual brings a unique set of personal attributes to a situation . . . and each situation brings a unique set of

65.
Morris, D., The Naked Ape 10, 21 (1967).
66.
Id. at 43.
67.
Also see Herrnstein, R., and Murray, C.A., The Bell Curve: intelligence and class structure in American life (1994) (arguing that intelligence is
innate biological quality).
68.
Giddens, A., Modernity and Self-Identity, Self and Society in the Late Modern Age 218 (1991).
62
 Chapter Four: Factors Influencing Individual Participation

forces to bear on the individual."69

The influence of psychology is often a function of external factors--such as time and space, history and
tradition, logic and wealth. As Gary Goertz points out concerning the person of an elite decision maker, "[i]n
some circumstances the variability of behavior may be greater than in others."70 Measuring the influence of
an individual's psychology on a specific decision is not easy particularly in light of the influence of other
factors on this factor. Some psychologists have suggested that social psychologists "tend to give too much
weight to dispositional factors and too little to situational factors."71 But if this is the case in the field of social
psychology, the opposite must be true among international lawyers and many political scientists who have
tended to ignore or lightly dispense with the psychological determinants of particular decisions. Whatever the
weight of an individual's psychology in determining a decision, and ultimately an outcome, in the process of
international human rights law, the influence of an individual's psychology traits cannot be so negligible as to
allow us to ignore them as we have done for so long.
The subjective attribute of individual identity is an important, but often consciously ignored, attribute of
authoritative decision making by members of the national and international judiciary. International lawyers
have not usually Recognized this influence and have frequently referred to judges and other authoritative
decisions makers as solely part of larger institutional organs. In other words, international law has been
notorious for identifying the authority of institutional decision makers at the expense of the individual.
Charles W. Kegley, Jr., has criticised a similar neglect in the field of political science in words that are
equally applicable to most studies of international law, writing that many scholars "have proceeded as if those
individuals who make foreign policies--their characteristics, as well as the procedures they follow in the
formation and implementation of foreign policies--do not count."72 As argued above, the sociological data
available tends to support the view that perspectives of particular individuals do influence their decisions and
consequently the authoritative decisions of bodies to which they belong. A striking example of the influence
of the particular value preferences of individuals on institutional decision making is the recent advisory
opinion of the International Court of Justice concerning the Legality of the threat or use of nuclear weapons.73
An observer familiar with the opinions of the judges' that had been expressed in their earlier writings could
clearly see the consistency between most of the judges separate advisory opinions and their earlier or present
beliefs as expressed in their academic writings. This is not to say that judges do not change their minds or that
they can not be convinced to do so. Nor is it a criticism of the integrity of their exercise of the judicial
function. It is merely a recognition that the personal perspective of an authoritative decision maker influences,
and by the same token can enhance, the task of decision making. In fact, failure to study the perspectives of
authoritative decision makers, in so far as they have been expressed in their writings, public addresses, public
activities, etc., almost amounts to an act of negligence by anyone who is trying to influence a decision. Each
of us can cite personal examples whereby our own societal perspective has led us to make political choices
that are different from those of others around us. And it is doubtful that any realistic political or judicial
observer can defend the position that any specific decision maker fulfils his or her task of authoritative
decision making without influence from contextual factors.
Many of the influences discussed below are functions of psychological perspectives, especially those
psychological characteristics associated with preference or choice. Often these characteristics can be
described as the emotional interests of individuals. Most people want a basically comfortable standard of
living because it is satisfying for them and makes them feel good. As modern media has repeatedly
69.
Introduction to Psychology at 713.
70.
Goetz, G., Contexts of International Politics 45 (1994) (claiming that the "constraints of the international system" gave American President
Ronald Reagan more scope to express his preference for using force "in places like Grenada or Libya" when "under a different administration one
might have expected different actions." Id.).
71.
Introduction to Psychology at 741.
72.
Kegley, C.W., Jr., "Decision Regimes and the Comparative Study of Foreign Policy" at 247 in Hermann, C.F., Kegley, C.W., Jr., and Rosenau,
J.N., New Directions in the Study of Foreign Policy (1987).
73.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, [1996] I.C.J. Reports Nos. 95 and 96 (8 July 1996).
63
 Chapter Four: Factors Influencing Individual Participation

emphasised the "feel-good" factor cannot be ignored when considering what influences individuals. It is a
factor that leads to choices being made about what, how, when, where, to what degree and with what means
claims, demands and expectations about basic values are expressed. The closeness and intensity with which
psychological forces can influence behavior is something that has to be Recognized in considering
individual's decision making--both as legislative prescription and judicial or specific case determinations.
Concerns for the psychology of decision makers is a long Recognized part of how legislatures make laws74
and how judges decide cases.75 And each individual's psychological profile contributes to determining how
they participate in making claims, demands and expressing expectations in the process of international human
rights law.
Having Recognized the subjective particularities of individuals' psychology, it is wise also to
immediately mediate this with the consideration of the logical aspects of individual action. Logic implies a
communally accepted standard. It is generally defined as a system of valid inference. 76 For some it has been a
rational system of mental processes,77 for others it is an antithesis of mental rationality that by transference
dissolves or combines psychology in objective scientific rationality whose source is outside the individual. 78
Karl A. Popper as an advocate of the latter form of logic has argued for a theory of logic that he defines as
one of "deduction or of derivability" or "essentially, the transmission of truth and the retransmission of
falsity" in which "a valid inference truth is transmitted from the premises to the conclusion [italics in
original]."79 In individual action, following this description of logic, one may describe the individual process
as one of determining one's actions through conscious implementation of strategies to achieve particular
outcomes. This is opposed to the psychological basis of individual action that may be described conversely as
conscious consideration of outcomes--that is, without the implementation of specific strategies aimed at
achieving these outcomes.
In practice individuals usually display an innate ability to apply logic. This consists of rational thinking,
the reasoning through of problems and, more generally, education itself. Logic has traditionally been
understood as the inductive or deductive means of arriving at a given outcome or conclusion. While this
theoretical thesis has been the concern of many logisticians, 80 a more realist approach to this discipline is
needed to contribute to the application of individual values to specific problems. A realist approach to logic is
supplied Karl Raimund Popper. Contrary to Ludwig Wittgenstein's famous charge that "logic must take care
of itself," Popper developed a realist theory of logic that was inextricably linked to the individual and the
reality of society. An explanation of this realist logic is expressed in Objective Knowledge published in
1972.81 Although Objective Knowledge is a work of methodological significance and tone rather than

74.
Bentham, J., An Introduction to the Principles of Morals and Legislation (1824 edition) at 65 reprinted in Ryan, A., (ed.), Utilitarianism and
Other Essays. J.S. Mill and Jeremy Bentham (1987). Bentham's attention to the "happiness of the party whose interest is in question", id. at 65, and
his later instruction that "[i]t is in vain to talk of the interest of the community, without understanding what is the interest of the individual," id. at
66, as well as his consideration of a long list of pleasures and pains, id. at 89-97, are an indication of how these psychological factors influence the
making of legislation in the domestic sphere. Given the more political nature of the international prescriptive processes Bentham's considerations
must be equally applicable to it as well.
75.
Cardozo, B.N., The Nature of the Judicial Process (1921). Cardozo states that "[j]udges cannot escape the current any more than other mortals."
Id. at 12. He goes on to describe the influences as those "forces which they do not recognize and cannot name, [that] have been tugging at them--
inherited instincts, traditional beliefs, acquired convictions" which might be better characterized as biological rather than psychological influences.
Id. However, he also states, in a clear recognition of what must be at least in part described be psychological attributes, that
the resultant is an outlook on life. a conception of social needs, a sense in James's phrase of "the total push and pressure of the cosmos," which,
when reasons are nicely balanced, must determine where choice shall fall. In this mental background every problem finds its setting. We may try to
see things as objectively as we please. None the less, we can never see them with any eyes except our own. Id. at 12 and 13.
76.
The Oxford Dictionary of Philosophy, (compiled by Simon Blackburn), 221-222 (1994).
77.
See generally, Hume, D., Treatise on Human Nature (1888).
78.
See, for example, Popper, K.A., Objective Knowledge 6 and 7, 24 (1972).
79.
Popper, K.A., Objective Knowledge 304 (1972).
80.
For example, Gottlob Frege's Begriffsschrift (translated from the German: Writing Understood) (1879) was an essay basing logic in formal
mathematical proofs.
81.
Popper, K.R., Objective Knowledge (1972).
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operational logic applied to human action, it provides an adequate insight to Popper's theory of realist logic
that corresponds to human action. This work reiterates one of the postulates that won Popper acclaim,
namely, that logic is a function of "approximating the truth" based on hypothesis that could withstand
refutation, although never be proven. In terms of individual action this suggests that individuals are
influenced by logic or influence whenever they postulate and then test an hypothesis through practice. The
value in process, according to Popper, is the knowledge we gain from criticism and it is thus creative criticism
that might be said to be the foundation of Popper's logic.82
Logic may thus influence individual participation in the process of international human rights law both as
planned individual social action and as creative individual social action. The former is based on the process of
reason and exemplified in the logic of the decision of a judge. The latter is based on creative hypothesis,
tempered by submission to proof, and is exemplified in the actions of human rights defenders, that challenge
the established status quo fearless of being denied legitimacy by its tradition and hopeful of redemption in its
revision.

Influences Emanating from Society

When discussing the influences of society on the individual it is wise to start with an explanation of why
societal influences are important. Accordingly, Niklas Luhmann reminds us of--without himself agreeing
with--the "humanistic tradition" in which:
human beings stand within the social order and not outside it. The human being counts as a permanent
part of the social order, as an element of society itself. Human beings were called "individuals" because they
were the ultimate, indivisible elements of society. It was impossible to conceive the soul and body as separate
and then to dismantle them further. Such a dissolution would have destroyed what the human being was in
and for society. Accordingly, the human being not only was viewed as dependent on social order (which no
one will dispute), but was also interpreted as bound to a conduct of life within society. The form of human
existence could be realized only within society.83
Influences that emanate from society might better be described as trends or disciplines of thought. The
categories chosen for examining examples of societal influences are abstract and broad and may be described
as both trends and disciplines, and perhaps even perspectives. In each case it the substance of the influence
that is key and not its mere categorisation. The categories may vary with the observer, but the social
influences that are their substance are what is important. The categories of influencing factors used in this
study are technology, anthropology, economics, politics, history, the temporal context and situational factors.
Technology has developed around the world in numerous sectors of public life. These include medicine,
public health, entertainment, financial information and estimation, mass communications, etc.. Mass
communication technology, just to take one example from the just-mentioned list, has had a substantial
impact on how individuals act. Information is transmitted around the world by 1.5 billion radios, 600 million
televisions,84 and 600 million telephones.85 Approximately 20% of the individuals in the world, 6% in
developing countries and 53% in developed countries, can watch television regularly. 86 Technology can have
an indirect or direct influence on individuals and decision making processes. As an indirect influence the
media may effect one's perception of issues or lead to public action. As a direct influence the media may

82.
Id. at 318 (stating that logic is the "organon of criticism (rather than proof) . . . [that is] . . . our main instrument in promoting the growth of our
knowledge about the world of facts." Id.). In this study Popper's paradigm of knowledge is extended to its consequences for social action. This is a
legitimate use of Popper's work which recognizing that "good science" goes "far beyond the kind of thing with which we are perfectly satisfied in
practical life," id. at 80, thus allows the assertion, it is suggested, that in doing so he crosses the threshold of practical life, social action and
individual participation, which this study dwells on.
83.
Luhmann, N., Social Systems 210 and 211 (1995).
84.
Kennedy, P., Preparing for the Twenty-First Century 62 (1993).
85.
Susskind, R., The Future of Law: Facing the Challenges of Information Technology 132 (1996).
86.
UNDP, Human Development Report 1995 159 (1995).
65
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provide individuals with concrete plans of action or decision makers with information that helps them to
make decisions.
Technology influences both the way individuals interact among themselves and how individuals
influence decision making. Technology, especially information technology, may play an important
educational role. It has been pointed out that "the newspapers and public discussions" and "public
enlightenment" in general play "the role both of drawing attention to problems that may otherwise be
neglected, and of precipitating remedial action."87
The benefits of information technology can be immense. One observer has commented that "[i]ts
promise for the future is that its availability adds value to virtually everything we do, and it opens
opportunities to create wealth. Good information makes for better decisions in business, government, the
professions and in our personal lives."88 One such benefit already indicated above is providing an individual a
means of enhancing their participation in decision making in the process of international human rights law.
The Internet, for example, has been estimated to consist of over 30,000 networks, 5 million host computers,
and more than 50 million users growing at a rate of 15% per month.89 Some have even estimated that as many
as "one billion people will be connected [to the Internet] by the year 2000."90
Technological influences also relate to other areas of influence. This is not surprising nor is it a new
discovery. The relationship between technology, especially communications technology, and economics was
at the centre of the 1996 Nobel Prize economists William Vickrey and James A. Mirrlees' theory of incentives
under asymmetric information.91 They argue that the transmission of information is crucial for modern
economies because reliable information can be the key to a country's economic growth.92 Similar arguments
have been made by lawyers.93
Anthropological influences, for purposes of this study, are those forces that relate to human beings as a
social being who is culturally connected to his or her environment. Anthropology reflects upon the social
traditions, habits, religion, beliefs, and spiritual traditions of individuals' lives. These aspects provide insight
into the acts of human being, helping to explain these acts and to chart strategies of influence. This is not to
say that there are not some very different approaches to anthropology. Indeed, anthropologists in the tradition
of Frenchman Claude Lévi-Strauss have concentrated their vision on the structural nature of human
existence.94 Like the structural policy studies of David Easton, Lévi-Strauss focuses on the relationship
between elements of a structure as contributing to an understanding of the behaviour of individuals. Other
anthropologists have concentrated on specific aspects of human existence. Pierre Bourdieu, for example,
gives great attention to the observation of practice.95 Bourdieu postulates the concept of habitus to account for
logic of practice. This concept and its functioning he describes as follows:
The homogeneity of habitus that is observed within the limits of a class of conditions of existence and
social conditionings is what causes practices and works to be immediately intelligible and foreseeable, and
hence taken for granted. The habitus makes questions of intention superfluous, not only in the production but
also in the deciphering of practice and works [endnote omitted].96
Other anthropologists ascribe more credence to individual consciousness. Ted C. Lewellen, referring to

87.
Drèze, J., and Sen, A., Hunger and Public Action 19 (1989).
88.
Id.
89.
Susskind, R., The Future of Law: Facing the Challenges of Information Technology 132 (1996).
90.
Id. quoting Negroponte, N., Being Digital (1995).
91.
Susskind (1996).
92.
Id.
93.
Susskind, R., The Future of Law: Facing the Challenges of Information Technology (1996).
94.
See generally, Lévi-Strauss , C., Structure élémentaires de la parenté (The Elementary Structures of Relationships) (1949).
95.
See generally, Bourdieu, P., The Logic of Practice (1990).
96.
Id. at 58.
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Victor Turner,97 states, for example, that "[l]ineage systems, marriage rules, values and behaviour norms are
not unalterable realities but social idealizations subject to constant manipulations." 98 Although reconcilable
with Bourdieu in so far as one might conceive practice as distinct from the norms that direct it, Lewellen,
nevertheless, appears to put more faith in the consciousness of the individual. While Bourdieu does not deny
that there may be an element of conscious action in the concept of habitus,99 he insists that the usual situation
is one of action that is "[o]bjectively 'regulated' and 'regular' without being in any way the product of
obedience to rules . . . collectively orchestrated without being the product of the organizing action of a
conductor."100 Both Bourdieu and Lewellen, however, concur in the importance of observation and of some
importance being legitimately ascribed to cultural traits. Lewellen, it appears, would go further and ascribe an
importance to the political--a system more determined and internalised by the individual--the cultural or
kinship traits of human practice.
Economics has traditionally dealt with matters of individuals' material resources and often the
maximisation of these resources through increasing their monetary value. Economics as a concern of law has
thus often concentrated on the study of wealth and at the individual level, of an individual's monetary or
financial interests.101 Thus, while recognising that the state may sometimes act as regulator, economic policy
concerns have tended to be individualistic and not communal. The concern of economics is often expressed in
colloquial questions such as: "how much is he or she worth?" Certainly there can be little dispute in this age
of materialism that economic wealth is important to individuals and influences their actions. According to
financial or monetary economics wealth affects an individual's realisations of certain entitlements in society.
These entitlements are often what international human rights law protects. Especially vulnerable to one's
socio-economic status is the procurement of social and economic rights and perhaps also the cultural rights of
minorities102 and the right not to be discriminated against when economic or social rights are at stake. 103 In
these cases the lack of wealth may mean that an individual is deprived of basic social and economic rights
such as housing, food, clothes, a minimum standard of living, education, even life. It may also mean that an
individual cannot claim these rights because of the lack of knowledge that can only be obtained where one
has adequate wealth to get an education or to spend time arguing one's case. In such cases the lack of wealth
is a direct handicap to the enjoyment of human rights and restricts the participation of the individual in the
process of international human rights law.

97.
The work referred to is Turner, V., Schism and Continuity in an African Society (1957).
98.
Lewellen, T.C, Political Anthropology: an Introduction 113 (2nd ed. 1992).
99.
Bourdieu, P., The Logic of Practice 53 (1990).
100.
Id. at 53.
101.
See Posner, R.A., Economics of Justice (1983) (arguing for the application of a principle of wealth maximization in judicial decision making)
and Posner, R.A., Overcoming the Law (1995) Posner appears to justify his "norm of wealth maximization" by its inclusivity, a policy goal that the
International Court of Justice has found to be relevant to human rights treaties. See Advisory Opinion on the Genocide Case, I.C.J. Reports 1951
(opinion of 28 May 1951). Posner argues that his economic goals are like John Rawl's sense of an "overlapping consensus" but more inclusive
because "[p]eople who subscribe to different comprehensive doctrines may nevertheless be brought to agree upon a political principle, such as
wealth maximization, to govern a particular field of social interactions." Id. at 440. But he also admits that
[t]he economic approach cannot be the whole content of legal pragmatism. The libertarian character of the approach makes it unsuitable to govern
areas in which redistributive values command a political or moral consensus; and because the approach works well only when there is at least
moderate agreements on ends, it cannot be used to answer the question whether, for example, abortion should be restricted, although it can tell us
something, maybe much, about the efficacy and consequences of the restrictions." id. at 440.
102.
See Kitok v. Sweden, Communication No. 197/1985, Views of the U.N. Human Rights Committee adopted 27 July 1988 at para. 9.2 (where the
Committee found the economic activity of reindeer husbandry to be a vital part of a Sami's cultural traditions, although expressing the view that
there was no violation where the state failed to protect this right because it was protecting the rights of other members of the minority).
103.
See, for example, Broeks v. Netherlands, Communication No. 172/1984, Views adopted by the U.N. Human Rights Committee on 9 April 1987
(expressing the view that Dutch law could not used sex-based discrimination in the provision of social security benefits). But cf. Danning v.
Netherlands, Communication No. 180/1984, Views adopted by the U.N. Human Rights Committee on 9 April 1987 (expressing the view that
Dutch law could discriminate on the basis of marital status in the provision of social security benefits because non-married couples who were living
together did not have the same level of duties and responsibilities towards each other and their families as married couples). The Committee may
well express a different opinion on martial status as a criteria for discrimination if confronted with that question today, especially in the Dutch
context where martial status is becoming increasingly irrelevant in the determination of the duties and responsibilities of co-habitants).
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Wealth may also influence our perception of an individual's enjoyment of human rights. An example of
the influence of wealth can be seen in the recent revision of the estimate of poverty in China. In 1994 the
World Bank reported that China had approximately 7% of its population living under the poverty level.104 In
1996 the World Bank estimated that the reality was that about 33% of the Chinese live under the poverty
level.105 The revised figures were based on a different standard of measurement, 106 but they also led to much
different conclusions about whether China was ensuring some basic economic and social rights for its
population. More importantly, the different figures may lead to different emphasis in policy making and in
the influence that other countries, NGOs and individuals exert on China. And higher poverty levels may
justify the Chinese government's concentration on economic development and its lesser attention to civil and
political rights. This will also be the case with China's representations within the World Trade Organization
when the government negotiates its terms of membership. This example illustrates how not only one's direct
ability to participate, but also one's perspective on participation opportunities and the necessity of
participating can be influenced by economic concerns.
Not all economic theory, however, is based on wealth maximisation. Some development economists
have provided a view of economic factors that take into account values related to the claims and demands of
individuals. These economists often speak of values related to individuals in terminology such as
'entitlements', 'capabilities', 'deprivations', 'interests' and 'merit'.107 Some also consider the public action
needed to achieve these entitlements, although usually limiting their analysis to public institutions. 108 The
economists who have been inspired to speak about economic concerns as more than merely wealth
maximisation and to draw upon a wider set of individual values are often referred to as development
economists.109
Two of the leading development economists are Jean Drèze and Amartya Sen. Drèze is a researcher
attached to several academic institutions who has spent most of his life living among some of the most
vulnerable members of the world society. Sen is Professor of Economics at Cambridge University and the
1999 Nobel Prize winner for economics. In their seminal work, Hunger and Public Action,110 these two
writers argue for strategies for addressing the particular problems of famine and endemic under-nutrition and
deprivation. Their arguments are aimed at providing guidance to policy makers whose aim may be to provide
for the well-being of individuals for whom they make authoritative decisions. From their discussion of public
action it is somewhat unclear why or how a policy maker will be made to recognize this goal or how the
"political will" would be created. In part these problems are related to the failure to recognize the individual
as more than a passive participant who may be allowed to participate by their government. This might also
reflect their disenchantment with law and forces of normative social education and their belief that mass
action--usually through the state--should be the centre of analysis rather than the individual. Nevertheless, it is
perhaps the combination of concern for the conditions of the most vulnerable individuals, while at the same
time focusing on the public at large and its institutions, that make the economic strategies advocated by these
two writers more reliable than others. For this reason it is especially useful to examine their 'bottom-up'
understanding of policy making which provides valuable indications of the participation of individuals in the

104.
World Bank, World Bank Report 1994 (1994).
105.
World Bank, World Bank Report 1996 (1996).
106.
See "How poor is China?" in The Economist at 79, 80 and 85 (12-18 October 1996) (the story explains that "[i]n its recent report, the World
Bank has made two important changes. First, it has raised the income level below which a Chinese is deemed to be poor from $0.60 cents a day to
$1.00 a day . . . . Second, the report has lowered estimates for Chinese income per person, measured on a purchasing-power-parity (PPP) basis,
which adjusts for the local cost-of-living." Id. at 79).
107.
Drèze, J., and Sen, A., Hunger and Public Action (1989). Also see, for example, Williams, B., "The Standard of Living: Interests and
Capabilities," in Sen, A., (ed.), The Standard of Living (1987) and Devereux, S., "Entitlements, availability and Famine: A Revisionist View of
Wollo, 1972-1974," Food Policy 13 (1988).
108.
See, for example, Drèze and Sen (1989).
109.
Little, I.M.D., Economic Development (1982).
110.
Id.
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achievement of a wider range of human values.

Although not concentrating on it, Sen and Drèze do not disregard individual participation. They consider
the individual at two points. First, as the determinate of the value of entitlements and capabilities, what
corresponds to many of the values of human dignity.111 Through examination of individual claims and
demands they postulate the values or needs of individuals. Second, as an actor. Although viewing the
individual only as an actor with influence of 'atomistic' proportions, they nevertheless take into account
individuals in the authoritative decision making process.112 Both these two means of individual participation
are illustrated by Sen and Drèze in relation to the satisfaction of basic needs and the achievement of an
acceptable degree of living standards. The first form of participation recognises that individuals' "valuable
and valued doings and beings" should be the determinate of public action.113 This is similar to the argument in
this study, that individuals' claims, demands and expectations must be the focus of the determination of the
human values that are expressed as human rights. The second form of participation, participation in decision
making is epitomised in the statement that the "important thing ... is to note the general concern with 'doings'
and 'beings' and the corresponding capabilities rather than just with incomes or wealth or utilities," which are
the usual concentrations of economics.114 If the "important thing" for the public action is doing, beings, and
capabilities, and if these are determined by the value placed upon them by individuals, then this is a strong
argument for individual participation in the authoritative decision making process with which they are
concerned. Thus, although limited to the eradication of hunger--or in human rights terms the achievement of
the human right to food, and perhaps, housing, clothing, social security and a minimum standard of living--
and constrained by an overall concentration on group actors,115 the model of public action developed by Sen
and Drèze provides relevant suggestions for individual participation. Its recognition of the values and
ultimately policies that emanate from individuals makes it especially appropriate. Furthermore, if one extends
their analysis to consider how public action actually comes into being one must examine the individual as
both decision maker and influential participant.
Politics like economics reflect a perspective of what is relevant to the process of international human
rights law and in particular to the individual's role in this process. Traditionally, politics means the affairs of
states and their Organization. "The State," as Marx claimed, "and the structure of society are not, from the
standpoint of politics, two different things."116 Political considerations reflect this concentration on the social
life of the individual. The questions with which politics is concerned are: how the individual is influenced by
the state and how the individual influences the state. A classic example is voting. Individual preferences for
particular forms of government are one of the prime motivating factors behind voting patterns in elections.
And conversely, how individuals vote has something to do with how they are governed.
Politics are as much a part of the individual as the individual is a part of politics. They include both the
internalised order and the external. It would thus seem senseless to talk about politics in relation to
individuals without accepting that individuals perceive, internalise and create politics and political systems.
At a personal level politics are a matter of choice, informed or uninformed. At the societal level politics
describe the group dynamics of a collection of individual choices about one's social system.
Furthermore, political factors include individuals' preferences about government. Often, these

111.
Id. at 9-15.
112.
Id. at 19. This second strand of individual participation is much less clear from Hunger and Public Action, but the experience gained from
conversation or cooperation with the two author's indicates that they do not ignore individual action. Both are or have been activists fighting for the
human rights of vulnerable individuals.
113.
Id. at 12.
114.
Id. at 13.
115.
See Drèze and Sen (1989) 17-19 and 275-279 and Drèze, J., and Sen, A., India Economic Development and Social Opportunity 87-108 (1995).
116.
Marx, K., "Kritische Randglossen zu dem Artikel: Der Köig von Preussen und die Sozial-reform. Von einem Preussen," first printed in
Vorwärts (7 August 1844) reprinted in Marx-Engel Gesamtausgabe, vol. I, sec. 3 at 13-15 (1844).
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preferences have often been studied through focus groups117 or surveying techniques.118 This research shows
that political motivations both steer political parties and are used by these parties to steer their
constituencies.119 Political scientists have also concluded that an individual's perceptions, values and attitudes
influence their decision making.120 One of the most noted political scientists to have dealt with what is
sometimes referred to as biopolitics121 is Margaret G. Hermann. She has shown that individuals' dispositions
often influence their political decision making,122 although there may be other influences as well. 123 It would
seem that there can be little doubt that the political motivations of individual politicians influence their
decisions. It should also be Recognized, however, that the members of the judiciary and executive, who are
often confronted with deciding upon issues concerning individuals' human rights, are not immune from such
influence.124 The United States Supreme Court is a good example of how judges' political dispositions
influence their decisions, which in turn influence the political environment. Some of the more important
decisions concerning affirmative action are good evidence of the interrelationship between politics and legal
decision making. The conclusion may thus be drawn that the political thoughts of participants influence their
decisions and the political form of society influences an individual's political thoughts. Therefore, political
influences are important when considering individual participation.
History, or our past also influences our future. History is both a function of individual action and an
influence on it. Paul Kennedy recognises this writing that "[h]uman beings make their own history even if, as
Marx reminded us, they do so under circumstances influenced by the past."125 For lawyers legal tradition is
something that has appealed across the 'common law-civil law' divide. Lawyers in the United Kingdom and
the United States study the history of their constitutional heritage and even the history of thinking in specific
areas of law to determine how they will argue or decide contemporary claims. In continental Europe, the
Roman and Napoleonic traditions of law are required study for students of law and also influence
professional argumentation and decision making. Indeed, these legal traditions--sometimes with more
attention to the their socio-political perplexities--have had an influence on the determination and
implementation of international human rights law. It was the lack of a international legal prohibition against
the mass extermination or genocide that led Raphael Lemkin to campaign for such a prohibition. It was the
lack of a legal prohibition of the discrimination against blacks and the increasing acceptance of the right to
democracy that led individuals to campaign against apartheid and eventually led to its prohibition in a treaty.
And it was the failure of states to adequately respect the human rights of individuals expressing their views
and holding political opinions in accordance with their human rights that led a small group of individuals to
found non-governmental human rights organizations like Amnesty International, Human Rights Watch,
Africa Rights, etc.. In each of these cases the past trends of inadequacies were revealed through history.
International lawyers' examination of past trends in state practice, the opinio juris of states and the writings of
highly qualified publicists, all depend on historical research. One of the main task of individuals making or
influencing decisions is that of examining the past and it is through the accomplishment of this task that
contemporary decisions are made and the future is affected.

117.
See, for example, Krueger, R.A., Focus groups: a practical guide for applied research (2nd ed. 1994).
118.
Marsh, C., "Opinion Poll--social science or political manoeuvre?" at 268-288 in Irvine, J., Miles, I., and Evans, J., (eds.), Demystifying Social
Statistics (1979).
119.
Bulmer, M., The Uses of Social Research. Social Investigation in Public Policy Making 155-159 (1982).
120.
See generally, Hermann, M.G., "Assessing the foreign policy role orientations of Sub-Saharan African leaders," in Walker, S., (ed.), Role
Theory and Foreign Policy Analysis (1987).
121.
See Hopple, G., (ed.), Biopolitics, Political Psychology, and International Politics (1982).
122.
Hermann, M.G., "When leader personality will affect foreign policy: some propositions," at 326-333 in Rosenau, J.N., (ed.), In Search of
Global Patterns (1976).
123.
Hermann, M.G., Hermann, C.F., and Hagan, J.D., "How Decision Units Shape Foreign Policy Behavior," at 309-336 in Hermann, C.F., Kegley,
C.W., Jr., and Rosenau, J., (eds.), New Directions in the Study of Foreign Policy (1987).
124.
See, e.g., Murphy, B.A, The Brandeis/Frankfurter connection: The secret political activities of two Supreme Court Justices (1982).
125.
Kennedy, P., Preparing for the Twenty-First Century 19 (1993).
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 Chapter Four: Factors Influencing Individual Participation

The temporal situation in which an individual finds him or herself also influences social action. The
temporal structure of action or practice is, as Bourdieu points out, "its rhythm, its tempo, and above all its
directionality."126 This characteristic "unfolds in time and it has all the correlative properties, such as
irreversibility, that synchronisation destroys."127 It is identifiable by the attributes of events in their local and
international contemporary context. Each claim, demand, expectation, expression, social act, prescription,
revision, interpretation and authoritative decision has an identity related to the temporal position of the
observer and the observed. Both must be taken into account when observing actions in the process of
international human rights law. In the field of anthropological observation Pierre Bourdieu warns that
[s]o long as one only considers practices which, like rituals, drive some of their most important
properties from the fact that they are 'detotalized' by their unfolding in succession, one is liable to neglect
those properties of practice that detemporalizing science has least chance of reconstituting, namely the
properties it owes to the fact that it is constructed in time, that time gives it its form, as order of succession,
and therefore its direction and meaning.128
In other words, one cannot observe human action necessary for describing and constructing a society to
achieve the values of human dignity without realising that one's observational perspective is a cross-section
view at a particular point in space and time of the observed. Just as a picture of Delhi in 1800 may have less
value for describing the necessities of urban planning today, so do concepts of international law developed
under a static state-based vision of international society require justification before they can be relied upon by
today's policy makers and those who try to influence them. Furthermore, it is more likely that an individual
who recognises that their actions today will be viewed differently in two hundred years will succeed in acting
in a way that retains some relevance over time. And finally, and perhaps most relevantly, it must be realised
that conceptions of individual participation in the process of international human rights law may change over
time. Therefore, traditional conceptions of individual's rights and responsibilities and indeed of the abilities,
capabilities and values of the individual--and consequently claims, demands and expectations--vary in their
temporal dimensions. These variations affect the temporal realities depicted by descriptions of the
international events of deprivation and abundance; war and peace; complex and natural disasters; famines and
abundance; humanitarian responses and inaction; institutional responses and political change. This list is
exemplary, a comprehensive list of events that express the temporal influences on human action related to the
process of international human rights law would include any event involving basic values.
The situational factors related to world wide events influence the achievement of the values of human
dignity and are relevant to study the action undertaken to achieve this goal. The norms expressed in
international human rights instruments function to influence the choice of values expressed by countries in
their specific contexts. For example, in the armed conflict in former Yugoslavia among the particular
instruments that may be cited are the Constitution of Bosnia and Hercegovina and Annex 6 to the Dayton
Peace Agreement.129 Both these documents include: the right to life; the right not to be subjected to torture or
to inhuman or degrading treatment or punishment; the right not to be held in slavery or servitude or to
perform forced or compulsory labour; the rights to liberty and security of person; the right to a fair hearing in
civil and criminal matters, and other rights relating to criminal proceedings; the right to private and family
life, home, and correspondence; freedom of thought, conscience and religion; freedom of expression; freedom
of peaceful assembly and freedom of association with others; the right to marry and to found a family; the
right to property; the right to education; the right to liberty of movement and residence; and the prohibition of
discrimination in the enjoyment of these rights and freedoms.130 In respect of this example it is relevant to
note the words of Payam Akhavan, writing in his personal capacity, but employed as a Legal Advisor to the

126.
Bourdieu, P., The Logic of Practice, (translated by Richard Nice from: Le sens pratique), p. 81 (1990).
127.
Id.
128.
Id. at 98.
129.
The Dayton Peace Agreement, U.N. Doc. S/1995/999 (1995).
130.
See id.
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 Chapter Four: Factors Influencing Individual Participation

Office of the Prosecutor of International Criminal Tribunal of the Former Yugoslavia and Rwanda.
Explaining the foundation of peace and justice that can be found in the "quest for truth and justice," he notes
that
[i]t is in the demand of the oppressed for justice that we become most cognizant of our human
dignity as human beings. The power of the human spirit reveals itself not in a state of ease and
comfort, but rather in times of tribulation and darkness. In struggling against the cruelty of the
tormentor and the cynical indifference of the spectator, we fight for values which transcend
creed, culture, and time, and thereby affirm the essential oneness of the human race.131
As the world becomes more globalised individuals' actions will increasingly be
influenced by the events taking place in world society. Today, the ordinary civilian is
more likely to experience the inhumanity of warfare then at any other point in the
existence of modern society. Today the contrasts between developed and the
developing or under-developed is more stark than in any other time in history.
These situational factors cannot but influence how we act and react to our
environment. Consequently they cannot but influence what we claim as human
rights and how our claims are made and decided.

Reconstitutive Influences

The term 'reconstitutive' emphasises the reflexive and fluent interaction between the influencing factors
described above and the individual.132 It is the totality of experience of self and influences. It is part of what
Anthony Giddens refers to when he states that
[s]elf-identity is not a distinctive trait, or even a collection of traits, possessed by the individual. It is the
self as reflexively understood by the person in terms of her or his biography. Identity here still presumes
continuity across time and space: but self-identity is such continuity as interpreted reflexively by the agent ...
the cognitive component of personhood.133
Although relying on the individual's psychology, it is much more than the cognitive element of the
psychological influences described above because it describes not only the influences of emotions, but the
process by which emotions reconstitute the values an individual holds. Reconstruction, is thus an aspect of
process. An example of a reconstitutive influence might illustrate this. The value of respect for life is a good
one. An individual who values life and respects others' lives as a consequence of this might seek to establish
this value as a norm. He or she might call this norm the human right to life. In so doing the value of the life
becomes a normative right to life. The reconstitutive influence is the affect that the norm now has on the same
individual's values. Having determined that there is a right to life the individual may now seek to rely on this
right instead of the more basic value to protect his or her's, or another's, life. Furthermore, others' perception
of the value of life may be changed. Indeed succeeding generations may refer to the normative right to life to
establish policies for protecting life rather than to the basic value. Over time the right may even alleviate need
to refer to the value. And the right might help to clarify the value, either restricting it or expanding it. And
finally, the right might influence the interpretation of other rights. All these influences, whereby one factor
reconstitutes other factors or elements of identity, may be called reconstitutive.
It is true that one might be able to explain reconstitutive influences in terms of
the other influences referred to above, but such explanations do not fully account
for the impact this procedural phenomenon has on social life and individual social
action. Because reconstitutive influence extends to every aspect of individual
131.
Akhavan, P., "The Yugoslavia Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond," 18(2) Human Rights Quarterly 285 (May
1996).
132.
See Giddens, A., Modernity and Self-Identity. Self and Society in the Late Modern Age 52-55 (1991) (discussing the reconstitutive influences as
reflexive awareness).
133.
Id. at 53.
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 Chapter Four: Factors Influencing Individual Participation

participation and may include all identifiable influences, it makes sense to classify
them separately. On the other hand, because of the breath and complexity of
reconstructive influence, they are not discussed in detail in this study. Instead it
must suffice to merely indicate that it is one aspect of past trends that should be
recognised when describing past trends.

73
 Part II: Past Trends

PART II

PAST TRENDS

[Human strategies are] ... inculcated by the conditions of existence, a kind of socially constituted instinct which
causes the objectively calculable demands of a particular form of economy to be experienced as an unavoidable call
of duty or an irresistible impulse of feeling.
Bourdieu, P., The Logic of Practice 161 (1990)

It is necessary to reverse the common opinion and acknowledge that it is not the harshness of a situation or the
sufferings it imposes that lead people to conceive of another state of affairs in which things would be better for
everyone. It is on the day that we are able to conceive of another state of affairs, that a new light is cast on our
trouble and our suffering and we decide that they are unbearable.
Sartre, J.-P., Being and Nothingness 434 and 435 (1957)

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 Part II: Past Trends

PAST TRENDS

This section is a brief preface to the following six chapters. It outlines the reasons why it is important
to reflect on past trends and it explains how this will be done.
The examination of past policies and practices is important for establishing a shared point of
understanding for the prediction of future trends and the invention of policy alternatives. Past trends are
historical constants that influence our perspectives of the future and our present development of policies
and practices. The future is a function of human development based on past trends and a continuation of
past trends, but the constraints that past trends impose are not immutable. Most past trends—including the
majority of those which are of concern to observers of international human rights law—are authoritative
decisions or expressions of claims or expectations by participants in the decision making processes of
society. These thus rely on choices that participants have made in the past. This does not mean that
decisions could not have been made differently. A judge could have interpreted a law differently. A
campaigner could have decided to support another cause or use another form of expressing his or her
support. An expectation could have been suppressed. Or, being influenced by another claim, demand or
related authoritative decision, an individual’s expectations could have changed. This process of variable
and interrelated claims, demands, expectations and authoritative decisions is a process of law in a social
context.
Past trends as concern an individual’s legal status, rights, responsibilities and procedural capacity are
useful for informing individuals making claims, demands and authoritative decisions today about the
relevant issues and their chances of succeeding with particular arguments. In this way the past is relevant
to modern decision making. Past trends provide a common point of understanding for new decisions. They
provide an expectation, of what claims and demands will be recognised by authoritative decisions. They
help individuals and groups of individuals to make decisions or choices about how they might most
efficiently expend resources to achieve the values of human dignity.
The description of past trends in the following four chapters will be described in terms of questions:
1. Who is making the claim?
2. When was the claim made?
3. What is the form of the claim? And is it a claim, demand or expectation? And how is it expressed in
classical international legal terms (i.e. non-universal treaty, state practice, opinio juris, the writings of
highly qualified publicists)?
4. Who decides upon the authoritativeness of the claim (i.e. a court or states in an (political) authoritative
decision making forum or an alternative decision making process)?
5. How has the claim been decided?
6. Upon what value of human dignity is the claim based?
7. Does it have relevant consequences for other values?
8. Are there other comparative perspectives from which the claim can be viewed?
9. How is the claim influenced by external factors?
Not all of these questions will be asked in every case, but at least one of them will feature in the
description of each past trend.
Ideally the examination of past trends should include an exhaustive enumeration of all the instruments
expressing authoritative decisions, claims, demands and expectations of individuals and groups of
individuals, including states, concerning the rights and responsibilities of individuals for ensuring respect
for human rights. Additionally, it would be necessary to examine the practice of individuals acting to
protect other individuals’ human rights and acting to influence authoritative decision making and states’
responses to these acts. Such an evaluation of the social process would, however, take many years to
prepare, and would be out-dated by the time it is completed given the evolving character of the
international law concerning the status of the individual. Instead, a more modest attempt is made to
identify and discuss some examples of past efforts. The examples have been divided into three areas:
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 Part II: Past Trends

1. the individual’s status in the international community;

2. the procedural capacity of the individual;
3. the human rights individual’s exercise to protect other’s human rights; and
4. the responsibilities individuals have for protecting other’s human rights.
These divisions are made to facilitate the study of the different issues involved. Many examples may
be classified under one or more of these divisions. This repetition, however, is necessary to highlight the
different claims, demands, expectations and authoritative decisions that will arise in each category.

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 Chapter Five: The Theory of the Individual Under International Law

CHAPTER FIVE

THE THEORY OF THE INDIVIDUAL UNDER INTERNATIONAL LAW

The whole notion of ‘subjects’ and ‘objects’ has no credible reality ... we have all been held captive by a doctrine
that stipulates that all international law is to be divided into ‘subjects’—that is, those elements bearing, without the
need for municipal intervention, rights and responsibilities; and ‘objects’—that is, the rest.
Higgins, R., Problems and Process. International law and how we use it 49 (1994)

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 Chapter Five: The Theory of the Individual Under International Law

THE THEORY OF THE INDIVIDUAL UNDER INTERNATIONAL LAW

Thinking About the Individual in Terms of International Law

Traditionally, the regime of international law has concerned itself primarily with the rights and duties
of states. The nineteenth century, for example, was described as a world in which “the positivist doctrines
of state sovereignty and domestic jurisdiction reigned supreme” and in which “[v]ery few issues were
regarded as of international concern as such ... [as] ... [v]irtually all issues matters that today would be
classified as human rights issues were at that stage universally regarded as within the internal sphere of
the national jurisdiction.”1 Even today most legal commentators continue to view international law as
norms made by and for states.2 It is only with the advent of international human rights law that many legal
scholars began to recognise that the individual is an appropriate subject for consideration. Still, however,
commentators usually argue that the status of the individual under international law is limited. The
commonly heard opinion is that individuals are granted status under international law when states have
expressly agreed to grant it,3 but in general states remain the main participants or subjects endowed with
rights and responsibilities under international law.4
There is no shortage of opinions on the status of the individual under international law. The modern
status of the individual under international law has been discussed by numerous writers who use various
terms to describe this position. These terms or concepts refer to individuals’ status under international law
as an object,5 subject,6 or participant.7
It is no longer possible or at least fashionable to argue that international law does not affect
individuals. Developments in the last forty years have caused a dilemma for proponents of either the
subject or the object schools of thought. International human right law applies directly to individuals. It
creates rights for the individual against his or her own state. In some cases it may create rights against
other states; for example, the majority of human rights in the International Covenants apply to individuals
under the jurisdiction of any state that is party to these instruments. The fact that individuals can initiate
claims before authoritative decisions-makers is also irrefutable evidence that individuals have procedural
capacity on the international plane. The Nürnberg trials of individuals for their crimes against peace, other
individuals and humanity, are an indication that individuals have responsibilities under international law.
In sum, these examples, are substantial evidence in support of recognising that individuals have status
under international law. These examples, and those that will be discussed below, also indicate that this

1
. Shaw (1991) at 192.
2
. See, e.g., Jennings and Watts (1996) at 4 (which begins with the sentence: “International law is the law that is legally binding on states in
their intercourse with each other” (footnotes omitted) id.. Although the two editors then quickly proceed to admit that other participants,
including individuals may be the subjects of rights and duties under international law, id.).
3
. See, for example, Jennings, R. and Watts, A., Oppenheim’s International Law at 16 and 17 (9th ed. 1992).
4
. See, for example, id. at 500-505. But also see, id. at 500 and 505-508 (acknowledging that “international responsibility now also involves
consideration of the position of individuals and of international organizations” id. at 500).
5
. Siotto-Pinto, M., “Les sujets de droit international autres que les Etats” 41(iii) Recueil des Cours 255 and 356 (1932) and Anzilotti, D.,
Cours de Droit international 129 (1929).
6
. See Daes (1992) at 58, para. 565; Politis (1928) at 31; García-Mora (1955) at 9; Jessup (1956) at 3; Pallieri (1956) at 191-195; Carey (1968)
at 52-53 [for the view expressed by Mohammed, A. and S. MacBride]; Lauterpacht (1950) at 29; Kelsen (1948) at 226-239; Fenwick (1948)
at 129-135; Korowicz (1959) at 329; and Verdross (1955) at 85. And see generally Ténékidès, G., L’individu dans l’ordre juridique
international (1933).
Also relevant are authors who did not believe that international law accepted individuals as subjects at the time they were writing, but
who argued for recognizing the individual as a subject of international law: Drost (1951); Scott (1939) at vol. 1, 25 and 26; Scelle (1933) at
343 [stating that the view that states are the central personalities of international law is “une vue fausse, une abstraction anthropomorphique,
historiquement responsable du caractère fictif et de la paralysie de la science traditionnelle du droit de gens...”] and Schwarzenberger (1967)
at 52 and (1957) at 140-155.
7
. See Higgins (1994) at 48-55.
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 Chapter Five: The Theory of the Individual Under International Law

status is more than that of a object of law because individuals also have the right and capacity to initiate
action under international law. An object cannot do this.
Those authors who have argued that the individual is a subject of international law have still usually
failed to fully recognise the different capacities that the individual may fulfil under international law.
Some publicists have argued that only individuals are subjects of international law. Carl Nørgaard
identifies four such writers: Léon Duguit, Marc Réglade, Hugo Krabbe and Georges Scelle.8 Léon Duguit
argues that law requires that its subjects have a conscience.9 And because the “only being on earth
endowed with “volenté consciente” being man, man is per definitionem the only existing subject of
law.”10 According to Duguit the individual possessed interests that were protected by international law.
Duguit’s student and successor Marc Réglade developed the idea of the protection of interests by further
identifying interests that could be protected as those of the individual acting in the capacity of a state, the
international community as a whole, particular elites in the international community or simply as an
individual.11 Réglade, however, limits this last category to cases where the individual has procedural
capacity against a state, is expressly bound by law or is expressly protected by law. The theories of Léon
Duguit and Marc Réglade are rather undeveloped. They seem to provide the basis for the argument that
individuals are the final subjects of international law because law governs the conduct of human beings
not fictitious entities such as states, an argument later developed by Hans Kelsen. Yet they seem to ignore
the full participatory capacity of the individual under international law. Réglade, especially, describes this
capacity in terms of the limits imposed by his four groups of interests. Myres McDougal appears to have a
more appropriate picture of the individual’s capacity viewing the individual’s participation in the process
of authoritative decisions making in a more comprehensive perspective. McDougal describes individuals
as participants precisely because they have interests, instead of viewing these interests as an external limit
on their participation.
The other two writers identified by Nørgaard are Hugo Krabbe and Georges Scelle. Hugo Krabbe
argued for a status of the individual that is related to the individual’s responsibility in society stating that
“[t]hose individuals are subjects of international law to whom powers and obligations attach as defenders
of the interests with which that law is concerned.”12
Nevertheless, the problem remains that if the terms object and subject are not adequate descriptions of
the status of the individual, then another term is needed. Myres McDougal has suggested a more general
term for describing all the actors in the process of international law. His suggestion is to describe all these
actors as participants. Rosalyn Higgins, described this theory stating that “[i]ndividuals are participants,
along with governments, international institutions (such as the UN, or the IMF, or the ILO) and private
groups.”13 Accordingly the main factor distinguishing the individual from the States is that they have
different interests.

* * *

Below individual claims to recognition under international law are considered under three categories:
(1) historical claims, (2) claims under treaties, and (3) claims by individuals belonging to certain groups.
Historical claims are those that have been made in the distant past. These claims are relevant in so far as
they establish the foundation and environment for contemporary claims. Claims under treaties are

8
. See Nørgaard (1962) at 72-75.
9
. See generally Duguit (1921).
010
. Nørgaard (1962) at 73.
11
. Réglade (1930) at 396. Nørgaard citing and discussing Réglade’s analysis describes the private capacity of the individual as “[l]es intérêts
individuels des simples particuliers ou bien propre de individu.” Nørgaard (1962) at 74.
212
. Krabbe (1927) at 242 and 243.
313
. Higgins (1978) at 5.
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 Chapter Five: The Theory of the Individual Under International Law

discussed as a separate category because they are the most frequent and clearly defined claims, although
the theoretical basis for these claims might not yet be agreed upon. And claims by individuals who are
associated with particular groups are considered because they are illustrative of special reasons why
particular individuals should be recognised as participants under international law. Once again, the caveat
applies that these examples are chosen from among many and do not constitute a definitive overview of
the past trends, but rather a selective sample that has been chosen to indicate the broader policies towards
which states are moving.

Historical Claims for Recognition of Status in Ancient Society

The individual’s position in the Greek city states was governed by both local law and natural law. The
natural law was in principle common to all city states and was referred to by Aristotle as the universal
law.14 Aristotle described the relationship between the realities of practice and natural law as that of
“universals to particulars.”15 Individuals were presumed to act in accordance with local law and local law
was presumed to develop in accordance with natural law. The natural law in turn reflected justice and
morality that emanated from reason, as well as forces beyond the control of human beings.
Through their dealings with each other the Greek city states developed customs that introduced some
predictability and consistency into their relations. Some of these laws provided for the rights and duties of
individual citizens. An example is the concept of proxenoi, a person who was a local representative of
foreigners and their interests representing them before administrative, judicial and religious authorities. 16
The proxenoi enjoyed certain immunities according to customary law, but his status was different from
that of modern consular and diplomatic officials in that he was chosen by the local authorities not the
authorities of a foreign country. This concern with the individual person is just one example of how the
Greek law created rights and duties for individuals in inter-state relations. Other examples include the
right to asylum of pilgrims,17 the inviolability of envoys of a government and the numerous rights and
duties related to merchants involved in commercial trade between city states. The rights and duties of
individuals found in inter-city state law provide evidence of a concern for the individuals who were
recognised as citizens in their capacities both as individuals and as part of a community. However,
“citizens” did not include slaves, freemen, strangers and many individuals living in rural areas as part of
the demos. It is was this exclusion of large classes of people that appears to have contributed to the Greek
city states eventually faltering and falling as the ruling classes became more and more elite and self-
interested.
In relation to the individual as a participant in the social processes in which authoritative decisions are
made there were several interesting innovations attempted by the ancient Greek city states that are
worthwhile considering. Among these were the payment of fees to individual citizens to attend the
General Assembly where authoritative decisions about national as well as international decisions were
made. This policy strongly encouraged participation in the democratic decision making processes by those
individuals who had been recognised as citizens of the city state, especially by the economically
disadvantaged citizens. Again, however, attention must be had for the limited definition of citizen that
applied. Another innovation was the law against piracy that applied to all the Greek city states that had
joined in the Athenian Empire of the fifth century. Piracy was a crime that could be committed by an
individual and could be punished by a state or another individual. Piracy is an example of jus naturale.

414
. See Daes (1992) at 15, para. 164 citing and quoting Aristotle, Nicomachean Ethics, XIV, Book V.vii at 297.
515
. Id..
616
. Daes (1992) at 15, para. 166.
717
. See Thucydides, History i, 2 quoted in Phillipson at 134.
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The Greek Stoics, and the Romans that followed them also adhered consistently to a concept of jus
naturale that was considered to be common to all men.18
Elsewhere in the world similar legal developments concerning the status of the individual were taking
place. Between 551 and 479 B.C. the concept of Li appeared in China.19 This concept of law has described
as “moral and legal rules similar to the contemporary rules of international law.”20 Of particular interest is
the protection of envoys of a sovereign. These special representatives of rulers were granted immunity
from harm by an enemy whom they may have been visiting to negotiate peace. The immunity accrued to
their individual person, but was granted in the interests of the rulers they represented. Sometimes, but not
always these rulers represented the interests of the persons over whom they ruled. In all cases it was the
interest of an elite ruler, whether or not he was acting in the interest of the majority of the people over
whom he ruled, that was being respected. Thus, although an individual had rights and other individuals
had duties to respect these rights, the rights and duties appear to be based on the policy goal of promoting
relations between ruling elites. On the other hand, failure of an individual to respect these rights could
lead to the prosecution of that individual or other disciplinary action by the ruler. Although such
enforcement procedures were not required, the existence of the rights and duties influenced the actions of
the ruling elite. Ruling elites and their envoys could expect that the custom that envoys would not be
harmed would be respected. Accordingly, pressure could be exerted on one ruler by others to see that this
expectation was realised in authoritative decisions or that failure to meet the obligation led to punishment
or restitution.
In India a concept of a common law or international law emanating from the religious teaching of the
Manu’s Dharam Shastras has been identified by R.C. Hingorani,21 who describes laws operating from the
4000 B.C. to 100 B.C. as universally applicable to different groups of peoples irrespective of religion,
race, cultural or political identifications. Some of these universal laws prescribed rules for individuals
involved in armed conflicts requiring the sparing of unarmed enemies and the humane treatment of
prisoners.22 The ancient laws of warfare applied to individuals by virtue of their capacity as soldiers.
In Islamic countries a concept of natural law was accepted by the sect called Mouitazila23 and the
Koran has been interpreted by representatives from Islamic countries as recognising the “dignity of the
human being.”24 Under both the Monitazila, the Koran and the Bible, individuals have a status related both
to their human dignity as well as to their being a member of the community.
Although international lawyers may today view the international law creating rights and duties for
individuals as a new development, the above examples dating back thousands of years illustrate that these
developments began with our earlier ancestors. Our earliest ancestors appear to have begun their evolution
in a social order in which the individual was the primary object of the social process. However, this social
order soon established prejudices. These prejudices protected elite interests against common interests.
Finally, there is even evidence that as authoritative decisions-makers began to ignore the interests of the
least empowered individuals in ancient societies, these societies became more susceptible to destruction.
For the international lawyer the development of social processes in ancient times are important for the
understanding of the modern laws and policies for several reasons. First, because they offer an example of
values being implemented or ignored in social processes. Because the ancient social processes were
generally less complex than modern ones it is easier to concentrate attention on the values and methods by

818
. See Daes (1992) at 16, para. 173 quoting Cicero.
919
. See Daes (1992) at 15, para. 169.
020
. Id..
121
. See Hingorani, R.C. (1984) at 13-15 cited in Daes (1992) at 15, nn.. 115.
22
. See Singh, N. (1969) at 10 cited in Daes (1992) at 15, nn. 116 [referring to the agreement of the kings Bahmani and Vijayanagar in 1367].
323
. See Daes (1992) at 15, para. 172.
424
. See Shawkat Al-Khasawneh, A., in E/CN.4/Sub.2/1984/SR.8 of 15 August 1984 at 3, para. 8 quoted at Daes (1992) at 16, para. 172 and
cited at nn. 118.
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 Chapter Five: The Theory of the Individual Under International Law

which these values were implemented. Second, the examples illustrate the connection between law, social
policy and the various interests of individuals and groups of individuals in society. The laws and other
policies that attempted to reconcile interests are instructive even today as indicating relevant categories of
policy choices. Evidence of this is the concept of democracy that was most notably developed by Greek
philosophers. Democracy is rapidly becoming a condition of legitimate government and respect for
international human rights law in the modern world. In the midst of this development writers continue to
reflect on the practices of democracy in Ancient Greece. And third, it is generally necessary and wise to
learn from our past in order to improve upon it.
The ancient laws or customs concerning the treatment of individuals are evidence that even in ancient
societies individuals had rights and obligations based on inter-state or international laws. Although these
laws may not have been universal in character, they possessed the primary constituents of international
law. They were based on agreements between states and observed between states, and they applied across
state boundaries. More generally, the above examples illustrate the widely supported belief that
international law had its origins in local law. It was the extension of certain principles of law beyond the
local context to facilitate trade, to promote a cultural or religious identity or merely because of a belief in
the common interest of the human race that characterises the development of principles that are the
predecessors of modern international law. The ancient history of these developments also indicates that it
was the individual who was at the centre of these developments from their earliest origins—a conclusion
which gives us cause to reflect on modern developments and to ask questions about the individual’s status
under modern international law.
The concept of jus naturale or natural law that was inherited from the Greeks and Romans was further
developed by several prominent writers. Thomas Aquinas referred to natural law as law above man-made
law to which all man-made laws must adhere.25 Later writers such as Suárez,26 Grotius and Vittoria
argued, as Erica-Irene Daes has paraphrased, that “[h]uman law cannot derogate from natural law since, if
it did so, it would destroy its own foundations and consequently itself.”27 Vittoria expressed this idea in
defending the human rights of native American Indians. To arrive at his premises he argued that the
individual was the central subject of society and law. Jus gentium was thus the law of the community of
individuals. According to Vittoria, the individual, rather than the state, is the primary subject of law, and
more importantly, the protection of the human dignity of the individual must be the primary purpose of
law. Through this construction of logic, Vittoria argued that the American Indians were entitled to respect
for their basic human rights and dignity despite the fact that they were not recognised as legitimate holders
of most human rights under the laws of the American states.
Grotius, who has been referred to as the “father of international law,”28 argued that a principle of
natural law should govern the development of international law.29 This principle was based on the
recognition of individuals as participants in the social process.30 Grotius acknowledged the value of
individuals as human beings and the value of human dignity as a concept sui generis. It did not do this by
providing the complex of protection of individual rights that characterise modern international human
rights law, but by merely acknowledging that the individual, like the state, was a participant on the
international plane. The respect and authority of states was not superior to the value of the human being.
The individual and state existed and transacted in one mutual international forum. More interesting,

525
. See Daes (1992) at 16, para. 174.
626
. See Suarez, F., De Legibus ac Deo Legislatore, Book 2 (1612).
727
. See Daes (1992) at 16 and 17, paras. 174-182. Also see Remec (1960) at 165. An often cited expression of the moral basis of law is
Suarez, F., De Legibus ac Deo Legislatore, Book 2 (1612).
828
. See Daes (1992) at 16, para. 177.
929
. See generally Grotius, H., De Jure belli ac pacis (1625).
030
. See Higgins (1978) at 2.
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Grotius assumed that “international law governed not only the relation between State and State, but the
relation between State and individuals and even those between citizens of different States.”31
It took many years of consolidation, numerous instances of state practice and generations of
international lawyers to develop the basic ideas of the first international lawyers such as Grotius into the
more complex rules of international human rights law, whereby the question of the human dignity of the
individual was again freed from the constraints of state sovereignty to apply directly to individuals. From
the twelfth through the eighteenth century numerous changes took place by which society developed its
sense of direction and choice of common values, although on the international plane these values were
increasingly expressed through the authority of the nation-states.
In 1648 the Treaty of Westphalia32 formally acknowledged the state as the predominate participant in
international affairs. It did so by ending the Thirty Years’ War by recognising the sovereignty of the state
above other interests such as religion or dynasty. And three years later in 1651 Thomas Hobbes’
Leviathan further entrenched the sovereignty of the nation-state as the only viable protector of man’s
freedom from persecution and manipulation by other men.33 It was within this context that Gentilis
developed the concept of jus gentium as law based on the consensus of states. These developments set the
stage for the introduction of theories of positive law advocated by Bynkershoek. Although existing side by
side with theories of natural law championed by Vattel and the writers of the French and American
Revolutions, the positive law amplified the authoritative decision making of the state.
Drawing on developments dating back to the Greek and Roman times, the French Declarations of
Rights from 1789 and 1791 and of the American states’ bills of rights, which cumulated in the national
Bill of Rights in 1789, were founded on the concept of jus naturale, moral principle rather than consensus.
In fact, had consensus prevailed, the American Bill of Rights would not have been adopted together with
the American Constitution since many delegates to the Constitutional Convention did not think it proper
to include human rights in a constitutional instrument. Both the French and the American documents were
specific to their national situations; neither included universally recognised human rights or even human
rights that would have been recognised by a consensus of states.
The substantive influence of the French and American rights movements of the eighteenth century on
the later international human rights instruments after the second world war is often exaggerated. In both
France and America while the revolutions aroused widespread public sympathy, they were organised by
an avant garde new elite that stood for only limited interests. And during the drafting of the American
Constitution many of the idealists who expressed a preference for a common interest, such as James Otis
and Patrick Henry, were contained by their colleagues with less egalitarian interests.
But perhaps more important than the substantive contributions of these movements is that they
formed a revolution of individuals against established forms of individuals against a state. They confirmed
that non-state actors were participants in international affairs and could influence international affairs.
They also express the demand of individuals to be part of the process of authoritative decision making.
But they were not the first such manifestations; even in the Middle Ages individuals had taken stands
against authority in the name of the basic rights of human beings. For example, the Magna Charta of 1215
and the Golden Bull of 1222 were instruments exonerating the rights of individuals that had been forced
upon sovereigns by individuals. Nevertheless, the French and American rights movements of the
eighteenth century have become relevant examples by virtue of their historical proximity and because of
the attention they subsequently received. But much like the governments at the end of the twentieth
century, the governments which emerged from these revolutions did not trust individuals enough to admit
them to the forum they themselves had created.
131
. Daes (1992) at 16, para. 178.
232
. The Peace of Westphalia is a series of treaties ending the Thirty Years’ War which involved most European powers. The treaties signed in
Münster and Osnabürck ended the war between France and the Holy Roman Empire and between Spain and the Dutch. It marked the triumph
of the French Bourbons over the Habsburgs’ dynasty.
33
. See Janis, M.W., An Introduction to International Law 153-155 (1993).
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By the mid-nineteenth century some of the momentum, that had led to the revolutions of the earlier
century, re-manifested itself. Examples can be found in undertakings in the area of humanitarian law, such
as the founding of what was later to become the International Committee of the Red Cross from the
initiative of Henry Dunant. In some forums of judicial decision making individuals, although usually
through some elite criteria such as wealth or diplomatic status, also received recognition without the direct
intervention of states. Examples, some of which will be considered in more detail when discussing the
procedural capacity of the individual, are the Mixed Commission on Private Claims between American
and British citizens which was created by a Convention of 1853, the Congresses of Vienna in 1815 and
Berlin in 1884 which condemned slavery and provided for rights to promote free trade, and the Alabama
Claims award of 1872.

Claims to Recognition of the Status of Individuals and Treaties

For several reasons, treaties are of interest to an examination of the status of the individual. First,
treaties frequently give rise to rights and responsibilities for individuals. The rights found in international
human rights and humanitarian law treaties are the best examples. The human dignity of the individual has
been recognised in a growing number of human rights instruments not only internationally under the
umbrella of the United Nations, but also in the context of regional organisations in the America’s, Europe
and Africa.34 The African Charter on Human and Peoples’ Rights (ACHPR) is the most explicit and far-
reaching of the major regional human rights instruments in its recognition of the responsibilities of the
individual under international law. Along with an extensive list of rights, the Charter also includes the
most extensive list of individual responsibilities found in an international human rights instrument. The
duties, as will be discussed in more detail later, are less clear than the rights, but it is hard to deny that the
provisions articles 32 of the ACHR and articles 27 through 29 of the ACHPR, supported by article 29 of
the Universal Declaration of Human Rights, do not provide for duties of the individual, however, vague
they might be.35
Second, the law of treaties itself recognises the important and necessary role of individuals in the
process of treaty creation. This is consistent with the view supported in this study that all acts of a state are
ultimately acts of individuals. The international law of treaties expresses this in article 7 of the Vienna
Convention on the Law of Treaties which refers to the rights and responsibilities of individuals by
acknowledging the conditions under which “[a] person is considered as representing a State for the
purpose of adopting or authenticating the text of a treaty or for the purpose of expressing consent of the
State to be bound by a treaty.”
Third, treaties are once a manifestation of the authoritative decisions and an influence on future
decisions. The text of treaties are expressions of what the representatives of states believe should be legal
obligations. The mere existence of a treaty text, and especially that of a treaty that has entered into force
for a great many states, give rise to the expectations of individuals that the rules of law expressed in these
treaties will be observed by states. When these rules indicate an object and purpose of protecting
fundamental individual rights, then the expectations that these rights will be protected against
infringement by all individuals as well as states may also be created.
Although the law of treaties is in large part codified in the 1969 Vienna Convention on the Law of
Treaties this law has also existed for much longer as has the concern with individuals under this law.36 To

434
. See e.g. the American Declaration on the Rights and Duties of Man (1949), the European Convention (1951) and the African Charter on
Human and People’s Rights (1981).
535
. Duties, referred to as responsibilities, are discussed in more detail in chapter eight.
636
. See Brezemer, C.H., “Hoofdstuk II: van de twaalfde eeuw tot circa 1450” at 21-42 in Eyffinger, A.C.G.M., (ed.), Compendium
volkenrechtsgeschiedenis (Dutch, approximate English translation: Compendium of the History of International Law) (2nd ed. 1991). C.H.
Brezemer cites the Tractatus de confederationbus et conventionibus principum (Latin, approximate English translation: Guide to the
Organizations and Agreements of Princes) (approximate date 1445) by Martinus de Graatis de Laude who died in 1453 as one of the first
84
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briefly chart this progress one can begin with the point in time when individuals in the Greek city states
began to use agreements to manifest their communal will and protect their common expectations.37 Arnold
McNair draws our attention to an Anglo-Saxon pre-modern signpost of this development pointing out that
“a constitutional document which closely resembles the international treaty ... [is the] ... Magna Carta”
from 15 June 1215. Under Greek and Roman law citizens were considered bound by the agreements made
on their behalf by their leaders. An assumption existed that a legitimate leader could enforce among his or
her subjects the agreements he or she entered into. This assumption is expressed in the principle of pacta
sunt servanda. It is a requirement of this basic principle of treaty law that individuals as well as states
observe treaty obligations, even if only a state can be held responsible for breach of such obligations under
the traditional mechanisms of international law. Such a view of treaty obligations furthers the values and
policies behind international human rights law, namely those concerned with the protection of certain
basic rights of the individual against any form of interference. This is the case despite the traditions of
international law that prohibited individuals from being parties to a treaty.
The view that treaties create rights and occasionally obligations for individuals is part of general
international law today, in part because it has been recognised to be such by international tribunals. For
example, in the Danzig Case the Permanent Court of International Justice has expressed the view that
although an individual could not be party to the treaty in question, “[t]he very object of an international
agreement, according to the intention of the contracting parties, may be the adoption by the parties of
some definite rules creating individual rights and obligations and enforceable by the national courts.”38
Sharing this view, the Rapporteur Humphrey Waldock of Great Britain, proposed an article entitled
“the application of treaties to individuals” to the Vienna Convention on the Law of Treaties.39 This
proposed article 66 read:40
Where a treaty provides for obligations or rights which are to be performed or enjoyed by
individuals, juristic persons, or groups of individuals, such obligations or rights are applicable to
the individuals, juristic persons, or groups of individuals in question:
(a) through the contracting States by their national systems of law;
(b) through such international organs and procedures as may be specially provided for in
the treaty or in any other treaties or instruments in force.
In his commentary accompanying the proposal Waldock recognised the controversial nature of the
proposition, but defended his proposal stating that “the application of treaties with respect to individuals
under the existing rules of international law appears to be fairly well defined ... [b]ut, whatever may be the
true juridical relation between the individual and the treaty ... the treaty operates upon the individual not
only through his national systems of law but also through the international procedures prescribed in the
treaty directly to him.”41 He cites the 1907 Convention of the Central American Court of Justice, article
304 of the Versailles Treaty, the post-World War I peace treaties, the Upper Silesian Arbitral Tribunal
created under the German-Polish Convention of 1922,42 article 87 of the Charter of the United Nations,
article 25 of the European Convention on Human Rights and Fundamental Freedoms, and the war crimes

monographs on the law of treaties. Id. at 31. Also see, generally, Verzijl, J.H.W., International Law in Historical Perspective, Vol. 6, pp. 112-
612 (1973). And L.C. Winkel cites as example of the first treaties the agreements between Greek city states in 8th through 6th Century B.C.
which dealt with individual rights relevant to trade and the ownership of property. See Winkel, L.C., “Hoofdstuk I: volkenrechtsgeschedenis
in de oudheid” at 10-20, 10 in Eyffinger (1991).
737
. See Jennings and Watts (1996) at 1197 citing Ténékidès, G., L’individu dans l’ordre juridique international (1933) (concerning the
treaties of the Greek city states).
838
. Jurisdiction of the Courts of Danzig, (1928) P.C.I.J. Reports, Ser. B., No. 15. at 17-18.
939
. Waldock, H., Third Report on the Law of Treaties (1964), U.N. Doc. A/CN.4./167 and Add. 1-3 (1964) 2 Yearbook of the International
Law Commission 45-47.
040
. Id..
141
. Id. at 45.
242
. Emanating from the First World War and signed in Geneva, the German-Polish Convention on Upper Silesia of 15 May 1922, 9 L.N.T.S.
466, is often referred to as the “Geneva Convention”.
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tribunals under the Nürnberg and Tokyo Charters.43 Each of these references illustrate, according to
Waldock, the will of states to create obligations or rights for individuals. 44 Indeed, as has already been
mentioned, the Permanent Court of Justice in the Danzig Case, agreed with this view.45 In the discussions
in the Law Commission on Waldock’s proposal, the members of the Commission were almost evenly
divided in their support for the proposal.46 Alfred Verdross of Austria, Erik Castrén of Finland, Mustafa
Kamil Yassen of Iraq, Shabtai Rosenne of Israel, Gilberto Amado of Brazil, Milan Bartol of Yugoslavia,
Chieh Lui of China, Senjin Tsuruoka of Japan and José María Ruda of Argentina supported the inclusion
of an article specifically indicating that individuals could have rights and obligations under treaties.47 The
supporters based their position largely on the current developments of international law, namely the
treaties and cases that Waldock had referred to in his report. 48 Angel Modesto Paredes of Ecuador,
Antonio de Luna of Spain, Roberto Ago of Italy, Taslim Olawale Elias of Nigeria, Herbert W. Briggs of
the United States of America, Eduardo Jiménez de Aréchaga of Uruguay, Manfred Lachs of Poland and
later President of the International Court of Justice, Grigory I. Tunkin of the Soviet Union and El-Erain
Abdullah of Egypt indicated that they had problems with the inclusion of the proposed article. 49 Rosenne
also joined this group in apparent contradiction of his earlier support for the article, but he like most of the
objecting members of the Commission did not have substantive objections to individuals accruing rights
and responsibilities under treaties. Instead the objectors cited technical difficulties (El-Erain, Ago and
Jiménez de Aréchaga), unnecessariness (Briggs), the complex debate about the individual’s status under
international law (Rosenne, Luna and Elias), a fear of individuals using the right of self-determination to
oppose the state (Lachs) and the fact that it was a matter for the Commission’s work on state responsibility
(Ago).50 Only Tunkin, Paredes and Lachs appeared to disagree explicitly with the principle that
individuals could not acquire rights and obligations under international law, 51 although Tunkin and
Jiménez de Aréchaga stated that under international law it was the primary obligation of states to uphold
international law created by treaties, referring to the principle of pacta sunt servanda.52 Observing the lack
of a clear consensus among the members of the International Law Commission, Waldock finally withdrew
his proposal, stating that it reflected a “phenomenon which already existed under international law ... the
extent and importance of which had perhaps not been sufficiently recognised during the discussion.”53 But
this often forgotten episode in legal history should not be underestimated. Both Waldock’s unopposed
concluding suggestion as well as the agreement of highly respected jurists from Austria, Finland, Iraq,
Brazil, Yugoslavia, China, Japan and Argentina is an indication that there was strong support for the
recognition of individuals as full participants under international law. Additionally, some of the
difficulties recognised by those dissenting to Waldock’s proposal have not materialised. For example, the
Human Rights Committee has interpreted the right to self-determination in article 1 of the ICCPR not to
be a right that can be claimed in individual communications 54 and the issue of individual responsibility has
now been dealt with by the two specific international criminal tribunals and a more general International
343
. Each of these fora are discussed in chapter six concerning the procedural capacity of individuals.
44
. Id. at 46-47.
545
. But see Lauterpacht, H., Development of International Law through the International Court 173 (1958) (down-playing the significance of
the Court’s finding in the Danzig Case).
646
. See Summary Records of the 741st Meeting, [1964] Yearbook of the International Law Commission, Vol. I, 114-119.
747
. Id..
848
. Id..
949
. Id..
050
. Id..
151
. Id. at 115, 117 and 118-119.
252
. Id. at 117.
353
. Id. at 117.
454
. See Lubicon Band Case, Communication 167/1984, Views of the United Nations Human Rights Committee meeting on 26 March 1990 at
para. 13.3.
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Criminal Court that unequivocally have the authority to impose individual responsibility according to
rules of international law.55 Furthermore, the continued complexity of the debate about the individual’s
status under international law illustrates the necessity rather than the folly of clarifying this point. As
Mark W. Janis has recognised “[v]irtually every human activity is to some degree the object of some
treaty” and consequently through treaties “states explicitly agree to make rules to govern their own
conduct, as well as the activities of their individual and corporate nationals.”56
Perhaps the best evidence in support of Waldock’s views is that since the creation of the United
Nations up to its fiftieth birthday no less than 200 human rights treaties, 57 60 declarations and an
enormous amount of model codes, rules, safeguards, guidelines, bodies of principles, codes of conduct,
recommendations, resolutions and opinions have been adopted, all of which provide for individual’s rights
or responsibilities. This is to say nothing of the more than one-hundred studies prepared by Special
Rapporteurs for the Economic and Social Council, the Commission on Human Rights, the Sub-
Commission on Prevention of Discrimination and the Protection of Minorities or the General Assembly
indicating that individuals have rights and responsibilities under international law. These instruments
manifest and reinforce the belief that individuals have rights and responsibilities as participants in the
international community. In doing so they also infer that individuals enjoy, or should enjoy, full
participatory status under international law that is concerned with their basic rights.
The instrument that Arnold Duncan McNair cited as an indication of the development of the modern
treaty, the Magna Carta, is an agreement between a sovereign and several private individuals. It is in fact
partly for this reason that the Magna Carta can be acclaimed as one of the first instruments relevant to the
development of international human rights law. And it is a reminder that treaties, as Waldock stressed,
indeed can create rights and responsibilities for individuals. These international instruments are thus
evidence that individuals are participants in the processes of international law. Unfortunately, international
lawyers have not always been willing to accept and develop this areas of the law.

Claims Concerning Individuals in Special Positions

To speak of a special status of individuals in the process of international human rights law is
somewhat contradictory and confusing because human rights apply to all individuals merely because of
there quality of being human beings.58 It may therefore be argued that all individuals have equal status and
have been recognised as participants under international law. Nevertheless, there are some individuals
who because of their membership in a specific group have been provided with special rights and
responsibilities that enhance their participation in the process of international human rights law. Some of
these groups of individuals are described below.
International judges are one of the groups of individuals who are of most interest to international
lawyers. These judges acquire special rights and obligations under international law by virtue of becoming
judges of an international tribunal that has been constituted under international law. The judges of the
International Court of Justice serve as perhaps the best example of the special place that may be accorded
judges. Like all other individuals they have a responsibility for respecting the laws of the countries under
whose jurisdiction they are found. They also enjoy special diplomatic status that offers them some
immunity from the laws of the country in which they are exercising their functions—in the case of the
ICJ, the Netherlands. Of more concern for this study, however, are the responsibilities that the judges have
as regards international human rights law. Because the Court only decides case between states, issues of
55
. See the discussion of these initiatives in chapter eight.
656
. Janis, M.W., An Introduction to International Law 13 (1993).
757
. This number includes, as the large majority, the human rights conventions entered into under the auspices of the ILO. Although this
number may appear slight in light of the 21,806 treaties registered with the United Nations as of 1983, one should note that the overwhelming
majority of the treaties, although not explicitly human rights treaties, include provisions directly affecting the enjoyment of human rights.
858
. Higgins (1994) at 96.
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international human rights law do not appear before them in every case. Nevertheless, according to article
38(1) of its Statute, the Court’s “function is to decide in accordance with international law such disputes
as submitted to it” and it “shall apply” the sources of international law stated in the article. The Court is
thus bound to apply the relevant international human rights law. Furthermore, although treaties may only
be applied when the states before the Court are party to them, customary law will apply to all states, with
very few exceptions.59
The main function of the Court is thus its collegiate responsibility to decide cases according to its
Statute. But although the Court is primarily a collective entity whose judgments are taken by a majority of
all the judges sitting on a particular case, it is also an example of individuals involved in authoritative
decision making. The individual responsibilities of the judges might be said to emanate from both formal
and informal sources. The best expression of the latter might be the widely-held belief that judges are
individuals of the highest degree of integrity, whose decisions must be based not so much upon concern
for individual preferences, but upon their concern for the good of society. From this perspective a judge’s
authority must be seen to contribute to a high degree of social responsibility—a degree that is higher for
example than that of the average individual whose decisions will have little if any effect on governments.
From the more formal perspective, a judge’s responsibility can be seen as integrally linked to the
collegiate responsibility. The principle of collegiate responsibility is most clearly defined in Resolution
concerning the Internal Judicial Practice of the Court60 adopted on 12 April 1976 by the Court.61 It
means, as Judge Robert Jennings points out, that “even Judges intending a thoroughly dissenting opinion
are expected to work with the Court upon the draft judgment itself.” 62 The expectation of compliance with
this responsibility is supported by the practice of the Court63 as well as the opinions of legal scholars.64
Therefore, what has been said about the Court as a collegiate entity also applies to each individual judge.
Thus: (1) because the Court must decide cases before it according to the sources of international law listed
in article 38(1) of its Statute; (2) because international human rights law forms an integral and
increasingly important part of these sources of international law; and finally, (3) because the Court
operates as a collegiate body requiring the co-operation of each individual judge in the fulfilment of its
obligations under its Statute; the conclusion may be drawn that each judge is under an obligation to abide
by the Statute of the Court. It may therefore be argued that when a judge fails to apply relevant
international human rights law to a case before the Court, he or she fails in his or her obligation to apply
the relevant sources of international law. Finally, it might be recognised that collegiate responsibility does
not distract from each judge’s individual responsibility—although perhaps of a different nature—and thus
even when the Court fails to consider relevant international human rights law a judge may be under a duty
to do so in his or her separate opinion.
Another individual to whom international law has turned its attention is the Pope, the leader of the
Roman Catholic Church.65 Again the collegiate characteristic of the Church has led to some confusion.
For, example, Maarten Bos draws attention to the argument that because the Pope is the head of the
“church” and because the church is the “body”, the Church cannot be considered a subject of international

959
. See Asylum Case (Columbia v. Peru), I.C.J. Reports, No.10 (1950) (in which the Court admitted that a state that persistently objects to a
rule of customary international law may not be bound by it).
060
. Resolution concerning the Internal Judicial Practice of the Court, Resolution of the ICJ of 12 April 1976, I.C.J. Acts and Documents, Vol.
4, 165 (1976).
161
. See Rosenne, S., The International Court of Justice: an essay in political and legal theory 418 (1957).
262
. Jennings, R., “The Collegiate Responsibility and Authority of the International Court of Justice” at 343, 345 in Dinstein, Y., (ed.),
International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (1989).
363
. See Jennings (1989) at 344.
464
. See generally Jennings (1989) (Robert Jennings was a judge and President of the International Court of Justice) and Rosenne (1957).
565
. See Bos, M., “Further Ancient Law Analogies in International Law” at 61, 62 in Dinstein, Y., (ed.), International Law at a Time of
Perplexity. Essays in Honour of Shabtai Rosenne (1989).
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law.66 In Bos’ own opinion, however, the Pope is a subject of international law because he is the spiritual
and temporal leader of the Church and his legal “position is identical to that of a monarch.” Of more
relevance for this study, is that Bos draws attention to the activities of the Pope as a participant in the
formation of international law—for example, by his participation in treaty making processes. It is more
usual, however, that the Vatican or the Holy See, as an institutional actor, is represented in treaty making
processes. Nevertheless, Bos convincingly argues that the Pope is a ‘participant’ in the formation of
international law. He describes how the Pope’s activities in the field of human rights and humanitarian
law, are of considerable influence—-similar to that of a monarch.67 If Bos is claiming, as he seems to be,
that the Pope has been recognised as subject of international law in his capacity as a private person, he is
probably mistaken. Today monarchs are not considered subjects of international law, but similar to Prime
Ministers or Presidents who are only representatives of their state. But if Bos is merely drawing attention
to the fact that the Pope is an influential participant in the process of international law, then he is
undoubtedly correct and usefully drawing our attention to a relevant participant whose views must be
considered in the process of authoritative decision making and the interpretation of this process.
Aliens, as an identifiable group, have held a special status under international law since the Greek
period. Phillipson, examining the Greek traditions of international law, concludes that “[i]n most Greek
States, but in Athens above all, strangers received protection and large concessions.”68 The general
hospitality afforded strangers assumed the character of a “public institution.”69 It included the right to
freedom of movement, freedom of expression, and a right to asylum.70 It also includes the right to a
minimum level of due process even where the state is entitled to remove the alien.71 These rights have
been consolidated in the Declaration on the Human Rights of Individuals Who are not Nationals of the
Country in which They Live which was unanimously adopted by the United Nations General Assembly.72
Because the “international standard protecting aliens (meaning potentially all human beings) and state
responsibility for injuries to aliens constitute a vital part of customary international law, not an exception
or aberration”73 it is evidence that individuals have acquired a recognised status under international law.
But at the same time the state practice concerning the protection of aliens, including the several
international instruments, is ambiguous about what this status actually means. It may be concluded that it
contributes only to the general presumption that individuals are participants in the process of international
human rights law.

66
. Id..
767
. One just has to look at the 1993 Cairo Conference on Population or Copenhagen Conference on Social Development to see this where the
Pope’s opposition to birth control became a very serious issue although it was ultimately rejected.
868
. Phillipson (1911) at 131.
969
. Id.. Cf. Wheaton (1845) at 1 (claiming that aliens were doomed to slavery. Phillipson says this description of ancient Greek society is
surely incorrect).
070
. See Thucydides, History, i, 2 quoted in Phillipson (1911) at 134.
171
. See art. 13 of the ICCPR (expulsion of aliens lawfully in the territory of a state is prohibited except as in accordance with law); art. 5 of
the ECHR (expulsion limited as in ICCPR); art. 4 of the Fourth Protocol to the ECHR (collective expulsion is prohibited); art. 22(6) of the
ACHR (expulsion limited as in ICCPR); art. 12(4) (expulsion limited as in ICCPR and collective expulsions prohibited) and (5) ; and art. 32
of the Refugee Convention. Also see art. 7 of U.N.G.A. Res. 40/144 of 13 December 1985 and Goodwin-Gill, G.S., The Refugee in
International Law 151 and 152 (2nd ed. 1996) (discussing protection from refoulement of refugees).
272
. U.N.G.A. Res. 40/144 of 13 December 1985. Also see ILO Convention No. 118 concerning Equality of Treatment of National and Non-
Nationals in Social Security from 1962; International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, U.N. Doc. A/RES/45/158, opened for signature and ratification 18 December 1990, not yet entered into force; Elles, D.,
International Provisions Protecting the Human Rights of Non-Citizens, U.N. Doc. E/CN.4/Sub.2/392 and Corr.1 (1976), U.N. Sales No.
E.80.XIV.2 (1980) and Human Rights Committee, General Comment 15 on the Position of aliens under the Covenant, adopted at the 27th
session in 1986 reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Bodies, U.N. Doc.
HRI\GEN\1\REV.1 at 18 (1994).
373
. Chen (1989) at 77.
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For some categories of aliens the protections to which they are entitled are better specified, for
example refugees and stateless persons.74 In the cases of these two categories of individuals protection is
based on the realisation that they cannot be protected through the traditional means by which most aliens
are protected; i.e. through the exercise of authority by their country of nationality.75 Special protections
have thus been granted these two groups of people in treaties.76 Stateless individuals are granted a variety
of human rights, including the right to due process protection from expulsion similar to that which aliens
enjoy under customary international law.77 Refugees, individuals who are fleeing persecution in their
country of nationality, are provided protection from refoulement—being returned to a country in which
they fear persecution.78 Most of the other rights that stateless persons and refugees have under the relevant
treaties are rights every individual enjoys under more general treaties. It is important to note that when
stateless persons and refugees were provided protection of their human rights, their rights were not
protected by the two covenants that only came into force in 1976 or by other significant human rights
treaties. Thus, when stateless persons and refugees were granted human rights under the respective treaties
in the 1950’s they were being provided with a form of enhanced international status. This status provided
them with protection under international law. This was a development from the then prevailing practice
that individuals must rely on their country of nationality for the protection of their human rights. It thus
signifies a greater willingness by states to treat individuals as relevant to international law.
Indigenous peoples, although often nationals of the state in which they are resident, have also claimed
protection, under international law. These claims have been recognised in several United Nations
instruments.79 Russell Barsh has argued that these instruments express claims by indigenous peoples to
establish that they are “members of the international community who have legal personality under
international law—’subjects’ of international legal rights and duties rather than mere ‘objects’ of
international concern.”80 Nevertheless the road to establishing these rights has been long and arduous. The
length of time that the United Nations Draft Declaration on the Rights of Indigenous Peoples (hereinafter
the Draft Declaration) has taken is an example. Beginning in 1985 in the Working Group on Indigenous
Populations81 drafting has continued through 1996 with the adoption of the Draft Declaration still
something for the future. This long process is indicative of the difficulties that governments have with
accepting indigenous peoples as more equal participants in a process related to the prescription of norms
of international human rights law. It is also noteworthy, that many of the rights granted indigenous
peoples in the Draft Declaration are already guaranteed to all individuals in other international
instruments. It may thus be concluded that it is the quality of indigenousness that provides the difficulty

474
. More recently, migrant workers have also been provided special protected status under the International Convention on the Protection of
Migrant Workers and Members of Their Families, U.N. Doc. A/RES/45/158 (18 December 1990).
575
. See, e.g., Mavrommatis Palestine Concessions, P.C.I.J. Reports, Ser. A, No. 2 at p. 12 (1924) and art. 3(1)(b) of the Vienna Convention
on Diplomatic Relations, opened for signature 18 April 1961, 500 U.N.T.S. 95, entered into force 24 April 1964. Also see Chen (1989) at 179
and 180 and Jennings and Watt (1996) at 934 and 935, § 410 and the sources cited therein.
676
. See Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force 22 April 1954 (hereinafter the Refugee
Convention) and Convention Relating to the Status of Stateless Persons, 360 U.N.T.S. 17, entered into force 6 June 1969 (hereinafter the
Statelessness Convention). Also see Convention on the Reduction of Statelessness, 989 U.N.T.S. 175, entered into force 13 December 1975
(providing rules to oblige states to grant stateless person nationality).
77
. Art. 31 of the Statelessness Convention and see the discussion of aliens’ rights above.
878
. Art. 33 of the Refugee Convention. Article 32 of this convention also provides for due process in expulsion proceedings.
979
. See ILO Convention No. 107 concerning Indigenous and Tribal Populations from 1957, reprinted in 328 U.N.T.S. 247; ILO Convention
No. 169 concerning Indigenous and Tribal Peoples in Independent Countries from 1991, reprinted in 28 I.L.M.1328 (1989); and the United
Nations’ Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (20 April 1994).
080
. Barsh, R., “Indigenous Peoples in the 1990s: From Object to Subject of International Law?” 7 Harvard Human Rights Journal 33, 35
(1994).
181
. A working group of the United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities that was
created by Sub-Commission Res. 2 (XXXIV) (8 September 1981), endorsed by Commission on Human Rights Res.1982/19 (10 March 1982),
and approved by ECOSOC Res. 1982/34 (7 May 1982).
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and the concern that this quality could be the basis of individual claims. 82 If any of the current projects to
provide individual members of indigenous populations with the right to claim their rights succeed, this
will be a substantial enhancement in status of individuals belonging to this group. It is an enhancement
that already applies to individual members of minorities in the 134 states that have ratified the ICCPR
which protects minority rights in article 27 as well as the Optional Protocol which allows individuals to
make claims for acknowledgement of these rights. There is no good reason why the special rights
pertaining to indigenous people—for example, the rights to live and belong to the indigenous population
or the right to an identity related to their indigenous status—should not be made the subject of
international protection. The obstacle is largely one, it is suggested, of accepting the international
personality of individuals as well as the indigenous peoples to which they belong. One cannot help but
speculate as to whether the fact, that individuals from indigenous and minority groups are usually the
more vulnerable individuals in society, has been a factor that has made it more difficult for them to
acquire an enhanced international status; or, conversely, as to how their being identified with a indigenous
and minority group contributes to their vulnerability.83
As opposed to problems confronted by minorities and indigenous groups, there are individuals to
whom governments have been anxious to provide special international status. These individuals include
state officials, especially diplomats and consular staff, and the employees of international organizations.84
It is important to briefly describe the position of these individuals for at least two reasons. First, although
they act on behalf of a government or inter-governmental organisation, they are individuals. And second,
their individual personalities are often as important as their group identity for their participation in the
process of international human rights law. Heads of state and government ministers are individuals that
enjoy the competence jus repraesentationis omnimodae, the authority to act on behalf of the state in
international affairs.85 The individual who has this right may vary when the state is governed by a body of
individuals such as the Federal Council in Switzerland and diplomatic agents may also enjoy this right.86
The rights enjoyed by the primary representatives of states provide them with enhanced abilities to
participate in the prescriptive processes of international human rights law, especially the making of
treaties.87 Diplomats and consular officials also enjoy many of these rights. For example, diplomats are
immune from arrest and lawsuit,88 while consular officials may only be arrested for serious crimes or after

282
. Compare Ominayak, Chief of the Lubicon Lake Band v. Canada, Communication No. 167/1984, 19909 Report of the United Nations
Human Rights Committee, U.N. Doc. A/45/40, Vol. 2, at 1 (expressing the view that neither an indigenous person nor indigenous peoples are
entitled to bring claims for violations of their right to self-determination under article 1 of the ICCPR under the provisions of the Optional
Protocol). Also see Higgins, R., “Minority Rights: Discrepancies and Divergencies Between the International Covenant and the Council of
Europe System,” at 195, 198 in Lawson, R., and Blois, de, M., (eds.), The Dynamics of the Protection of Human Rights in Europe: Essays in
Honour of Henry G. Schermers, vol. III (1994) (who points out that although “[i]ndigenous peoples see their status as other than minorities in
their own land,” [footnote omitted], id.at 198, ... “Canadian Indians, when informed by the [United Nations] Committee on Human Rights
that they could not bring claims for self-determination, have been prepared to reformulate their claims as minority rights claims,” id. at nn. 9).
383
. See, e.g., Human Rights Watch, The Human Rights Watch Global Report on women’s Human Rights 78 (1995) (explaining how in Peru
“victims of rape in the emergency zones have tended to be brown-skinned, poor, Quechan speakers, often monolingual.” Id. at 87).
484
. This latter group includes international judges, especially the judges of the International Court of Justice who are United Nations
employees, but because of their special relevant to international law as independent authoritative decision makers they have been considered
separately above.
585
. See, e.g., art. 7(2)(a) of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 U.N.T.S. 336, entered
into force 27 January 1980 (hereinafter Vienna Convention on Treaties) ( stating that “Heads of State” and “Heads of Government” have “full
powers” for making treaties). Also see Jennings and Watts (1996) at 1034, §446.
686
. See, e.g., art. 7(2)(b) of the Vienna Convention on the Law of Treaties.
787
. See the provisions of art. 7(2) of the Vienna Convention on the Law of Treaties cited in the preceding two endnotes.
88
. See art. 29 of the Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 U.N.T.S. 95, entered into force 24
April 1964. It should be noted that there are arguably exceptions to these enhanced rights which may include when the protected person
violate another individual’s human rights. See, e.g., Torture Victim Protection Act of 1991, Public Law No. 102-256, 106 Statute 73 (1992),
codified at 28 U.S.C. §§1350 note (Supp. V 1993) (in the United States allowing civil suits to be brought against anyone—presumably also a
diplomate—committing torture outside the United States).
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a special court order.89 As a result of their enhanced status, these functionaries are better able to act and
interact to achieve the goals of world public order. For centuries some of the above entitlements have been
thought to be necessary for this goal.90 These entitlements in the name of achieving the maintenance and
development of world public order, however, raises question about the value of providing individuals
greater rights of participation for achieving a world society based on the values of human dignity. Just as
these state representatives are needed to ensure the perpetuation and development of the international
community of states, do not individuals require enhanced rights of participation in the process of
international human rights law so as to ensure the perpetuation and development of this process and the
values and policies underlying it? This is a question that will be revisited in the final chapter of this study.
While many of the above categories of individuals will be familiar to most international lawyers, they
are not the only individuals claiming international status based on special characteristics. The expanse of
the categories becomes apparent merely by recognising that there are hundreds of indigenous peoples and
minorities which cannot be enumerated in this study. Additionally, there are countless numbers of
individuals claiming international personality because of their affinity with particular ideals. World
Passport holders, for example, are individuals who refuse to recognise states’ right to restrict their human
right to travel and attempt to travel with ‘World Passports’ issued by the World Service Authority
(WSA).91 These passports have been officially recognised by six countries (Burkina Faso, Ecuador,
Mauritania, Tanzania, Togo and Zambia) and unofficially accepted by more than 135 countries on more
than one occasion. The individuals organising this movement as well as those participating are making a
claim through their use of the World Passport to international status. In each case the claim is supported
by the WSA, but, as WSA lacks the resources or recognition to invoke its authority with most national
governments, the individual’s using their passports carry the largest part of the responsibility for their
actions. In fact the WSA acts as more of an information clearing house for the activities of its individuals.
The motivating force behind the WSA and the World Passport movement is that individuals, not
governments, are the sovereigns of world society. The movement and its members thus claim a very high
degree of recognition of the participatory capacity of the individual in world society.

989
. See art. 41 of the Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 U.N.T.S.261, entered into force 19
March 1967 (article 43 of this convention provides immunity from criminal and civil jurisdiction for acts done in exercise of consular
functions).
090
. See, for example, Gentili, A., De legationibus (1585) (in both English and Latin in Classics of International Law 1924) and Roelofsen,
C.G., “Hoofdstuk III: De Periode 1450-1713” at 43, 81 and 82 in Eyffinger (1991) (referring to the writings of Grotius on diplomatic
immunity).
191
. This organization is based at 1012-14th Street N.W., Suite 1106, Washington D.C. 20005 U.S.A., telephone number: +1-202-638-2662 or
facsimile number: +1-202-638-0638.
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 Chapter Six: The Procedural Capacity of Individuals Under International Human Rights Law

CHAPTER SIX

THE PROCEDURAL CAPACITY OF THE INDIVIDUAL

UNDER INTERNATIONAL HUMAN RIGHTS LAW

The immediate goal must be to extend this individual right of action to all conflict-resolving tribunals found within
every regional and international organisation on the same terms accorded sovereign governments ... if world peace is
to be achieved and if the “rule of law” is to become a reality, human rights must be capable of effective
enforcement…
Gormley, W.P., The Procedural Status of the Individual and Supranational Tribunals 194 (1966)

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 Chapter Six: The Procedural Capacity of Individuals Under International Human Rights Law

THE PROCEDURAL CAPACITY OF THE INDIVIDUAL

UNDER INTERNATIONAL HUMAN RIGHTS LAW

The United Nations

134

The United Nation Organization is a natural starting point for the evaluation of individual procedural
capacity before human rights bodies because it is where the greatest number of bodies, applying to the
greatest number of individuals (and states) are found. Foremost among the United Nations bodies is the
Commission on Human Rights. This Commission was established by the Economic and Social Council.135
Its fifty-three members are all states, whose representatives sit for three year terms. By resolution 728 F
(XXVIII) of 30 July 1959 the ECOSOC authorised the Commission to receive communications from
individuals. By resolution 1235 (XLII) the ECOSOC further authorised the Commission, at its own
request136 and with the assistance of the Sub-Commission on the Prevention of Discrimination and the
Protection of Minorities, to “examine information relevant to gross violations of human rights ....” The
Sub-Commission has created a Working Group on Communications as a screening body. After a
communication has passed this hurdle, the Sub-Commission considers it with a view towards determining
whether to forward it to the Commission. The Commission considers all complaints sent to it in its
Working Group on Human Rights Situations, which consists of five individuals appointed in their
personal capacity.137 Eventually some situations that began with an individual complaint may be
considered by the plenary Commission at its annual spring meeting in Geneva, Switzerland. Although
individuals can initiate petitions, even to enter this system a complaint must “reveal a consistent pattern of
gross and reliably attested violations of human rights and fundamental freedoms.”138 The procedure is
further devaluated because all its stages are confidential.139 After submitting a complaint an individual is
generally kept in the dark about the complaint. In the end the Commission may ultimately decide to
confidentially study the situation of human rights abuse alleged in the communication, 140 to subject it to an
investigating committee if the state concerned consents, to initiate a Special Rapporteur or other process
of investigating, or to publicly debate the question at its annual meeting. Only by closely monitoring the
Commission’s reaction can an individual determine the relative attention given to his or her complaint.
An integral part of the 1503 and 1235 procedures is the Sub-Commission on the Prevention of
Discrimination and the Protection of Minorities this body consist of twenty-six independent experts.141 As
stated above the Sub-Commission has created a separate Working Group to deal with communications.
The Sub-Commission, which consists of five members of the Sub-Commission appointed by their peers, is
the first port of call for individual complaints to the Human Rights Commission.

134
. ECOSOC Res. 5(I) (1946). Also see art. 68 of the Charter of the United Nations stating that the ECOSOC “shall set up commissions ...
for the promotion of human rights.”
135
. ECOSOC Res. 1990/48.
136
. Commission Res. 8 (XXIII) (1967).
137
. Established in accordance with ECOSOC Res. 1990/41 (25 May 1990).
138
. ECOSOC Res. 1503 (XLVIII) (27 May 1970). Also see Sub-Commission Res. 1(XXIV) (1971) which established the necessary elements
of an admissible communication, which can be summarized as (1) it reveals a consistent pattern of gross and reliably attested violations of
human rights, (2) it originates from reliable witnesses to the violation, (3) it is not anonymous, (4) it is sufficiently detailed, (5) it is not
contrary to international law or politically motivated, (6) domestic remedies have not been exhausted, and (7) it has been submitted within a
reasonable time after the exhaustion of domestic remedies.
139
. See para. 8 of ECOSOC Res. 1503 (XLVII).
140
. See para. 3 of Res. 1235 (XLII).
141
. The Sub-Commission was established by the Commission on Human Rights under the authority of ECOSOC
Res. 9(II) (1946). Its membership was increased to 26 in 1969 by ECOSOC Res. 1334 (XLIV). Its members serve
in their individual capacity and are usually experts on international human rights law. Members are, however,
nominated and elected by the governments in the Commission on Human Rights.
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 Chapter Six: The Procedural Capacity of Individuals Under International Human Rights Law

The procedures under resolutions 1503 and 1235 are the result of “the prevailing mix of public
pressures, the cohesiveness or disarray of the key geopolitical blocks, the power and number of the
offending state(s) and the international standing of their current governments, and a variety of other, often
rather specific and ephemeral factors.”142 In addition, the members of the Commission as state
representatives are deciding on claims against like authorities and even the independent members of the
Sub-Commission do not have secured office and must rely on the continued support of their state to be
elected and re-elected. Finally, even in the most open of the procedures—the public debates under
resolution 1235, most of the procedure takes place in private and the individual who made the complaint is
usually excluded from participating in any formal way. These procedures, which form the centre of the
United Nations non-treaty based system for the protection of human rights, thus, while allowing
individuals access to make claims concerning human rights are limited in their capacity to deal with these
claims independently.
The United Nations Human Rights Committee (UNHRC) is established by the International Covenant
on Civil and Political Rights (ICCPR). Its 18 members are elected by the States who are party to the
ICCPR for terms of four years. Every year the UNHRC hold three sessions of three weeks, one in New
York and two in Geneva.
Under the Covenant itself individuals did not have procedural capacity to bring claims for violation of
their rights despite being the primary recipients of rights. It is only under the Optional Protocol that
individuals acquired rights to petition the Human Rights Committee. The right of individual petitions
under the ICCPR is dependent on states’ acceptance of the first Optional Protocol. Article 2 of the
Optional Protocol grants individuals who are victims of human rights abuses the right to petition the
Human Rights Committee. When the ICCPR was adopted as a General Assembly resolution and opened
for ratification as a treaty on 16 December 1966 its first Optional Protocol was also adopted. This protocol
provides for communications from individuals who claim to be victims of violations of human rights. In
considering the claims of individuals the Committee may take evidence from a wide variety of sources,
including individuals and their representatives. Under the article 41 procedure, which is between states,
but nevertheless because its subject matter is human rights concerns of individuals, there is no right to
appear before the UNHRC or even to receive a copy of its report. This procedure, however, has not yet
been utilised by states. The UNHRC reports annually to the General Assembly via the Economic and
Social Council. The reports include a summary of the decisions on individual communications.
When considering the International Covenant of Civil and Political Rights, states discussed admitting
expansive procedural rights for individuals.143 As one observer describes, during the drafting process
[v]arious procedures for extending the right to initiate proceedings before the Human Rights
Committee were suggested. Some unconditionally favoured the right of individuals, groups and
non-governmental organisations to petition. Some thought that only aggrieved persons directly
affected by a violation should have the right. Others felt that the right of petition should be
granted to non-governmental organisations or only to certain non-governmental organisations,
especially those have consultative statue with the Economic and Social Council. Another view
favoured empowering the committee to act on its own motion. Some advocated that only the right
of communicating to the committee should be recognised and that action thereafter be left either
to the initiative of the Committee or the States parties. One view was that a High Commissioner
(Attorney-General) should be appointed whose duties would be to receive charges from any
source with authority to institute proceedings before the committee.144

142
. Alston, P., Appraising The United Nations Human Rights Regime at 2 in Alston, P., (ed.), The United Nations and Human Rights: A
Critical Appraisal (1992).
143
. See Bossuyt, M.J., Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights 636 and 637 (1987).
144
. Bossuyt (1987) at 636 and U.N. Doc. A/2929, Chap. VII, §74.
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 Chapter Six: The Procedural Capacity of Individuals Under International Human Rights Law

Another proposal by the United Kingdom145 suggested adding a paragraph to article 40 giving the
Committee the right
to take the initiative in cases where it recognises that non-observance of any provision of the
Covenant is serious enough. “The Committee shall have the right to receive and consider
communications concerning the non-observance of any provision by States Parties to the
Covenant from:” (a) non-governmental organisations in consultative relationship with the
Economic and Social Council; (b) Groups of individuals and individuals, who are injured parties,
through one of the non-governmental organisations referred to in sub-paragraph (a) above. “The
Committee shall determine the rules concerning the receivability of communications referred to
(above) and obtain the approval of the States Parties to the Covenant regarding these rules.”146
However, all four proposals were rejected or withdrawn in favour of a draft text which reads “[t]he
Committee may initiate an inquiry on receipt of complaints received either from individuals, or from
groups, or from non-governmental organizations.”147 In a later session even this text was withdrawn and
only the obligation of states to submit periodic reports to the Human Rights Committee remained in article
40. The other provisions were relegated to the Optional Protocol, which 88 of the 133 states that have
ratified the International Covenant on Civil and Political Rights have ratified as of 1 April 1996. The
Optional Protocol thus remains the only means by which individuals may have formal access to the
Human Rights Committee.
Of course this does not mean that individuals only interact or influence the decision making of the
Committee when they are making a complaint under the Optional Protocol procedure. Indeed, individuals
can and do communicate with the Committee to provide information about third parties’ cases before the
Committee, to provide information for the Committee’s consideration of state reports and whenever they
believe that there is a matter that should be brought to the attention of the Committee. These submissions
by individuals usually go through the Centre for Human Rights in Geneva that functions as the secretariat
for the Committee and which controls the submissions to see that they are relevant to the Committee’s
work.
Despite the fact that the Office of the United Nations High Commissioner for Refugees (UNHCR) is
the lead specialized agency within the United Nations that is responsible for the welfare and legal
protection of refugees the world over, there are no procedures by which individuals can have their refugee
or asylum status decided. State practice shows that both the procedure and the determination of this status
is largely within the discretionary domain of states. Often UNHCR is given a role in this procedure 148 and
its handbook unambiguously states that a
person is a refugee within the meaning of the 1951 Convention as soon as he [or she] fulfils
criteria contained in the definition. This would necessarily occur prior to the time at which his [or
her] refugee status is formally determined. Recognition of his [or her] refugee status does not
therefore make him [or her] a refugee but declares him [or her] to be one. He [or she] does not
become a refugee because of recognition, but is recognised because he [or she] is a refugee.149
Despite this statement interpreting the legal obligations of states under the Refugee Convention 150 states
have consistently acted otherwise. In recent years even UNHCR, which depends on donor countries for

145
. U.N. Doc. E/CN.4/S.361 at 15-16.
146
. Bossuyt (1987) at 637 and U.N. Doc. A/2929, Chap. VII, §76.
147
. Bossuyt (1987) at 637 and U.N. Doc. A/2929, Chap. VII, §75 (which states that “[t]he three proposals mentioned below were rejected,
while the fourth which was the last proposal submitted was withdrawn.” Id.).
148
. See, e.g., Rule 15(2) of the Asylum Appeals (Procedure) Rules 1996 (which provides for the right of the United Kingdom Representative
of the UNHCR to be treated as a party to an asylum application procedure if the representative requests this standing).
149
. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status
(January 1988) at [643], para. 28.
150
. See Convention Relating to the Status of Refugees, adopted 28 July 1951, U.N.G.A. Res. 429, 5 U.N. GAOR Supp. (No. 20) at 48, U.N.
Doc.A/1775 (1950), 189 U.N.T.S. 137, entered into force 22 April 1954.
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financing, has viewed it role as the primary agency responsible for the legal protection of refugees more in
terms of repatriation rather than legal protection in the places of safety.151 Refugees have no means of
appealing against UNHCR’s inaction or the organisation’s decision to place states’ interests of public
order above individual interests of human dignity.
By a resolution of June 1978 the UNESCO Executive Board established a procedure for the
protection of human rights.152 The centrepiece of this procedure is the UNESCO Committee on
Conventions and Recommendations. This Committee is able to consider individual communications
“involving human rights in education, science and culture.”153 Conditions of admissibility similar to those
for the 1503 procedure described above apply.154 An unusual feature of the UNESCO procedure is the
Committee’s ability to distinguish between specific cases and more general questions of massive,
systematic or flagrant violations of human rights.155 The former will only be examined in private, while
the latter may be discussed in a public meeting of the Executive Board and the General Conference of
UNESCO.156 In both cases, however, final reports of the Committee remain confidential.157
Another treaty body is the Committee on the Elimination of Racial Discrimination that was created
pursuant to article 8 of the International Convention on the Elimination of All Forms of Racial
Discrimination158 (CERD) to monitor the implementation of this convention. Article 14, paragraph 1,
provides for a procedure whereby individuals whose states have made the requisite declaration under this
paragraph, may submit communications alleging violations of their human right not to be discriminated
against. As of 1 January 1996, 21 states had made the requisite declaration under article 14, although few
individuals had submitted communications.
A procedure similar to that under the CERD is provided for under article 22 of the International
Convention Against Torture and Other Forms of Inhuman or Degrading Treatment (CAT).159 Again the
procedural capacity of an individual requires acknowledgement through a declaration made by the country
against whom a petition is lodged.160 As of 1 January 1996, 35 states have made a declaration, although
only a few individuals have actually made communications. One reason for the lack of individual
communications, maybe that other international human rights treaties, such as the ICCPR, contain both
the prohibition of torture and inhuman and degrading treatment and a more established and frequently
used system of individual communications.161

151
. In the early 1990’s at a camp of more than 20,000 refugee in Kuplensko in central Croatia, UNHCR ignored written requests,
representations by non-governmental organizations and three surveys expressing the overwhelming preference of the refugees to be given
temporary safe haven in third countries to urge their repatriation. While admitting that it could not ensure the safety of the refugees, UNHCR
launched a programme of repatriation that sent some of these refugees to their death or back to areas where they were mistreated. See
Doebbler, C.F., Report on Humanitarian Conditions at the Kuplensko Refugee Camp (September 1995) (unpublished report produced for
several non-government and governmental organizations) (as is clearly stressed in the report, the entity with the primary responsibility for the
welfare of the refugees violated its obligations under international human rights law by failing to even consider their applications for refugee
status and by consciously maintaining inhumane conditions throughout the refugee camp, which was an ad hoc camp established along almost
ten kilometres of roadside surrounded by Croatian military who both carried out attacks against individual refugees and prevented individuals
from leaving the camp). Also see Goodwin-Gill, G., “Keynote lecture given at the Nottingham University Conference entitled “Refugees:
Rights and Realities”” held in Nottingham on Saturday, 30 November 1996.
152
. UNESCO Executive Board, UNESCO Doc. 104 EX/Decision 3.3 (Paris, 24 April-9 June 1978). Also see generally, Weissbrodt (1994) at
391-414.
153
. UNESCO Executive Committee Decision, 77 EX/Decision 8.3.
154
. UNESCO Executive Committee Decision, 104 EX/Decision 3.3 at para. 14(a).
155
. Id. at para.. 10.
156
. Id. at paras. 15-18.
157
. Id. at para. 15.
158
. 660 U.N.T.S. 195, 3 I.L.M. 164, 58 A.J.I.L. 1081 [entered into force 4 January 1969].
159
. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th
Sess., Supp. (No. 51) at 197, U.N. Doc A/39/51 (10 December 1984).
160
. Id. at art. 22.
161
. As of 1 July 1994, 587 applications had been lodged with the Human Rights Committee upon which 193 views have been expressed, 142
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 Chapter Six: The Procedural Capacity of Individuals Under International Human Rights Law

Proposals to create individual petition mechanisms through additional protocols to the International
Covenant of Economic, Social and Cultural Rights162 as well as the Convention on the Elimination of All
Forms of Discrimination Against Women163 are being considered by the Human Rights Commission, but
appear far from being acceptable to many states.164 Another treaty organ that does not have an individual
complaint procedure, the Committee on the Rights of the Child created by article 43 of the Convention on
the Rights of the Child,165 is less likely to ever have one due to the difficulties that would come from
having to establish appropriate bodies for bringing complaints. The Committee on the Rights of the Child
does have a procedure for ‘urgent actions’ whereby it may ex officio initiate a review of particular human
rights in the spirit of a constructive dialogue.166
At the moment there are several ways in which women may bring complaints about their human
rights to the attention of international bodies. For example, the Committee on the Elimination of
Discrimination Against Women, which was established pursuant to article 17 of the Convention on the
Elimination of All Forms of Discrimination Against Women167 (CEDAW) and which is composed of 23
members elected for four year terms, has a mandate to supervise the implementation of the provisions of
that treaty. Unlike the Human Rights Committee, the Women’s Committee does not have the mandate to
consider and decide upon individual communications concerning specific violations of the CEDAW. It
may, however, take individual communications into account when considering the reports that states party
to the CEDAW are required to present to the Committee. Additionally, there is the Commission on the
Status of Women, which is similar to the Commission on Human Rights in its composition and tasks. In
1947 the ECOSOC took steps towards creating a procedure by which women complaining about human
rights abuses could address claims to the Commission.168 The result of this procedure, however, is limited
to the preparation of a confidential list containing summaries of individual communications.
By article X of the International Convention on the Suppression and Punishment of the Crime of
Apartheid169 the Commission on Human Rights has the authority to request that petitions made under the
CERD that concern apartheid are brought to its attention. Consequently, the Commission may prepare a
list of individuals, organisations, institutions and representatives of states who are alleged to be
responsible for the crime of apartheid. It is, however, unlikely that this procedure will be used since the
demise of the apartheid regime in South Africa.
The Centre for Human Rights is the office of the General Assembly responsible for concerns of
human rights. In fact, it functions as the secretariat in matters concerning human rights to all the organs of
the United Nations. In 1994, when Mr. Ayala Lasso became the first High Commissioner for Human

holding that there have been violations. A further 201 communications have been declared inadmissible. See Alston and Steiner (1996)) at
536.
162
. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, open for signature 16 December 1966, entered into
force 3 January 1976. A proposal for a protocol was introduced in 1994.
163
. Convention on the Elimination of All Forms of Discrimination Against Women, adopted on 18 December 1979 by G.A. Res. 34/180,
U.N. GAOR, 34th Sess. Supp. (No. 46), at 194, U.N. Doc. A/34/46 (1980), entered into force 3 September 1981. A proposal for a protocol
was introduced in March 1995.
164
. See Alston and Steiner (1996) at 560.
165
. Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., 61st meeting, Annex (20 November 1989), 28 I.L.M.
1457, entered into force 2 September 1990.
166
. See U.N. Doc. CRC/C/10, paras. 54-58 (1992). Also see id. at para. 156 stipulating three conditions for the consideration of ‘urgent
actions’, namely, (1) that there is a blatant violation, (2) a real danger of a continuation or repetition of a violation, and (3) the realistic
possibility that any urgent action by the Committee will avoid future human rights violations.
167
. GAOR, 34th Sess., Supp. (No. 46), (A/34/46) at 193.
168
. ECOSOC Res. 76(V) (5 August 1947).
169
. International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 U.N.T.S. 244, adopted 30 November 1973,
entered into force 18 July 1976.
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Rights this office fell under his authority.170 Under the second High Commissioner, the centre has become
the Office of the High Commissioner for Human Rights.
The Tribunals for Former-Yugoslavia and Rwanda are also worth noting. Because of the strong
similarity between international human rights law and the international crimes referred to in the
instruments granting jurisdiction ratio materie to these two tribunals, these instruments are considered as
international human rights bodies. Two points should be made about these tribunals. First, it must be
recognised that individuals may not institute proceedings before either tribunal, although all individuals
are encouraged to bring relevant information about crimes covered by the statute of either tribunal to the
attention of the respective special prosecutors who may than decide to prosecute. To date several
prosecutions have been initiated on the basis of information received from individuals. Second, as will be
discussed in more detail in the next chapter, individuals are responsible before each of these tribunals and
are thus engaged with the procedural status of a defendant before each tribunal. Both of these two points
apply equally to the proposed permanent international criminal court that would function much the same
way as the two existing tribunals as regards access by individuals. Thus while individuals would be liable
to be brought before the Court for violations of international criminal law, such as those crimes defined in
the Court’s Statute or the Draft Code on Crimes Against Mankind, individuals would not be able to
initiate proceedings. The right of initiation would be limited to the United Nations Security Council or a
State or group of States acting with the Court’s prosecutor.

Procedural Status Before Regional Human Rights Bodies

The Council of Europe, the European Commission and Court of Human Rights form the backbone of
a system that revolves primarily around the European Convention of Human Rights and Fundamental
Freedoms171 (ECHR) from 1951. This Convention provides for both a Commission and Court.
The Commission is both a forum for the reconciliation of claims that an individual’s human rights
have been violated as well as a gateway for cases that go to the Court. Under article 25 of the ECHR both
individuals and non-governmental organisations lodge a petition alleging a violation of human rights.
Under Rule 36 of the Commission’s Rules there is even the authority to grant exceptional injunctory
relief, although not in a binding manner.
Article 25 of the ECHR requires states to declare that they accept the jurisdiction of the Court to
accept petitions from individual victims of human rights abuses. The right of an individual is therefore
dependent both on the expressed consent of their state as well as the individual having been a victim of an
alleged violation. Although the term “victim” has been interpreted broadly, 172 there is no actio
popularis.173 Under the recent Ninth Protocol individuals also have access to the Court as a party to
proceedings that have been referred to the Court by the Commission. 174 Under the Eleventh Protocol,
which replaces the Ninth Protocol by most notably abolishing the Commission, individuals will have
direct access to the Court to bring complaints. An important facet of the procedural capacity of individuals
as parties before the Court is that the Court may not only determine whether or not a right has been
violated, but it may also award damages to individuals and this award is executable in the domestic courts
of the state parties.

170
. Between 1994 and 1997 the Centre suffered from conflicting leadership. This problem was only resolved on 16 January 1997 when the
Secretary-General requested that the Under-Secretary General for Humanitarian Affairs be reassigned to New York leaving the High
Commissioner for Human Rights with the undisputed responsibility for the Centre. In March 1997, however, the first High Commissioner for
Human Rights resigned to become a minister of the unconstitutional government of Equador.
171
. 213 U.N.T.S. 221, Cmd. 8669, E.T.S. 5, (1953) U.K.T.S. 71. Also see the eleven accompanying Protocols.
172
. See, e.g., Jacobs (1975) at 229.
173
. See generally Harris, O’Boyle and Warbrick (1995) at 633.
174
. See Council of Europe, Docs. H(90)9 and H(90)10.
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The Inter-American system for the protection of human rights is the Organisation of American States
(OAS) and is primarily based on the American Convention on Human Rights (ACHR).175 This Convention
provides for a Commission and a Court to supervise its implementation.
Initially the Commission was an autonomous entity with vague authority to advise the Inter-American
Council—the only authoritative decision making body envisioned under the original Charter of the OAS
—by undertaking studies and suggesting progressive developments for the protection of human rights. It
had been established at the 5th Meeting of the Consultation of Ministers of Foreign Affairs in 1959, but
the ability to accept communications from individuals had been specifically denied. In 1967 the Protocol
of Buenos Aires amended the Charter of the OAS establishing the Commission under the formal title of
the Inter-American Commission of Human Rights, a consultative organ of the OAS. The ACHR hen
recognised both the Commission and the Court as the official organs of the OAS responsible for ensuring
respect for human rights.
Over time the Commission’s job description has been enhanced from study and advice to the
promotion of the observance and the protection of human rights. Among its functions today are studies,
reports, on-site fact-finding as well as the consideration of individual complaints. Individuals have
opportunities to influence the decision making of the Commission by submitting or bringing the
Commission’s attention to relevant information. Individuals may petition the Commission about the
violation of a human right by a state under article 44 of the ACHR which states that “[a]ny person or
group of persons, or any non-governmental entity legally recognised in one or more member states of the
Organisation, may lodge petitions with the Commission containing denunciations or complaints of
violation of this Convention by a State Party.”176
This broad right to start an action by petition is more extensive than the right of action found in other
regional human rights instruments. As Scott Davidson points out “while the European Convention does
not permit an actio popularis, the American Convention does.”177 Nevertheless, the right of petition is
limited to contentions that a state has violated an obligation of the Convention not that a private party has
done so. Both the Commission and the Court have recognised that a state may be responsible for
controlling private actors, but not the direct responsibility of the private actors themselves under
international law. An argument for horizontal application of the convention is not, however, foreclosed by
the Convention and can well be read into Article 1. Article 1 requires states to “respect the rights and
freedoms recognised” and to “ensure to all persons subject to their jurisdiction the free and full exercise of
those rights.”178 At least one highly qualified publicist has described this obligation as being “drafted so
widely as to envisage the creation of Drittwirkung der Gundrechte or rights which may be enforced
horizontally between private individuals.”179 Such a claim has also been made before both the Court and
the Commission. Scott Davidson in his study of the Inter-American Court of Human Rights argues that
both organs have recognised the validity of this claim.180
In its Report on the Situation of Human Rights in the Republic of Guatemala the Commission found
that “the government must suppress acts of violence, even forcefully, whether committed by public
officials or private individuals, whether their motives are political or otherwise.”181 Likewise the Court
held in the Velásquez Case that a state violates international law when it fails to diligently prosecute

175
. Concluded 22 November 1969 and entered into force 18 July 1978, Pan American Treaty Series, No. 36, 9 I.L.M. 673 (1970), 65 A.J.I.L.
679 (1971), 3 H.R.J. 151 (1970).
176
. Art. 44 of the ACHR.
177
. Davidson (1992) at 23.
178
. Concluded 22 November 1969 and entered into force 18 July 1978, 9 I.L.M. 673 (1970), 65 A.J.I.L. 679 (1971), 3 H.R.J. 151 (1970).
179
. Davidson (1992) at 20.
180
. See id. at 20.
181
. Organization of American States, Report on the Situation of Human Rights in the Republic of Guatemala (Report of the Inter-American
Commission of Human Rights), OEA/Ser.L/V/II.61, doc. 47 (1983).
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because a human rights violation was committed by a private actor.182 Arguably these cases are evidence
of the two organs moving in the direction of horizontal application of the convention, however, due to the
restricted procedural right enjoyed by individuals it appears that there is still a long way to go to achieve
this state of development.
One of the major stumbling blocks is the impossibility for an individual to invoke the contentious
jurisdiction of the Inter-American Court of Human Rights directly. The above cited broad right of petition
only applies before the Commission. To have a complaint even heard by the Court an individual’s petition
must first have satisfied the requirements of admissibility before the Commission. Article 46 requires the
exhaustion of local remedies, the petition being lodged within six months from the date of the alleged
violation, the petition must not be pending before another tribunal, and must clearly identify the entity
lodging the petition. Article 47 contains four grounds of inadmissibility, namely, non-compliance with
article 46, failure to state adequate grounds amounting to a violation of the convention, a manifestly
groundless or obviously out of order petition, or that the petition is substantially the same as one
previously “studied” by the Commission or another international body. In addition, the commission may
have to carry out certain evidence gathering or conciliatory processes before a petition will be allowed.
If a petitioner has satisfied the requirements and admissibility before the Commission and attempts at
a negotiated settlement have been unsuccessful, the Commission may refer the case to the Court. The
Commission has broad discretion to decide whether or not a referral is appropriate. If the case is not
resolved or referred to the Court, the Commission within three months may decide to publish its report on
the situation.183 Such a decision gives expression to the petitioner’s claim and provides a third-party’s
opinion as to whether or not the convention has been violated.
The Court was created by the Convention itself and its organisation, jurisdiction and procedures are
governed by articles 52 through 69 of the ACHR. Like its European counterpart the ACHR decrees that
the Commission shall be a party to every case before the Court. 184 The exact standing of an individual is
ambiguous. For example, although there is an obligation on the Court to notify the parties about the
judgement of the Court, “[t]he question that arises is whether a person complaining of a violation of his
human rights, who obviously has the greatest interest in the case’s outcome, is a “party to the case.”185
There is also no right for individuals to even make submissions to the Court either individually or through
a legal representative, but under Rule 34(1) of the Court’s Rules of Procedure “[t]he Court may, at the
request of a [state] party or the delegates of the Commission, or proprio motu, decide to hear as a witness,
expert, or in any other capacity, any person whose testimony or statements seem likely to assist it in the
carrying out of its functions.”
The Court also has the authority under Article 63, paragraph 2 of the ACHR to adopt provisional,
injunctory or interim measures in cases of “extreme gravity and urgency, and where necessary to avoid
irreparable damage.” These measures may be granted even before the case reaches the Court, when it is
still before the Commission, if the Commission make a request to the Court. After the Court renders a
judgement vindicating a claim that a human right has been violated the victim is entitled to have this right
restored and may be entitled to appropriate compensation.186 The individual, however, must than rely on
national laws to execute the judgement,187 but such laws may be lacking if the state has not honoured its
obligations under article 2 of the ACHR to provide for implementing legislation.

182
. Velásquez (1990) at para. 170.
183
. See art. 51(1) and art. 23(2) of the Commission Statute.
184
. See art. 57.
185
. Daes (1992) at 51, para. 481.
186
. See art. 63.
187
. See art. 68.
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The African Charter of Human and Peoples’ Rights (ACHPR)188 is the central instrument of the
African system for the protection of human rights. This Charter was agreed to by the leaders of the
African states, and perhaps even more importantly, it was informed by many selfless individuals who saw
a dream of a society in which all Africans could live in societies respecting the values of human dignity.
The Convention is most notable among regional international human rights instruments for inclusion of
peoples’ rights. The inclusion of these rights was influenced by African traditions and culture and signifies
an attempt to combine these with the international human rights provisions that had been recognised
within the United Nations system.189
The Charter was adopted by the Organisation of African Unity (OAU) in 1981 and entered into force
in October 1986. By 1992 more than 30 African countries had ratified the convention. At the OAF
Summit in Addis Ababa from 27 to 29 July 1987 a decision was taken to establish an eleven member
African Commission on Human and Peoples’ Rights. This Commission has the mandate of promoting
human and peoples’ rights by educational activities, co-operation and support for other African and
international institutions, reviewing periodic reports of the member states, 190 and the formulation of
“principles and rules aimed at solving legal problems relating to human and peoples’ rights and
fundamental freedoms upon which African Governments may base their legislation.” 191 In fulfilment of its
mandate the Commission “may resort to any appropriate method of investigation; it may hear from the
Secretary General of the Organisation of African Unity or any other person capable of enlightening it.”192
To consider allegations of violations of human rights the Commission meets in plenary or sub-
commission sessions. In these sessions the Commission may consider communications “other than those
of the States Parties to the present Charter” after the Secretary of the Commission has made a list of all
communications and transmitted them to the Commission and a majority of the Commission agree to
consider them.193 These communications must be considered if (i) they state the author (although it may be
requested that this be kept confidential), (ii) concern a violation of the ACHPR, (iii) are not written in
disparaging or insulting language, (iv) are not based exclusively on mass media reports, (v) local remedies
have been exhausted or are not available, (vi) are submitted within a reasonable time after local remedies
have been exhausted or the procedure is unduly long, and (vii) do not concern a case that has already been
settled in accordance with the ACHPR, the Charter of the Organisation of African Unity or the Charter of
the United Nations.194
The Rules of Procedure of the African Commission on Human and Peoples’ Rights allow both
national liberation movements recognised by the OAF or non-governmental organisations to propose
items for the provisional agenda and to receive a copy of the draft agenda and other essential documents
prior to the sitting of the Commission.195 Chapter XII of the Rules concerns the participation of non-
members of the Commission in its proceedings, but only allows for participation by recognised national
liberation movements, specialized institutions and inter-governmental organisations. There is no right for
individuals to participate in the proceeding of the Commission no matter how affected they are by the
proceedings. However, individuals may be noticed by the Commission through exercise of the discretion
in article 46 and the provisions of the Chapter XIII of the Rules concerning consultations with non-
governmental organisations and representatives of these organisations. Rule 76 provides that accredited
NGO’s may send observers when a matter relevant to their concern is being discussed in a public session

188
. O.A.U. CAB/CEB/67/3/Rev 4; 21 I.L.M. 59.
189
. See Van Boven (1986) at 183.
190
. Article 62 of the ACHPR.
191
. Art. 45 of the ACHPR.
192
. Art. 46 of the ACHPR.
193
. Art. 55, paragraph 2, of the ACHPR.
194
. See art. 56 of the ACHPR.
195
. See rule 6, para. 5(a) and rule 7, para. 3 of the Rules of Procedure of the Commission.
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of the Commission and its subsidiary bodies. Rule 77, paragraph 1, allows the Commission to consult with
NGO’s either directly, but such consultations are at the discretion of the Commission. Finally, the second
paragraph of article 77 provides that “[u]pon recommendation of the Secretary-General and at the request
of the Commission, organisations on the above-mentioned list may also be heard by the Commission.”
The procedural capacity of the individual under the African system for the protection of human rights
can be compared to the communications procedure under Economic and Social Council resolution 1503
(XXXVIII).196 In both cases the individual only has indirect access to the decision making body, but in
both cases the decision making body enjoys a broad discretion to grant individuals the capacity to become
involved in its proceedings.

Representations to International Bodies Concerned With Issues Involving

Human Rights Without Being a Party to Specific Proceedings

The United Nations is predominately a forum for states. Recently, however, much attention has been
given to the participation of individuals and other non-state actors in the decision making processes and
activities of the United Nations.
Most of this attention has focused on the role of non-governmental organisations and their status as
consultants or observers to the various bodies of the United Nations. The Union of International
Associations recognises more than 14,500 international non-governmental organizations.197
Approximately ten percent of these organisations have one or another level of consultative status with the
ECOSOC or are in some other way connected with the work of the United Nations. Article 71 of the
Charter of the United Nations permits the ECOSOC to “make suitable arrangements for consultation with
non-governmental organisations.” Although this a discretionary power of the ECOSOC, its importance
has been stressed by the Secretary-General. Addressing the Forty-Seventh Conference of Non-
governmental Organisations in September 1994 the Secretary-General acknowledged that “[n]on-
governmental organisations are now considered full participants in international life [emphasis added].”198
Thus, several ECOSOC resolutions have gone about defining the relationship between NGOs and the
ECOSOC.199
Acknowledging the role of NGOs, several mechanisms have been established to allow them to
influence decision making. For example, there is now an NGO liaison committee, NGO liaison officers in
New York and Geneva, a NGO credentials committee, a working group on NGOs, and NGOs participate
as observers to several United Nations organs, agencies and at conferences. On 12 February 1997 the
Security Council agreed to “consult” with NGOs on the crisis in the Great Lakes Region of Africa after
the possibility of such a consultation had been raised by the Chilean Ambassador, Mr. Juan Somavia.
Although the consultation did not take place in a regular Security Council meeting, all the member states
of the Security Council sent representatives.200 On 30 July 1997, the Security Council issued a document
entitled “Communications received from private individuals and non-governmental bodies relating to
matters of which the Security Council is Seized.”201 This document lists 10 situations, 42 letters, and 29
faxes ere received from 57 private individuals as well as non-governmental organisations. 202 These
196
. See Daes (1992) at 52, para. 487.
197
. See Spiro (1994) at 45.
198
. Statement by the Secretary-General on the Occasion of the Forty-Seventh Conference of Non-Governmental Organizations held in New
York on 20 September 1994, UN Doc. SG/S/94/142.
199
. See ECOSOC Res. 1296 (XLIV) (23 May 1968) and ECOSOC Res. 1996/31 with its annex containing “Arrangements for Consultation
with Non-Governmental Organizations.”
200
. Representatives of the bureau’s of the Economic and Social Council and the General Assembly’s Second and Third Committee’s also
attended. Three NGOs made presentations: Oxfam, CARE and Medecins Sans Frontiers.
201
. U.N.S.C. Doc. S/NC/1997/2 (30 July 1997).
202
. Id..
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developments evidence a substantial acceptance of NGOs as participants, however, they have only
marginally favoured individuals in their private capacities outside such groups.
There are, however, some examples of individuals participating in their private capacity in the work
of the United Nations. For example, some individuals have addressed an official session of the General
Assembly. And at least one observer has referred to this as how “[t]he rostrum of the General Assembly of
the United Nations—an organisation of States—was thus made available to a number of individual
persons who—however worthy of recognition—did not represent any State (or intergovernmental
organisation).”203 The individuals referred to have included Archbishop Trevor Huddleston, Mr. Romesh
Chandra, Mr. Abraham Ordia, Mr. Jan Nico Scholten and Miss Bernice King (on behalf of her late father
the Reverend Martin Luther King, Jr.) all who were being honoured for their contribution in the struggle
against apartheid during the International Year of Mobilization for Sanctions Against South Africa.204
Whether or not individuals enjoy the procedural standing to initiate contentious proceedings before an
international tribunal, they may nonetheless, to provide the tribunal with information relevant to an
advisory opinion. In all of the human rights forums mentioned above that have the competence to give
advisory opinions, individuals are permitted, at the discretion of the decision making body, to provide
information. By providing such information individuals are able to influence the decision making process
in an indirect and often not insubstantial way.
Some of the most notable examples of individual influence can be found in the advisory opinions of
the International Court of Justice. In the case of proceedings that have been brought by individual United
Nations staff members, it is an individual who has initiated the case. This is because individual staff
members have a right to appeal to the United Nations Administrative Tribunal against alleged non-
observance of their contracts or terms of employment. From a decision of this tribunal individuals may
petition the Committee on Applications for Review of Administrative Tribunal Judgments asking them to
request an advisory opinion from the ICJ.205 If the Committee decides to refer a case to the ICJ, this Court
will give an advisory opinion.206 Even if the individual is not able to be a party to the case, an individual
may be able to influence the decision of the court by providing information to the court or by initiating the
proceedings which eventually reach the court. An example of the last is ICJ’s advisory opinion on the
Application for Review of Judgement 158 of the United Nations Administrative Tribunal. And more
recently the ICJ has considered the former when accepting, although not on the record, representations of
individuals in its advisory opinion on the legality of nuclear weapons.

203
. Blum (1993) at 102.
204
. See Blum (1993) at 102.
205
. See U.N.G.A. Res. 957(X) (1955).
206
. See Review of Judgment No. 273 of the United Nations Administrative Tribunal, I.C.J. Reports (Advisory Opinion) 325, 332 and 333
(1982) (substantiating the ICJ’s authority to give an opinion in such circumstances).
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 Chapter Seven: The Procedural Capacity of Individuals Under Other Relevant International Law

CHAPTER SEVEN

THE PROCEDURAL CAPACITY OF THE INDIVIDUAL

UNDER OTHER RELEVANT INTERNATIONAL LAW

The immediate goal must be to extend this individual right of action to all conflict-resolving tribunals found within
every regional and international organisation on the same terms accorded sovereign governments ... if world peace is
to be achieved and if the “rule of law” is to become a reality, human rights must be capable of effective
enforcement…
Gormley, W.P., The Procedural Status of the Individual and Supranational Tribunals 194 (1966)

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 Chapter Seven: The Procedural Capacity of Individuals Under Other Relevant International Law

THE PROCEDURAL CAPACITY OF THE INDIVIDUAL

UNDER OTHER RELEVANT INTERNATIONAL LAW

The procedural capacity of the individual concerns the individual’s ability to make claims and
demands in the social process of authoritative decision making primarily in international fora. The main
arena in the social process relevant to the legal analysis are the legal or quasi-legal international fora that
exist to adjudicate disputes concerning individuals’ rights and responsibilities. These legal arenas will be
the primary focus of the enquiry in this section. An adequate description of the individual’s capacity to
influence the process of international law, however, requires an inquiry into a broad range of activities
through which the individual may influence decision making in areas that are not traditionally viewed as
legal arenas.
To begin to enquire into the individual’s capacity under international human rights law it is useful to
realise that individuals are actors at several levels of community life. At one level individuals interact with
family and friends. At another level, we interact with other individuals in our local neighbourhood and
local community. At yet another level, we interact with other individuals in the country in which we live.
And at yet another level, we interact with people in other countries in the international community. It is
the interaction that takes place in the forums of the international community that is the primary concern of
international law and thus the present work.
In a judicial forum individuals may have several roles. The classical definitions of roles usually place
the individuals who are directly participating in judicial decision making in one of four categories: (1)
decisions-maker or adjudicator, (2) petitioner, claimant or applicant, (3) respondent and (4) representative.
There may also be additional participants who assist the decisions-maker such as experts, administrative,
clerical or executive staff. In each of these roles the individual may influence authoritative decision
making by judicial bodies. Through each of these roles individuals may exercise their own human rights
for the protection of others’ human rights, be held responsible for a violation of others’ human rights and
influence decisions concerning the development of the jurisprudence concerning human rights. To
illustrate how this is the case, it is useful to look at the procedural capacity of the individual in
international human rights forums. And because this capacity is currently in a state of steady development,
it is also relevant to examine other forums that may offer indicators of how the human rights forums may
develop. This enquiry will include reflection on historical precedents because these are relevant to the
interpretation of current policies and the development of future policies and authoritative decisions.
A litmus test of the participation of an individual in the process of international human rights law is
the extent to which individuals participate in judicial and quasi-judicial proceedings leading to an
authoritative decision on specific claims. Participation in this sense means primarily the ability to formally
initiate and pursue a claim, nevertheless, because the process of authoritative decision making is open and
fluid—subjected to a variety of influences—comments will also be made about the less-direct influence of
individuals on judicial decisions.
The types of participation that will be discussed in this chapter can be divided into two categories of
claims. These are claims by individuals to procedural status in ancient society and claims by individuals to
procedural status before international tribunals not dealing exclusively with human rights.

Procedural Status in Ancient Society

In numerous cultures and societies the individual enjoyed a procedural capacity in the relations
between different communities. This capacity varied from the ability to influence decision making by
directly participating in democratic decision making such as was the case in ancient Athens, where a
popular referendum existed for some years on many issues, to the ability of individuals to punish violators
of international law and to be punished for violations of international law.

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Of particular interest is the role of international arbitration among the Greeks. International arbitration
was used to resolve not only disputes between various city states, but also between citizens and city
states.1 Marcus Tod, in his study on international arbitration in ancient Greece, however, is careful to point
out that these fora for arbitration did not “affect the relations of citizens to citizens.”2
In ancient times much of the individual’s capacity to function as a participant in making claims,
demands and authoritative decisions was the result of the limited number of potential participants. As
populations increased it became increasingly difficult to allow different individual interests to be
represented and methods of indirect representation were devised. Some prominent innovations in this area
emerged during the Roman empire.
Shortly after the city of Rome was established in 753 B.C. the Roman Empire began to spread across
Europe. The Romans viewing themselves as superior socially and culturally to the majority of those who
they conquered strove to impose the attributes of Roman civilisation upon the population under their
control. The values of the Romans were based on respect for hereditary authority, worship of pagan gods,
the maintenance of order and the maintenance of authority by an elite group of officials who made up the
governments of the state. The officials who were part of the state apparatus respected their leaders, were
provided material comforts and were subjected to a stringent system of rewards and punishments to ensure
their co-operation—functions having to do with respect, wealth, well-being and rectitude and emanating
from value processes of conscious strategies of self-perpetuation by the elite rulers and enticements to
participation in the process of governing. A share of responsibility for the outcomes of the particular
authoritative decisions was a factor encouraging politicians and soldiers to support the perpetuation of the
Roman state. Those individuals who publicly manifested their support for the Roman Empire would lose
their authority if the Empire fell. A fact largely born out by the ultimate fall of the Roman Empire. By
promoting respect for the Roman rulers these elites encouraged subordinates to abide by their laws; by
exercising effective military and administrative control over territory, dissent was deterred; and by
exercising control over the primary avenues of learning, individuals were taught that they should support
the Roman government.
The Romans’ main policy goal was to organize society to the benefit of Roman citizens. Control over
the wealth and structures of the populations on territory that fell under their control and provision for their
own security against invasion were additional policy objectives of the Romans. An important means, but
not the only one, by which the Romans implemented their policies was by law. The laws relating to access
to forms for making claims and demands and authoritative decisions were initially predominated by the
law of quiritary, which only recognised the sui juris legal personality of the Curia—the family or tribal
units.3 However, as the Roman Empire expanded away from Rome and acquired sovereignty over a large
number of persons it became necessary to recognise other citizens under the law. The majority of freemen
—not slaves—were alieni juris. They included women, children, aliens, plebeians, boundmen.4 This
policy was implemented through authoritative decisions promulgating laws under which individuals were
the primary subjects. As Gormley states, “[d]uring the period in which Roman Law first developed, the
individual was given definite substantive and procedural right under a type of international law that was
concerned with many diverse problems.” The Roman law that developed during the latter half of the 6th
century B.C. applied to both Roman citizens sui juris as well as to Roman citizens alieni juris. The Roman
rulers viewed it acceptable to the subjects to whom they were accountable that they made laws applicable
to individuals. This was also a means of ensuring that individuals who might influence public policy could
be controlled. Slaves, although excluded from any participation in forming the law, like persons alieni

1
. See Tod, M.N., International Arbitration Amongst the Greeks 63 and 64 (1913).
2
. Id. at 64.
3
. See Idelson, “The Law of Nations and the Individual,” 30 Transactions of the Grotius Society 50 (1944).
4
. See supra Gormley (1966) at 19, nn. 4 citing I Ganius 48-49.

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juris, were still granted some rights under the law. Exercise of these rights by slaves was, however,
difficult unless another individual sui juris took up their case.
The implementation of the policies of the Roman rulers concerning the positions of slaves illustrates
their unwillingness to recognise the capacity of the individual based upon equality and shared human
dignity. This policy was based on a belief in the inherent inferiority of slaves. A belief that was self-
serving in that it enabled the Romans to express their superiority against relatively helpless members of
society. The prominence that Roman rulers gave to maintaining the superiority of the state, accounts for
the limited procedural capacity that the individual developed in Roman society. It is in opposite to the
intrinsic worth of every human being that underlies international human rights law. The Roman practice as
concerns freemen was based on a policy that is more relevant to us today: the policy of maintaining a
coherent society. Despite the strong sense of national authority that was stressed in Roman society, the
fact that the individual acted on behalf of the state was not the norm, but the exception. The majority of
individuals were alieni juris, thus merely private individuals.

Procedural Status Before International Bodies

Not Dealing Exclusively With Human Rights

The procedural status of the individual before international bodies not dealing exclusively with human
rights is important to understanding the development of individual procedural capacity. The reasons for
this are several. First, there are many international bodies whose decisions and activities affect the
enjoyment of international human rights law. Second, often the developments concerning individual
procedural capacity in fora not dealing exclusively with human rights serve as an example of an
alternative policy that may be followed by human rights bodies. And finally, the fora not dealing
exclusively with human rights are often the most effective fora for ensuring respect for international
human rights law.
One of the first bodies to recognise the procedural capacity of individuals was the Mixed Claims
Commission created by the Convention of 8 February 1853, for the Adjustment of Claims of citizens of
the United States and subjects of Great Britain against either Government.5 By article 1 of the Convention
the two governments agreed that “all claims on the part of corporations, companies, or private
individuals” of either country and against either government “shall be referred to two Commissioners.” 6
When the Commissioners did not agree the claims were decided by an independent umpire. The
Commissioners heard 115 claims between 16 September 1853 and 15 January 1855. 7 Numerous private
citizens or companies of the United States and Great Britain were able to recover damages against one of
these governments for events subsequent to the start of the War of 1812 between these two countries. 8 The
Mixed Commission was a bilateral international tribunal that awarded compensation on claims by
nationals against governments based on “the obligation of a Government to indemnify individuals in
respect of loses sustained by them by reason of the defalcations of the Government officers.”9

5
. Hornby, E., Report of the Proceedings of the Mixed Commission on Private Claims, established under the Convention between Great
Britain and the United States of America of the 8th February 1853 with the Judgments of the Commissioners and Umpire 3 (1956).
6
. Article 1 of the Convention for the Settlement of Outstanding Claims by a Mixed Commission reprinted in Hornby (1856) at 6.
7
. See generally Hornby (1856) (from which this figure was tallied).
8
. Id..
9
. See the Opinion of the British Commissioner, Mr. Hornby, in The “Lord Nelson” Case in Hornby (1856) at 248 and 249 (although no
compensation was given in this case because the events giving rise to the claim were outside the jurisdiction of the Commission having
occurred before the start of the war, the Umpire, and apparently the United States government, appeared to confirm the principle stated by the
British Commissioner as a principle of general international law).

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Over fifty years later the Hague Conferences of 1899 and 1907 led to the drafting of a convention to
create a Permanent Court of Arbitration and an International Prize Court.10 While the first was intended to
be primarily an inter-state court, the second had jurisdiction over appeals by individuals who had been
injured by a decision of a national prize court.11 Proposed Article 4 of the Convention Relative to the
Creation of an International Prize Court stated that a claim may be brought before the court by “a neutral
individual, if the judgment of the national court injuriously affects his property” unless his government
has made a reservation to this power and “an individual subject or citizen of an enemy power, if the
judgement of the national court injuriously affects his property” except in cases of the legitimate capture
of enemy ships. Neither, however, became a reality as the instruments never entered into force.
The Central American Court of Justice12 (CACJ) is perhaps the first example of an international court
recognising the procedural capacity of the individual. This court was created by the Convention of
Washington of 20 December 1907 at Cartago, Costa Rica. Five countries were party to this Convention:
Costa Rica, Guatemala, Honduras, Nicaragua and El Salvador.13 It was composed of one judge from each
of the five founding states. Article 2 of the Convention provided that the CACJ:
shall also take cognizance of the questions which individuals of one Central American country
may raise against any of the other contracting Governments, because of the violation of treaties
or conventions, and other cases of an international character; no matter whether their own
Government supports said claim or not, and provided that the remedies which laws of the
respective country provide against such violations shall have been exhausted or that denial of
justice shall have been shown.
Although individual litigants only had a right to bring an action against a foreign state, and not against
their own state,14 the CACJ constitutes an important step in the recognition of the rights of individuals to
address claims directly to an international judicial forum. The CACJ functioned for ten years with only
five cases being brought by individuals against foreign Governments before the treaty expired without
renewal in 1918. No individual petitioner was successful in any of the cases.15 Recently, six Central
American states have concluded an agreement to create a Central American Court of Justice in the spirit of
the CACJ.16 Although the new Court has very broad jurisdiction over issues of private law, the Court’s
competence to deal with “the area of human rights which fall under the exclusive jurisdiction of the Inter-
American Court of Human Rights” is specifically excluded.17 Presumably, however, issues concerning
human rights that fall outside the ambit of the Inter-American Court of Human Rights—for example,
minority rights that are not protected by the Inter-American Convention on Human Rights—may be
litigated before the Central American Court of Justice. Finally, it is worth noting that the new Court is
entitled to hear cases involving two private individuals or companies or individuals and states, thus

010
. The Convention Relative to the Creation of an International Prize Court (Hague Convention XII) of 1907 in Scott, J.B., The Hague Peace
Conferences, vol. 2 at 472-507 (1915).
11
. See Articles 44 and 45 of the Hague Convention for the Pacific Settlement of International Disputes, 1899, 187 C.T.S. 414 revised by the
Convention of 1907, 205 C.T.S. 277. Also see Daes (1992) at 17-18, paras. 193-195 and Grieg (1970) at 470-483.
212
. See generally Menon, P.K., “Individual as Subjects of International Law,” 70(4) Revue de droit int’l de sciences diplomatique et
politiques 295, 301 (October/December 1992).
and Daes (1992) at 18, paras. 196-198.
313
. See 2 A.J.I.L. 231 (1908).
414
. See Menon (1992) at 301.
515
. See Menon (1992) at 301.
616
. Protocol of Tegucigalpa reforming the Charter of the Organization of Central American States (establishing the Court) and Statute of the
Central American Court of Justice (CAC Statute), 34(4) International Legal Materials 921 (1995), done at Panama City, Panama on 10
December 1992, entered into force 2 February 1994.
717
. Art. 25 of the CAC Statute.

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recognising the interest and procedural capacity of individuals as well as states before this international
court of law.18
After World War I there was also a flurry of tribunals that arose from the resolution of this conflict.
Among these are numerous examples of tribunals that allowed varying forms and degrees of individual
petitions. Most of these tribunals provided aggrieved parties compensation from the losing side. Some,
however, provided for the protection of the human rights of minorities.
The Treaty of Versailles of 191919 ending World War I created the League of Nations 20 and set the
foundation for Mixed Arbitral Tribunals (MAT’s) before which individuals who were nationals of the
Allied Powers could appear. The treaty created binding international legal obligations for the six state
parties.21 It was a “victor’s law” providing that individuals who were nationals of Allied and Associated
Powers could bring suits against Germany and its nationals22 before special MAT’s that were constituted
in accordance with the Treaty requiring representation of both the victors and the German state. 23 The
MAT’s functioned for approximately ten years, churning out a variety of inconsistent decisions depending
upon which tribunal a case was before. For example, the Anglo-German MAT denied private individuals
compensation in their own right, holding that “[t]he right to compensation granted by the treaty is granted
as compensation to the national of an Allied and Associated Power,”24 while the French-German MAT
held that the right to compensation under article 297(e) was an individual right directly against the
German state without the necessity of support from France.25 Because of the short duration of the
Tribunal’s existence and ad hoc nature of its activities, it is difficult to find a single authoritative decision
on a point of generally applicable law. Instead, its decisions reflect the ad hoc resolution of disputes based
on equity or principles relevant to specific cases. The jurisprudence of the Tribunal, therefore, remains a
mixed example of both the recognition of the procedural capacity of the individual and the traditional
Westphalian concept of the state.
The end of World War I also saw the advent of a regime of minority protections consisting of a
combination of national constitutional protections, international declarations, treaties and special
provisions or chapters included in treaties.26 This regime has been referred to as the minority treaties by

818
. See id. at art. 22.
919
. Treaty of Versailles, entered into force 1919, 1 L.N.T.S. 8-13 (1920).
020
. Id. at artt. 1-26.
121
. The United States, the United Kingdom, France, Italy, Japan and Germany.
22
. Art. 297.
323
. Art. 304.
424
. Lederer v. German Government, Recueil des Décisions des Tribunaux Arbitraux Mixtes (1924) at 762, 768 cited in Menon (1992) at 302.
525
. Sigwald, Charles v. German Government in [1925-1926] Annual Digest 3 (No. 255) as quoted in Kelsen (1967) at 224, nn. 41 and quoted
in Menon (1992) at 302.
626
. Apart from the constitutional provisions at a domestic level the protection of minorities consisted of international instruments. First, these
included minority treaties between the Principal Allied and Associated Powers and Poland, U.K.T.S. No. 8 (28 June 1919); the Kingdom of
the Serbs Croats and Slovenes, U.K.T.S. No. 17 (10 September 1919); Czechoslovakia, U.K.T.S. No. 20 (10 September 1919); Roumania, 5
L.N.T.S. 336 (9 December 1919); and Greece, 28 L.N.T.S. 244 (10 August 1920) and additional protocol, 28 L.N.T.S. 222 (24 July 1923).
Second these included special chapters on minorities in general treaties of peace, namely, artt. 62-69 of pt. III, sec. IV of the Treaty of St.
Germain with Austria (10 September 1919); artt. 49-57 of pt. III, sec. IV of the Treaty of Neuilly with Bulgaria (27 November 1919); artt. 54-
60 of pt. III, sec. IV of the Treaty of Trianon (4 June 1920); and artt. 37-45, pt. I, sec. III of the Treaty of Lausanne (24 July 1923). Third,
these included special chapters in the treaties of Memel and Upper Silesia among others: artt. 26 and 27 of the Statute annexed to the
Convention concerning the Memel Territory (8 May 1924) and pt. III of the German-Polish Convention on Upper Silesia (15 May 1922). The
latter is discussed in more detail below. And fourth, there were a series of declarations made by Albania (2 October 1921); Estonia (17
September 1923); Finland in respect of the Åland Islands (27 June 1921); Latvia (27 July 1923); Lithuania (12 May 1922); and Iraq (30 May
1932).
Also see Nørgaard, C.A., The Position of the Individual in International Law 109-116 (1962). And see generally Truhart, V.,
Völkerbund und Minderheitenpetionen (1931) and United Nations, Report of the Secretary-General on the International Protection of
Minorities under the League of Nations, U.N.Doc. E/CN.4/Sub.2/6 (1966).

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writers, although its sources were the variety of instruments just mentioned.27 The main feature of the
regime was the complex of international instruments under the auspices of the League of Nations
providing minorities protection in seventeen states.28 At the same time there was no mention of minority
rights in the Covenant of the League.29 The protections provided by the minorities regime included human
rights such as the right to religious freedom, the right to use a minority language in education and the
prohibition of discrimination. None of the instruments, except the convention concerning Upper Silesia,
explicitly provided for individual petitions. Nevertheless, individuals addressed petitions or claims to the
League.30 In the early 1930’s, several hundred petitions were received by the Secretary-General of the
League of Nations.31 The procedures for consideration of these claims were established by several
resolutions of the Council.32 These procedures were as follows:
A. The Secretary-General received petitions, which could be letters, telex’s, or in any other
written or printed form.
B. These petitions had to conform to the following five requirements:
(1) not be anonymous;
(2) not be worded in violent or insulting language;
(3) claim the protection of one of the rights provided for in a treaty or declaration— applications
relying on customary law were not permitted;
(4) not include a claim for independence of a minority from the state in which the minority
existed—a reflection of the uti possidetis principle of international law whereby sovereign states’
boundaries cannot be changed through processes of self-determination or, in this case, the
exercise of minority rights; and
(5) the petition must not be similar to a claim that had recently been dealt with by the Council.33
The Secretary-General had no authority to declare a petition inadmissible, but he could decide whether to
accept the petition and forward it to the state concerned, the next step, and ultimately whether to forward it
to the Council.34 It was not until after 1929 that the Secretary-General was formally able to inform the
petitioner of the fate of his or her petition,35 a practice that had been followed since the 5 September 1923
resolution of the Council encouraging the Secretary-General to facilitate the submission of petitions
according to the correct form.36 Petitions that were ultimately forwarded to the Council were first dealt
with by a Minority Committee established out of Council representatives chosen for each case. Although
the Committee’s sittings were informal, only states and not individuals had standing. In essence the
individual’s petition disappeared into the League’s institutional formalities after it was submitted.
727
. See, e.g., Alston and Steiner (1996) at 96 and 97.
828
. The seventeen states were Poland, the Kingdom of the Serbs Croats and Slovenes, Czechoslovakia, Romania, Greece, Austria, Bulgaria,
Hungary, Turkey, Germany, Poland, Albania, Estonia, Finland in respect of the Åland Islands, Latvia, Lithuania and Iraq.
929
. Compare Daes (1992) at 19, paras. 210-223 (pointing out that although the Covenant did not contain specific minority protections it
“brought to the attention of the nations which participated in the Versailles Conference the right of minorities to protection against
discrimination and unequal treatment.” Id. at 19, para. 210 and nn. 145 (citing Daes, E.-I.A., Protection of Minorities under the International
Bill of Human Rights and the Genocide Convention 45-47 (1973). Daes also argues that the reason minority rights were not included in the
Covenant was the belief of states that different minority problems needed specific attention. See Daes (1992) at 19, para. 211).
030
. Nørgaard (1962) at 111.
131
. Shaw (1991) at 193, nn. 32.
232
. See League of Nations, Resolutions and Extracts from the Minutes of the Council, Resolutions and Reports adopted by the Assembly,
relating to the Procedure to be followed in Questions concerning Protections of Minorities, League of Nations Doc. C/8/M/5/1931/1 (2nd
ed.) (Publ. No.1/B/Min/1931/I/B/1. Also see Nørgaard (1962) at 111-115 (much of the description herein is based on this work and on the
sources cited therein) and Azcárate, P. de, League of Nations and National Minorities 102-109 and 191-200 (1972) cited in Daes (1992) at 19,
nn. 150.
33
. Nørgaard (1962) at 111.
434
. Id..
535
. See League of Nations Official Journal, Special Supp. No. 73 (1929) at 60 and Nørgaard (1962) at 111.
636
. Nørgaard (1962) at 113.

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Nørgaard points out that the Committee was able to accept further information from petitioners, but only
through the fiction that the Committee representative making the request was acting in his or her personal
capacity.37 Additionally, individuals might be superficially involved, for purposes of providing more
information, in the informal negotiations the Committee pursued with the state. In the cases forwarded to
the Council, however, only states were involved in the discussions. And until 1929 a case which ended in
the Minority Committee was never open to public scrutiny and a petitioner remained in the dark as to how
or whether his or her petition was being considered. In comparison discussions of cases referred to the
Council, and after 1929 cases before the Minority Committee, were published in the Official Journal of
the League of Nations.38 There were also provisions for any state member of the Council of the League to
bring to the attention of the Council issues regarding the treatment of minorities that might violate the
undertakings in the instruments.39 These provisions were particularly important in the context of the cases
where individuals were granted rights of petition to local bodies established to protect minority rights.40
The experience of the minority regime under the auspices of the League of Nations is an example of
individuals addressing direct and indirect claims and demands to international bodies. But when citing it
as an example for further development in contemporary regimes for protecting human rights, one must be
careful to note that its success was varied. Thus, Alston and Steiner conclude that
[a]lthough the issues debated within the minorities regime remain vital, the regime itself
disappeared. Over the next two decades, its norms were roundly violated. Its international
machinery within the League of Nations proved to be ineffectual, partly for the same lack of
political will that led to other disastrous events in the interwar period. The failure of the regime
was tragic in its consequences. Its noble purposes were distorted or blunted or ignored as Europe
in the 1930s moved toward the horrors of World War II, the Holocaust and the brutalization and
slaughter of so many other minorities. The settlements, norms and institutions after World War II
designed to prevent further savagery against minorities stressed different principles and created
radically different institutions ... .41
Despite its limited success it is valuable to examine in more detail one of the more prominent international
bodies that was part of the regime, the Upper Silesian Arbitral Tribunal, as an example of individual
procedural capacity.
The Upper Silesian Arbitral Tribunal was created by the German-Polish Convention of 15 May 1922
to adjudicate claims between nationals of Germany and Poland.42 Nationals could bring claims against
their own state43 and only their own state of nationality. According to Article 5 of the Convention, which
contained 25 paragraphs, 606 articles and numerous annexes, “[t]he question as to whether or to what
extent an indemnity for the abolition of diminution of vested rights must be paid by the State, will be
settled directly by the Arbitral Tribunal on the complaint of the person enjoying the rights.” Articles 148
737
. Id. at 114.
838
. Id. at 115.
939
. Id. at 112.
040
. See, e.g., Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Poland), Judgments of the Permanent Court of
International Justice, Ser. A., No. 12 (1928) (where the matter began with a petition from the Deutscher Volksbund für Polinisch
Oberschlesian to the Minorities Office in Katowice, Poland, progressed to the Upper Silesian Mixed Commission and was eventually
transmitted to the League through the Polish government when the Volksbund did not agree with the Mixed Commission’s decision. It was
thus Poland who was party to the case before the Permanent Court of International Justice when the Council of the League did not decide the
case satisfactorily).
141
. Alston and Steiner (1996) at 97.
242
. See Horak, S., Poland’s International Affairs 1919- 1960. A Calender of Treaties, Agreements, Conventions, and Other International
Acts, with Annotations, References, and Selections from Documents and Texts of Treaties 235-238 (1964). Also see Dziennik Ustaw Rzecz.
Polskiej, No. 44, Pos. 369 (1922) [official cite in Polish. A copy of the Convention was circulated to the members of the League of Nations
by circular letter C. 396. M. 243, of 9 June 1922, but is not reprinted in the L.N.T.S.].
343
. See Steiner and Gross v. Poland, Decisions of the Upper Silesian Arbitral Tribunal, vol. I, Nos. 1-2 (in German and Polish) (confirming
that individuals could bring complaints against their state of nationality to the Tribunal).

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through 156 of the Convention also provide for a procedure whereby individuals could file petitions with a
minorities office which would either mediate a settlement with which the petitioner was satisfied or would
be under an obligation to forward the petition to the President of the Upper Silesian Mixed Commission.
In the Steiner and Gross Case a Polish and a Czechoslovakian citizen claimed that they had a right to
compensation because their Tobacco business had suffered loses as a result of a monopolies law in
Poland. The Polish government had argued that as a general principle of international law individuals may
not bring claims against their own country of nationality. The Tribunal explicitly rejected this argument
stating that no such principle of international law exists. P.K. Menon points out that the “Convention is of
great significance because it grants individuals the capacity to claim their rights before an international
tribunal not only against a foreign State but also against their own State.”44
The International Labour Organisation (ILO) is an inter-state organisation that was created on 11
April 1919 by Part XIII of the Treaty of Versailles. It has been “brought into a relationship with the
United Nations” by virtue of the agreement between the two organizations.45 Its responsibility is to ensure
that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-
being and their spiritual development in conditions of freedom and dignity, of economic security and
equal opportunity” and to ensure that “the attainment of the conditions in which this shall be possible must
constitute a central aim of national and international policy.”46 Its highest body is called the Governing
Body which is the meeting of delegations from all member states. The governing body is, however, not
merely an inter-state organisation as half its sitting members represent non-state entities, worker and
employers associations.
Individuals may participate in the decision making of the ILO as a member of the delegation of a
member state or as individuals appointed as experts. In both functions individuals act in individual
capacities. The members of delegations to the Governing Body from each state must include one
representative of workers and one representative of employers together with two representatives of the
government. The nationality of the workers’ and employers’ representatives is relevant in so far as they
must be from the member state of the delegation. However, the state’s discretion is limited in choosing
these representatives as they must represent the workers and employers. In other words, the ILO tripartite
structure introduces increased opportunities for individual participation by acknowledging the capacity of
the individual in relation to the workers and employers collectives and not merely the state.
More important to our enquiry are the two complaint procedures which exist under the ILO. Under
article 24 of the ILO Constitution, any association of employers or workers may submit a complaint
alleging a violation of conventions ratified by the member state from which they come. These complaints
are examined by a sub-committee of the Governing Body which is composed of an equal number of
representatives of governments, workers and employers. Delegates to the Governing Body may also file
complaints, to date it is workers’ representatives who have by far made most use of this right. The
Governing Body may decide to negotiate a settlement of the complaint with the parties concerned or
eventually publish a report. The complaint may also be referred by the Governing Body to a commission
of inquiry. This commission may then undertake further investigations, including taking evidence from
individuals in the country who are related to workers or employers organisations, with a view towards
negotiating a resolution. While individuals do not have clearly established rights of access to the ILO

44
. Menon (1992) at 303. Also see Wright, Q., “The end of a Period of Transition,” 31 A.J.I.L. 604-613 (1937); Briggs, H., The Law of
Nations: Cases, Documents, and Notes 95 (2nd ed. 1952); and Korowicz, M.S., “The Problem of the International Personality of Individuals,”
50 A.J.I.L. 533-562 (1956) (all these works are cited in footnote 40 of Menon (1992)).
545
. See 1 U.N.T.S. 183. Also see Agreement between the United Nations and the International Labour Organization at 71-78 in ILO,
Constitution of the International Labour Organization and Standing Orders of the International Labour Conference, ILO Office Geneva
(1994) {French and English language editions).
646
. The Declaration of Philadelphia, adopted at the 26th session of the General Conference of the International Labour Organisation held in
Philadelphia, the United States of America in April and May 1944.

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procedures under article 24, practice has shown that both the Governing Body and the various
commissions of enquiry have allowed such access.
A second procedure that is relevant to the protection of human rights is that concerning trade union
rights. This special complaint procedure was established by an agreement between the ILO and United
Nations in 1950. Complaints may be made by international workers’ and employers’ organisations who
have consultative status with the ILO or whose national affiliates are effected by an alleged violation.
National workers’ and employers’ organisations may also bring claims when they have been directly
effected. Thus the access of individuals to this procedure is limited to when they are acting in their
collective capacity as workers’ or employers’ organisations. However, it is worthy to note that the
agreement between the United Nations and the ILO created customary international law because
complaints can be brought against states whether or not they are parties to any ILO conventions. The
complaints will be considered by the Governing Body Committee on Freedom of Association. This
Committee is composed of one representative each of governments, workers, and employers each sitting
in his or her personal capacity. The complaints are disposed of by negotiation and may lead to a non-
binding resolution being accepted by the Governing Body. Although complaints may be referred to an
independent Fact-Finding and Conciliation Commission on Freedom of Association, this can only happen
with the consent of the government concerned.
The individual influence over the treaty making functions of the ILO is relevant because ILO treaties
often protect human rights. Relevant conventions concern, for example, forced labour,47 equal
remuneration,48 discrimination,49 and the minimum age for employment and work in certain sectors.50
Contributions by individuals who are members of the national delegations have helped to make these and
other conventions some of the most widely ratified and best respected of any human rights treaties.
The ILO procedures are particularly interesting because the structures, pre-dating most modern
international human rights instruments, recognise the necessity of individual participation not only as the
beneficiaries of rights but also in the definition of these rights and the resolution of alleged violations of
these rights. The fact that the ILO system is considered one of the most efficient and most reliable of the
international procedures for the protection of human rights must provide some indication of appropriate
directions for future policies.
The polar extreme to the ILO under the international system existing after World War I was the
Permanent Court of International Justice. Individuals did not have access to this Court as the statute of
the Court only allowed states to be represented in contentious proceedings. Nevertheless, as the eight
cases involving minority rights indicate,51 this Court did have to deal with issues of human rights.
Additionally, the right of the Secretary-General of the League of Nations to submit petitions against states
to the Court has been considered “tantamount to a legal procedural capacity.” Although only exercisable
by an official acting in his official capacity, it is relevant to note that states saw fit to vest this
responsibility in an individual and not one of the collective organs of the League of Nations.
After World War II, in 1952, the Supreme Restitution Court was established by the Convention on the
Settlement of Matters Arising out of the War.52 The Court had jurisdiction over claims for restitution of
property seized by the Nazis and made by individuals or against individuals.53 The availability of a
remedy against any entity that may have violated one’s human right to the peaceful enjoyment of
747
. Convention for the Abolition of Forced Labour (No 105), 320 U.N.T.S. 291 (1957).
848
. Convention on Equal Remuneration (No. 100), adopted in 1951, C.T.S. No. 37 (1973).
949
. Convention against Discrimination in Employment and Occupation (No. 111), 362 U.N.T.S. 31 (1958).
050
. Revised Convention on a Minimum Age (Sea) (No. 58), 40 U.N.T.S. 206 (1936) and Convention on a Minimum Age for Trimmers and
Stokers (No. 15), 38 U.N.T.S. 203 (1921).
151
. See Daes (1992) at 20, para. 223.
252
. 6 U.S.T. 4411, part 4 (1955).
353
. 6 U.S.T. 4411, 4460, part 4 (1955). Also see Menon (1992) at 303.

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property, a feature not regularly followed in other international bodies, indicates that states recognised that
this right could be violated by non-state as well as state actors. In 1953 A further Mixed Commission was
created by the Agreement on German External Debts in 1953.54 Twenty-one states, including Germany,
were party to this agreement. It permitted individual debtors or creditors to bring claims against each other
or against the German state.
The International Centre for Settlement of Investment Disputes is created by the 1965 Convention on
the Settlement of Investment Disputes Between States and Nationals of Other States. Article 1, paragraph
2 of this Convention states that the Centre is to provide “facilities for conciliation and arbitration of
investment disputes between Contracting States and nationals of other Contracting States in accordance
with the provisions of the Convention.”55 To institute proceedings articles 28 and 36 require an individual
to submit a claim to the Secretary-General. The jurisdiction of the Centre extends, according to article 25,
paragraphs 1 and 2,56
to any legal dispute arising directly out of an investment, between a Contracting State and a
national of another Contracting State, which the parties to the dispute consent in writing to
submit to the centre. When the parties have given their consent, no party may withdraw its
consent unilaterally.
(2) “National of another Contracting State” means
(a) any natural person who had the nationality of a Contracting State other than the State
party to the dispute on the date on which the parties consented to submit such dispute to
conciliation or arbitration as well as on the date on which the request was registered...
The arbitral decisions of the Centre are binding on the parties to the proceedings. Today this Centre
continues to function “filling a lacuna in the international arbitration process”57 and giving private foreign
investors direct access to an inter-state forum to protect property rights. It is relevant for our consideration
of human rights forums to which individuals have access because it is a forum by which an individual may
protect his or her human rights to property or redress another violation of human rights committed in the
name of a commercial transaction.
International trade law and international economic law are areas where the procedural standing of
individuals has been significantly advanced. The policy motivation for this appears to be to facilitate trade
and to encourage investment. Bilateral treaties of friendship, commerce and navigation have traditionally
included protection of the human rights to freedom of movement or the right to property. In most cases,
however, individuals seeking to protect these rights have been referred to national law.58 The best example
of a multilateral treaty facilitating the standing of individuals before an authoritative decision making
body is the Convention on the Settlement of Investment Disputes between States and Nationals of Other
States (hereinafter the Washington Convention).59 This convention creates the Washington D.C., U.S.A.,
based International Centre for Settlement of Investment Disputes (ICSID) as an arbitration forum of the
World Bank. Paragraph 1 of article 25 of this convention provides that the
jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment,
between a Contracting State (or any constituent subdivision or agency of a Contracting State

454
. 210 U.N.T.S. 197. Also see Menon (1992) at 303.
55
. Quoted in Menon (1992) at 304.
656
. Id..
757
. Menon (1992) at 304.
858
. See, for example, Convention of Establishment, Protocol, and Declaration Between the United States and France, 401 U.N.T.S. 75, 11
U.S.T. 2398, T.I.A.S. No. 4625, signed in Paris, 25 November 1959, entered into force 21 December 1960 (which in article 1 provides for the
“full legal and judicial protection” of rights of freedom of movement and trade, including aspects of the right to property).
959
. 574 U.N.T.S. 159, 17 U.S.T. 1270, T.I.A.S. No. 6090, open for signature 18 March 1965 in Washington D.C., entered into force on 14
October 1944.

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designated to the Centre by that State) and a national of another Contracting State, which the
parties to the dispute consent in writing to submit to the Center.60
States manifest their consent in an international agreement or for a particular case and once a party has
agreed to submit a matter to the Centre it may not withdraw its consent unilaterally.61 The process of
authoritative decision making will take place either by conciliation or arbitration. According to article 42
of the Washington Convention the Centre’s conciliators or arbitrators will apply either the laws agreed by
the parties or, “[i]n the absence of such agreement, the Tribunal shall apply the law of the Contracting
State party to the dispute (including its rules on the conflict of laws) and such rules of international law as
may be applicable.”62 What these provisions mean is that the Centre’s arbitral or conciliation bodies may
hear cases brought by individuals and may apply international human rights law. Although some
international arbitration tribunals, created under the auspices of the Washington Convention or the
subsidiary agreements entered into, do recognise the procedural capacity of the individual, numerous
others have not.63
Of substantial contemporary interest are the bodies of the World Trade Organisation (WTO). The
WTO is an international organisation of states which subsumed the GATT and several other trade
agreements. Although the various tribunals may deal with the legitimacy of a government’s action that has
been taken against another government’s violation of human rights, there is no mechanism by which
individuals may introduce complaints or participate in proceedings except by the express consent of a
government and under their auspices. Neither is there an expression in the WTO agreement of 1994 that
either allows dispute settlement mechanisms to take into account human rights or to defer questions
involving human rights to authoritative decisions-makers in the realm of international human rights law.
The World Bank also has a complaint procedure whereby ‘people’ may challenge its decisions and
policies. Non-state actors may participate in this procedure invoking the instruments of the World Bank
itself that define the application of international human rights law to its activities. 64 Individuals may
participate in the investigation either by submitting evidence65 or as a member of “any group of two of
more people in a country where the Bank financed project is located.”66 There are also special provisions
relating to persons who are “a duly appointed local representative,”67 “a foreign representative acting as
agent of adversely affected people,”68 or “an Executive Director of the Bank.”69 In August 1994, Gopal
Siwakoti, acting on his own behalf as an affected individual and on behalf of a non-governmental
organisation, Arun Concerned Group, filed the first complaint against the World Bank project concerning

060
. Art. 25(1) of the Washington Convention.
161
. Id..
262
. Art. 42 of the Washington Convention.
363
. See e.g. Rules of Practice of the Triparte Claims Commission between the United States, Austria and Hungary, established in pursuance of
the agreement between the United States, Austria and Hungary, which became effective 12 December 1925, reprinted in 21 A.J.I.L. Supp.
119-126 (1927) and Rules of the Mixed Claims Commission, United States and Germany, established in pursuance of the agreement between
the United States and Germany of 10 August 1922, reprinted in 17 A.J.I.L. Supp. 133-137 (1923).
464
. Operating Procedures of “The World Bank Inspection Panel,” adopted 19 August 1994 by the Panel at para. 1 (stating that “[t]he Panel is
authorized to accept requests for inspection (“Request(s)”) which claim that an actual or threatened material adverse effect on the affected
party’s rights or interests arises directly out of an action or omission on the Bank as a result of a failure by the Bank to follow its own
operational policies and procedures ...” id.).
565
. Id. at Introduction (stating that “the Panel will accept statements or evidence from (a) the Requester, i.e. either the affected People and/or
their duly appointed representative, or an Executive Director; (b) Management; and, (c) any other individual or entity invited by the Panel to
present information or comments” id.).
66
. Id. at para. (4)(a).
767
. Id.at para. 4(b).
868
. Id.at para. 4(c) (this is limited to “exceptional cases” where “there is no adequate or appropriate representation in the country where the
project is located” id. at paras. 4(c) and 11).
969
. Id. at para. 4(d).

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the Arun Dam in Nepal. The complaint claimed that the project was inappropriate because it was
detrimental to the Himalayan environment as well as being economically inefficient.
Under the trusteeship system established by the Charter of the United Nations individuals also have a
right of petition. The right emanates from article 87 of the Charter which states that “[t]he General
Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may ... accept
petitions and examine them in consultation with the administering authority.”70 For many years after its
initial decision taken on 5 March 1962, petitions by individuals were examined by the Special Committee
on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples.71 This Special Committee was created by the Trusteeship Council and has
its own Sub-Committee on Petitions, Information and Assistance which screens petitions and decides
which petitioners should be heard.72
The peoples of mandate territories have been held to have a special procedural right entitling them to
petition the responsible international administrative bodies when their human rights are at stake.73 In the
1950 case concerning South-West Africa the ICJ interpreted article 80 of the Charter of the United
Nations to provide individuals with a right to submit petitions to the General Assembly, if they belong to
groups that can be identified as “peoples” and pending the conclusion of a trusteeship agreement.74 This
right was found to exist in relation to the General Assembly, in part, because it had existed in respect of
the Council of the League of Nations.75 In a further opinion six years later the Court decided that the
General Assembly could provide individuals a right of access to the Committees on South-West Africa if
this was necessary for effective administration of the mandated territory.76
The United Nations Administrative Tribunal was created by General Assembly Resolution 351A(IV)
of 1949 to function as an administrative employment appeals tribunal for staff members alleging non-
observance of employment contracts with the United Nations.77 Its jurisdiction has been extended to other
specialized agencies of the United Nations by their agreement.78 Individuals have standing to bring claims
of abuse of their employment rights in accordance with the staff regulations of the particular organ or
specialized agency.79 Invariably these regulations require the exhaustion of the internal administrative
review avenues before one may address the Tribunal. Failure to exhaust internal remedies will lead to a
claim being ruled inadmissible. When an individual has met the requirements for submission of a claim to
the Tribunal then the individual is entitled to make his or her claim directly to the Tribunal. The Tribunal
itself is an international body of seven members who are appointed for three year terms by the General
Assembly on the recommendation of its Fifth Committee on Administrative and Budgetary matters.
Although this mechanism only provides protection for economic rights connected to employment with the

070
. See Tardu, M., Human Rights: The International Petition System, vol. 1, pt. 1 (1979) at 1-5.
171
. See Daes (1992) at 30 and 31, paras. 296-306 and United Nations Action in the Field of Human Rights (1994) at 309, paras. 2571-2574.
272
. Id..
373
. See Status of South-West Africa (Advisory Opinion), I.C.J. Reports (1950) at 128 and South-West African (Hearings of Petitioners)
(Advisory Opinion), I.C.J. Reports (1956) at 23.
474
. Status of South-West Africa (Advisory Opinion), I.C.J. Reports (1950) at 128.
575
. Id. at 137 and 138. The actual right in question was the right to submit a petition to a national authority and the duty of the national
authority to forward the petition to the General Assembly. The Court upheld both the right of petition and the duty to forward petitions to the
General Assembly without any obstruction or prior evaluation of a petition.
676
. South-West African (Hearings of Petitioners) (Advisory Opinion), I.C.J. Reports (1956) at 23.
77
. There is actually the possibility of a further appeal to the International Court of Justice by a request for an Advisory Opinion under art.
96(2) of the Charter of the United Nations. Such requests are authorized to be made by the Committee on Applications for Review of
Administrative Tribunal Judgements. See U.N.G.A. Res. 957(X) (1955).
878
. See, e.g., Staff Regulation of the World Health Organization, adopted by the Fourth World Health Assembly (Resolution WHA4.51) and
amended by the Twelfth World Health Assembly (Resolution WHA12.33).
979
. See the Statute of the Tribunal as amended by U.N.G.A. Res. 957(X) (1955).

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United Nations or its specialized agencies, it is another example of how individuals have procedural
capacity before an international body.
The International Court of Justice inherited the form and procedures of its predecessor, the
Permanent Court of International Justice. Under the Statute of the I.C.J. “[o]nly states may be parties in
cases before the Court,”80 although “organs of the United Nations and specialized agencies, which may at
any time be so authorised by the General Assembly, may also request advisory opinions of the Court on
legal questions within the scope of their activities.”81 As an institution founded by states attempting to re-
impose the international order that had been disrupted by the Second World War, the Court was based on
the traditional concepts of the Westphalian model. The end of the war was not a time to experiment, the
world needed order, and the victors held strong hands in such values as power, respect, wealth and well-
being. People were willing to follow the instruction of the victors and did so.
Accepting a traditional Westphalian ordering of international relations international lawyers and
policy makers were inclined to accept the immutability of the denial of access by individuals to the Court.
Even Carl Nørgaard, who argued so forcefully that individuals’ status under international law should be
enhanced beyond the Westphalian order, accepted the denial of access to individuals by the Court.82
Nevertheless, as Rosalyn Higgins has pointed out, “there is nothing in the nature of international law
which so dictates.”83 It also appears possible that even without amending article 34 of the Statute of the
ICJ individuals could be allowed to appear as non-parties, with a third-party status or other participatory
status. For example, decisions of the Administrative Tribunal of the United Nations may be the subject of
advisory opinions.84
The idea of providing individuals with procedural capacity before the Court has been advanced by
writers in the past as the necessary part of a strategy to ensure respect for the values of human dignity. 85 In
one of the most notable claims for opening the court to litigation by individuals, Judge Lauterpacht,
argued that doing so would enhance the ability of the Court to deal with the “major controversies between
States.”86 This inspired Professor Paul W. Gormley to include in his extensive study on the procedural
capacity of the individual as one of the main recommendations that “[t]he greatest single innovation
required in international law is the liberation of Article 34(1) of the Court’s Statute in order that private
parties may appear before The Hague Tribunal.”87 The suggestions by these authors were not without
historical precedent. In this respect, during the drafting of the Universal Declaration of Human Rights in
1948, the Australian government suggested the creation of an international court of human rights. 88 The
Brazilian government also stated that it “favours a broadening of the jurisdiction of the Court through a
Convention whereby States would recognise the compulsory nature of such jurisdiction.”89 The primary
reason being to spare “additional expenditure and other inconveniences involved.”90 Expressing the
reservations of the majority of states about the creation of a court of human rights, the Egyptian
080
. Article 34, para. 1 of the Statute of the International Court of Justice.
181
. Article 96, para. 2 of the Charter of the United Nations.
282
. See generally, Nørgaard (1962).
383
. Higgins (1978) at 4.
484
. See, for example, Effects of Awards of Compensation Made by the United Nations Administrative Tribunal (Advisory Opinion), I.C.J.
Reports, No. 22 (1954).
585
. See Gormley (1966) at 68 (drawing this conclusion in his thorough study of the procedural status of the individual before international
tribunals).
686
. Lauterpacht (1947) at 438.
787
. Gormley (1966) at 62.
88
. Id. at 100.
989
. United Nations, Collation of the Comments of Governments on the Draft International Declaration of Human Rights, Draft International
Covenant of Human Rights and the Question of Implementation, U.N. Doc. E/CN.4/85 (1 May 1948) at 102.
090
. Id..

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government, nevertheless, conceded that “if the principle of setting up a court is adopted, it should be left
to the present International Court at the Hague to deal with these questions.” 91 Ultimately, as history has
recorded, no decision was taken to establish an international court of human rights and the idea of the
Human Rights Committee only emerged in the Covenant on Civil and Political Rights.92 The reasons why
expanding the jurisdiction of the International Court of Justice (ICJ) was rejected includes states’ lack of
trust in a new international body that could provide binding decisions limiting their sovereignty. This fear
probably grew as world society became stratified in states on different sides of the Cold War and as the
ICJ began make decisions criticising states. In recent years the possibility of expanding the jurisdiction of
the ICJ to allow individuals to participate as parties in its proceedings has lost much ground due to factors
such as the lack of resources for the ICJ’s work, the increase in the number of applications to international
human rights bodies and the proliferation of these bodies in regional forums. A 1996 Report concluded
that
[a]lthough in the past, academic criticism of the “only States” provision in Article 34 has
sometimes ventured to suggest that individuals should be given locus standi, there is no strong
support for this idea in current thinking. Indeed, if contemporary concern is over how the Court
can cope with inter-State disputes, it would be counterproductive to compound the problem by
opening up the Court to individuals—and there are in any case other fora in which human rights
cases by individuals can be pursued.93
But while governments have staunchly defended their refusal to admit individuals to the procedure of the
primary judicial organ of United Nations, individuals have not accepted this shut-out in silence. Recently
some 3.6 million individuals have demanded indirect access to the court to offer a petition concerning the
illegality of the possession, threat or use of nuclear weapons under international law.94 Although the
Court’s Registry accepted the petition into the Court’s Achieves and promised to bring it to the attention
of the judges, the Registrar stated that the petition could not be made a part of the official record.95 This
example, illustrates how individuals are increasingly demanding access to and indirect influence in the
decision making processes of international law. It is unlikely that such demands can remain subjugated to
the concerns of lawyers and politicians who often represent them and it is likely that some change must be
effected for the International Court of Justice to maintain a position of relevance for the ideal of justice in
world society and not merely among elites.
Because the European Union treaties contain human rights and because the Court of Justice has held
that international human rights law is part of community law, it is interesting to understand the rights of
access that individuals may have to this forum of authoritative decision making. In fact there are two main
ways in which individuals may bring claims to the attention of the Court. First, an individual may
challenge an European Union organ’s violation of a right provided for in the European Union treaties,
191
. Id. at 103.
292
. But see id. at 98-100 (where the Netherlands suggested creating a body of independent experts referred to as a “Permanent Human Rights
Council” under a “High Commission for Human Rights” id.).
393
. Bowett, D.W., Crawford, J., and Watts, A.D., “The International Court of Justice: Efficiency of Procedures and Working Methods,” 45(1)
International and Comparative Law Quarterly, Supplement (January 1996) at S25, para. 84 (having spoken with the authors, it is this
author’s opinion that the comment is somewhat narrow minded and betrays the self-interests of the three authors who have been involved in
litigation before the ICJ, but not extensively in international human rights law. Perhaps the authors would have been wiser to have given
thought to some of the warnings of former Judge Robert Jennings who points out the problems that the absence of a body reconciling the
increasingly fragmented authoritative decisions of international bodies may be cause for the development of international law. See Jennings,
R.Y., The United Nations at Fifty: The International Court of Justice After Fifty Years, 89 A.J.I.L. 503 (1995). Additionally, they might also
reflect on the opinions not only of human rights lawyers, but also of the clients who they represent, who in the opinion of this writer would be
better served by at least a limited ability to raise questions before the ICJ).
494
. See generally Grief, N., “The Advisory Opinion of the International Court of Justice Relating to Nuclear Weapons,” Presented at the
SPTL International Law Group and the British Institute of International and Comparative Law joint meeting at Charles Clore House, 17
Russell Square, London on Monday, 27 March 1995.
595
. Id..

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including a human right that has been implied to be part of European Union law when it is relevant to the
exercise of another European Union right. When an individual claims that his or her rights have been
violated by an European Union organ a case may be brought to the European Court of Justice. Individuals
may not bring cases against a particular state in this way. This brings us to the second way in which a case
may come before the Court: a request for a preliminary interpretation under article 177. This way is also
somewhat indirect in that it depends on the discretion of a national judge to refer the question to the
European Court of Justice because a question of treaty law has arisen. Control on this discretion is not
plentiful. Nevertheless, this is an important way in which individuals can get questions of human rights
before the European Court of Justice. Furthermore, preliminary questions may be asked concerning
violations by states or by private individuals.

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 Chapter Eight: Individuals Exercising Their Human Rights to Protect Other Individuals’ Human Rights

CHAPTER EIGHT

INDIVIDUALS EXERCISING THEIR HUMAN RIGHTS TO PROTECT

OTHER INDIVIDUALS’ HUMAN RIGHTS

Oftentimes, I think (or at least hope) it is true that ... people are basically unaware of the gross violations of
international law being perpetrated in their name by their own government on a day-to-day basis; and that
once they are informed, they would clearly be outraged and do something to stop the elementally lawless
behavior …
Boyle, F.A., Defending civil resistance under international law 49 (1987)

The defence of human rights is a task shared by everyone, regardless of their ideological convictions, social
background, or national origin. In any field of work, in schools and religious institutions, in unions and
political parties, as individuals or by working in groups, the defence of one’s own or other people’s rights is
an essential and entirely legitimate activity. As such it must be sanctioned, protected and encouraged.
Amnesty International, Human Rights Defenders: Breaching the Walls of Silence (1995)

The only thing necessary for the triumph of evil is for good men to do nothing.
Edmund Burke

Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has
every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable
to cultivate a respect for the law, so much as for the right. The only obligation which I have the right to
assume, is to do at any time what I think is right.
1
Thoreau, H.D., Civil Disobedience (1849)

1
. Cited from The Penguin American Library’s 1983 reprint of Walden and Civil Disobedience (with an introduction by Michael Meyer) at
387.

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 Chapter Eight: Individuals Exercising Their Human Rights to Protect Other Individuals’ Human Rights

INDIVIDUALS EXERCISING THEIR HUMAN RIGHTS TO PROTECT

OTHER INDIVIDUALS’ HUMAN RIGHTS

International human rights law protects the exercise of human rights. Individuals may thus act to
protect their own human rights as well as the rights of others.2 While much has been written about
individual initiatives to protect their own human rights, less has been written about initiatives to protect
other’s human rights.3 This chapter is about individuals’ ability to exercise their human rights to protect
other individuals’ human rights. The chapter consists of several parts. First several points of reference are
discussed that are of relevance to the whole chapter. These include general points of reference and a
description of specific human rights that have been regularly exercised to protect other individuals’ human
rights. Second, there is an extensive discussion of the United Nations Draft Declaration that is pertinent to
the exercise of human rights by human rights defenders. An attempt has been made to identify the leading
points of this contemporary debate and to analyse some of the relevant opinio juris expressed by state
representatives and NGOs on this subject. Third, the discussion turns to the question of horizontal
working of human rights: the application of human rights against other individuals. Fourth, there is a
discussion of actions to protect others’ human rights that may violate national law: acts of civil resistance.
And finally, there is the conclusion.

Points of Reference and Specific Problems

There are several general points that need to be made at the start of this discussion about the rights
relied upon and the strategies employed by individuals to protect other individual’s human rights.
The first point has to do with the fluency of the strategies that individuals have employed in the
exercise of their rights. In recent years individuals have come up with new ways of using both legal and
non-legal avenues for contributing to the protection of others’ human rights. An example of creative
individual initiatives are protests directed at commercial entities that do business in states that violate
human rights. As has been recently noted “[e]conomic pressure, which began with consumer boycotts and
led to disinvestment and the reluctance of international banks to roll over loans, were central features in
the collapse of apartheid” in South Africa.4 Alternatively, many means of exerting pressure that once were
effective have been disregarded or may vary according to the particular setting. In the Netherlands and the
United Kingdom5 large public demonstrations were often effective in the 1970’s; they have now become a
less efficient means of protesting human rights abuses. In Belgrade, Yugoslavia, large scale actions by
private individuals which were prohibited under Tito’s regime have been shown to be an effective means
of exerting pressure in 1997.6 Thus the strategies that individuals use to protect others’ human rights
change. The diligent human rights activist is constantly searching for new strategies for achieving the
protection of human rights.
The second point is that an individual seeking to exercise his or her own human rights to protect
another’s human rights must generally have the authority of the victim whose rights are being protected or
2
. See, generally, Amnesty International, Human Rights Defenders: Breaching the Walls of Silence, AI Index No. IOR 40/07/95, Distr. Doc.
No. SC/CO/GR/CC (August 1995).
3
. For a list of some of the most recent literature see, for example, Steiner and Alston (1996) at 1229-1240.
4
. Litchfield, J., “How to save the world without leaving your high street,” The Independent, Monday, 18 November 1996 at 11.
5
. Reference is here to the demonstrations organized by the Campaign for Nuclear Disarmament that drew tens or even hundreds of thousands
demonstrators into the streets to protest against nuclear weapons in Amsterdam and London during the 1970’s. A major theme behind these
demonstrations was that nuclear weapons constitute a breach of international law, including many human rights, for example the right to life.
6
. Reference is to the ‘opposition’ demonstrations in Belgrade in late 1996 and early 1997. Although the opposition is divided along many
different paths—some themselves contrary to human rights—there is a consistent section of the opposition whose primary claims and
demands are based on respect for human rights such as the right of the individual to participate in democratic government, the freedom of
expression and the right to a minimum standard of living.

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be directly affected by the violation of human rights. This is especially true in treaty-based fora. The
requirement of ‘expressed authority’ is explicitly stated in the provisions regarding communications to the
various international human rights institutions. For example, the Optional Protocol of the ICCPR has been
interpreted as only allowing individuals to bring a claim on behalf of others when the individual has been
authorised. This was made clear in the communication concerning the Mikmaq Tribal Society in Canada.7
In expressing its views on this communication the Human Rights Committee stated that it was not
convinced that the Mikmaq tribal society had actually authorised the individual making the
communication to act on its behalf. The problem arose when in the process of trying to clarify the author’s
standing, the Committee received a letter from the Grand Chief of the Mikmaq tribal society stating that
“nobody was authorised to speak on behalf of the Grand Council or the Grand Chief, unless the latter
“will give this authority in writing to the person or persons for each separate correspondence.”8 When
requested to produce such evidence of his authority to act, the author could only produce a letter signed by
himself and the Assistant Grand Chief, which led the Committee to conclude that “it is not the Grand
Council in its legal entity which authorizes” the individual to act, but the “author himself who confirms
his self-authorization.”9 Consequently the Committee decided that “the author has not proven that he is
authorised to act as a representative on behalf of the Mikmaq tribal society” and thus declared the
communication inadmissible.10 Finally in regards to this point, it should be noted that the condition of
authorisation does not apply to procedures that provide for an actio popularis. For example, the procedure
created under ECOSOC Res. 1503 allows anybody to provide the Sub-Commission with information
regarding human rights violations, but only where the information “reveal[s] a consistent pattern of gross
and reliably attested violations of human rights” is the Sub-Commission actually authorised to deal with
the matter—thus not for specific violations.11 Despite some broad statements by the ICJ concerning states’
“interests” in protecting human rights,12 somewhat contradictory, an actio popularis is not usually
available to individuals trying to protect other individuals from abuse of their human rights by states.13
A third point is that because in theory every individual is entitled to exercise their human rights,
they may do so with the object and purpose of protecting other individual’s human rights. To hold
otherwise would be contrary to the values, policies and norms of international human rights law. It would
lead to the inconsistent conclusion that, for example, an individual could only exercise his or her freedom
of speech to campaign for interests that affect them directly. The Charter of the United Nations provides a
superficial, but basic foundation for individual action in pursuit of respect for human rights by beginning
with the reference to “We, the Peoples of the United Nations.” Erskine Childers and Brian Urquhart point
out, however, that although the “peoples of the United Nations introduce the Charter” they then
“completely disappear” in what the author’s describe as “perhaps the swiftest delegation of authority in
the history of constitutions.”14 But certainly some degree of popular sovereignty has been clawed back in
the Universal Declaration of Human Rights where it is stated in the preamble that “if man is not to be
compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights

7
. Human Rights Committee, Communication No. 78/1980 (30 September 1980) at paras. 7.5 through 8.2.
8
. Id. at para. 7.5.
9
. Id. at para. 7.6.
010
. Id. at paras. 8.2 and 9.
11
. Economic and Social Council Resolution 1503(XLVIII)(1970).
212
. Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, (1970) I.C.J. Reports 3
at para. 32.
313
. See, e.g., Harris, O’Boyle and Warbrick at 633 and 634 (pointing out that the ECHR does not provide for an actio popularis because it
requires claimants to be victims of a human rights violation). But see art. 44 of the ACHR which states that “[a]ny person or groups of
persons, or any nongovernmental entity ... may lodge petitions with the Commission ... “.
414
. Childers, E., and Urquhart, B., Renewing the United Nations System, a special publication of 1 Development Dialogue (1994) at 171.

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should be protected by the rule of law.”15 Despite the ambiguity about the actual basis of human rights,
there is little ambiguity about the individual’s right to act to protect human rights being inherent in the
whole concept of international human rights law. Indeed, one might argue that the exercise of one’s
human rights in the protection of other individuals’ human rights is the highest form of exercise of these
rights. Consequently, human rights defenders—individuals who act to protect other’s human rights—
deserve even greater protections than individuals acting to protect their own human rights. But if this is
the case, who is excluded? Are not businesswomen and men who promote equitable economic
development that improves living standards, education, health care, or the enjoyment of any of the human
rights to which others are entitled, acting to promote and ensure the human rights of other individuals? Of
course, the motivation for action is important and the benefits to others’ human rights should not be
merely incidental, however, if the requisite intention is present it would seem plausible that all human
rights may be exercised in defence of other individuals’ human rights.
And finally, individuals’ ability to contribute to protecting other individuals’ human rights is at
least in part related to their knowledge of human rights. Human rights education and the exposure of
human rights abuses by credible sources is thus a conditio sino qua non for the exercise of human rights.
In this respect it is adequate to make two brief observations. One is that there is an increasing interest in
human rights education at levels of higher education that is indicated by the substantial number of courses
on human rights law that have begun at universities around the world. 16 The United Nations General
Assembly’s designation of the period from 1995 to 2005 as the decade for Human Rights Education 17 and
the recent emphasis on human rights education of the Centre for Human Rights under the leadership of the
High Commissioner for Human Rights18 are evidence of an international concern for human rights
education. Although the opposite view has been expressed on occasion—for example by the British
government’s withdrawal of the requirement of human rights education from the National Curriculum19—
the trend among states is to increase access to human rights education by introducing more courses in the
subject and to improve the quality of education by encouraging research and specialisation’s in higher
education. Finally, it should be recognised that human rights education is not merely a government
responsibility—in accordance with the above expectations that governments have established through
their international professions—but also a right of the individual. The right of individuals to obtain
knowledge on human rights is established in international human rights instruments. Accordingly,
[a]t the World Conference on Human Rights, convened in Vienna in June 1993 the issue of
human rights education was a major point of discussion at all stages of the preparatory
process as well as during the Conference ... [and] ... [i]n its Vienna Declaration and
Programme of Action, [endnote omitted] the Conference reaffirmed that, in accordance
with international instruments, including the Universal Declaration of Human Rights and
the International Covenant on Economic, Social and Cultural Rights, States were obliged to

515
. Preambular para.3 of the UDHR.
616
. There are relatively new courses at universities in the United Kingdom, the United States, the Netherlands, Tunisia, Iraq, Lebanon, Egypt,
Bosnia and Hercegovina, France, Croatia, Serbia and Montenegro (Kosovo), Germany, Poland, Japan, Nicaragua, Brazil, South Korea, and
Turkey. The author is aware of courses in these countries because of having contributed material to them or taught on them.
717
. U.N. Doc. A/RES/49/184 (23 December 1994).
818
. See United Nations, Human Rights Questions: Human Rights Questions, Including Alternative Approaches for Improving the Effective
Enjoyment of Human Rights and Fundamental Freedoms: A report of the High Commissioner for Human Rights transmitted by the Secretary
General, U.N. Doc. A/50/698 (27 October 1995) (stating that the High Commissioner “attaches special importance to the part of his mandate
entrusting him with coordinating relevant United Nations education and public information programmes in the field of human rights.” Id. at
5).
9
19
. See Amnesty International, “Sir Ron Dearing takes Human Rights off the National Curriculum,” Education Network Newsletter (Summer
1994) (cover story) (human rights education as introduced to the National Curriculum for 5-14 year-olds in 1989 by the British government).

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ensure that education was aimed at strengthening respect for human rights and fundamental
freedoms.20
While international instruments are the basis of a right to ‘human rights education’, numerous non-
governmental organisations as well as governmental organisations provide additional information and
material that greatly enhance this right whether or not it is being exercised within the formal academic
environment of a school, college or university. Individuals also participate in the provision of education
through their writing, public speaking and contribution to authoritative decisions on human rights matters.

Specific Human Rights Exercised in the Defence of Others’ Human Rights

There are also particular human rights that are more appropriate for special protection when they
are being exercised for the protection of other individual’s human rights. Among these rights are the
freedom of expression,21 the right to demonstrate,22 the right to democracy,23 the rights of minorities and
the right to petition. The list could be much longer, but these are examples of rights that are regularly
exercised to protect others human rights. The frequent speeches by the Dali Lama or Dawn Aung San
Suu Kyi, as well as the statements of individual observers or authoritative decisions-makers about the
abuses of international human rights in their country are examples of exercises of the freedom of
expression. Also the millions of people who write letters to world leaders, the media or international
bodies after having been encouraged by Amnesty International, the Pen Club or on their own initiative are
exercising their freedom of expression to protect other’s human rights.
Individuals who participate in the silent vigil of the Women in Black, who take part in the large
public marches of the Campaign for Nuclear Disarmament, who stay at the peace camps of small
organisations like the Greenham Common Women and the Gulf Peace Team, or who participate in the
actions of Greenpeace, are all exercising their human right to demonstrate for the benefits that they believe
will accrue to others. During the past thirty years, many social movements, such as the British campaign
against the poll tax, the French movement for gender rights, the campaign for greater social and economic
justice, and those opposed to the Israeli occupation of the West Bank, have encouraged individuals to
exercise their human right to demonstrate to protect other individual’s human rights.
Sometimes the demonstrators are not nationals of the states in which they demonstrate. In the
United Kingdom a number of aliens were arrested for participating in demonstrations against the poll tax
in the vicinity of the House of Parliament. English law prohibited demonstrations in the area around
Parliament.24 In Israel in June 1992 more than a hundred foreign demonstrators were arrested for
peacefully demonstrating in the West Bank in contradiction of a government ban on demonstrations. 25 A
condition that the foreigners involved in the demonstration forfeit their right to freedom of speech while
they were in Israel was withdrawn by the Israeli government after its constitutionality was challenged in
the Supreme Court.26 In the United States and Canada, social and economic justice demonstrations
resulted in more than a thousand arrests in Seattle, Washington, D.C., in the United States and Windsor in

020
. U.N. Doc. A/50/698 (27 October 1995) at 3. Also see art. 25 of the ACHPR.
121
. Art. 19 of the ICCPR, art. 10 of the ECHR; art. 13 of the ACHR and art. 9 of the AfCHPR.
22
. A right that derives from the right to the freedoms of assembly, association and expression. For the freedom of assembly see art. 21 of the
ICCPR, art. 11 of the ECHR; art. 13 of the ACHR and art. 11 of the AfCHPR. For the freedom of association see art. 22 of the ICCPR, art. 10
of the ECHR; art. 11 of the ACHR and art. 10 of the AfCHPR. Treaties articles concerning the right to freedom of expression are identified in
the previous note.
323
. Art. 25 of the ICCPR, art. 3 of Protocol 1 to the ECHR; art. 23 of the ACHR and art. 9 of the ACHPR.
424
. See Smith, S., de, and Brazier, R., Constitutional and Administrative Law 510 and 511 (6th ed. reprinted 1990) (this restriction now
appears in more recent legislation in the same broad form).
525
. The papers concerning this case are on file with the author who was the legal representative of the demonstrators involved.
626
. Israel v. Peace Activists, Israeli Supreme Court (June 1992).

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Canada. Nationals have been arrested or worse. These arrests and deportations have also come despite the
fact that demonstrators were acting within the law. For example, in Washington, D.C., on 15 April 2000,
more than 600 individual were arrested for the alleged crime of holding a parade without a permit—
although this is not an arrestable crime.
Often foreigners who support national in demonstrations have been subject to similar abuses of
their human rights. In Sri Lanka, Cuba, China, the United States, France, the Sudan, Zambia, Zimbabwe,
the Netherlands foreigners have deported or denied entry because of participating in activities to ensure
respect for others’ human rights. The 1994 example of a Turkish PKK leader who was invited to the
United Kingdom, admitted and then deported after having been arrested at Westminster for intending to
make a political speech illustrates clearly the use of discretion over immigration matters by governments
to mistreat aliens who campaign for others’ human rights. The treatment that the intending PKK speaker
received could not have been applied to a British national as it would have violated the national’s right of
freedom of expression, such a human right did not seem a concern, however, for the British government as
it summarily arrested and deported the PKK speaker.
Pro-democracy demonstrators, who work behind the scenes to encourage greater and more
democratic participation in government in Yugoslavia, or those who use their political and financial
affluence to provide better representation to minorities or the large sections of unempowered vulnerable
population in the United States, are exercising their right to participate in democratic government for the
benefit of others. Sometimes claims for the right to democracy transcends national contexts, for example,
in the world government movement individuals claim a greater degree of sovereignty for the citizens of
the world. These people refer to themselves as World Passport holders. They are individuals who refuse to
recognise states’ right to restrict their human right to travel and attempt to travel with ‘World Passports’
issued by the World Service Authority.27 These individuals, through their activities are making a claim to
participate in the international community or for international status.
And individuals who campaign or petition international or national bodies for the protection of
rights of minorities, such as the numerous members of minorities who have communicated violations of
minority rights under article 27 of the ICCPR to the Human Rights Committee, are often exercising their
minority rights more for the benefit of others than for themselves. And any individuals communicating
information about “a consistent pattern of gross and reliably attested violations of human rights” to the
Sub-Commission on Prevention of Discrimination and Protection of Minorities or to other bodies,
international or national, are exercising their human right to petition.28
An individual may exercise the right of petition to bring a claim to an international tribunal on
behalf of another individual who is or has been the victim of a human rights abuse, if his or her state is
party to an international treaty providing for the right of individual access to an international body—for
example, the Optional Protocol to the ICCPR—or if the body itself provides for a general right of access
—for example, the procedure for bringing abuses to the attention of the Sub-Commission under ECOSOC
resolution 1503. If the claimant’s right is at issue this will suffice. However, when the claimant’s right is
not at issue then the instruments providing access to the forum must be examined to discover if they
provide for an actio popularis. The right to bring a case to protect another’s human rights, an actio
popularis, is not generally recognised under international law.29 However, several treaties do provide for
an actio popularis. For example, the American Convention on Human Rights recognises that any “person
or group of persons, or any non-governmental entity legally recognised in one or more member states”
727
. This organization is based at 1012 14th Street N.W., Suite 1106, Washington D.C. 20005 U.S.A., telephone number: +1-202-638-2662 or
facsimile number: +1-202-638-0638. These passports have been officially recognized by six countries (Burkina Faso, Ecuador, Mauritania,
Tanzania, Togo and Zambia) and unofficially accepted by more than 135 countries on more than one occasion.
828
. See art. 2(3)(a) and (b) of the ICCPR; art. 13 of the ECHR; art. 25 of the ACHR; and art. 7 of the ACHPR.
929
. See South West Africa Cases (Ethiopia and Liberia v. South Africa) (Second Phase), I.C.J. Reports 47 (1966) and Jennings and Watts
(1996) at 5, nn. 9.

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may bring a claim to the attention of the Commission.30 And the African Charter on Human and Peoples’
Rights provides that its Commission “may resort to any appropriate method of investigation; it may hear
from the Secretary General of the Organisation of African Unity or any other person capable of
enlightening it.”31

The Horizontal or Drittwirkung of Human Rights

The concept of drittwirkung describes the application of human rights to relations between private
individuals.186 One may consider drittwirkung either from the perspective of individual responsibilities of
private individuals for violations of human rights or, as is done herein, from the perspective of the rights
of the individuals whose rights have been violated.
In theory drittwirkung requires not only that a human rights provision create duties for a state to
control individual behaviour, but that the provision be applicable between individuals so as to allow one
individual to rely on it directly—without the intermediary of the state except as through the policing
function—to control the action of another individual. True horizontal working provides individuals with
the right to claim their human rights against other individuals. The central element is who is able to make
a claim. Drittwirkung thus defined depends on an individual’s ability to rely on international human rights
law in a national or international forum. A first condition is access to an authoritative decision making
forum, something that is usually not a problem at the national level,187 but still quite restricted at the
international level. A second condition is that the human right is one which can actually be violated by an
individual’s action. A third condition is that the right can be interpreted to require individual action. An
example of a right that must be interpreted to apply between individuals is the right to life. This is true at

030
. Art. 44 of the ACHR. Also see art. 26 of the Regulations of the Inter-American Commission on Human Rights, reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 103 (1992).
131
. Art. 46 of the African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.5, 21
International Legal Materials 58 (1982), entered into force 21 October 1986.
6186
. This is similar, but distinct from the duty of states to take all reasonable steps to ensure the exercise of one’s human rights from
interference by private individuals or groups. Horizontal or drittwirkung relates to the rights and obligations in relationships between
individuals, although the state may ultimately be the enforcer of such rights. Examples of drittwirkung are much fewer and far between than
those of state’s obligations to control private actors. For the latter see in the European context Young, James and Webster v. U.K., Ser. A, No.
44 at paras. 55 and 56 (1981) and X. v. UK, No. 4515/70, 38 Collection of Decisions of the European Commission of Human Rights 86 at 88
(1971); in the Inter-American context see Velásquez Rodríguez v. Honduras, Reports of the Judgments of the Inter-American Court of Human
Rights, Ser. C, No. 4 (1988) and Godinez Cruz v. Honduras, Reports of the Judgments of the Inter-American Court of Human Rights, Ser. C,
No. 5 (1989). But compare Fairen Garbi and Solis Corrales v. Honduras, Ser. C, No. 6 (1989) (where the court found that the Honduras
government did not have to prevent disappearances, distinguishing Velásquez Rodríquez and Godinez Cruz on the facts, but also indicating
that perhaps the Court was raising the burden of proof that victims had to fulfil in order to show that the government had not taken all steps to
prevent private actors from violating the disappeared persons’ human rights). Also see Drzemczewski, A., European Human Rights
Convention in Domestic Law: A Comparative Study 199-203 (1983) and Clapham, A., Human Rights in the Private Sphere (1993).
7187
. Several national courts have considered the horizontal application of domestic human rights provisions with mixed results. For example,
the South African Supreme Court considered but rejected the direct horizontal application of human rights found in the South African
Constitution in the case of De Plessis v. De Klerk, Constitutional Court of South Africa, Case No. CCT 8/95 (15 May 1996). In this case
several justices, however, argued for horizontal application and the court’s general consensus was that the distinction between direct
horizontal application and indirect horizontal application—which the majority accepted—was not significant. The case also includes
summaries of the practice of other states including the United States and Germany. Recently, several courts in the state of New York in the
United States of America have also held domestic human rights provisions to apply horizontally. See Cahill v. Rosa, 1996 New York, Lexis
Case No. 3056, finding that the New York Human Rights Law, New York Executive Law §296(2)(a) in McKinney’s Laws of New York
(1993), applies to the relationship between dentists and their patients to prevent dentists from refusing to treat patients suffering from
contagious diseases. Also see Petri v. Bank of New York Company, 153 Misc. 2d. 246 (New York Supreme Court 1992) (prohibiting
discrimination by private actors against HIV individuals) and Crowley, L.T., “Dentists’ Offices as Public Accommodations,” New York Law
Journal, 3 and 4 (30 October 1996). And also note that under specialized national legislation individuals may allow civil actions to be brought
against human rights violators by their victims. See, e.g., Alien Tort Statute, 28 United States Code §1350 (1988), the Torture Victim
Protection Act, 28 United States Code §1350 (1988 and Supp. V 1993) and long line of jurisprudence under this act, most notably, the case of
Filartiga v. Peña-Irala, 630 Federal Reporter 2d. 876 (Second Circuit Federal Court of Appeals 1980).

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least at the level that one individual may not kill another individual without violating their right to life. At
least in theory this proposition would seem correct.
Some relevant reasons for extending human rights beyond the relationship between individuals and
their state have been summarised by Andrew Clapham in his book entitled Human Rights in the Private
Sphere from 1993. He states three general reasons that are worth repeating:
First, the emergence of new fragmented centres of power, such as associations, pressure
groups, political parties, trade unions, corporations, multinationals, universities, churches,
interest groups, and quasi-official bodies has meant that the individual now perceives authority,
repression, and alienation in a variety of new bodies, whereas once it was only the apparatus of
the State ...
Secondly, we can trace a philosophical trend whereby the classical definition of the
private as the domestic sphere, with the head of the household wielding absolute power, has
been surpassed. The hierarchy of the private sphere under this definition was based on a
‘natural’ order, with women, children, and slaves seen as ‘naturally’ inferior. Because the public
sphere was composed of equals (freemen) it was different from the private sphere ...
Thirdly, the supranational factor has meant that the individual—State dichotomy is no
longer sufficient to explain complex relations in modern society. Not only do supranational
organs introduce a new power relationship with potential for abuse of power between the
individual and the supranational authority, but there also now exist various groups (national or
multinational) which may bypass the state machinery and exercise direct influence on
supranational authorities, which, in turn, directly exercise power over the individual.188
Clapham concludes that “[i]f the old conceptions of private property and public activity are unhelpful in
our quest to find a structure with which to understand the limits of human rights protection in the private
sphere, we should perhaps ask much more fundamental questions about the rights to be protected.” 189 A
former member of the United Nations Human Rights Committee and judge of the European Court of
Human Rights, Vincent Evans opined of the ECHR that although it “was essentially intended to protect
the fundamental rights of the individual in his relations with the State ... it appears that there is now a
move towards the concept that certain human rights need to be protected and can be invoked, not only
against public authorities but also against private persons ... “.190 Like Clapham, Evans’ observation is
based on the “growing awareness that in a modern life the traditional human rights are increasingly
threatened by new dangers from e.g. multi-national corporations, mass media, mechanical devices (such as
data banks) and other phenomena of a private nature and consequently should be protected erga
omnes.”191
Despite the arguments of leading jurists such as Clapham and Evans, the authoritative decisions by
international judicial authorities on claims by individuals offer only very limited support for direct
drittwirkung. In his 1993 book Clapham points to examples—many of which are described in this study—
as evidence that human rights apply between individuals.192 Especially central to his argument are cases
and representations before the European Court of Human Rights.193 However, these examples are at best
evidence that some very specific human rights create obligations for individuals that allow the punishment
of violations by states. It is important to note, however, that none of the conventions enumerated above
create a right of action for one individual against another individual or require a state to create such a
8188
. Clapham (1993) at 137 and 138.
9189
. Id..
0190
. Quoted in Muchlinski, P.T., “The Accountability of Multinational Enterprises and the Right to Development: The Compensation of
Industrial Accident Victims From Developing Countries,” Third World Legal Studies 189, 191 (1993).
191
. Id. at 192.
2192
. Clapham (1993) at 181-242.
3193
. See id..

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cause of action. Furthermore, there is not a consistent practice of national or international authoritative
decisions-makers, especially courts, applying international human rights law to purely private disputes. In
fact, commenting on the development of drittwirkung in the European context Andrew Clapham has
pointed out
[w]hat seems to have happened is that the more usual mittelbare Drittwirkung application, as
developed at the national level, has been adopted at the international level in its unmittlebare
form ... the European Court of Human Rights actually demanded that individuals be protected
from other individuals’ actions where such actions threaten rights under the Convention. The
European Court did not suggest that in their application of private law courts should be inspired
by the principles which lie behind their constitutions and the Convention (mittelbare
Drittwirkung). The Court seems to presume that States are obliged to ensure that national courts
protect Convention rights when these rights are directly relied on against other private
individuals.194
This appears to recognise—and the European Court of Human Rights’ jurisprudence195 tends to confirm—
that states may be held responsible for individual’s failure to respect human rights, but that individuals
will not be held directly responsible for their failure to respect other individuals’ human rights. A similar
line has been followed by the South African Supreme Court in the case of De Plessis v. De Klerk.196 The
Court, after finding a variety of practices in the different national jurisdictions it canvassed, considered,
but rejected, the direct horizontal application of human rights found in the South African Constitution. At
the same time it found that indirect horizontal application197 might be possible and several of the minority
opinions, argued for direct horizontal application. And the one point the majority of the court seemed to
agree on was that the distinction between direct and indirect horizontal application is not useful.
Despite the finding of the South African Court there are some clear examples of countries where
their constitutions are intended to have direct horizontal effect. One example of such legislation that was
cited by the South African court is Article 5 of the Namibian Constitution, which provides:
The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by
the Executive, Legislature and Judiciary and all organs of the Government and its agencies and,
where applicable to them, by all natural and legal persons in Namibia, and shall be enforceable
by the Courts in the manner hereinafter prescribed.
Additionally, countries including Germany, the United States and India have applied constitutional
principles to private law relations and the South African court also suggested that human rights principles
might influence the judicial interpretation of private rights.198
The conclusion must be that most states do not provide for the drittwirkung of human rights to such
an extend as to create a right of action for one individual against another for the violation of international
human rights law. Instead the emphasis remains upon violations by the state.

Acts of Civil Resistance

If the application of international human rights law between private individuals is a recent topic of
much controversy, the exercise of human rights in violation of national laws might be seen as an older
topic of much controversy. These acts can be divided into acts of civil resistance and acts of civil
4194
. Id..
5195
. See Mikaelsen, L., European Protection of Human Rights: The Practice and Procedure of the European Commission of Human Rights
on the Admissibility of Applications from Individuals and States 86-93 (1980) (citing cases in the 1970’s) and Clapham at 183, n.12 (citing
cases in the 1980’s).
6196
. South African Supreme Court, Case No. CCT 8/95 (15 May 1996).
7197
. This refers to the influence of human rights principles for interpreting private law between two private parties.
8198
. Id. at para. 62.

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disobedience, although this dichotomy is by no means universal.199 The acts of civil resistance relevant to
this study are those aimed at upholding international human rights law and which violate national law or
other international law in the process of doing so. In contrast, acts of civil disobedience are aimed at
violating the law because the actor believes the law is unjust and contrary to international human rights
law.200 Both types of acts are often part of important strategies that individuals use for protecting the
international human rights of other individuals. Both types of acts have also been acknowledged as being
in principle legitimate. For example, the draft declaration on human rights defenders described above,
providing for the general right of human rights defenders to strive for the realisation and protection of
human rights, includes both the unambiguous right to campaign for human rights201 and has been
cautiously interpreted as including the right “to refuse to participate in human rights violations.”202 And
the practice of individual activists is evidence of claims that they are making to be able to take action to
prevent or end the violation of other individual’s human rights.
Before considering these two types of acts, and whether they should be considered legitimate
exercises of human rights in the name of protecting other’s human rights, a few preliminary points
applying to both types of actions can be made. First, while acts of civil disobedience have become more
well-known throughout history, acts of civil resistance are a more modern phenomenon that arose out of
increasing respect for the rule of law.203 Second, chances of defending civil resistance in a court of law are
greater than those of defending civil disobedience. This is because of the tradition “that civil disobedience
defendants should be prepared to accept their guilt and punishment as some indication of their moral
purity” influences most decisions-makers.204 Third, states often act to restrict rights of assembly, gathering
and demonstration on public order grounds which show little concern for the motivation of the actors. 205
Fourth, in carrying out most acts of civil disobedience or resistance the individuals are acting to protect
their rights as well as those of others. The concentration in this study is on the effects of individuals’ acts
on others’ human rights. Similarly some acts of civil disobedience and resistance are often exercised by
individuals acting in semi-organised groups. Once again, however, the concentration is on the individual
actor and not the group.
Examples of civil disobedience are frequent throughout history and continue today. 205a India has
probably provided the most notable advocate of civil disobedience in the person of Mohandas
Karamchand Gandhi. Between 1919 and 1921 and again between 1930 and 1931 Gandhi inspired
hundreds of thousands of Indians to participate in various actions that violated the British colonial laws
over India, including a 200-mile march to the sea to collect salt in defiance of the colonial government’s
tax on salt. In the United States of America the Civil Rights Movement of the 1950s and 1960s, often
9199
. Cf. Paust, J., “The Human Right to Participate in Armed Revolution and Related Forms of Violence: Testing the Limits of
Permissibility,” 32 Emory Law Journal 545-546, nn. 1 (1983) and Schwartz, R.E., “Chaos, Oppression, and rebellion: The Use of Self-Help
to Secure Individual Rights Under International Law,” 12 Boston University International Law Journal 255, 257 (Fall 1994) (both providing
other classifications for action that is contrary to national law and supported by international law).
0200
. See Boyle, F.A., Defending Civil Resistance under international law 16 and 17 (1987) (where this distinction is explained).
1201
. See U.N. Doc. E/CN.4/1996/97 at 18 reproducing art. 1, chap. I of the first reading text of the draft declaration.
202
. U.N. Doc. E/CN.4/1993/WG.6/1 (statement of the government of Finland). But see, e.g., id. at 2, para. 10 (as an example of the statements
of other states, in this case Cuba, that adamantly arguing for a restriction of activities to those that do not violate national law) and Bauer,
S.M., and Eckerstrom, P.J., “The State Made Me Do It: The Applicability of the Necessity Defense to Civil Disobedience,” 39 Stanford Law
Review 1173, 1177 (1987).
3203
. See Boyle, F.A., Defending Civil Resistance under international law (1987) (coining the phrase “civil resistance”).
4204
. Id. at 17.
5205
. See, for example, Bellos, A., “Judges back tough curbs on peaceful protest rights,” The Guardian, p. 3, cols. 7 and 8 (Friday, 24 January
1997) (describing a High Court decision upholding legislation allowing the police to prohibit gatherings—peaceful or not—of twenty or more
people in public places where they fear “serious disruption to the life of the community”).
5205a
. See, for example, Burgress, J., and Pearlstein, S., “Protests Delay WTO Opening,” The Washington Post, p. 1, col. 1 and 2 (Wednesday,
1 December 1999) (describing how protesters demonstrating against the exclusive nature of World Trade Organization’s meting in Seattle,
Washington, caused the government and industry representatives to reconsider the exclusivity of the is policy fora).

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epitomised in actions of Martin Luther King Junior, encouraged disobedience to laws discriminating
against blacks. The most well-known example of civil disobedience inspired by the civil rights movement
is Rosa Parks’206 refusing to relinquish her seat in a Montgomery Alabama bus to a white passenger in
1955 in violation of an Alabama state law that prohibited blacks from sitting in seats reserved for white
passengers. This incident was used by King’s Southern Non-Violence Coordinating Council to illustrate
that the law was contrary to basic rights. It gave rise to the 1956 Montgomery Bus Boycott and was used
by the civil rights movement to catapult the issue of racial discrimination to a central position on the
policy agenda of the United States.
Examples of civil resistance in support of other individuals’ human rights are usually found in
judicial fora since civil resistance, as compared to civil disobedience, implies the existence of a legal
argument to justify the act. Two cases from the United States can be used to illustrate acts of civil
resistance.207 In both cases the defendants argued the defence of necessity, whereby the defendants were
acting to ensure respect for international law.208 In essence their argument was that the harm done by the
violation of international law would outweigh their violation of national law.
The first is the People v. Jarka.209 In Jarka several individuals protested the United States military
intervention in Central America and the Reagan administration’s build-up of nuclear weapons designed to
be used in first strike attacks.210 On 14 November 1984 the individuals blocked the entrance to the Great
Lakes Naval Training Centre by sitting on the road in front of the base with coupled arms. The Training
Centre was a key site for the storage and preparation of the first-strike nuclear weapons. The individuals
were arrested for “the fairly serious crimes of mob action and resisting arrest.”211 They were given a jury
trial in which they argued two issues. First, that they were justified because they were acting to prevent
violations of international human rights and humanitarian law committed through the United States’
intervention in Central America. And second, that their protest was justified because it was directed
against the United States build-up of first-strike nuclear weapons and that the use or threat of nuclear
weapons constituted a violation of international law. On the first issue it was argued that the United States
intervention in Central America was contrary to international law protecting human rights, namely that it
constituted crimes against peace, humanity, war crimes, grave breaches of the Geneva Conventions,
violations of the United Nations Charter, the O.A.S. Charter and a violation of the International Court of
Justice’s 1984 Interim Protection Order issued on behalf of Nicaragua.212 This argument was accepted by
the court.213 The second argument, based on the illegality of nuclear weapons, received an even better
result. This argument, which was supported by the testimony of eight expert witnesses, was not even left
for the jury as Judge Alphonse F. Witt instructed them as a matter of law that “[t]he use or threat of use of
nuclear weapons is a war crime or an attempted war crime because such use would violate international
6206
. Rosa Parks had attended workshops on civil disobedience at Monteagle Tennessee at Highlander Folk School, had worked with the
Montgomery Improvement Association whose president was Martin Luther King, Jr., and was married to Raymond Parks a black barber and
civil rights activist. See http://137.30.2.91/George/Papers/HIST4553/Notes3.html (site of George North, visited 15 January 1997 at 18:05)
(providing background information on Black Movements and Black Messiahs).
7207
. See Boyle, F.A., Defending Civil Resistance under international law 9-11 (1987) (where the two cases are discussed. The description of
the cases is based on Boyle’s comments on these cases).
8208
. Id. at 9 (stating the common law defense of necessity was incorporated into the Illinois Criminal Code, whereby, “[a]ccording to Chapter
38, § 7-13 of the Illinois Revised Statutes (1983), conduct which would otherwise be an offense is justifiable by reason of “necessity” if the
accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public
or private injury greater than the injury which might reasonably result from his own conduct.” Id.). Also see Lippman, M., “Reflections on
Non-Violent Resistance and the Necessity Defense,” 11 Houston Journal of International Law 277 (1989).
9209
. See Boyle, F.A., Defending Civil Resistance under international law 9 (1987) (citing People v. Jarka, No. 002170 in the Circuit Court of
Lake County, Waukegan, Illinois (15 April 1985)).
0210
. Id..
1211
. Id..
212
. Id..
3213
. Id..

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 Chapter Eight: Individuals Exercising Their Human Rights to Protect Other Individuals’ Human Rights

law by causing unnecessary suffering, failing to distinguish between combatants and noncombatants and
poisoning its targets by radiation.”214 Thus, in Jarka both the jury and the judge expressly accepted that
individuals may be justified in violating national law if their actions are aimed at ensuring respect for
international law.
The second case, Chicago v. Streeter,215 individuals were protesting South Africa’s policy of
apartheid. The individuals had gone to the office of the South African Consul in Chicago. When the
Consul refused to see them to discuss South Africa’s policy of apartheid the individuals refused to leave
the corridor outside his office.216 They were eventually arrested and charged with trespassing.217 As in
Jarka, they claimed the defence of necessity based on international law.218 To substantiate their defence
the defendants called expert witnesses who testified to South Africa’s violations of international human
rights law and international crimes.219 The defendants argued that they were acting to prevent a
continuation of these violations and were acquitted.220 Streeter illustrates that once again a jury was
willing to accept the defence of necessity to promote international law as a defence against a violation of
national law.
The cases above are exceptions in the result that was achieved. Some lawyers will even point out that
the judge’s instruction in Jarka concerning the illegality of nuclear weapons has been superseded by the
recent Advisory Opinion of the International Court of Justice that did not definitively rule out the legality
of nuclear weapons, although it came very close to doing so.221 Numerous authoritative decisions by
elected and appointed elites have denied individuals the right to violate national laws. For example, the
United Nations Human Rights Committee has several times dismissed cases of civil resistance without
even considering the question of whether or not the individual’s exercise of human rights to protect others
from human right violations was a justification for violations of national law. 222 But alternatively, the
cases should not be discounted because they are examples of alternative resolutions and, therefore, require
careful consideration in future research aimed at developing strategies by which individuals can protect
human rights. The decisions in Jarka and Streeter, at least formally, reflect values and concerns of the
individuals in world society. This is because the decisions were based on jury verdicts and juries are
‘supposed’ to reflect public opinion. Although this might be an inadequate indicator of public opinion
from a sociological point of view, it should appeal to more dogmatic lawyers and can be used to refute
formalistic arguments. The two cases illustrate how the conflict between states’ interests in world public
order and individuals’ interests in human dignity might be reconciled in favour of the latter.
Nevertheless, one must be cautious about the limits of individual participation and influence in
authoritative decision making processes through acts of civil resistance in contemporary society. For
example, acts of civil resistance aimed at the destruction or disruption of states nuclear programmes must
take into account that some of the world’s most powerful elites support the legality of nuclear weapons. At
the same time, however, they must gain confidence and support from the overwhelming majority of world
4214
. Id. at 9 and 10.
5215
. See id. at 9 (citing Chicago v. Streeter, No. 85-108644 in the Circuit Court of Cook County, Chicago, Illinois (May 1985)).
6216
. Id. at 10.
7217
. Id..
8218
. Id..
9219
. Id..
0220
. Id..
1221
. See Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports No. 95 (8 July 1996).
222
. Van der Ent v. The Netherlands, Communication No. 657/1995, U.N. Doc. CCPR/C/55/D/657/1995 (1995) and Koning v. The
Netherlands, Communication No. 660/1995, U.N. Doc. CCPR/C/55/D/660/1995 (1995) (both these cases involved acts of civil resistance in
that the individuals caused damage to government military property that they had good reason to believe would be exported to Turkey to be
used against Kurdish civilians by the Turkish government. They argued that their criminal damage to government property—cutting fences
around a military base in one case and damaging millions of dollars of military weapons in the other—were necessary to prevent the
violations of the human rights of Kurdish civilians).

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society—including some elites and countless individuals—who believe they are illegal.223 To reconcile
these two interests civil resisters acting to prevent the threats or use of nuclear weapons must consider the
International Court of Justice in its recent Advisory Opinion. One needs to ask several critical questions,
not often addressed by lawyers, to answer this question with sufficient attention to both law and the social
context of this law. For example, did the opinion of the Court reflect an international consensus? Or did
the Court support a powerful elite minority of governments? Did the Court decide contrary to the will of
the majority of individuals who are world society, that nuclear weapons might ‘sometimes’ be legal?224
Did the Court even consider what the majority wanted? This is not the place to consider these questions,
but they must be considered in a value-oriented policy approach to authoritative decision making. One
forum in which they may come to be considered is when individuals respond with civil resistance or civil
disobedience to a decision with which they do not agree.
Civil resistance and civil disobedience are means by which individuals can claw back the sovereignty
that has been taken from them. And it is thus inherent in these forms of action that they be judged not
merely on the law as decided by elites and for elites, but upon de lege ferenda as decided upon by the
consensus of the world society.

3223
. There were many other manifestations of public opinion showing that large portions of the population held this belief. These include: (1)
the more than 100 million signatures to the Appeal from Hiroshima and Nagasaki to have all nuclear weapons declared illegal and banned; (2)
numerous demonstrations, including those by Greenpeace—on 28 October 1995, ITAR-TASS reported that Greenpeace presented the French
government with a petition by seven million people who were protesting that the testing of nuclear weapons; (3) 11,000 signatures to the
MacBride Lawyers’ Appeal Against Nuclear Weapons; and (4) the 20 to 50 people representing organizations from around the world who
maintained a vigil outside the Peace Palace during each day that the Court heard oral statements in the Advisory Opinion on the Legality of
Nuclear Weapons. Additionally, there is more than fifty years of campaigning by the Campaign for Nuclear Disarmament and other groups of
civil society.
4224
. Indeed, the Court’s statement that nuclear weapons “might” be legal “in an extreme circumstance of self-defense” in which a states “very
survival would be at state,” I.C.J. Reports No. 95 at para. 97, is acknowledging that human rights can be made subservient to the interest of
elite governments. The Court’s dicta appears to legitimize the use of nuclear weapons, for example, by Saddam Hussein’s Iraq against any
other country, if he believes that the Iraqi state—for which he is the head-of-state and thus entitled to decide—truly believes its existence was
threatened by forces such as those of the Gulf War coalition.

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

CHAPTER NINE

INDIVIDUALS’ RESPONSIBILITIES IN THE PROCESS OF

INTERNATIONAL HUMAN RIGHTS LAW

It is only when the conception of the individual has been reached that the idea of responsibility begins.
Sayce, Comparative Philosophy 305 (1874)

It is every man’s duty to be beneficent—that is, to promote according to his means, the happiness of others
who are in need, and this without hope of gaining anything by it
Kant, I., The Metaphysics of Morals §30 (1797)

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

INDIVIDUALS’ RESPONSIBILITIES IN THE PROCESS OF

INTERNATIONAL HUMAN RIGHTS LAW

The Concept of Individual Responsibility

The term responsibility is defined in the Oxford English Dictionary as a “charge, trust, or duty, for
which one is ... liable to be called to account.”1 In the context of an individual participating in world
society, being vested with responsibility reflects both an element of empowerment in respect of, as well as
an element of subjugation to, community policies and values. In legal and political discourse a distinction
is sometimes made between moral responsibility and legal duty or obligation. The fifth abridged edition of
Black’s Law Dictionary, for example, does not include the word “responsibility” thus implying that only
duties are legally relevant.2 But Black’s Law Dictionary defines duty as “[a] human action which is
exactly conformable to the laws which require us to obey them.”3 Whether not the “laws” that the
Dictionary’s editors had in mind, were only legal or included moral dictates as well, is not entirely clear.
Because this study is about the individual in his or her social context a more preferable definition is that
used by Erica-Irene Daes who describes a duty as “any action or course of action which is regarded as
morally or legally incumbent, apart from personal likes and dislikes.”4 In this definition the terms ‘duty’
and ‘responsibility’ converge; both terms connoting an obligation to act in accordance with societal
expectations. This is the sense in which the terms ‘duty’ and ‘responsibility’ are used below.
The narrow focus of human law on only government's responsibilities has also limited the
functional value of the law. Non-state actors, particularly in situations where armed forces in being used,
are able to escape as through international scrutiny as the state counterparts against whom they are
fighting. This concentration also obscures the power relations.4a Instead of recognising the ability of a
particular actor to influence respect for human rights, the focus tends to shift towards their status as a non-
state or state actor. Thus, individual non-state actors may escape condemnation for actions that have a
greater effect on other individuals' human rights then do the actions of state actors. This problem is
particularly relevant in a world where powerful individuals are increasingly political participants.
Despite these apparent problems, it is with a concentration on state responsibility that international
law has developed and from which a description of this development must begin.

The Individual and the Tradition of Responsibility under International Law

Traditionally international law was thought to be “a law between states only and exclusively.”5
This problem has been considered more extensively above.6 Even with the advent of international
humanitarian law and international human rights law, both clearly considering individuals, the emphasis
remains on the state actor as the main participant in the process of international law.7 Traditional
1
. The Oxford English Dictionary, vol. XIII, 742 (Simpson, J.A., and Weiner, E.S.C., (eds.) 1989).
2
. See generally, Black’s Law Dictionary (5th abridged ed. 1983).
3
. Black’s Law Dictionary 453 (5th ed. 1979).
4
. Daes (1990) at 38, para. 96.
4a
. Jochnick, C., "Confronting the Impunity of Non-State Actors: New Field for the Promotion of Human Rights," 21 Human Rights
Quarterly 56-79 (1999).
5
. Lauterpacht, H., (ed.), Oppenheim’s International Law, vol. 2 at 456 (8th ed. 1955). Also see Abrams, J.S., and Ratner, S.R, Accountability
for Human Rights Atrocities in International Law. Beyond the Nuremberg Legacy 11(1997) (citing the United Nations Secretary-General of
the United Nations, The Charter and Judgment of the Nürnberg Tribunal 45-46 (1949), UN Doc. A/CN.4/5, UN Sales No. 1949.V.7, id. nn.
25). For even earlier antecedents of this argument see Vattel, E. de., The Law of Nations (Le droit des gens) at 1v (1982) (originally published
in 1863).
6
. See supra chapter five.
7
. See, e.g., Chen (1989) at 25.

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

international legal scholars thus hold that given that international law can only create obligations for states
and that the individual is thereby excluded as a participant under international law, he or she can have no
responsibilities under this law.8 As a result the treaties, general principles and customs do not bind the
individual legally; and the individual is excluded from various arenas of international relations. While this
ignorance of social realities may appear amazing to some, it has become an accepted practice among many
lawyers and legal thinkers. This practice has had consequences for individuals’ responsibilities. For
example, American judges adhering to the traditional (restrictive) view of responsibility under
international law have held that “purely private torture will not normally implicate the law of nations,
since there is currently no international consensus regarding torture practised by non-state actors.”9 In
1948 the Italian Court of Appeals in Rome denied the possibility of international law creating
responsibilities for individuals.10 In a case from the 18th century, Erades cites what he claims is the “first
judicial avowal that individuals are outside international law.”11 The citation is to the jury instruction of
Justice Iredell in a Raleigh North Carolina Court. It is worth repeating here as a classic statement of the
Westphalian tradition and the perspective that it imposes upon international lawyers who remain under its
grasp:
In whatever manner the laws of nations is violated, is a matter of national, and no personal
complaint. The nation injured, whether the injury be in fact committed by any branch of the
government, or by an individual, is to apply to that nation from whose government the
injury proceeds, or in which it is committed; and if due redress be not given, it is a cause of
reprisals, and under some circumstances may even justify war.12
The quote expresses both the state-centred tradition as well as some of its potential disastrous
consequences. This is not to say that wars are to be avoided by recognising individual responsibility.
However, it does make sense to hypothesis that individual responsibility does promote the achievement of
the values of human dignity by making it a goal of all the participants in society and not merely the
collective actors.

Early Claims to Individual Responsibility under International Law

Trends in the direction of upholding individual responsibility for violations of agreed upon laws
appeared quite early in history.13 This trend has its historical antecedents among the Greek nation-states in
the notion of “duty” that was predominate until the emergence of the Roman law emphasising rights.14

8
. See e.g., Brierly, J., The Law of Nations 287 at 1 (6th ed. 1963)) and Draft Articles on State Responsibility, Conduct of Private Individuals,
1972 Y.B. Int’l L. 95. Also see, e.g., O.M. v. G.J.W. de W., W 1857, No. 1870 (decision of the Dutch Court of Appeal of North Holland from 2
March 1857) and the United States cases: Tel-Oren v. Libya Arab Republic, 726 F.2d 774, 776, 780 n. 4 (D.C. Cir. 1984) (concurring opinion
of Judge Edwards arguing that private actors could never be held responsible for violations of international law), 470 U.S. 1003 (1985), cert.
denied; In re Estate of Ferdinand E. Marcos, 978 F.2d 493, 501 (9th Cir. 1992); and Jane Doe I, on behalf of herself and all others similarly
situated, and Jane Doe II, on behalf of herself, as administratrix of the estate of her deceased mother, and on behalf of all others similarly
situated, Plaintiffs, v. Radovan Karadzic, Defendant and S. Kadic, on her own behalf and on behalf of her infant sons Benjamin and Ongen,
Internacionalna Iniciativa Zena Bosne i Hercegovine “Biser,” and Zene Bone i Hercegovine, Plaintiffs, v. Radovan Karadzic, Defendant, 866
F. Supp. 734 (United States District Court for the Southern District of New York, decided 7 September 1994). But compare S. Kadic, et al., v.
Radovan Karadzic, 1995 U.S. App. Lexis 28826 at 14 (decided 13 October 1995, as amended per 6 November 1995) (the opinion of Judge
Jon 8. Newman of the United States Court of Appeals for the Second Circuit reversing the lower District Court, 866 F.Supp. 734, on this
point).
9
. Forti v. Suarez- Mason, 672 F. Supp. 1531, 1541 (N.D.Cal. 1987). Also see Erades and Gould 3 Dall. 356-357 (1796) (dicta of Judge
Iredell).
010
. Erades at 487 (citing Ministry of War v. Colorni and Fattori, 16 March 1948, 15 AD n. 182).
11
. Erades at 457.
212
. Erades at 456 (quoting [1796], 3 Dall. 199, 260 as cited by Erades and Gould, at 356-357).
313
. See Daes (1990) at 51, paras. 210-212.
414
. Pound, R., Jurisprudence 58 (1959).

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

The Roman Justinian imported the Greek notion when he wrote that “iuirs praecepta sunt haec; honeste
vivere, alterum non laedere, suum cuique tribere.”15 Later in 1625 Grotius expressed the idea of individual
responsibility for violations of international law arguing that international law was binding on individuals
as well as on states.16 For Grotius states, other groups of individuals and individuals, alike were subject to
international law.17 But without being directly challenged, the idea of the individual being subject to
international law became obscured by the preoccupation with the state as the predominant actor after the
Peace of Westphalia.
In the 19th century the Peace Treaty of Paris18 of 1814 between France and Great Britain revived
the concept of individual responsibility. This treaty prohibited merchants from importing or selling slaves.
However, under the treaty a merchant is not prohibited from importing or selling slaves “in the colonies of
the State of which he is a subject.”19 At the same time states began to claim—often referring back to
Grotius’ writing—that piracy could be punishable as a crime against all humanity committed by private
individuals. Already in 1615, English Chief Justice Coke had referred to the case of Samuel Palache or
Peligii where the court had decided that pirates could be punished as individuals.20 In this case an
ambassador committing an act of piracy was held not to be protected by his diplomatic status because he
was acting contra jus gentium.21 That piracy is a crime under international law for which an individual
could be held responsible became a general principle of law applied by numerous national courts.22 These
courts specifically held that piracy was a crime “against the law of nations” and that individuals were
responsible for observing this law.23 Today article 103 of the Convention on the Law of the Sea of 1982 24
and article 15 of the Geneva Convention on the High Seas of 195825 make piracy committed by an
individual on the high seas a violation of international law that can be punished by states. In his extensive
survey of the case law of national courts, predominately those of the United States and the United
Kingdom, Erades concludes that no court to his knowledge has “denied that in case of piracy jure gentium
the perpetrators may be tried and punished under international law.”26 Piracy, thus, perhaps more than any
other act prohibited by international law stands out as an example of how the international community of
states has created an expectation that individuals will be held responsible for violations of international
515
. Quoted in Daes (1990) at 41, para. 117 (“These are the precepts of the law: to live honestly, to hurt no one and to give to every man his
own.” id. at n. 84).
616
. Grotius, H., De Jure Belli ac Pacis (1625) (Grotius on the rights of war and peace) (trans. Whewell, W., 1853). Also see Remec, P.P., The
position of the individual in international law according to Grotius and Vattel 225-227 (1960) and Sunga, L.S., Individual responsibility in
international law for serious human rights violations 18 (1992).
717
. See Remec (1960) at 225-227.
818
. Peace Treaty of Paris of 1814 reprinted in U.N. Publ. 1951 XIV.2 at 3.
919
. Id..
020
. R. v. Marsh, 3 BILC 767 (1615) reprinted in part in Erades (1993) at 453.
121
. Id..
22
. See cases cited in Erades (1993) at 407, 453-455. Also see Hyde, International Law Chiefly as Interpreted and Applied by the United
States, vol. I, at 804, para. 241 (2nd ed. 1947); Wheaton, Elements of International Law 104 (5th ed. 1916); and the Memorandum Amicus
Curiae of Law Professors Frederick M., Abbot, Jose E. Alvarez, Francis A. Boyle, Roger S. Clark, Valerie Epps, Joan F. Fitzpatrick, Maria
Frankowska, Claudio Grossman, Nicholas N. Kittrie, Bert B. Lockwood, Linda A.. Malone, John F. Murphy, James A.R. Nafziger, Ved P.
Nanda, Jordan J. Paust, Henry J. Richardson III, Michael P. Scharf, Barbara Stark, Surya P. Sinha, Jon M. Van Dyke, Burns H. Weston,
Gabriel M. Wilner, Adrien K. Wing in Kadic v. Karadzic, Case No. 94-9069 (S.D.N.Y. 1994) [hereinafter Kadic Amicus Memorandum]
citing United States v. Ambrose Light, 25 F.Cas. 408 (S.D.N.Y. 1885); United States v. The Cargo of the Brig Malek Adhel, 43 U.S. (2 How.
210, 232, 235 (1844); United States v. Pirates, 18 U.S. (5 Wheat.) 184 (1820); United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) and
Davison v. Seal-skins, 7 F.Cas. 192 and 194 (C.C.D. Con. 1835, Case No. 3,661).
323
. Id..
424
. United Nations Convention on the Law of the Sea, concluded at Montego Bay, 10 December 1982, U.N. Doc. A/CONF.62/122 and Corr.
1 to 11 (1982), entered into force 16 November 1994.
525
. Convention on the High Seas, 450 U.N.T.S. 11, U.N.G.A. Res. 1105 adopted 29 April 1958, 11 U.N. GAOR Supp. (No. 17) at 54 , U.N.
Doc. A/3572 (1957), entered into force 30 September 1962.
626
. Erades (1993) at 465.

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

law. It should not go without mention, however, that the prohibition of piracy was also very much in the
interests of elite rulers who saw acts of private individuals as threats to their power base. This political
consideration may in fact have been the predominate factor influencing states in their promotion of the
aforementioned expectation. Consequently, it is appropriate to question whether piracy can be used to
buttress arguments aimed at promoting individual responsibility for basic human rights, an objective
which rests upon a foundation of the values of human dignity and not so much upon that of world public
order.
Early judicial decisions by national courts also held that individuals could be guilty of violating
international law concerning diplomacy,27 slave trade,28 the laws of war,29 territorial infractions,30 breaches
of neutrality,31 terrorist publications,32 counterfeiting of foreign currency33 and misuse of passports.34
American Judge Iredell, concurring in Talbot v. Janson in 1795, even went so far as to declare individuals
responsible for all acts that might be qualified as “trespasses committed against the general law of
nations.”35 While the citations given above and dicta of Judge Iredell may not be as broadly encompassing
as they appear, they provide clear evidence that the United States and several foreign courts have viewed
individuals as having responsibilities under international law.

Before the creation of the United Nations, however, it was not common practice to recognise
international human rights law as a separate category upon which to base claims. Nevertheless, the above
claims based on various grounds of general international law illustrate that authoritative decisions-makers
did view individuals as having responsibilities under international law and create a prima facie
presumption that such would be even more so the case under international human rights law because this
corpus of law deals specifically with the protection of the individual’s rights.

Individuals’ International Legal Responsibility for Violations of International Law

The following pages describe past trends in the claims, demands, expectations and authoritative
decisions that have been made by participants of world society concerning individuals’ responsibilities for
respecting international human rights law. The relationship at the basis of this discussion is between the
individual and world society. The expression of international human rights instruments evidence the
727
. See, for example, Matter of Count Haslang (6 BILC 209 at 210, United Kingdom 1755) reported in Erades at 455 (although the facts are
not described in detail in the report, Erades claims that the court expressly declared the defendant “to be a violator of the law of nations” id.)
and Republica v. De Longchamps (1 U.S.(1 Dall.) 1 (Pa. 1784)) and 9 AILC 120 at 122, United States 1793) reported in Erades at 455
(concerning a violation of diplomatic immunity by a private individual of whom American Chief Justice McKean said “[t]he person of a
public minister is sacred and inviolable. Whoever offers any violence to him not only affronts the sovereign he represents, but also hurts the
common safety and well-being of nations—he is guilty of a crime against the whole world ... “ id.. A private individual was charged with
violating the international laws of diplomacy and the Continental Congress “highly approved the action” 27 Journal of the Continental
Congress 502-04).
828
. See The Fortuna Case (3 BILC 687 at 688-689, United Kingdom 1811) reported in Erades (1993) at 457 (where Sir William Scott cited
the Amédie Case (United Kingdom 1810) for the proposition that “any trade contrary to the general law of nations, although not tending to or
accompanied with any infraction of the belligerent rights of that country, whose tribunals are called upon to consider it, may subject the vessel
employed in that trade to confiscation. The Amédie was an American ship employed in carrying on the slave trade.” id.).
929
. See, for example, Erades (1993) at 469-512 (cases reported therein).
030
. See 1 Opinions of the U.S. Attorney General 68, 69 (1797) cited in Kadic Amicus Memorandum at 7.
131
. See Kadic Amicus Memorandum at 7 (citing United States v. Smith, 27 F. Cas. 1192, Case No. 16,342 (C.C.N.Y. 1807); Henfield’s Case,
11 F.Cas. 1099, 1107-08, Case No. 6,360 (Wilson, J., on circuit), 1103-04 (Jay, C.J., on circuit), 1120 (Wilson, J.) (C.C.D. Pa. 1793); 1
Opinions of the U.S. Attorney General 61 and 62 (1796) and 1 Opinions of the U.S. Attorney General 57 and 58 (1795)).
232
. See 1 Opinions of the U.S. Attorney General 52 and 52 (1794) cited in Kadic Amicus Memorandum at 7.
33
. See Kadic Amicus Memorandum at 7 citing United States v. Arizona, 120 U.S. 479 (1887) and United States v. White, 27 F.Cas. 200, 201-
202 (C.C.E.D. Mo. 1886).
434
. See Kadic Amicus Memorandum at 7 citing Adra v. Clift, 195 F.Supp. 857, 864 (D. Md. 1961).
535
. Talbot v. Janson, 3 U.S.(3 Dall.) 133, 159-61 (1795).

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claims made by world society that establish expectations for the individuals participating in the
comprehensive social process of world society. It is the claims made by society with respect to individuals
that are described, not claims made by private individuals against other individuals. These latter claims
will be discussed below when the horizontal application of international human rights law is considered.
The discussion in this section is necessarily limited since the areas of international law for which
individuals now bear responsibility is in constant flux. It is also limited by the inability to do adequate
research into the various manifestations of consensus that might not be so widely reported. Thus, it is
mainly expressions of groups of individuals, predominately states, upon which the description focuses. In
some cases, however, the state only provides the authoritative decisions-maker or an opinion as to the
preferred decision, while the claims and demands are made by individuals. Nevertheless, it is only the
modest goal of this section to describe selected examples which reflect the broad contours of individual
responsibility under international human rights law.
Falling within these descriptions are various areas of international law that effect the basic values
of human dignity, including international humanitarian law, international criminal law, special branches of
international law (e.g. environmental law) or international human rights law (including special areas such
as genocide).

Claims Expressed in International Human Rights Treaties

There is no lack of international human rights treaties that clearly express the belief that
individuals are responsible under international human rights law. These treaties can be divided into two
categories. First, there are treaties that attribute responsibility to individuals who are acting on behalf of a
state. This responsibility differs, although only marginally, from that of a state under traditional
international law because it requires the punishment of individuals and not merely reparations from a
state. Second, there are treaties that attribute responsibility to individuals regardless of whether or not they
are acting on behalf of a state.
Treaties are the main expression of these collective manifestations of international human rights.
As a general principle, “[t]reaty law binds the nationals of a signatory state, regardless of a person’s
economic, social, political or official position.”62 The acceptance of this principle among states is probably
not so widespread as to provide a general principle of international law. Nevertheless, as a matter of
policy—especially if the identification of a common community policy of achieving the optimalisation of
the values of human dignity is correct—Paust’s position must be supported. It would be inconsistent with
principles of good faith and pacta sunt servanda for states to be able to enter into treaty obligations in the
name of the individuals of which their populations consist with the belief that these individuals are not
bound. This view is further supported by the nature of human rights treaties. Human rights treaties are
both international agreements and ideological instruments. They are international agreements because they
are agreed to by states. As such they manifest the common community policies of the states adhering to
them and create expectations for every participant in the processes of world society that authoritative
decisions will be made in accordance with them. They are ideological instruments in that they reinforce
these obligations with the claim that human rights are the most fundamental rights of the individual. Thus
—more than other treaties concerning economic, military, developmental or technological co-operation—
human rights treaties emphasize that the rights they protect are of vital importance to world society. 63 This
262
. Paust (1992) at 500.
363
. For example, the preamble of the UDHR refers to human rights as “fundamental” and “essential” to peaceful co-existence; the preambles
of the ICCPR and the ICESCR recognize the human rights therein as “the foundation of freedom, justice and peace in the world” and deriving
from the “inherent dignity of the human person”; the preamble of the ECHR proclaims human rights to be the “foundation of justice and
peace in the world”; the preamble of the ACHR several times refers to the human rights therein as “essential”; and the preamble to the
ACHPR refers to the firm conviction that there is a duty to promote and protect human rights “taking into account the importance
traditionally attached to these rights and freedoms in Africa.” Further proof of this statement is provided by article 60(5) of the Vienna

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lex superior position of international human rights law indicates that human rights are to be protected in
all circumstances and against all violators. If this is correct, international human rights treaties should bind
private individuals as well as state actors.
A closer analysis of some international human rights instruments also suggested that they are
intended to protect all individuals against violations by all other individuals. The Charter of the United
Nations, a treaty that by virtue of article 103 takes precedence over all other international instruments for
member states, itself begins by stating in the preamble that the “peoples” of the United Nations reaffirm
their faith in human rights and undertake the responsibility of establishing “conditions under which justice
and respect for obligations arising from treaties and other sources of international law can be maintained.”
Daes points out that the word “peoples” emphasises “that the Charter was an expression of the wills of the
peoples of the world” and that the “reference in the Preamble to the Charter to faith in “fundamental
human rights” and in “the dignity and worth of the human person” give support and emphasis to the
provisions of Articles 1 and 55 of the Charter in particular.” 64 This view is also supported by Goodrich,
Hambro and Simmons in their authoritative commentary on the Charter.65 From the Charter, one may
surmise that it is based on the belief that states are merely mechanisms for ensuring respect for the
fundamental values of individuals, not an end in themselves.
Article IV of the Convention on the Prevention and Punishment of the Crime of Genocide states
that “[p]ersons committing genocide ... shall be punished, whether they are constitutionally responsible
rulers, public officials or private individuals.”66 The more recent report of the United Nations Secretary
General concerning crimes in the former Yugoslavia also recognised that genocide “is a crime under
international law for which individuals shall be tried and punished.”67 The Nürnberg Tribunal held this to
be true of all war crimes, crimes against humanity and crimes against peace. 68 Since the Nürnberg trials
these violations of human rights have been sanctioned by treaties. Among those provisions of international
humanitarian law that import individual responsibility for human rights violations are those of the four
Geneva Conventions.69 The claims made by states in these conventions will be dealt with in more detail
below. For now it is only important to note that these conventions indicate the agreement of an
overwhelming majority of the states in the international community—and presumably of the individuals
that are world society—that individuals can be held responsible for violations of human rights norms.
Individual responsibility for genocide, war crimes, crimes against humanity and crimes against
peace has recently been emphasised by the creation of tribunals to try individual defendants for the
violations of these laws in Rwanda and the former Yugoslavia. 70 Neither of these tribunals allow
individuals direct access to complain about the violation of their rights. However, both provide forums for
holding individuals responsible for human rights violations that are international crimes or breaches of

Convention on the Law of Treaties. The article prohibits the suspension of a treaty or provisions of a treaty that protect an individual, while
provisions that are not humanitarian in nature may be suspended in response to another state’s violation. See Jennings (1996) at 1302-1303
and 1303, nn. 8.
464
. Daes (1990) at 53, paras. 231 and 232.
565
. See Goodrich, L.M., Hambro, E., and Simmons, A.P., Charter of the United Nations: Commentary and Documents 20 and 21 (3rd and
revised ed., 1969) cited in Daes (1990) at 53, paras. 231 and 232.
66
. 78 U.N.T.S. 277, 9 December 1948 (opened for signature by the adoption of a General Assembly resolution the day before the Universal
Declaration of Human Rights was adopted by the General Assembly).
767
. Quoted in Paust, J.J., “Correspondence to the Editors in Chief,” 88 A.J.I.L. 715-17 (1994).
868
. See Draper, G.I.A.D., “Human Rights and the Law of War,” 12 Virginia Journal of International Law 326, 330-333 (1972) .
969
. The Four Geneva Conventions.
070
. See Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991, Annex to U.N. S.C. Res. 827, U.N. Doc. S/25704 (1993) and Statute
of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Committed in the
Territory of Neighouring States, Annex to U.N. S.C. Res. 955 (1994).

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international humanitarian law. The responsibility of individuals is specifically indicated by articles in the
respective constitutive statutes of the tribunals.
The 192671 and 195672 conventions abolishing slavery include provisions that must be interpreted
as extending responsibility to private individuals and requiring them not to undertake activities contrary to
these treaties.73 This interpretation is consistent with the opinions and actions of states expressed in the
context of drafting the CCPR. During the drafting of the CCPR states went so far as to express their
opinions that an individual was prohibited from voluntarily ceding his or her right to be free from slavery.
In this forum states rejected a proposal to allow individuals to contract out of the prohibition against
slavery on the ground “that servitude in any form, whether involuntary or not, should be prohibited ...
[and] ... [i]t should not be made possible for any person to contract himself into bondage.”74
The International Convention on the Suppression and Punishment of the Crime of Apartheid75
from 1973 imposes international criminal responsibility “irrespective of the motive involved, to
individuals, members of organisations and institutions and representatives of the State, whether residing in
the territory of the State in which the acts are perpetrated or in some other State” for commission or
involvement in the crime of apartheid.76 Article I declares criminal those “individuals committing the
crime of apartheid.”77 And article XI facilitates the extradition of individuals by removing apartheid from
the ambit of political crimes.78 The International Convention against Apartheid in Sports,79 although
concentrating on institutionalised discrimination, required states to undertake steps against individuals.
These steps included acting to “prohibit entry into their country of members of teams and individual
sportsmen participating or who have participated in sports competitions in South Africa” and to “prohibit
entry into their countries of representatives of sports bodies, members of teams and individual sportsmen
who invite on their own initiative sports bodies, teams and sportsmen officially representing a country
practising apartheid and participating under its flag.” Due to the changing circumstances of world society
leading to the disintegration of apartheid in South Africa this treaty does not apply; however, its adoption
by the General Assembly as a convention is a strong statement in support of creating very clear
repercussions for individuals for their failure to act to criticise the policy of apartheid.
Other than the preambles discussed above, the two international covenants also include articles
that recognise the individual’s responsibility for not violating human rights. Articles 5, paragraphs 1 of the
International Covenant of Civil and Political Rights80 and the International Covenant of Economic, Social
and Cultural Rights81 both state in identical words that “[n]othing in the present Covenant may be
interpreted as implying for any State, group or person, any right to engage in any activity or perform any
act aimed at the destruction of the rights and freedoms recognised herein or at their limitation to a greater

171
. Slavery Convention, 60 L.N.T.S. 253, opened for signature 25 September 1926, entered into force 9 March 1927.
272
. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 266 U.N.T.S. 3,
18 U.S.T. 3201, adopted by a Conference of Plenipotentiaries convened by the Economic and Social Council Res. 608 (XXI) of 30 April 1956
in Geneva on 7 September 1956, entered into force 30 April 1957.
373
. See Paust (1992) at 57.
474
. U.N. Doc. A/2929, Ch. VI, para. 18.
575
. International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 U.N.T.S. 244, reprinted in 13 I.L.M. 50 (30
November 19573).
676
. Id., art. III.
77
. Id., art. I.
878
. Id., art. XI.
979
. International Convention against Apartheid in Sports, adopted and opened for ratification by U.N. G.A. Res. 40/64 of 10 December 1985.
080
. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, open for signature 16 December 1966, entered into
force 3 January 1976.
181
. Id..

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extent than is provided for in the present Covenant.”82 As Professor Jordan J. Paust has written, these
words require “at a minimum, an individual must not deny or violate the human rights of others.”83
Furthermore, Andrew Clapham points out that “examination of the travaux préparatoires suggests that
individuals are obliged to respect the human rights contained in the Civil and Political Rights Covenant.” 84
The evidence he presents is from the discussion during the drafting of the covenant of provisions
concerning the right to freedom of assembly, to association and the prohibition of slavery.85 He also points
out that when the general prohibition against discrimination in article 26 was considered the consensus
clearly appeared to favour limiting this provision’s application to state actors. Thus, discrimination by
private actors is not, according to the interpretation of the states in 1946, a matter for international human
rights law. Whether or not this is also a valid expectation today must be viewed in light of the
developments since 1946,86 which have been in the direction of expanding human rights protection by the
increasing expression of expectation in international human rights instruments. Perhaps more importantly,
is that what is apparent already in 1946 from the consensus of states is that individuals were intended to be
obliged to respect several of the human rights enunciated in the two covenants. Such an interpretation is in
accordance with the object and purpose of the covenants. This object and purpose flows from the common
fifth preambular paragraphs.
Although International Convention on the Elimination of All Forms of Racial Discrimination
(CERD)87 in article 1, paragraph 1, limits the prohibition of racial discrimination to events taking place in
“public life”, it has been pointed out that
such “public life” limitation does not limit obligations to those of the state, state action, or
color of law. Private action is not excluded as long as private actor discrimination has the
“purpose or effect” of impermissibly affecting relevant human rights in a “field of public
life.”[footnotes omitted]88
While some subsequent treaties do not limit discrimination to activities in public life, 89 it more common to
find treaties that do90 or which limit their application to acts carried out “by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity.” 91 Treaties of
the latter two categories include the Convention on the Elimination of All Forms of Discrimination against
Women92 (CEDAW), the Convention on the Political Rights of Women93 (CPRW), and the Convention

282
. Id., art. 5, para. 1.
383
. Paust (1992) at 55.
484
. Clapham (1993) at 97.
585
. Clapham (1993) at 97 and 98 (citing U.N. Doc. A/2929, Ch. VI, para 139 (freedom of assembly), para. 148 (the right to association) and
para. 18 (the prohibition of slavery)).
686
. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) [1971] I.C.J. Reports 31,
para. 53 (stating that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing
at the time of interpretation” and taking into account “the changes which have occurred ... and its interpretation can not remain unaffected by
the subsequent development of law” id.).
787
. International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 December 1965, U.N. G.A. Res. 2106, 20
U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1965), opened for signature 7 March 1966, 660 U.N.T.S. 195, entered into force 4
January 1969.
88
. Paust (1992) at 59.
989
. See Clapham (1993) at 100 and 101. Also see CEDAW and the Apartheid Convention.
090
. See art. 1 and 3 of CEDAW and artt. 1-3 of CRPW.
191
. Art. 1, para. 1 of CAT.
292
. Convention on the Elimination of All Forms of Discrimination Against Women, adopted on 18 December 1979 by U.N. G.A. Res.
34/180, U.N. GAOR, 34th Sess. Supp. (No. 46) at 194, U.N. Doc. A/34/46 (1980), entered into force 3 September 1981.
393
. Convention on the Political Rights of Women, opened for signature and ratification by General Assembly resolution 640 (VII) of 20
December 1952, entered into force 7 July 1954.

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Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment94 (CAT). These
treaties recognise individual responsibility “indirectly through the treaty’s attention to the sanctions to be
imposed by state signatories.”95
According to articles 2 and 4 of the International Convention on the Elimination of All Forms of
Racial Discrimination (CERD),96 states are obliged to take steps to prevent racial discrimination by “any
person, group or organisation.” By article 6 states further undertake to ensure the right of victims to seek
“just and adequate reparation or satisfaction for any damage suffered.”97 Additionally, article 5 requires
that individuals be given access to activities that are often under the control of the private domain,
including single individuals, thereby incurring the responsibility of these individuals for allowing access.
The activities in article 5 include housing, health care, education, cultural activities, transport, hotels,
restaurants, cafés, theatres and parks.98 These provisions, however, are somewhat limited by the provisions
of article 1, paragraph 1 which limits the term discrimination to activities in fields of “public life.”99
The Convention on the Elimination of All Forms of Discrimination Against Women 100 (CEDAW)
makes no reference to public life in prohibiting discrimination against women. On the other hand, there
are no clear words extending the prohibition to private actors. Therefore, an authoritative decisions-maker
confronted with the task of interpreting this convention should refer to its object and purpose in light of
subsequent practice. Even the most cursory inspection of the object and purpose of the Convention will
discern that its main aim is to protect women from discrimination.101 The modern context in which this
must be understood has been described by the Committee on the Elimination of Discrimination against
Women, the body established pursuant to article 17 of CEDAW in 1992 in the following words: “[u]nder
general international law and specific human rights Covenants, States may also be responsible for private
acts if they fail to act with due diligence to prevent violations of rights, or to investigate and punish acts of
violence, and to provide compensation.”102 This recommendation can be said to extend the bounds of state
responsibility, but it is probably not a “giant leap forward in the conceptual thinking surrounding human
rights theories,”103 at least not insofar as the responsibility of the individual is concerned because it still
rests the protection human rights on the responsibility of states. In other words, an individual violating a
woman’s human rights would not be violating the international law codified in CEDAW, at least not
according to the plain words of this convention. This position is also apparent in the Convention on the
Political Rights of Women104 in which all three articles granting rights to women refer to public functions,
such as voting and holding office.105 However, if one takes a more teleological approach it is possible to
arrive at the conclusion that individuals are also prohibited from gender-based discrimination by the
494
. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, adopted by U.N.G.A. Res. 39/46, U.N.
GAOR, 39th Sess., Supp. (No. 51) at 197, U.N. Doc A/39/51 (10 December 1984), entered into force 26 June 1987.
595
. Paust, J.P., “The Other Side of Right: Private Duties Under Human Rights Law,” 5 Harvard Human Rights Journal 51, 60 (1992)
696
. International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 21 December 1965, U.N.G.A. Res. 2106,
20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1965), opened for signature 7 March 1966, 660 U.N.T.S. 195, entered into force 4
January 1969.
797
. Id..
898
. Art. 5 of the CERD.
99
. See infra at ?.
0100
. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 December 1979 by G.A. Res. 34/180, U.N.
GAOR, 34th Sess. Supp. (No. 46), at 194, U.N. Doc. A/34/46 (1980), entered into force 3 September 1981.
101
. See, e.g., Meron, T., Human Rights Law-Making in the United Nations 60 (1986) and Clapham (1993) at 100.
2102
. Committee on the Elimination of Discrimination against Women, General Recommendation 19, CEDAW/C/1992/L.1/Add.15 (29
January 1992) cited in Clapham (1993) at 100.
3103
. Clapham (1993) at 100.
4104
. Convention on the Political Rights of Women (CPRW), 193 U.N.T.S. 135, opened for signature and ratification by U.N. G.A. Res. 640
(VII) of 20 December 1952, 7 U.N. GAOR Supp. (No. 20) at 27, U.N. Doc. A/2361(1953), entered into force 7 July 1954.
5105
. Id. at artt. 1, 2, and 3.

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provisions of CEDAW. Such an approach should take into account the vital goal of protecting women
from all forms of discrimination that is expressed in CEDAW as well as the recent developments in the
protection of women’s rights expressed in subsequent conventions and declarations, such as the recent
Inter-American convention protecting women against violence106 and the United Nations Declaration on
the Elimination of Violence against Women,107 both of which expressly recognise that acts by private
actors may constitute violations of human rights.108 A policy-oriented approach to law would require
authoritative decisions-makers to take into account the actual policies behind the protections in CEDAW.
Such an approach is more compatible with the teleological interpretation described above and in addition
would consider how the protection of women under CEDAW can best be interpreted to encourage the
achievement of a society respecting the values of human dignity. Additionally, by becoming party to
CEDAW states agree to “adopt appropriate legislative and other measures, including sanctions where
appropriate,”109 “to take appropriate measures to eliminate discrimination against women by any person,
organisation or enterprise”110 and to “prohibit, subject to the imposition of sanctions, dismissal on grounds
of pregnancy or of maternity leave and discrimination in dismissals on the basis of martial status” in all
employment relationships, including those where the employer is a private individual.111
The Convention relating to the Status of Refugees112 provides refugees with expectations of
protection against certain forms of persecution. In doing so it also requires refugees to observe certain
responsibilities. Article 2 explicitly states that “[e]very refugee has duties to the country in which he finds
himself, which require in particular that he conform to its laws and regulations as well as to measures
taken for the maintenance of public order.” In theory, this will also require obedience to international
human rights norms contained in treaties that have become the law of the land by incorporation into
national law. Furthermore, article 1, paragraph F of the Refugee Convention implicitly requires
individuals to observe certain norms of international law, including the basic human rights found therein.
It does so indirectly by prohibiting application of the protections afforded refugees in the Convention to
any individual who commits crimes against the laws of war, peace or humanity that are found in
international instruments or who “acts contrary to the purposes and principles of the United Nations
Charter.”113
The Convention on the Rights of the Child114 (CRC) is primarily intended to protect children
because of their vulnerability due to their age. For this reason it concentrates on the protection, not the
responsibility of the child. The basis of this protection is the child’s “physical and mental immaturity”
which requires “special safeguards and care.”115 For this protection it is vital that adult members of society
undertake certain responsibilities. Additionally, the CRC refers to the responsibilities of the “family, as
the fundamental group of society” through which “the child should be fully prepared to live an

6106
. Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (IAWC), done in Belem do Para,
adopted 9 June 1994, entered into force 6 March 1995, 33 I.L.M. 1534 (1995).
7107
. Declaration on the Elimination of Violence against Women (DEVAW), U.N. G.A. Res. 48/104 adopted 23 February 1994 (adopted
without vote).
8108
. See artt. 2 and 4 of the DEVAW and artt. 2 and 7 of the IACW.
9109
. Art. 2, para. b of CEDAW.
0110
. Art. 2, para. e of CEDAW.
111
. Art. 11, para. 2(a) of CEDAW.
2112
. Convention Relating to the Status of Refugees, 189 U.N.T.S. 137, entered into force 22 April 1954, adopted 28 July 1951 by the United
Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429(V)
of 14 December 1950.
3113
. Id. at art. 1, para. F.
4114
. Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by U.N. G.A. Res. 44/25, U.N.
GAOR, 44th Sess., 61st meeting, Annex (20 November 1989), 28 I.L.M. 1457, entered into force 2 September 1990.
5115
. Ninth preambular para. of the CRC.

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independent life in society.”116 The articles of the CRC then go on impose the responsibility of acting in
the “best interests of the child” on “public and private social welfare institutions.”117 At several points in
the CRC it is emphasised that this responsibility is to be exercised “taking into account the rights and
duties of his or her parents, legal guardians, or other individuals legally responsible for him or her” and
states are required to ensure that this is the case through legislation and administrative measures.118 Some
of the “duties” of parents are indicated elsewhere in the convention. They include conformity to health and
safety standards in child care,119 directing and guiding the child in the exercise of his or her rights,120 the
common responsibilities of parents for bringing up their children,121 and securing to the best of their
abilities and financial capacities the conditions of living necessary for a child’s development.122 Although
only the last of these responsibilities is explicitly stated to be a responsibility, it is consistent with the
object and purpose of the CRC—to protect children because of their vulnerability—as well as with the
achievement of the optimalisation of the values of human dignity, to interpret parents as having the
responsibilities enumerated in the abovementioned provisions of the CRC. In addition to the listed
responsibilities, the CRC also includes references to the obligations of service providers, who although
traditionally the state, are increasingly private actors. Nevertheless, many states have been unwilling to
acknowledge the creation of obligations for private individuals as a requirement of the CRC and an
interpretation of the expectations of states as expressed in the CRC in the light of subsequent state practice
indicates that most states view the CRC as creating primarily, if not exclusively, responsibilities for states.
Whether or not this collective responsibility adequately deals with the mounting claims of abuse of
children’s rights in private relationships between children and adults may be questioned.
Finally, several international conventions enacted to combat terrorism impose responsibilities on
individuals. Among these conventions are the Tokyo Convention on Offenses and Certain Other Acts
Committed on Board Aircraft,123 the Hague Convention for the Suppression of Unlawful Seizure of
Aircraft,124 the Montreal Convention for the Suppression of Unlawful Acts against Safety of Civil
Aviation,125 the Convention on the Prevention and Punishment of Crimes Against Internationally Protected
Persons, including Diplomatic Agents,126 the International Convention Against the Taking of Hostages,127
Convention on the Physical Protection of Nuclear Materials, 128 the Convention for the Suppression of
6116
. Fifth preambular para. of the CRC.
7117
. Art. 3, para. 1 of the CRC.
8118
. Art. 3, para. 2; art. 14, para. 2; and art. 40, para. 2(b)(iii) of the CRC.
9119
. Art. 3, para. 3 of the CRC.
0120
. Art. 5 and art. 14, para. 2 of the CRC.
121
. Art. 18, paras. 1 and 2 of the CRC.
2122
. Art. 27, para. 2 of the CRC.
3123
. Convention on Offenses and Certain Other Acts Committed on Board Aircraft, 704 U.N.T.S. 219, 20 U.S.T. 2941, T.I.A.S. No. 6768,
adopted in Tokyo and opened for signature 14 September 1963, entered into force 4 December 1969.
4124
. Convention for the Suppression of Unlawful Seizure of Aircraft, 680 U.N.T.S. 122, 22 U.S.T. 1641, T.I.A.S. No. 7192, done at Den Haag,
16 December 1970, opened for additional signatures 1 January 1971, entered into force 14 October 1971.
5125
. Convention on the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974, U.N.T.S. 14118, 24 U.S.T. 564, T.I.A.S. No.
7570, done at Montreal, 23 September 1971, entered into force 26 January 1973. Also see the Protocol for the Suppression of Unlawful Acts
of Violence at Airports Serving International Civil Aviation, supplementary to the Montreal Convention, International Civil Aviation, Doc.
DOC 9518 signed in Montreal on 24 February 1988.
6126
. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 1035
U.N.T.S. 167, adopted 14 December 1973, entered into force 20 February 1977.
7127
. International Convention Against the Taking of Hostages, reprinted in 18 I.L.M. 1450, adopted by G.A. Res. 34/146, 34 U.N. GAOR
Supp. (No. 46) at 245, U.N. Doc. A/34/46 (1979), opened for signature 18 December 1979, entered into force 3 June 1983. Also see the 1977
Washington Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that
are of International Significance, T.I.A.S. 8413, 27 U.S.T. 3951 (1971).
8128
. Convention on the Physical Protection of Nuclear Materials, 1456 U.N.T.S. 24631, International Atomic Energy Agency, Doc.
INFCIRC/225, adopted at Vienna on 3 March 1980.

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Unlawful Acts against the Safety of Maritime Navigation, 129 the Protocol for the Suppression of Unlawful
Acts against the Safety of Fixed Platforms located on the Continental Shelf,130 and the Convention on the
Marking of Plastic Explosives for the Purpose of Detection. 131 Although these conventions were originally
intended to be manifestations of a state-centred policy of control over individuals,132 in light of subsequent
United Nations resolutions concerning terrorism, they must now be viewed as also striving to ensure
specific conduct by individuals for the good of the community and other individuals. In pursuance of this
purpose they legitimately require individuals to abide by their provisions.133
An interpretation of the clear words of these treaties, in light of the object and purpose of human
rights treaties, would logically lead to the conclusion that private individuals can have duties under
treaties. However, such a conclusion has been challenged by the opinions134 and practices of states135 who
do not accept international law as creating binding obligations upon their individual citizens. It is also
challenged by the inability of states to agree to specific obligations to punish international criminals 136 and
by the practice of states to allow international criminals to go unpunished.137

Special Responsibilities of Particular Individuals Under International Law

It is relevant to the discussion of international responsibility to realise that past trends have created
expectations for special responsibilities for particular actors. These responsibilities are commensurate to
the special skills, trust or authority of individuals who are fulfilling certain functions. Many of these
responsibilities are part of domestic law such as codes of conduct, codes of ethics and other professional
codes that may be imposed in particular states. Of interest to this study are the codes that transcend
domestic domains and contribute to expectations of individuals everywhere in the world.
It is worthwhile noting a few examples that have been agreed upon by the world community. The
examples have been expressed in model codes or rules by states, often influenced by non-state actors. For
example, the Standard Minimum Rules for the Treatment of Prisoners 274 requires the medical officer at
every prison to “regularly inspect and advise the director upon” several matters concerning hygiene,
sanitation, food and clothing.275 In the same rule the director is instructed to act on the recommendations
made by the medical officer or to apply to a “higher authority” for a decision if the director and medical

9129
. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, International Maritime Organization, Doc.
SUA/CONF/15/Rev.1, done in Rome on 10 March 1988.
0130
. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf, International
Maritime Organization, Doc. SUA/CONF/16/Rev.2, done in Rome on 10 March 1988.
131
. Convention on the Marking of Plastic Explosives for the Purpose of Detection, U.N. doc. S/22393 done in Montreal on 1 March 1991.
2132
. See Chen (1989) at 192-195,
3133
. See, e.g., U.N.G.A. Res. A/RES/48/122, 85th plenary meeting, 20 December 1993 and U.N. G.A. Res. A/RES/49/60 of 17 February
1995.
4134
. See, e.g., U.N. Doc. E/CN.4/1997/92 (including a contemporary expression of opinio juris by several states denying that individuals can
have responsibilities under international human rights law).
5135
. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2nd 774, 791-796 (D.C. Cir. 1984), Linder v. Calero Portocarrero, 747 F.Supp. 1452,
1462 (S.D. Fla. 1990). Both these cases support a distinction between international law and national law whereby states only incorporate
selected principles of international law into their domestic legal system.
6136
. See Higgins (1978) at 16-19.
7137
. See Scharf, M.P., “Swaping Amnesty for Peace: Was there a Duty to Prosecute International Crimes in Haiti,” 31(1) Texas International
Law Journal 1, 36-38 (Winter 1996).
4274
. Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, held at Geneva in 1955 and approved by the ECOSOC Res. 663C(XXIV) of 31 July 1957 and 2076(LXII) of 13
May 1977.
5275
. Id., Rule 26, para. 1.

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

officer disagree.276 The Principles of Medical Ethics for Health Personnel Treating Prisoners277 provide a
list of six principles aimed at ensuring that
Health personnel, particularly physicians, charged with the medical care of prisoners and
detainees have a duty to provide them with protection of their physical and mental health
and treatment of disease of the same quality and standard as is afforded to those who are
not imprisoned or detained.278
The Code of Conduct for Law Enforcement Officials279 includes article 2 stating that law
enforcement officials “shall respect and protect human dignity and maintain and uphold the human rights
of all persons.”280 The commentary to this article lists numerous international human rights treaties or
declarations containing the rights that must be respected.281 The Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials282 also imposes a responsibility on law enforcement officials to
use non-violent means before using force. Lawyers are another group of individuals for whom society has
created a expectation of special responsibility. While most of the Basic Principles on the Role of
Lawyers283 are directed towards states, principles 12 through 15 specifically state duties and
responsibilities for individual lawyers. Among the responsibilities principle 14 states that “[l]awyers, in
promoting the rights of their clients and in promoting the cause of justice, shall seek to uphold human
rights and fundamental freedoms recognised in national and international law ... .”284 The Guidelines on
the Role of Prosecutors285 states in paragraph 2(b) that prosecutors should have appropriate training in
human rights286 and in paragraph 12 that they “shall, in accordance with the law, perform their duties
fairly, consistently and expeditiously, and respect and protect human dignity and uphold human rights,
thus contributing to ensuring due process and the smooth functioning of the criminal justice system.”287
Although the Basic Principles on the Independence of the Judiciary288 do not list among the
responsibilities of judges that of upholding international human rights, such a responsibility should be
assumed and is the legitimate expectation of every individual coming before a judge. Such is necessary to
give meaning to the obligations of states undertaken in respect of internationally recognised human rights.
Judges as agents of the state or, in the case of international tribunals, the world society, must be bound to
give expression to and to respect the expectations that are found in international human rights instruments.
Indeed, the Basic Principles on the Independence of the Judiciary begins by recognising that the “peoples

6276
. Id..
7277
. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and
Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by U.N. G.A. Res. 37/194 (18
December 1982).
8278
. Id., Principle 1.
9279
. Code of Conduct for Law Enforcement Officials, adopted by U.N. G.A. Res. 34/169 (17 December 1979).
0280
. Id., art. 2.
1281
. See United Nations, A Compilation of International Instruments, vol. 1 (First Part), containing universal instruments, 312 and 313 (1994)
(where the commentary is reprinted with the articles of the Code).
282
. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, held at Havana, Cuba, 27 August to 7 September 1990.
3283
. Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, held at Havana, Cuba, 27 August to 7 September 1990.
4284
. Id., principle 14.
5285
. Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, held at Havana, Cuba, 27 August to 7 September 1990.
6286
. Id.
7287
. Id.
8288
. Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and
the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by U.N.G.A. Res. 40/32 of 29 November 1985
and 40/146 of 13 December 1985.

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of the world affirm, inter alia, their determination to establish conditions under which justice can be
maintained to achieve international co-operation in promoting and encouraging respect for human rights
and fundamental freedoms without any discrimination.”289
Other categories of individuals who are increasingly viewed as having special responsibilities for
ensuring respect for human rights are international judges, national politicians, the functionaries of
international organisations and any individual who by virtue of their temporary or permanent position in
the comprehensive social process of world society is able to influence or make authoritative decisions
concerning the achievement of the values of human dignity.
Although none of the above expectations have reached a degree of certainty for which we could
claim that they are legally binding under international law, they are not without relevance to the creation
of expectations that the individuals to whom they apply will act in compliance with them. They are claims
that contribute to the creation of expectations for particular authoritative decisions concerning the
individual responsibility of the relevant individuals. And although the responsibilities they express apply
to individuals acting in particular capacities, each of the expressions of expectation indicated above are
directed towards individual responsibility, the basis of which is the consensus of governmental
representatives of world society. The consequence is that individuals everywhere should be entitled to
expect that other individuals will assume the responsibilities indicated above. The struggle to achieve a
society respecting the values of human dignity is obstructed by contrary expectations of responsibility.
The struggle is enhanced when authoritative decisions-makers find these responsibilities to be binding in
their decisions.

The Concept of Individual Responsibility Under International Human Rights Law

Although the early past trends concerning individual responsibility under international law often
related to general international law, an increasing number of claims, demands and expectations concerning
individual responsibility are related to international human rights law. This is the result of the growing
relevance of international human rights law in society. International human rights law affects both
society’s functioning as well as its development. In the modern world international human rights law is
gaining increasing importance as the parameter within which states and individuals may act in their
relations with each other. There is thus an expectation that every individual is under a responsibility to
ensure that the human rights of other individuals in society are respected. This responsibility may be owed
to world society, or directly to the groups of individuals and individuals who are world society. It is a
9289
. Id., first preambular paragraph. Also see The Bangalore Principles, reprinted in 62 African Law Journal 531 (1988), which reflects the
opinion of eminent jurists from India, Zimbabwe, the United States of America, Pakistan, Papua New Guinea, Australia, Mauritius, Sri
Lanka, Malaysia and Great Britain and which includes the following relevant paragraphs:
1. Fundament human rights and freedoms are inherent in all humankind and find expression in
constitutions and legal systems throughout the world and in the international human rights
instruments.
2. The international human rights instruments provide important guidance in cases concerning
fundamental human rights and freedoms ... .
7. It is within the proper nature of the judicial process and well-established judicial function for national
courts to have regard to international obligations which [a] country undertakes - whether or not they
have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty
from national constitutions, legislation or common law.
8. However, where national law is clear and inconsistent with the international obligations of the States
concerned, in common law countries the national court is obliged to give effect to national law. In
such cases the court should draw such inconsistency to the attention of the appropriate authorities
since the supremacy of national law in no way mitigates a breach of an international obligation which
is undertaken by a country ... .
10. These views are expressed in recognition of the fact that judges and lawyers have a special
contribution to make in the administration of justice in fostering universal respect for fundamental
human rights and freedoms.

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responsibility based on a belief in the interconnectedness of every individual to world society and the
necessity of the individual’s participation in this society. It is a responsibility founded on a congruency
between law and morality. Arthur J. Dyck points out that “what is requisite for communities to exist is that
individuals act in morally responsible ways ... in accord with moral law.” 36 Others have arrived at this
same conclusion by claiming that rights can only exist in a community. These conclusions echo the
opinions of governments expressed in article 29 of the Universal Declaration of Human Rights which
provides that “[e]veryone has duties to the community in which alone the free and full development of his
personality is possible.”37 The first draft of this article was presented as article 1 of the outline draft
UDHR. This article stated that “[e]verybody owes a duty of loyalty to his State and to the (international
society) United Nations. He must accept his just share of responsibility for the performance of such social
duties and his share of such common sacrifices as may contribute to the common good.”38 It was also
referred to in the “draft outline of an international bill of human rights prepared by the United Nations
Secretariat” which proposed a preambular paragraph reading in relevant part: “... man does not have rights
only; he owes duty to the society of which he forms a part.”39 The article was revised by a working group
and adopted by the Human Rights Commission as the second sentence of article 2 reading: “The
individual owes duties to society through which he is enabled to develop his spirit, mind and body in
wider freedom.”40 This text was also much debated. The final text adopted by the Human Rights
Commission and sent to the General Assembly read: “1. Everybody has duties to the community which
enables him freely to develop his personality.”41 One delegation attached a statement to the draft UDHR
stating that a negative aspect of the draft was “its failure to include any concrete obligations whatsoever
on the part of the individual towards his native land, the people to which he belongs and the State.” 42 The
Third Committee of the General Assembly also gave the provision substantial consideration.43 During this
consideration delegations stressed the importance of the provision arguing that “[w]ithout such a
provision, all freedom might lead to anarchy and tyranny,”44 that human progress depended on finding
“the proper balance between the interests of the individual and the interests of society and between
individual and collective rights,”45 and that the purpose of the article was to make “plain the
interdependence of rights and duties which link the individual with the community.” 46 Additionally,
several amendments were introduced emphasising these themes, including one to supplement what was
then article 27 with the following text:
Respect for the rights of all requires that each shall do his duty. In all human
activity, both social and political, rights and duties are indissolubly linked with one
another. While rights enhance individual freedom, duties express the dignity of that
freedom.

636
. Dyck, A.J., Rethinking rights and responsibilities: the moral bonds of community 118 (1994).
737
. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR Res. 71, U.N. Doc. A/810, at 71 (1948). See Daes (1992) at
17-20 (discussing the preparation of article 29).
838
. Daes (1990) at 18, para. 13 and Report of the Drafting Committee of an International Bill of Human Rights to the Commission on Human
Rights, U.N. Doc. E/CN.4/21, Annex E at 69.
939
. See Daes (1990) at 18, para. 16 and Report of the Drafting Committee of an International Bill of Human Rights to the Commission on
Human Rights, U.N. Doc. No. E/CN.4/21, Annex E at 69 referred to id. at n. 4.
040
. See Daes (1990) at 18, para. 16 and Official Records of the Economic and Social Council, Sixth Session, Supplement No. 1 (E/600), Annex
A at 15 referred to id. at n. 8.
141
. See Daes (1990) at 18, paras. 23 and 24 and U.N. Doc. No. E/CN.4/111 at 1 referred to id. at n. 14.
242
. See Daes (1990) at 18, para. 25.
343
. See Daes (1990) at 18-20, para. 26-47 (summarizing this discussion).
44
. See Daes (1990) at 19, para. 29.
545
. See Daes (1990) at 19, para. 30.
646
. See Daes (1990) at 19, para. 31.

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Duties of a legal nature presuppose other duties of a moral nature which facilitate
their understanding and serve as their foundation.
It is man’s duty to practice, uphold and promote culture by all means at his
disposal, for culture is the highest social and historical expression of the human spirit.
Morality being the noblest product of culture, it is the duty of all to respect it at all
times.47
Although various parts of the amendment were objectionable mainly for formal reasons,48 it was
generally felt “essential for the declaration to recognise somewhere that the individual had duties to the
community.”49 An alternative amendment changed the wording to: “Everyone who has the right freely to
develop his personality has duties to the community.”50 However, this amendment was also criticised
because it would infer that anybody whose development was restricted had no duties.51 Finally, debate
centred around an amendment that changed the article to include the phrase meaning that the individual
had duties to a community in which “alone the free and full development of his personality is possible.”
One side of the debate claimed that the individual could develop even without society or that society was
only one factor, while the other maintained that society was a necessary factor in the development of the
individual. Eventually, the latter view prevailed and article 29 of the Universal Declaration was adopted
by 35 votes to none with 6 abstentions, to read: “Everyone who has the right freely to develop his
personality has duties to the community.”52 A further elaboration of a responsibility, similar to that
referred to in article 29 of the UDHR, that is contained in the fifth preambular paragraphs of the two
International Covenants on Human Rights from 1966, is considered below under claims concerning
individuals’ duties to ensure that other individuals respect international human rights. The concept of duty
is one that may be said to run throughout the Universal Declaration of Human Rights. Indeed, Theodor
Meron has written that “[t]he drafters of the Universal Declaration ... regarded the individual as a direct
subject of obligations.”53
Additionally, the fifth preambular paragraph of the Universal Declaration of Human Rights and the
eighth preambular paragraphs of the International Covenants of Human Rights make explicit reference to
individuals’ responsibilities to promote respect for human rights. The Universal Declaration of Human
Rights, a non-binding instrument that preceded the Covenants, describes itself in its preamble “as a
common standard of achievement for all peoples and all nations” and then goes on to state “that every
individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive measures, national and
international, to secure their universal and effective recognition.”54 Although the Universal Declaration
may be non-binding, the preamble
merits attention and reflection. This may be because in drafting the Declaration, the
Preamble was dealt with at the end of the various sessions and it thereby has instilled into it
the essence of the drafters’ substantive reflections, their views of the world in which the
Universal Declaration was to be placed and their vision of the programme for the future.55
747
. U.N. Doc. No. A/C.3/261 quoted in Daes (1990) at 19, para. 33.
848
. See Daes (1990) at 19, para. 35 (Daes says that the “proposal was criticized as being a statement of principles rather than the assertion of
rights. The ideas which it contained were deemed controversial. By its form and length the text would not correspond to the purposes of the
declaration and would not fit into its general structure” id.).
949
. Daes (1990) at 19, para. 38.
050
. Daes (1990) at 19, para. 39.
151
. Daes (1990) at 19, para. 41.
252
. Daes (1990) at 20, paras. 45-47.
353
. Meron, T., Human Rights in Internal Strife: Their International Protection 34 (1987).
454
. Para. 8 of the preamble in the UDHR.
55
. Mårtenson, J., “The Preamble of Universal Declaration of Human Rights and the UN Human Rights Programme,” at 19 in Eide, A.,

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The preamble of the Universal Declaration reflects the view of the majority of states involved in its
drafting that the actions of individuals were vital to the achievement of human rights. The preamble not
only reflects a programme of action, but is also an aid to interpretation of the rights and duties specified in
its article. If the preamble of the Universal Declaration—a non-binding instrument—is relevant, the
preambles of the two International Covenants must receive even more attention.
The identical fifth preambular paragraphs in each Covenant, in words similar to the Universal
Declaration, prescribe that “states” also realise “that every individual, having duties to other individuals
and to the community to which he belongs, is under a responsibility to strive for the promotion and
observance” of the rights recognised in the Covenants.56 This paragraph was the result of a proposal by the
Australian and Swedish delegations. It expressed the belief that although the two covenants were
“concerned with the obligations of States; however, as States were the sum of individuals, the latter must
co-operate if the covenant was to be implemented.”57 The Australian-Swedish draft amending the initial
American proposal for the preamble was unanimously adopted as part of a Chilean-Yugoslav
amendment.58 These preambular paragraphs, although very general, are not without legal import. 59 The
preamble of a treaty is part of a treaty’s “context” and should be used to guide in the interpretation of the
subsequent provisions of the treaty.60 As concerns the preambular provisions of the two covenants Erica-
Irene Daes has concluded that
while the International Covenants were intended to protect human rights and personal
freedoms, it was also thought appropriate to recall ... two distinct facts, i.e. that the
individual has duties to other individuals and to the community and a responsibility to
strive for the promotion and observance of the rights recognised in the International
Covenants.61
The preamble is also supported by specific provisions in the two covenants and in other international
instruments. Therefore, although the specific legal content of the responsibility is not defined in the
preambular paragraphs, it is clear from the discussion of the debate above that there can be little doubt that
individuals do have a responsibility for ensuring respect for international human rights law. This
responsibility is elaborated in the provisions of international human rights instruments, the discussion of
other international human rights fora and the decisions of judicial bodies, all of which are discussed
below.

Individuals’ Responsibility for Human Rights in a Regional Human Rights Processes

In other regional systems for the protection of human rights the position concerning duties of the
individual have been more explicit. In both the African and Inter-American systems, for example,
individual responsibilities are expressly mentioned in the main human rights treaties.
The African Charter of Human and People’s Rights227 (ACHPR) includes several provisions that
expressly impose responsibilities on individuals. The Preamble begins by stating that “the enjoyment of
Alfredson, G., Melander, G., Relof, L.A., and Rosas, A., (with the collaboration of Swinehart, T., (eds.), The Universal Declaration of
Human Rights: A Commentary (1992).
656
. ICESCR and ICCPR at the common fifth preambular paragraph. These paragraphs were adopted unanimously. See U.N. Doc.
E/CN.4/SR.303 at 149.
757
. Daes (1990) at 21, para. 61 (citing E/CN.4/SR.308 at id. at nn. 29).
858
. Daes (1990) at 21, para. 62 (citing E/CN.4/SR.308 at 14, nn. 31).
959
. See Daes (1990) at 50, para. 190.
060
. Art. 31, para. 2 of the Vienna Convention on the Law of Treaties, adopted 22 May 1969, opened for signature 23 May 1969, entered into
force 27 January 1980, U.N. Doc. A/CONF 39/29. Also see Elias, T.O., The Modern Law of Treaties 74 and 75 (1974).
161
. Daes (1990) at 50, para. 193.
7227
. African Charter on Human and People’s Rights, adopted 26 June 1981, O.A.U. Doc. No. CAB/LEG/67/3, Rev. 5, reprinted in 21 I.L.M.
58 (1981).

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rights and freedoms also implies the performance of duties on the part of everyone.”228 Then articles 27,
28 and 29 reiterate and specify this stance. Paragraph 1 of article 27 states that “[e]very individual shall
have duties towards ... his family and society”229 and paragraph 2 states further that the human rights of
“each individual shall be exercised with due regard to the rights of others ...and common interest.” 230 The
recognition of duties towards “society” in article 27 indicates a clearer recognition of the individual’s
obligations to the state than the words “family”, “community” and “mankind” that are used in the
American Convention of Human Rights, which will be discussed below. The ACHPR also delineates
these duties in greater detail than any other international human rights instrument. Article 28 contains a
duty “to respect and consider ... fellow human beings without discrimination, and to maintain relations
aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.” 231 Article 9 lists eight
paragraphs referring to duties of the individual. These include (1) the duty to preserve harmonious
development of the family, (2) to service the national community, (3) not to compromise the security of
the state, (4) to preserve and strengthen social and national identity, (5) to preserve and strengthen national
independence, (6) to work to the best of one’s abilities and to pay taxes, (7) to preserve and strengthen
African cultural values in the spirit of tolerance and by contributing to the promotion of the moral well
being of society, and (8) to contribute to the promotion and achievement of African unity. Some of the
rights included earlier in the Charter also indicate individual duties. Jordan Paust points out, for example,
that the wording of articles 5 and 19 imply individual duties.232 Article 5 prohibits all forms of exploitation
and degradation of any human being, while article 19 states that “[n]othing shall justify the domination of
a people by another.”233 Although the African system lacks a court and there have not been Commission
decisions authoritatively interpreting the provisions of the Charter dealing with individual responsibilities,
the expressed words of the Charter give rise to clear expectations that individuals are the subject of duties
and responsibilities concerning international human rights. These provisions, it has been pointed out by an
African jurist, are “a code of good conduct for all African citizens.”234
The American system for the protection of human rights is also based on treaties containing
specific responsibilities for the individual. The American Declaration of the Rights and Duties of Man235
by its very title expresses the idea that individuals have responsibilities. The preamble of this instrument
goes on to state that the “fulfilment of duty by each individual is a prerequisite to the rights of all. Rights
and duties are interrelated in every social and political activity of man. While rights exalt individual
liberty, duties express the dignity of that liberty.”236
The American Convention of Human Rights237 (ACHR) contains explicit recognition of
individuals’ duties in paragraph 1 of article 32 which recognises that “[e]very person has responsibilities
to ... mankind.” Paragraph 2 of this article continues by affirming that the “rights of each person are
limited by the rights of others.” Finally, the ACHR implicitly recognises individual responsibility for
upholding its provisions stating that the convention shall not be interpreted as allowing “any State Party,
group, or person to suppress the enjoyment or exercise of the rights and freedoms recognised ... or to

8228
. Id..
9229
. Id..
0230
. Id..
1231
. Id..
232
. Paust (1992) at 56.
3233
. Id..
4234
. Mumba, “Prospects for Regional Protection for Human Rights in Africa,” Holdsworth Law Review 101, 114 (1982).
5235
. American Declaration of the Rights and Duties of Man, Organization of American States Resolution XXX, International Conference of
American States, 9th Conf., O.A.S. Doc. OEA/Ser. L/V/I.4 Rev. XX (1948).
6236
. Id..
7237
. American Convention on Human Rights, 36 O.A.S. T.S. reprinted in 6 I.L.M. 1969 (22 November 1969).

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restrict them to a greater extent than is provided for” by the Convention itself. 238 The Inter-American
Court of Human Rights established a precedent for the application of the ACHR to the actions of private
individuals in the Velásquez Rodríguez Case.239 In this case the court held that acts not directly attributable
to the states (disappearances argued to have been committed by private non-state actors) can lead to the
violation of international law by a state when the state has not acted with due diligence to prevent the
violation or has not compensated the victim.240 Reflecting what has been said above with regard to
international crimes, the Inter-American Court, in its Advisory Opinion on International Responsibility for
the Promulgation and Enforcement of Laws in Violation of the American Convention on Human Rights,
stated that
[i]nternational law may grant rights to individuals and, conversely, may also determine that
certain acts or omissions on their part could make them criminally liable under the law ....
Nevertheless, at the present time individual responsibility may only be invoked for
violations that are defined in international instruments as crimes under international law,
such as crimes against peace, war crimes, and crimes against humanity or genocide, which,
of course, also affect specific human rights.241
This approach appears to create the same expectations concerning individual responsibility as is
being taken in the United Nations. The court also went on to explain, as the ICC described above also
does, that state responsibility for international crimes can co-exist with individual responsibility242 citing
particularly the Velásquez Rodriguez243 and Godina Cruz244 cases where states where held to have been
responsible for failure to control the actions of private individuals.
The Inter-American Commission’s resolutions and reports on human rights situations in particular
countries have also considered private violations of international human rights.245 Nevertheless, the
Commission and the Court have to date avoided having to hold individual non-state actors responsible for
violations of human rights.246
The relatively recent Commonwealth of Independent States Convention on Human Rights and
Fundamental Freedoms247 contains two provisions that imply individual duties. First there is article 17
providing every minor child “the right to such special protective measures as his particular situation
requires on the part of the family, society and the state.” 248 Second there is article 31 which repeated the
restriction found in various international instruments that nothing in the treaty “may be interpreted as
implying for any Contracting Party, group or individual any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and freedoms set forth in the Convention.”249 This article
8238
. Id., art. 29, paragraph a.
9239
. Velásquez Rodriguez Case, Judgement of 29 July 1988, Ser. C, No. 4.
0240
. Id. at paras. 172-173.
1241
. Advisory Opinion on International Responsibility for the Promulgation and Enforcement of Laws in Violation of the American
Convention on Human Rights, 34(5) I.L.M. 1188, 1201, 1203 (1995) at paras. 52, 53 and 58, sub-paragraph 2.
242
. Id..
3243
. Velásquez Rodriguez Case, Judgments of the Inter-American Court of Human Rights, Ser. C, No. 4, para, 170 (judgment of 29 July
1988).
4244
. Godina Cruz Case, Judgments of the Inter-American Court of Human Rights, Ser. C, No. 4, para, 170 (judgment of 20 January 1989) and
Judgments of the Inter-American Court of Human Rights, Ser. C, No. 5, para. 179 (judgement of 20 January 1989).
5245
. See Clapham (1993) at 120 and 121.
6246
. See Clapham (1993) at 122-124.
7247
. Reprinted in Council of Europe, Information sheet No. 36, January-June 1995, Strasbourg 1995. The treaty was adopted and open for
signature on 26 May 1995 in Minsk. On that date the Azerbaijani Republic, the Republic of Armenia, the Republic of Belarus, the Republic
of Georgia, the Republic of Kazakhstan, the Kyrgz Republic, the Republic of Moldova, the Russian Federation and the Republic of Tajikistan
all signed. Turkmenistan, the Republic of Uzbekistan and Ukraine participated in the negotiations, but did not originally sign the treaty.
8248
. Id..
9249
. Id..

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imposes a responsibility on individuals not to act contrary to the Convention. Article 30 also preserves a
state’s right to impose special responsibilities via restrictions on the political activities of aliens, citizens
and stateless persons.250

The General Responsibility of Individuals for Ensuring Respect for Human Rights

There is no clear distinction between responsibilities to society and those to individuals in world
society. In large part this is a distinction of access to authoritative decision making forums for decisions
recognising the particular responsibilities. Nevertheless, we sometimes speak of individual responsibilities
to other individuals. These responsibilities are different from those considered above in that they are
general responsibilities for ensuring respect for international human rights which imply a right of
invocation on the part of other individuals.
The claim that individuals are responsible for ensuring respect for other individuals’ human rights
is clearly recognised the ICCPR, the ICESCR and the UDHR. These instruments imply that individuals
have a general duty towards society, whereby they should strive to ensure universally recognised human
rights for all while explicitly recognising the responsibility every individual has to his or her community.
The failure to recognise broad responsibilities reflects a compromise between governments fearing to
concentrate too much attention on individuals’ responsibilities and governments seeking to maintain a
strong discretion to limit individual action that is contrary to local and national community interests. A
prominent example of the resilience of states against recognising other participants in international fora is
the United Nations Commission on Human Rights Working Group drafting a declaration on the rights and
responsibilities of individuals, groups and other organs of society for ensuring respect for human rights.290
The relevance of the Working Group and the declaration is best seen from a brief examination of the
process of drafting the declaration.
For many participants in the drafting process, with a few notable exceptions, most of the
representatives from both governments and non-governmental organisations who participate in the
Working Group exhibit a strong aptitude for ignoring or devaluing any suggestions that responsibilities
should be considered. And the final draft declaration itself includes few references to individual
responsibilities. Nevertheless, the theoretical foundation of both emanate from the Universal Declaration
of Human Rights (UDHR) and the idea that every individual has a responsibility for ensuring respect for
human rights.291 This idea is encompassed in preambular paragraph eight of the Universal Declaration of
Human Rights that292
Proclaims this Universal Declaration of Human Rights as a common standard of
achievement for all peoples and all nations, to the end that every individual and every
organ of society, keeping this Declaration constantly in mind, shall strive by teaching and
education to promote respect for these rights and freedom and by progressive measures,
national and international, to secure their universal and effective recognition and
observance, both among the peoples of Member States themselves and among the peoples
of territories under their jurisdiction.

0250
. Id..
0290
. See chapter seven concerning this draft declaration.
1291
. It should be noted that the preamble of the Charter of the United Nations proclaims, inter alia, that “the peoples of the United Nations ...
have reaffirmed their faith in fundamental human rights ... and have determined to promote social progress and better standards of life in
larger freedom” and the Declaration of Teheran from the World Human Rights Conference in May 1968 “urges all peoples and
Governments ... to redouble their efforts to provide for all human beings a life consonant with freedom and dignity and conducive to physical
mental, social and spiritual welfare.”
292
. U.N. G.A. Res. 217A(III) adopted 10 December 1948 by 48-0 votes with 8 abstentions. Also see U.N. G.A. Res. 2442(XXIII) adopted 19
December 1968 which reaffirmed the principles expressed in Universal Declaration.

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Although many states initially stated that the UDHR did not create legal obligations, 293 a large part of the
international community have subsequently recognised a legal obligation for ensuring most of the human
rights in the UDHR by incorporating them into their national constitutions, often with explicit reference to
the Declaration.294 Additionally, in 1966 the two United Nations covenants,295 which together with the
Universal Declaration form the International Bill of Rights, were open for signature. And as of 1 August
1995 more than 130 States have ratified each of the Covenants. While it can not be said that states have
been willing to incorporate the preambular statements about individual responsibility included in each of
these instruments, it is nevertheless true that most states prohibit individuals from infringing on other
people’s human rights through laws that, for example, prohibit murder, assault, interference with another
individual’s freedom and which provide for due process, public health care, and social insurance. It is
certainly difficult to argue that states do not recognise any degree of individual responsibility given their
above described statements and consensual agreements.
The recognition that such responsibilities emanate from international law has troubled most
members of the Working Group. In part this has been the consequence of the political purposes for which
the Working Group has been expropriated. The United States and some of its allies in the Working Group,
including non-governmental organisations such as Amnesty International and the International
Commission of Jurists, have unabashedly used the Working Group to criticise other states for failing to
allow non-governmental actors to carry out their human rights activities without interference. Year after
year these representatives have cited examples of the persecution of human rights defenders by countries
to whose regimes they are not sympathetic. Socialist states and developing countries have in turn sought
to get concessions by arguing for limitations on the rights and for allowing the state to limit the activities
of individuals and non-governmental organisations who defend human rights. They base their arguments
on fears of interference with the rights of the community by organisations and individuals who are
attempting to undermine the cohesiveness of society to accomplish foreign political objectives. The
International Commission of Jurists, for example, was funded by the Central Intelligence Agency of the
United States for much of its early existence.296
But despite the evidence of political expropriation, certain aspects of the Working Group support
the recognition of the responsibilities of individuals for ensuring respect for human rights. This evidence
begins with the mandate of the Working Group. The United Nations Secretary-General’s draft report on
principles for the draft declaration, which was presented on 30 June 1982297 recognised that individuals
3293
. See Lauterpacht, H., The Universal Declaration of Human Rights 25 British Yearbook of International Law 354-381, 356-365 (1948) and
Jennings, R., and Watts, A., Oppenheim’s International Law, vol. 1, 1001-1002 (9th ed., 2nd impression, 1993).
4294
. See Statement by Secretary-General U Thant, U.N. Doc. A/CONF/32/41, p. 35 (1968). Also see U.N. Doc. A/CONF/32/5, 20 June 1967,
paras. 47-54 and McDougal, M.S., and Bebr, G., “Human Rights in the United Nations” 58 A.J.I.L. 603-641 at 639 (1964). Also note that the
Special Statute for Triest of 1954, U.N. Docs. S/3301/Add. 1 and S/3305, and the Franco-Tunisian Convention of 1955, Yearbook on Human
Rights 398-400 (1955), both incorporated the whole declaration into their provisions. See 58 A.J.I.L. at 638. And the preamble of the Peace
Treaty with Japan of 1951 declares Japan’s intention “to strive to realize the objectives of the Universal Declaration of Human Rights.” Id..
And finally, it should noted “that the preambles of many of the limited international conventions completed under the auspices of the United
Nations and its specialized agencies either quote from, or expressly refer to, the principles of the Declaration [footnotes omitted].” Id.. Also
see generally Schwelb, E., “The Influence of the Universal Declaration of Human Rights on International and National Law,” Proceedings of
the American Society of International Law 217 (1959) (an address to the Conference at its fourth session on Friday, 1 May 1959 which
concludes that the UDHR is law in the making). The process which Egon Schwelb identified is one that the present author believes has in
great part been completed over the past forty-six years.
5295
. International Covenant of Economic, Social and Cultural Rights, U.N. G.A. Res. 2200A (XXI), 16 December 1966, 21 U.N. GAOR
Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 January 1976 (which 132 States have ratified as of 1
August 1995, see United Nations Department of Public Information, Status of the International Human Rights Instruments (1995)) and
International Covenant of Civil and Political Rights, U.N.G.A. Res. 2200A (XXI), 16 December 1966, 21 U.N. GAOR Supp. (No. 16) at 52,
U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force 13 March 1976 (which 131 States have ratified with 84 also ratifying the
optional protocol concerning individual complaints and 28 also ratifying the optional protocol concerning abolition of the death penalty as of
1 August 1995, id.).
6296
See Tolley, H., International Commission of Jurists: Global advocates for Human Rights (1994).
7297
. See U.N. Doc. E/CN.4/Sub.2/1982/12.

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had responsibilities. In discussing the limitations that could be put on human rights it stated unequivocally
that individuals have responsibilities under international law by reference to article 30 of the Universal
Declaration of Human Rights and paragraph 1 of article 5 common to both International Covenants that
prohibits the destruction of the rights and freedoms of others. The report also cites the preamble of the
Charter of the United Nations as implicitly recognising the responsibility of individuals, together with the
more explicit eighth preambular paragraph of the Universal Declaration and the fifth preambular
paragraphs of the Covenants. As concerns individual responsibility for ending practices of discrimination,
the report concludes that the “last preambular paragraph of the Universal Declaration, read together with
Articles 1 and 2, suggest a duty of every individual and every organ of society to strive by teaching and
education to promote equality and combat discrimination.”298 The report suggests that the Sub-
Commission may want to “identify and clarify the responsibilities involved in the promotion and
protection of specific human rights.”299 In the concluding section to Part I dealing with the persons and
entities towards which responsibilities for the promotion and protection of human rights should be
exercised, the Secretary-General suggests that the “Sub-Commission may wish to consider the extent to
which an active duty to provide co-operation and assistance to others, aside from passive obligation to
respect their rights, could be proclaimed.”300 And finally, the Secretary-General concludes the report by
suggesting that the “Sub-Commission may wish to consider elaborating some provisions, in its Draft Body
of Principles, regarding the responsibility of individuals, groups and organs of society toward mankind
and the international community.”301
By the same resolution of 11 March 1982 requesting a report from the Secretary-General, the
Commission on Human Rights decided “to undertake ... on the basis of the Sub-Commission’s report, and
as a matter of priority, work on a draft declaration on the right and responsibility of individuals, groups
and organs of society to promote and protect universally-recognised human rights and fundamental
freedoms.”302 The Sub-Commission report referred to by the Commission on Human Rights was that of
Special Rapporteur Erica-Irene A. Daes entitled a Draft Body of Principles and Guidelines on the Right
and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Human Rights
and Fundamental Freedoms.303 Daes presented a draft of 52 principles produced on 25 June 1985. The 52
principles contained 28 responsibilities of individuals and 14 rights for individuals. There were ten other
declaratory statements and 14 statements directed at states as their main object. While the rights are
largely a repetition of those already guaranteed in other international instruments,304 many of the
responsibilities reflected an expansion upon existing international law providing obligations for
individuals. Principle 2 explicitly states the general rule that individuals are the subject of responsibilities
and principle 4 states that all human rights must be “promoted and protected by every individual.” This
later duty is further explained in principle 5 as “the promotion, recognition and the universal and effective
protection of human rights and fundamental freedoms for all without distinctions of any kind.” And
finally, principle 40 explicitly states that “[i]ndividuals ... are directly responsible for their lawful acts
8298
. U.N. Doc. E/CN.4/Sub.2/1982/12 at 11, para. 37.
9299
. U.N. Doc. E/CN.4/Sub.2/1982/12 at 11, para. 38.
0300
. U.N. Doc. E/CN.4/Sub.2/1982/12 at 12, para. 41.
1301
. U.N. Doc. E/CN.4/Sub.2/1982/12 at 13, para. 48.
2302
. Commission on Human Rights resolution 1982/30 in UN ECOSOC the volume of official documents containing E/CN.4/1982 at 11-30
and E/CN.4/1983/1-4, U.N. Doc. E/CN.4/1982 at 148.
303
. UN Doc. E/CN.4/Sub.2/1985/30.
4
304
. For example, principle 2 (general statement that individual is subject of rights), principle 8 (self-determination), principle 9 (freedom of
expression), principle 17 (right to life), principle 18 (right to justice as equal protection under law), principle 25 (right to resist violent
overthrow of government), principle 30 (right to health), principle 31 (right to work and prohibition of forced labour), principle 32 (right to
form trade unions), principle 33 (right of assembly and association), principle 41 (right to claim rights), and principle 45 (prohibitions against
reprisals and right to international assistance in the implementation of international decisions).

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under international law.” Other principles elaborate upon these general responsibilities: Principle 3 (duty
to know human rights); Principle 7 (duty of professional responsibility); Principle 10 and 19 (duty to
promote awareness); Principle 20 (duty to promote the rule of law); Principle 21 (duty to act without
discrimination to promote human rights); Principle 22 (duty to tolerate and respect different religious and
political views); Principle 23 (duty to promote UN Charter, international law and human rights); Principle
24 (duty to promote international humanitarian law); Principle 25 (duty to respect national laws which do
not conflict with human rights); Principle 25 (duty to resist violent overthrow of government); Principle
26 (duty to actively participate in the struggle against torture); Principle 27 (duty to oppose war
propaganda and hate speech); Principle 28 (duty to contribute to the basic goals of world peace); Principle
29 (duty to mobilise opinion against apartheid and racism); Principle 30 (duty to promote public health
and environment); Principle 30 (special professional duty of physicians); Principle 33 (duty to respect
others’ rights in exercising right of assembly and association); Principle 34 (duty to cooperate with
national institutions to promote human rights); Principle 37 (duty not to abuse human rights); Principle 39
(duty not to act so as to destroy human rights); Principle 44 (duty to act to prevent gross, flagrant and
massive violations of human rights); Principle 46 (duty to respect abovementioned principles); and
Principle 50 (duty to comply with conventions relating to human rights). These principles are important in
that they reflect the expert opinion of the Special Rapporteur whose work formed the basis of the Working
Group’s mandate and direction at its inception.
From the above mentioned draft of principles and report by the Special Rapporteur as well as the
report of the Secretary-General it would appear that an expectation was created that individual
responsibilities for ensuring human rights would be a central focus of the Declaration. This point was also
emphasised by the contributions of some non-governmental organisations in the pre-drafting stage. The
International League for Human Rights, the only NGO to submit preliminary comments on the draft in
time for them to be considered in the report of the Special Rapporteur, assumed that “[i]t has long been
recognised by all democratic legal systems that the human person is not merely an object of regulation but
also capable of assuming responsibility in society and playing a constructive role in the processes of
law.”305 And a year later in 1985 the Bahá’í International Community presented a statement to the Sub-
Commission emphasising that “the rights of the individual in the community must be balanced by his
obligations.”306 The statement further indicated the strong support of the Bahá’í International Community
for the Special Rapporteur’s proposal that “there exists a responsibility to develop programmes especially
geared towards instilling in youth ideals of truth, morality, justice and peace,” concluding that the
“[u]niversal enjoyment of human rights will, in fact, only be realised when each individual plays his
part ... .”307 These statements by NGOs collaborate the conclusion of the United Nations bodies that it was
a legitimate expectation of participants in the drafting process that the deliberations of the Working Group
would include substantive consideration of individuals responsibilities for ensuring human rights.
Similarly, especially developing and non-aligned countries have repeatedly emphasised their view that a
balance between the rights and duties or responsibilities of individuals is essential. For example, in the
twelfth session of the Working Group in 1997 the delegates of South Africa, Turkey, Cuba, India, Syria,
Egypt and Mexico expressed the view that it is essential that duties be considered in the declaration and
urged that the declaration be made more balanced. The reaction of delegates from Sweden, Amnesty
International, Romania, the International Service for Human Rights, the International Commission of
Jurists, the Netherlands, the International Federation for Human Rights, the United States and France, who
all argued for the deletion of any reference to duties in the declaration, indicates the uncertainty and
divergence of opinio juris surrounding the recognition of duties for individuals under international law as
5305
. U.N. Doc. E/CN.4/Sub.2/1982/NGO/4 of 23 August 1982 at 2.
6306
. Bahá’í International Community, Statement to the thirty-eighth session of the United Nations Sub-Commission on Prevention of
Discrimination and Protection of Minorities, Geneva (August 1985) (on file with the author) at 3.
7307
. Id..

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a general principle. The draft declaration thus reflects this uncertainty and only two of the twenty-one
articles in the declaration specifically refer to responsibilities. The second to last article includes a general
statement reminding individuals that “[n]othing in the present declaration shall be interpreted as implying
for any individual, group or organ of society or for any State the right to engage in any activity or to
perform any act aimed at the destruction of the rights and freedoms” in the declaration. The relevance of
such a provision has been discussed above in the consideration of similar provisions in international
human rights treaties. The last provision of the declaration states further:
1. Everyone has duties towards and within the community in which alone the free
and full development of his personality is possible.
2. Everyone, individually and in association, should have respect for the rights,
freedoms, identity and human dignity of all others, and have respect for the culture of the
whole community and the cultures within the community, consistent with human rights and
fundamental freedoms.
3. Individuals, groups, institutions and non-governmental organisations have an
important role to play and a responsibility in safeguarding and promoting democratic
processes, a democratic society, democratic and human rights and fundamental freedoms.
This does not imply the right to carry out programmes or to engage in any other activities
aimed at the destruction of democratic processes and human rights and fundamental
freedoms, including progress accomplished in these areas.308
While paragraph 1 also reiterates a provision found in other human rights instrument, most notably in
article 29 of the UDHR, paragraphs 2 and 3 contain unusual statements of broad, but vague
responsibilities. Paragraph 2, despite the misleading wording, is directed at concerns of national culture
and national rights. This paragraph must, therefore, be seen as corroborating the sovereign authority of the
state as much as it tends towards extending individual responsibility. Finally, the advances made in the
first sentence of paragraph 3 to advance individual responsibility are curtailed by the second sentence of
this article that expresses a deference to government discretion. The Working Group instead of breaking
new ground by expanding the frontiers of international human rights law to provide for greater
participation by the individuals, merely confirms trends encouraging state responsibility for individual
acts violating human rights. In this sense it appears not to have lived up to the expectations of its mandate.
The Working Group’s hesitance to expand individual responsibility to realm of international
human rights law will undoubtedly haunt and slow the development of international human rights law.
When individuals have a responsibility for ensuring respect for human rights not only are these rights
more likely to be respected, but individual acting as human rights defenders are more likely to be
protected because they are fulfilling a duty and not merely exercising an option to protect human rights.
When a human rights defender in Turkey was sentenced to prison for his activities, Akin Bridle, the
Chairperson of the Turkish Human Rights Association came to his defence stating that “I believe
defending human rights is not a crime, but a duty.”309

Claims and Authoritative Decisions Made in Regional Contexts

Although some references were made to regional and national forums, these references were in
regards to developments at the level of world society. Therefore, subsequent to such an inspection it is
also interesting to step back into the forum of regional co-operation and examine the claims, expectations
and authoritative decisions herein. The regional fora that will be examined include both the Council of
Europe as well as the European Union, the Inter-American system and the African system. Although these
fora embody only a minority of the individuals who participate in world society, they are also the fora in
8308
. Draft Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms.

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which past trends concerning international human rights are accessible to scientific observation because
the mechanisms for the creation, interpretation, application and reporting of these trends are most
developed. Where appropriate and possible, reference will be made to emerging trends in other regional
contexts.
Among the most frequently cited systems for the protection of human rights is that of the Council
of Europe. The mechanisms for the protection of human rights in this context centre around the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).198 Although
commentators frequently refer to the ECHR as being very much rights-based, several commentators have
pointed out that the European Convention puts equal emphasis on rights and responsibilities.199 Andrew
Clapham refers to an exchange between the Dutch Minister of Justice and European Court of Human
Rights Justice Walsh in the Case of X and Y v. Netherlands.200 In this case Judge Walsh wondered “what is
the particular attitude to the Government: does it say that the Convention speaks only to Governments and
States ... ?” To which Mr. Altes quickly replied, “No, that is certainly not the position of the Dutch
Government.”201 Other writers looking at examples involving the Dutch government have also drawn
attention to the opinion that accepts the application of the ECHR to individuals.202 These examples,
however, must be viewed with caution considering the Dutch Constitution is the only constitution of a
European country that makes ratified international treaties directly applicable within its legal system.203 In
other words, it is more likely that the views expressed by the Dutch Minister of Justice reflected his
particular constitutional structure under which individuals do have an expectations that other individuals
must respect internationally recognised human rights, but that this expectation cannot be said to be shared
by all countries.
It is also useful to explore some specific provisions of the ECHR and the interpretations of the
European Court and Commission of human rights concerning the responsibilities of individuals under the
ECHR. Article 17 of the ECHR, for example, contains an implicit reference to individual responsibility by
prohibiting any “State, group or person” from interpreting the Convention as to create a right to “engage
in any activity or perform any act aimed at the destruction of any of the rights and freedoms” set forth in
the ECHR. This article has been used to impose obligations upon private groups of individuals not to
engage in racist forms of expression by prohibiting them from relying on the protections of free speech
provided for in the ECHR.204 This reliance indicates more deference to state authority to impose
obligations on individuals rather than obligations emanating directly from the ECHR. Clapham observes
that
[t]here is, however, a difference between a constitutional settlement which leaves open the
possibility of constitutional values/rights being applied between private parties in domestic
courts, and international supervision of the effectiveness of the practical guarantees which

8309
. 213 U.N.T.S. 221, entered into force 4 November 1950.
9310
. McDougal (1980) at 809 and Paust (1992) at 55.
0311
. X and Y v. The Netherlands, Judgments of the European Court of Human Rights, Ser. A, Vol. 91 (Judgement of 25 March 1985).
1312
. See Clapham (1993) at 179 (quoting this exchange from page 95 of the Series B publication of the proceeding in the Case of X and Y v.
The Netherlands. Id. at n. 4).
2313
. See Burken, M.C.B., “The Complete Revision of the Dutch Constitution,” 29 Netherlands International Law Review 323 (1982),
Alkema, E.A., “Third Party Applicability or Drittwirkung of the European Convention on Human Rights” at 33, 37 and 37, n.9 in Matscher,
F., and Petzold, H., (eds.), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J. Wiarda (1988); and
Drzemczewski, A., “The European Human Rights Convention and Relations between Private Parties,” 26 Netherlands International Law
Review 163 (1979). All the above sources are cited in Clapham (1993) at 179 and 180. Only Drzemczewski provides a comparative approach,
although writer too is only able to provide evidence of the direct applicability of human rights in the Dutch system.
314
. See art. 93 and 94 of the Dutch Constitution of 1983.
4315
. See Kommunistische Partei Deutschland, 1 Yearbook of the European Convention on Human Rights 223, Application No. 250/57, (1955-
57) and Glimmerveen and Hagenbeek v. The Netherlands, 18 Decisions and Reports of the European Commission of Human Rights 187,
Application No. 8348/78 and 8406/78 (1980) cited in Clapham (1993) at 185, 185 n.20 and n.21 and 186.

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are nationally implemented to ensure that the rights in the European Conventions are
respected by private parties.205
Other decisions by the European Court of Human Rights have applied ECHR provisions to
activities between private individuals such as family life, sexual relationships, employment, administration
and economic life.206 These decisions have involved the application of articles 8 (family life), 9 freedom of
conscience), 10 (freedom of expression) and 11 (freedom of assembly) of the ECHR and article 2
(prohibition of imprisonment for failure to fulfil a contractual obligation) of the Fourth Protocol to the
ECHR.207 These provisions and decisions of the European Court of Human Rights concerning their
interpretation indicate that within the context of the ECHR, states have responsibilities for taking
reasonable steps to control the action of private individuals, but with the exception of the example of the
Netherlands, expectations that other individuals will respect one’s human rights cannot be said to be
explicit.
Other treaties under the auspices of the Council of Europe have also indicated that they apply to
individual’s actions. Among notable examples is the European Convention on the Suppression of
Terrorism.208 This convention provides for the punishment of individuals committing acts of terrorism,
although it is states who are responsible for ensuring this punishment under their national laws or by
facilitating extradition. In the Case of Ireland v. United Kingdom the European Court of Human Rights
stated that acts of terrorism of “individuals or of groups ... are in clear disregard of human rights.” 209 The
European Convention for the Prevention of Torture and Inhumane or Degrading Treatment or
Punishment210 requires states to prohibit and to punish acts of torture committed by private actors. The
European Convention on Transfrontier Television211 stipulates responsibilities for individuals exercising
the right to impart and receive information in article 10, paragraph 2.212 Similarly the Convention on the
Protection of Individuals with Regard to Automatic Processing of Personal Data from 1981213 extends its
application to the “automated processing of personal data in the public and private sectors” by article 3,
paragraph 1.214 And the European Convention on the Suppression of Terrorism provides for the
punishment of individuals who committed acts of terrorism.215
Another European forum, the European Union (EU), is not specialized in human rights, but in
economic co-operation and its legislation is primarily aimed at creating expectations concerning economic
activities.216 Nevertheless, the European Court of Justice, the judicial body of the EU has had occasion to

53
16. Clapham (1993) at 180.
6317
. See Clapham (1993) at 132 and nn.169-173 and the cases cited therein.
7318
. These case are discussed in Clapham (1993) at 186-244.
8319
. European Convention on the Suppression of Terrorism, 15 I.L.M. 1272 (1976), E.T.S. No. 90, U.K.T.S. No. 93 (1978). Also see
Agreement concerning the Application of the European Convention on the Suppression of Terrorism among the Member States of the
European Communities, 19 I.L.M. 325 (1980).
9320
. Ireland v. United Kingdom, 25 Judgments of the European Court of Human Rights, Ser. A, para. 149, 2 European Human Rights Reports
24, 74 (1978).
0321
. European Convention for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment, 27 I.L.M. 1152 (1988),
entered into force 1 February 1989.
1322
. European Convention on Transborder Television, 27 I.L.M. 857 (1989).
2323
. See Clapham (1993) at 92.
324
. Convention for the Protection of Individuals with Regard to Automated Processing of Personal Data, European Yearbook 329-343 (1981),
entered into force 15 October 1985, quoted in Clapham (1993) at 92 and n.15.
4325
. Id..
5326
. Art. 7 of the European Convention on the Suppression of Terrorism, E.T.S. 90 (1977) note that this convention relies primarily on states
to punish violators).
6327
. But note that the European Economic Treaty, one of the treaties of the European Union, does include a prohibition against discrimination
on grounds of nationality for the protection of intellectual and commercial property rights, the right to property, and a prohibition against sex
discrimination in pay regimes. Of course, none of the above prohibitions prevent discrimination against non-nationals.

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deal with human rights concerns and has authoritatively decided claims brought before it viewing
international human rights law as an integral part of European Union law.217 Additionally, the three major
political bodies responsible for the promulgation of EU legislation—the Council of Ministers, the
Parliament218 and the Commission—issued a joint declaration on Human Rights on 5 April 1977.219
Subsequently, the Single European Act of 1986220 and the Maastricht Treaty of 1992 both refer to human
rights and specifically the European Convention on Human Rights.221 Although it is beyond the purview
of this study to analyse European Union law as others have done, 222 it is necessary to identify the several
relevant conclusion that emerge from the treaties and their authoritative interpretation by the European
Court of Justice. First, it must be noted that the Court of Justice only applies human rights in relation to
the economic activities of community nationals or preferred non-nationals. Such a limited application of
human rights is contrary to the very nature of human rights, which are to apply to all individuals within a
state’s jurisdiction without discrimination based on nationality or the economic or non-economic nature of
an activity. Within this context the Court has explicitly or implicitly affirmed the right to freedom of
movement, religion, association, to form and join trade unions, and the prohibition against discrimination
on the basis of sex. As already mentioned the Court has also held that there is a prohibition against
discrimination on grounds of nationality, but discrimination based on the nationality of non-EU nationals
is permitted.
Second, the European Court of Justice has held that EU law is generally binding on individuals
independent of domestic legislation stating that
[i]ndependently of the legislation of Member States, Community law ... not only imposes
obligations on individuals but is also intended to confer upon them rights which become
part of their legal heritage ... . These rights arise not only where they are expressly granted
by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly
defined way upon individuals ... .223
This holding means that individuals as well as states may have responsibilities under EU law. Read
together with the Court’s jurisprudence holding human rights to be a fundamental part of community
law,224 this often quoted passage would seem to indicate that individuals may have human rights and
responsibilities emanating directly from community law. But in the Court of Justice’s jurisprudence it is
not clear whether the responsibilities concerning internationally recognised human rights are traditional
responsibilities between individuals and states, whereby a state must control another individual’s action or
responsibilities between two private individuals. The third conclusion that may be drawn from the Court’s
jurisprudence is that there is confusion about what rights will have direct effect as between two private
parties. It is clear that articles 7 (prohibiting discrimination on grounds of nationality), 48 (freedom of
movement of workers, which has been extended to several other categories of persons by subsequent EU
legislation, including students and certain pensioners), 59 (freedom to provide commercial services) and

7328
. See Stauder v. City of Ulm, [1969] European Court Reports 419 at 425, Case No. 29/69, Cour de Justice des Communautés Européennes,
Recueil de al Jurisprudence de la Cour, vol. XV, 1969-1970, Affaire 29-69, Judgment of the Court of 12 November 1969 at 425.
8329
. Also see Declaration of Fundamental Rights and Freedoms, Official Journal of the European Community, No. C 120/50 (12 April 1989)
(a parliamentary declaration).
9330
. Joint Declaration on Human Rights, Official Journal of the European Community, No. C 103/1 (1977).
0331
. The preamble of the Single European Act.
1332
. Art. F which states in paragraph 2 that
[t]he Union shall respect Fundamental rights as guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as
general principles of law.
2333
. See, e.g., Clapham (1993) at 245-283.
334
. Van Gend en Loos v. Netherlandse Administratie der Belastingen, [1963] E.C.R.. 1, 12.
4335
. See Stauder v. City of Elm [1969] Reports of the European Court of Justice 419.

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 Chapter Nine : Individuals’ Responsibilities in the Processes of International Human Rights Law

119 (equality of pay between men and women) of the Treaty of Rome must be directly applied.225
However, it is not clear whether other human rights that have been found to be a fundamental part of EU
law can be applied except in conjunction with articles of an EU treaty.
This problem arose in the case of SPUC v. Grogan226 the Court of Justice was asked to interpret
article 56 of the European Economic Community treaty concerning the right to receive services across
state boundaries. The service in question was the distribution of a guide listing the location of abortion
clinics in Britain. The group distributing the guide, the Society for the Protection of Unborn Urban
Children (SPUC), is a non-governmental organisation, but considerations upon which the decision was
based would have been the same had it been a single individual. The SPUC claimed that its distribution in
Ireland of a guide listing the addresses of abortion clinics in Britain could not be prohibited by Irish law.
The problem arose when a group of individuals challenged the distribution of the guide in Ireland where
abortion was illegal. This group claimed that the distribution was contrary to Irish law. SPUC responded
to this claim by counter-claiming that it had a community right to distribute the guide. The Irish judge
decided that this raised a question of EU law and referred the question to the European Court of Justice to
rule on the point of EU law namely the interpretation of treaty provision providing for the right to provide
services. The problem was interpreted by the Court of Justice to involve two central issues. First, the
Court decided that the right to distribute information on abortion services that were provided by clinic in
Britain was part of the right to provide services. In other words, abortions were services in the scope of
article 60. This was primarily a right and interest of the abortion clinics and their prospective clients. The
Court, however, went further and considered the right and interest of the information provider, the
distributor of the guide. In doing so, the Court held that SPUC was independent of the clinics and
therefore had its own right to freedom of expression. Nevertheless, the Court refused to issue an injunction
against the administrative regulations restricting the distribution of the guides because the freedom of
expression was not a matter of community law. Thus, in contrast to the European Court of Human Rights,
the Court has specifically recognised the horizontal or drittwirkung of a provision, but because of the ratio
materie restrictions on its jurisdiction the Court could not give consequences to this finding. This decision
appears to describe the present position of the European Court of Justice. Thus, while EU law may have
direct effect between two private individuals, the fundamental human rights which are part of this law
must rely on state action for their implementation and will not be applied directly by the European Court
of Justice.
Another regional fora is the Organisation for Security and Cooperation in Europe or OSCE. The
concluding document of its Helsinki meeting in 1974 the confirms that individuals have ‘duties’ in its
principle VII at paragraph 7.1 This political document is an expression of the wills of both European,
Eastern European (then communist) and United States leaders. It is often viewed by scholars in the United
States as evidence of a substantial consensus because of the diversity of countries that participated in its
drafting.

5336
. See Clapham (1993) at 250.
6337
. Attorney-General (Society for the Protection of Urban Unborn Children v. Grogan et al., 3 Common Market Law Review 849 (1991),
Case No. C 159/90 (judgment of 4 October 1991) cited in Clapham (1993) at 247 (“[i]t is worth noting that this case involves two private
parties” id.).
1338
. Final Act of the Conference on Security and Cooperation in Europe principle VII, para. 7, 14 I.L.M. 1292, 1295 (1975).

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 Chapter Ten: Individuals’ Responsibilities in Other Processes of International Law

CHAPTER TEN

INDIVIDUALS’ RESPONSIBILITIES IN OTHER PROCESSES OF INTERNATIONAL LAW

It is every man's duty to be beneficent--that is, to promote according to his means, the
happiness of others who are in need, and this without hope of gaining anything by it
Kant, I., The Metaphysics of Morals §30 (1797)

The true source of rights is duty. If we all discharge our duties, rights will not be far to
seek. If leaving duties unperformed we run after rights, they will escape us like a will-
o'-the-wisp. The more we pursue them, the farther will they fly.
Mahatma Gandhi (1869-1948)

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 Chapter Ten: Individuals’ Responsibilities in Other Processes of International Law

INDIVIDUALS’ RESPONSIBILITIES
IN OTHER PROCESSES OF INTERNATIONAL LAW

Claims Under International Criminal and Humanitarian Law

Because of the recent advances concerning the punishment of individuals for their violations of
international humanitarian and criminal law it is necessary to take a special look at those areas in which
states have created an expectation of individual responsibility for violations of international human rights
law.
One of the most important areas of international law that provides for international responsibility
for human rights violations are the laws of war or international humanitarian law. This corpus of law is
important because it deals with human rights in situations where they are most susceptible to abuse: in a
war. It is also important because it is contained in some of the oldest and most respected authoritative
decisions. Lyal S. Sunga points out, for example, that the
[r]egulation of armed conflicts including rules for sparing sick, wounded and elderly, date
from around 500 B.C. with the ancient Chinese treatise by Sun Tzu entitled The Art of War.
Indian customs relating to the practice of war on land date back to 200 B.C. with the Code
of Manu. Rules on the treatment of prisoners and wounded are also found in ancient Greek
and Roman law, and in Islamic Sharia law. Numerous councils of the Catholic Church
relate to the conduct of war, such as the First Lateran Council of 1122, and the Second
Council of 1139 (forbidding the use of the crossbow in wars between Christians).138
The classic sources of law must be interpreted in the light of the natural law theories that
dominated the establishment of expectations and expressed the claims of the most prominent participants
at the time. As has already been shown, prior to the Peace of Westphalia individuals were to be considered
bound by international law139 and it was thus legitimate for an individual to expect that other individuals
would respect his or her internationally protected human rights.
In more recent times individual responsibility for war crimes is traced back to beginnings in the
resolutions of the Conference of October 1863 and the Geneva Convention of 1864 granting protection to
soldiers wounded in the battlefield. Although “the protection granted the wounded and sick in armies in
the field did not refer explicitly to any general code of laws on human rights,” the wounded were ensured
“that they should enjoy rights considered unquestionable in principle.” 140 André Durand points to evidence
that the authors of the Geneva texts were concerned with human rights. This evidence is indicated by the
fact that “by forming voluntary relief societies, they affirmed that care for the wounded was not solely a
government responsibility but was dictated by the public conscience” and that they proclaimed “certain
basic principles of human rights, namely the right to life and physical integrity, respect for the individual,
and equality of treatment.”141 Durand also quotes Dietrich Schnidler who has described the 1864 Geneva
Convention as expressing “with clarity this idea of generally applicable human rights.”142 The subsequent
Declaration of St. Petersburg of 1868, the Brussels Declaration of 1874 and Hague Conventions in 1899

8138
. Sunga (1992) at 17. Also see generally, UNESCO, International Dimensions of Humanitarian Law (1988). To the sources cited by Sunga
the following could be added: The Code of Hammurabi (1728-1686 B.C.), the law of the Hittites (1269 B.C.), the Indian epic Mahabharata
(c.a. 400 B.C.), the Japanese Bushi-Do (17th century), the first caliph of Abu Bakr (c.a. 632) and numerous records of Greek and Roman
history, which indicate a concern for protecting some basic rights of the victims of conflict.
9139
. See, e.g., Sunga (1992) at 18 and Remec (1960) at 226.
0140
. Durand, A., “Human rights as perceived by the founders of the Red Cross,” 266 International Review of the Red Cross 435-451 at 435
(September-October 1988).
141
. Id. at 436.
2142
. See Schindler, D., “The International Committee of the Red Cross and Human Rights,” 208 International Review of the Red Cross 4
(January-February 1979) quoted in Durand at 436 and at n. 1.

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and 1907143 contained limits on the conduct of warfare aimed almost exclusively at controlling state
action. World War I gave rise to another rash of conventions regulating the conduct of war by states 144
whose primary aim was to regulate state conduct. The 1907 Hague Convention IV, did not even imply
individual responsibility, instead remaining satisfied with extending states responsibility.145 Other attempts
to impose responsibility on individuals for violations of international law in World War I “met with stiff
opposition from United States representatives.”146 Nevertheless, articles 229 of the Versailles Treaty
finally included the provision that
[p]ersons guilty of criminal acts against nationals of one of the Allied and
Associated Powers will be brought before the military tribunals of that Power.
Persons guilty of criminal acts against the nationals of more than one of the Allied
and Associated Powers will be brought before military tribunals composed of members of
the military tribunals of the Powers concerned ... .147
As can be seen from the wording of this provision and similar ones in other peace treaties,148 this is more
an expression of political expediency than a claim creating an expectation that all violators of international
law during the First World War might be brought to justice because only those belonging to the losing
parties must be punished according to article 229. The practice of numerous national courts after the First
World War, however, did evidence the willingness of states to hold individuals responsible for violations
of the international laws of war, including those protecting basic human rights.149
It was not until after World War II, however, that states began to express claims concerning the
protection of civilians and the punishment of individual violators of the laws of war. In part this new
concentration might have been in part spawned by the Kellogg-Briand Pact of 27 August 1928, whereby,
sixty-five states agreed that an aggressive war was contrary to international law. This limit on the
sovereign right of states to use warfare as a means of accomplishing political goals allowed states to
pursue the greater regulation of combat itself and to look to issues concerned with basic human rights.
Accompanied by the emergence of first human rights treaties protecting minorities and then treaties
protecting universal human rights, the development of international humanitarian law after World War II
began to concentrate on issues concerning human dignity. Commenting on modern international
humanitarian law, Jean Pictet stressed that “[h]uman rights represent the most general principles in
humanitarian law, whose laws of war are only one particular and exceptional case, which appears
precisely at times when war restricts or harms the exercising of human rights.”150
Immediately after World War II, two parallel developments took place which indicated the
commitment of states to securing the responsibility of individuals for the violation of human rights in time
of war. The first of these was the creation of war crimes tribunals in Nürnberg and in Tokyo. 151 The
3143
. See Scott, The Hague Conventions and Declarations of 1899 and 1907 (1915).
4144
. For example, the Hague Rules of Aerial Warfare of 1923, the Convention for the Amelioration of the Conditions of the Wounded and
Sick in Armies in the Field of 1929 and the Convention relative to the Treatment of Prisoners of War of 1929.
5145
. See Sunga (1992) and Draper, G.L.A.D., “The Modern Pattern of War Criminality,” 6 Israeli Yearbook on Human Rights 9-48, at 15
(1976) cited in Sunga (1992) at 21 and n. 16.
6146
. Sunga (1992) at 22.
7147
. Quoted in Sunga (1992) at 23.
8148
. See Treaty of Peace Between the Allied Powers and Turkey (Treaty of Sèvres), signed at Sèvres on 10 August 1920 (this treaty was never
ratified and was later replaced by the 1923 Treaty of Lausanne which exempted individuals from criminal responsibility. See Sunga (1992) at
23, n. 21).
9149
. See Sunga (1992) at 23 and 24 and Kriegsgericht des Deutschen Marinekorps, 27 July 1916, Wö I 606) reported in Erades (1993) at 467.
Also see Dow v. Johnson, 17 AILC 428 at 436 (U.S. 1879) reported in Erades (1993) at 467 (for an earlier example).
0150
. Pictet, J., The Principles of International Humanitarian Law 12 (1966).
151
. The Nürnberg Tribunal was created by agreement of the victorious allied countries after the Second World War to try war criminals of the
Nazi regime. The Tokyo Tribunal was established by American Army General Dwight Eisenhower, acting on behalf of the allied nations, to
try Japanese war criminals.

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jurisprudence of these tribunals definitively expressed authoritative decisions concerning the

responsibility of individuals for committing international crimes against peace, humanity and the laws of
war. The Nürnberg Tribunal stated explicitly in an often quoted passage that “[c]rimes against
international law are committed by men, not abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be enforced.” 152 In 1950 the United Nations
General Assembly adopted a draft resolution of the International Law Commission wherein the Nürnberg
principles were reiterated and which stated in the first principle that “[a]ny person who commits an act
which constitutes a crime under international law is responsible therefor and liable for punishment.”153
Another important step in the development of international humanitarian law were the four Geneva
Conventions154 and their two protocols.155 The provisions of these conventions and the two protocols that
express the responsibility of the individual can be divided into two categories. First, there are those
provisions relating to basic human rights that expressly state that individuals may not violate them under
any circumstances. For example, Article 3, common to all four Geneva Conventions, has been viewed by
authoritative commentators as expressing an obligation for individuals to respect basic human rights in
non-international conflicts.156 This article reads in relevant part:
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be bound to
apply, as a minimum, the following provisions:
1. Persons taking no active part in hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely, without
adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any
other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all the judicial guarantees which
are recognised as indispensable by civilized people.
2. The wounded and sick shall be collected and cared for.157
2152
. In re Goering and Others in International Military Tribunal (Nürnberg), Judgment and Sentences, 1 October 1946, 41 A.J.I.L. 172, 221
(1947).
3153
. See U.N.G.A. Res. 488 (V) of 12 December 1950 and Yearbook of the International Law Commission 1950, Vol. II, 374-378, paras. 97-
127, U.N. Doc. A/1316.
4154
. See the Four Geneva Conventions.
5155
. First Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts, adopted 8 June 1977, entered into force 7 December 1978, reprinted in 16 I.L.M. 1391 (1977) and Second Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non- International Armed Conflicts,
adopted 8 June 1977, entered into force 7 December 1978, reprinted in 16 I.L.M. 1442 (1977).
6156
. Paust (1992) at 58 (“ ... common article 3 of the Geneva Conventions applies also to those who are parties to a conflict but who lack the
status of state actors or those acting under “color” of the state”); Lauterpacht, H., (ed.), Oppenheim’s International Law, vol. II, 211, n.3
(common article 3 “imposes obligations {and} ... treats persons and entities other than states as subjects ... . [O]bservance of fundamental
human rights is not dependent upon the recognition of a specific status.”) quoted in Paust (1992) at 58, n.42) and Pictet, J., Commentary on
the (IV) Geneva Convention Relative to the Protection of Civilian Persons in Time of War 27, 31, 44 (1958) cited in Paust (1992) at 58, n.42).
7157
. Art. 3 of the Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 12 August 1949, 6 U.S.T. 3516, 75
U.N.T.S. 287 (1950).

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In deciding a dispute between Nicaragua and the United States, the International Court of Justice has held
that article 3 expressed principles so basic that they must be considered customary international law.
Already in 1968 United Nations General Assembly resolution 2444 had stated that there are some basic
principles of humanity relevant in armed conflicts that must be observed by all authorities, governmental
as well as others.158 And subsequently both the war crimes tribunal for Rwanda and for the Former
Yugoslavia have explicitly provided for the prosecution of individuals committing the crimes outlined in
article 3 as well as the grave breaches listed in article 147 of the Fourth Geneva Convention concerning
the protection of civilians.159 These grave breaches include
if committed against persons or property protected by the present Convention: wilful
killing, torture or inhumane treatment, including biological experiments, wilfully causing
great suffering or serious injury to body or health, unlawful deportation or transfer or
unlawful confinement of a protected person, compelling a protected person to serve in the
forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of hostages and extensive
destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly.160
Together articles 3 and 147—not the only articles in the Conventions which create rights for the
victims of war—provide protection of a broad array of international human rights that are protected by
human rights treaties.
A second category of provisions are directed to states whereby a state party undertakes to “enact
any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be
committed, any grave breaches”161 and “to search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches” and to “bring such persons, regardless of their nationality,
before its own courts” or “if it prefers ... hand such persons over for trial” to another state that has made
out a prima facie case against the individual.162 In light of the treaty’s weighty object and purpose of
protecting human beings even in the horrible circumstances of war, the compelling conclusion must be
that this protection is valid against private individuals. Such a conclusion appears to be in accordance with
the policy of achieving respect for the values of human dignity because it is an expansive interpretation of
the protection rather than a restrictive interpretation that is primarily sensitive to concerns of state
sovereignty. This conclusion can also be reached by an interpretation of treaties that assumes that when
states agree to treaty obligations that require the action of private individuals for their provisions to be
adequately implemented, these treaties create obligations for private individuals.163 Although somewhat at
odds with the position expressed in other forums, curious support for this position is found in the U.S.
Army Regulations which explicitly state that the Geneva Conventions are “legally binding upon the
United States and its private individuals”164 and the German Army Manual on the Laws of Armed Conflict
that states “Jeder einzelne ist verantwortlich, die Ziele des humanitären Völkerrechts zu verwirklichen
und seine Bestimmungen einzuhalten. Militärische Führer verleihen dem durch ihr eigenes Verhalten
Nachdruck. Sie machen deutlich, daß jeder vor seinem Gewissen gefordert ist, für die Erhaltung des
8158
. U.N.G.A. Res. 2444, U.N. Doc. A/7218, Supp. (No. 18) (1968) and U.N.G.A. Res. 2675, U.N. Doc. A/8028, Supp. No. 28 (1970). Also
see Tadic at para. 110 (stating that this principle, as stated in U.N.G.A. Res. 2444, was “declaratory of existing customary law.” Id.).
9159
. See artt. 2-4 of the Statute of the International Tribunal for the Former Yugoslavia, annexed to U.N.S.C. Res. 827 and artt. 2-4 of the
Statute of the International Tribunal for Rwanda, annexed to U.N.S.C. Res. 955.
0160
. Art. 147 of the Fourth Geneva Convention.
161
. Art. 146, first paragraph of the Fourth Geneva Convention.
2162
. Geneva Convention Relative to the Protection of Civilian Persons in the Time of War, 12 August 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
(1950).
3163
. See Paust (1992) at 58 and n.43 (citing sources for this proposition).
4164
. U.S. Army Regulations No. 350-216 § 1, para.1 (7 March 1975).

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Rechts einzutreten.”165 Thus, although the proposition that treaties create direct responsibilities for
individuals may still be contested in other areas of international law, it cannot be contested as concerns the
international humanitarian law evidenced by the Geneva Conventions. In light of this conclusion the
following cautious statement by Paust must surely be uncontroverted today: “it would be quite incorrect to
argue that customary or treaty-based law of war, which address human rights on times of armed conflict,
cannot reach private, non-state conduct.”166
Another important development indicated at the beginning of this section is the recent
development of tribunals to punish individuals for the violation of international humanitarian and criminal
law.167 The statutes of the ad hoc tribunals for the prosecution of persons responsible for serious violations
of international law both contain articles reiterating that individuals are responsible for violations of
international law. Articles 5 and 6 of the Rwanda and Former Yugoslavia Tribunals, respectively, provide
in identical wording that the tribunals “shall have jurisdiction over natural persons pursuant to the
provisions of the present Statute.” Articles 6 and 7 of the respective Statutes provide the principles of
individual criminal responsibility in four paragraphs. Paragraph 1 of both articles explicitly states that “[a]
person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime referred to in ... present Statute, shall be individually responsible for
the crime.” The second and third paragraphs remove any protection that individuals may have due to their
government functions or the responsibility of a superior who “knew or had reason to know that the
subordinate was about to commit such acts.” The fourth paragraph states that superior orders is not a
defence,, but may mitigate a punishment. Although jurisdiction is limited temporally, 168 territorially,169 and
by the principle of non bid in idem,170 it is concurrent171 and these provisions constitute an example for a
permanent international criminal court.

Claims Made Under International Criminal Law

A relatively modern area of international law whereby claims are made to individual responsibility
for the violation of other individuals’ human rights is commonly referred to as international criminal
law.172 As this law relates directly to the responsibility of the individual for respecting human rights it is
necessary to briefly review the past trends in this area.
Although these trends can be traced back to the crime of piracy on the high seas, the modern trends
might be said to have started with the Draft Statute for an International Penal Court of the International
Law Association in 1926. Subsequently, there has been a draft by the International Association for Penal
Law in 1928 and again in 1946, a Convention for the Creation of an International Criminal Court in 1937

5165
. Bundesministerium der Verteidigung Abteilhung Verwaltung und Recht II 3, (ed.), Humanitäres Völkerrecht in bewaffneten Konflikten.
Handbuch, para. 1224 (original German ed., 1992) (the English translation reads: “Each individual shall be responsible for realizing the aims
of international humanitarian law and observing its provisions. Military leaders shall highlight this by their own behaviour. They shall make
clear that everyone is requested by his conscience to stand up for the preservation of the law.” Federal Ministry of Defense of the Federal
Republic of Germany, Humanitarian Law in Armed Conflicts. Manual, para. 1224 (English language ed., August 1992)).
6166
. Paust (1992) at 59.
7167
. See Statute of the International Tribunal for Rwanda, U.N.S.C. Res. 955, Annex (1994) and Statute of the International Tribunal for the
Prosecution of Person Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991, U.N.S.C. Res. 827, U.N. Doc. S/25704, Annex (3 May 1993).
8168
. See art. 7 of the Statute of the Rwanda Tribunal and art. 8 of the Statute of the Former Yugoslavia Tribunal.
9169
. Id..
0170
. See art. 9 of the Statute of the Rwanda Tribunal and art. 10 of the Statute of the Former Yugoslavia Tribunal.
171
. See art. 8 of the Statute of the Rwanda Tribunal and art. 9 of the Statute of the Former Yugoslavia Tribunal.
2172
. Paust, J., “Applicability of International Criminal Laws to Events in the Former Yugoslavia,” 9(2) The American University Journal of
International Law and Policy 499-523 (Winter 1994) and Bassouni, M.C., A Draft International Law Criminal Code and Draft Statute for an
International Criminal Tribunal (1987).

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that only one state signed and none ratified, another draft Convention for the Creation of an International
Criminal Court done by the London International Assembly in 1943, and several drafts promulgated under
the auspices of the United Nations, most notably the Report and revised Statute for an International
Criminal Court of the United Nations Committee on International Criminal Jurisdiction. 173 Perhaps the
closest world society has come to promulgating a draft code of international crimes, including violations
of human rights, is the drafting of a Code on Crimes Against the Peace and Security of Mankind
(hereinafter abbreviated as ICC for International Criminal Code).174
In 1950 the United Nations General Assembly adopted a draft resolution of the International Law
Commission (ILC) wherein the Nürnberg principles were reiterated.175 In the same resolution the General
Assembly called upon the ILC to work on a draft ICC. As of 1994 the draft ICC contained several
provisions indicating that individuals had responsibility for violations of international human rights law.
An explicit statement that individuals are responsible for violation of ICC can be found in draft article 3,
paragraph 1 which states that “[a]n individual who commits a crime against the peace and security of
mankind is responsible therefor and is liable to punishment.” The comment to draft article 3 emphasises
that it is individuals who are to be punished by stating the Commission decided to limit responsibility
under the ICC to individuals “in light of the opinions expressed by Governments.” 176 Draft article 5 states,
however, that governments cannot avoid responsibility where an individual has been found guilty of an
international crime. According to draft article 4 responsibility is “not affected by any motives invoked by
the accused which are not covered by the definition of the crime.” Furthermore, the ILC determined that
states should have a duty to try or extradite international criminals, 177 that statutes of limitation should not
apply to international crimes,178 and that the official position of an international criminal does not relieve
criminal responsibility.179 Together these provisions concerning individual responsibility provide a regime
expressing a clear expectation that international criminals are to be punished.
The crimes in the ICC include: committing180 or threatening181 an act of aggression; intervention in
the “internal or external affairs of a State;” 182 organising or leading a form of alien domination; 183
genocide;184 apartheid;185 the committing or ordering murder, torture, slavery, or persecution on defined

3173
. See Annex, U.N. Doc. A/CN.4/L.471 (6 July 1992) at 44 and 45 (listing all these initiatives and very briefly summarizing selected ones).
4174
. Draft Code of Crimes Against the Peace and Security of Mankind, Annex, Report of the International Law Commission on the work of its
forty-third session, U.N. Doc. A/CN.4/L.464/Add.4 (1991) (hereinafter the draft statute in the ILC Report is referred to as “ICC Statute” and
the commentary on this statute as “ICC Commentary”). Also see generally Bassouni (1987).
5175
. See U.N.G.A. Res. 488 (V) of 12 December 1950 and Yearbook of the International Law Commission 1950, Vol. II, 374-378, paras. 97-
127, U.N. Doc. A/1316.
6176
. ICC Commentary at 6.
7177
. Art. 6 of the ICC Statute.
8178
. Art. 7 of the ICC Statute.
9179
. Art. 13 of the ICC Statute.
0180
. Art. 15 of the ICC Statute.
181
. Art. 16 of the ICC Statute.
2182
. Art. 17 of the ICC Statute (this is defined as “subversive or terrorist activities” including “organizing, assisting or financing such
activities, or supplying arms for the purpose of such activities, thereby [seriously] undermining the free exercise by the State of its sovereign
rights” id. at para. 2).
3183
. Art. 18 of the ICC Statute (this crime applies to any individual “who as leader or organizer establishes or maintains by force or orders the
establishment or maintenance by force of colonial domination or any other form of alien domination contrary to the right of peoples to self-
determination.” Id.).
4184
. Art. 19 of the ICC Statute (although there had been a suggestion in the 1954 Draft to extend the crime to genocide on grounds other than
those listed in article II of the Genocide Convention, for example to action against a political group which is aim at its destruction, this
proposal was not adopted in the 1992 draft ICC which uses the exhaustive Genocide Convention definition. ICC Commentary at 41).
5185
. Art. 20 of the ICC Statute (an individual must be a leader or organizer committing or ordering the commission of the crime of apartheid
to incur responsibility under this article id.).

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grounds or the systematic or mass violation, deportation or forcible transfer of population;186 a list of five
“exceptionally serious war crimes,”187 the recruitment, financing or training of mercenaries;188 aiding
international terrorism;189 illicit drug trafficking;190 or wilfully causing severe damage to the
environment.191 The duties owed by individuals are responsibilities to the whole of world society and they
are implemented through the entity of states. Nevertheless, although the crimes are limited to the “most
serious among the most serious of crimes,”192 they do constitute a trend towards the development of
individual responsibility.
In this respect it is interesting to note that inclusion of many of these human rights was a
substantial development from the initial draft in 1951 whose provisions were limited to offences of a
political nature that endangered the international peace and security.
The relevance of this regime to individual responsibility for general human rights law is limited by
the definition of crimes. Only a select number of human rights are given the enhanced protection from
violations by international criminal law. The rights protected can generally be described as the most
fundamental civil and political rights, although the influence of current political and social perspectives of
elites and pressure groups have also ensured some enhanced protection of the right to a clean
environment. Other crimes seem very much aimed at the protection of state sovereignty, for example,
crimes of aggression. And all the crimes depend on state initiative before they will be prosecuted. By their
6186
. Art. 21 of the ICC Statute. The commentary indicates the limited aspect of this article stating that “under the Commission’s draft article
only systematic or mass violations of human rights would be a crime.” ICC Commentary at 45. However, the Commentary goes on to state
that
[t]he systematic element relates to a constant practice or to a methodological plan to carry out such violations. The mass-
scale element relates to the number of people affected by such violations or the entity that has been affected. Either one of
these aspects—systematic or mass-scale—in any of the acts enumerated in the draft article is enough for the offence to
have taken place. ICC Commentary at 45.
It is also pointed out in the Commentary that while the article might apply to individuals it is most unlikely that a single individual would
have the resources to commit such widespread and grievous human rights violations, thus it will usually apply to individuals acting on behalf
of states. ICC Commentary at 46.
7187
. Art. 15 of the ICC Statute. In the commentary it is stated that
[i]t should be emphasized that the war crimes covered by the draft article are not all war crimes in the traditional sense,
nor are they all grave breaches covered by the relevant common articles of the 1949 Geneva Conventions ... or any of the
grave breaches covered by Protocol I Additional to the Geneva Conventions ... . Faithful to the criteria that the draft Code
should cover only the most serious among the most serious of crimes, the Commission therefore selected, on the basis of
the criterion of exceptional seriousness, violations of international law applicable in armed conflicts that should be crimes
under a code of this nature. ICC Commentary at 49 and 50.
These crimes include:
(a) acts of inhumanity, cruelty or barbarity directed against the life, dignity or physical or mental integrity of
persons [, in particular willful killing, torture, mutilation, biological experiments, taking of hostages, compelling a
protected person to serve in the forces of a hostile Power, unjustified delay in the repatriation of prisoners of war after the
cessation of active hostilities, deportation or transfer of the civilian population and collective punishment];
(b) establishment of settlers in an occupied territory and changes to the demographic composition of an
occupied territory;
(c) use of unlawful weapons;
(d) employing methods or means of warfare which are intended or may be expected to cause widespread, long-
term and sever damage to the natural environment;
(e) large-scale destruction of civilian property;
(f) willful attacks on property of exceptional religious, historical or cultural value. Art. 21 of the ICC Statute.
8188
. Art. 23 of the ICC Statute (this article requires that the individual be “an agent or representative of a State” ICC Commentary at 54).
9189
. Art. 24 of the ICC Statute (this article requires that the individual be “an agent or representative of a State” ICC Commentary at 57).
0190
. Art. 25 of the ICC Statute (it is interesting to note that the comment to this article claims that it extends to cover “persons acting in the
framework of financial institutions, such as banks, investment companies, etc., which are used to move money or other assets deriving from
illicit traffic in narcotic drugs” ICC Commentary at 59).
191
. Art. 26 of the ICC Statute (this article extends to individuals the responsibility imposed on states in article 55 of the 1977 First Protocol
(international-armed conflicts) to the 1949 Geneva Conventions and requires that the environment be protected from willful damage outside
of wartime situations).
2192
. ICC Commentary at 49.

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limited nature they reflect the current socio- and geopolitical perspective of the world elites and the
pressure groups that have lobbied for the ICC. They balance the interest of states in maintaining world
public order with the interests of individuals to be able to enjoy the highest degree of freedom ensured
from encroachment from all actors. The limits are a line in the sand that may be constantly redrawn, as the
development of the ICC to date indicates, by the developing perspectives of individuals concerning the
minimum standards of human action (responsibility and rights) which are preferred by a consensus of
society.
The enhanced moves to establish a permanent international criminal court193 and the creation of
tribunals to try individuals committing international crimes in Former Yugoslavia and Rwanda, are
indications that individual responsibility for the most serious violations of international human rights may
be quickly becoming a reality. The past trends also indicate that there already exists an expectation that
these crimes are prohibited and may be punished when committed by individuals.

Authoritative Decisions of the International Court of Justice

Concerning Individuals’ Responsibility Under International Law

A number of provisions from human rights conventions confer jurisdiction on the International
Court of Justice over disputes concerning interpretation and application. These provisions include article 9
of the Convention on the Prevention and Punishment of the Crime of Genocide, article 10 of the
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery, article 9 of the Convention on the Political rights of Women, article 38 of the
Convention relating to the Status of Refugees and article 14 of the Convention on the Reduction of
Statelessness. However, because only states can be party to a case before the Court, to date the Court has
only considered the responsibility of states for violations of human rights. It should, however, be
recognised that the Court is not prohibited from considering the responsibilities of individuals, but may
either chose not to do so or may never be asked to do so by a state in contentious proceedings or a body
seeking an advisory opinion. If an advisory opinion were directed to the Court asking the general question,
whether individuals may be responsible for violating international human rights law or whether
individuals have an obligation to ensure others’ human rights when it is in their capacity to do so, the
Court may answer this question.
Alternatively, if questions concerning individual responsibility arise in a specific case between two
states the Court could also deal with questions of individual responsibility. However, it is more likely that
such questions will arise in the context of state responsibility for the actions of individuals. Indeed in both
the Case Concerning United States Diplomatic and Consular Staff in Teheran 194 and the Case Concerning
Military and Paramilitary Activities in and against Nicaragua195 the court only dealt with state, and not
individual responsibility. One reason that individuals were not given direct access to the International
Court of Justice is the assumption that the state, rather than the individual, is in the best position to
provide adequate compensation for international wrongs. This assumption, however, may not be valid
where the private actor is a large terrorist organisation or a large corporation that may have more resources
than a state. Additionally, states may be held responsible even when the actor who committed the wrong is
an individual or belongs to an organisation that is outside the control of the state. As there are an
increasing number of well-endowed international organisations, some of which are considered to be
terrorist organisations by some states, as well as others that are prosperous commercial multi-nationals, 196
3193
. See, e.g., Report of the Working Group on the question of an international criminal jurisdiction, U.N. Doc. A/CN.4/L.471 (6 July 1992).
4194
. Judgment of 24 May 1980, [1980] I.C.J. Reports 1, at paras. 56, 61, 63, 67, 73, 74, 76 and 79.
5195
. Judgment of 27 June 1986, [1986] I.C.J. Reports 1, at paras. 293(3), 107-109.
6196
. Muli-nationals account for 51 of the 100 leading economies in the world and their activities are increasing regulated by non-
governmental organizations, BBC Radio, “Insight”, programme of 1 September 1998. Also see Muchlinski, P.T., Multinationals Enterprises

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 Chapter Ten: Individuals’ Responsibilities in Other Processes of International Law

the assumption at the basis of the principle of state responsibility for acts of private actors may no longer
be valid.
Andrew Clapham draws attention to the thesis of M.A. Kamminga, who argues that a state may be
responsible for the action of its own citizens in violating the rights of other citizens under its
jurisdiction.196 One way this argument might be evidenced in practice is, if there exists a sort of erga
omnes right of all states to complain about human rights abuses taking place on the territory of another
state or at least an equivalent right of all the states to a human rights treaty. If this were the case then it
would be possible for a state A to claim that state B has violated person X’s human rights by failing to
prevent person Y from torturing X. Two things should be pointed out about this argument. First, it is very
close—if not the same—as saying that state A has an interest in the protection of human rights wherever a
person may be and whatever the nationality of the person. This is very much what the International Court
of Justice said in the Barcelona Traction Case.197 Secondly, the extended protection that the victim would
accrue from applying Kamminga’s principle would still fall short of full procedural capacity, a right to
claim directly against the torture or even a right to ensure that a claim was made against the torturer. In
other words, while it would constitute an advance in the state system for the protection of human rights, it
would only constitute a limited improvement of the individual’s rights or responsibilities under
international law.

Claims for Individual Responsibility for Violations

of International Law Made in National Arenas

Most international decision making forums are not accessible to the individual to bring claims
against other individuals. This is especially true of the judicial forums. Therefore, it is in national arenas
that the protection of human rights usually takes place. The national forums are more numerous than the
approximately 185 states in the international community. In some cases these fora cut across national
boundaries. In numerous examples, only a very few of which can be discussed here, authoritative
decisions-makers have decided or claims have been made that international human rights create duties for
individuals. They may do so by incorporating the appropriate international standards into national law.
Some states, for example, have incorporated the Universal Declaration of Human Rights into their
constitution or national laws. Other states have left it to the national courts to apply international human
rights law. In both cases the rights and the responsibilities in international instruments may become part of
national law.
The judicial decisions-makers have often addressed this problem through the formalities of
‘monism’, ‘dualism’, ‘compatibility’ or other theories that describe how states deal with international law.
However, from the perspective of an international lawyer whose commitment is to the achievement of a
society in which the values of human dignity are respected and promoted, these descriptions are merely
factors to be considered in deciding upon strategies. In other words, the international lawyer or the
international human rights lawyer, must always view international human rights law as applying whether
or not a particular state has incorporated it. The expectations created by authoritative decisions, claims and
demands concerning the protection of consensually agreed upon international human rights are
expectations that every individual in every society is entitled to rely upon. To claim that the state has a
prerogative to allow such claims is contrary to the values of human dignity because it makes these
discretionary and distant from the claims and demands of individuals upon which they are based. Despite

and the Law 578-604 (1995, 1997 reprint) (concerning the international regulation of multinationals).
6196
. Clapham (1993) at 105 and 106. Also see Kamminga (1990) at 187.
7197
. Case Concerning the Barcelona Traction, Light and Power Company, Limited (Second Phase), [1970] I.C.J. Reports, No. 45, para. 33
(Judgment of 5 February).

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this recognition, however, states have taken different positions on how they deal with international human
rights law.
A prominent example of a country in which both the legislature and the courts have confirmed
their commitment to international human rights law is the Netherlands. By virtue of articles 94 and 95 of
the Dutch Constitution of 1983, international law that is binding on the Netherlands is binding on the
legislature, the executive and the courts. Courts are instructed that it is their duty not to apply national
laws that are contrary to international laws. Human rights treaties also enjoy this priority status. Examples
of other countries that have adopted similar positions include Ecuador,252 Greece,253 Sudan,254 and Spain.255
In each of these countries the government has interpreted the domestic law as providing for the direct
application of international treaties concerning human rights.256
The examples of countries that provide for the automatic application of international law within
the domestic legal order, however, is not the norm, but the exception. More frequently treaty obligations
are only applied by courts when they have been incorporated into domestic law. This is the case, for
example, in the United Kingdom,257 the United States,258 Germany,259 France260 and Australia.261 These
examples, however, are far from uniform. In many cases one must distinguish between treaty provisions
that are self-executing and those that are not. In the United States the Supreme Court has held that treaties
can only create rights for individuals when it is clear from their provisions that they were intended to do
so.262 Similarly, the English courts have held that the treaties do not bind the courts or the government
unless they were clearly intended to do so.263 This apparently goes further than the United States courts by
requiring that Parliament incorporate the provisions of a treaty into national law. While the European
Economic Community Treaty of Rome has been incorporated by the European Communities Act of 1972,
252
. See Daes (1992) at 111, para. 116 (“[i]n Ecuador, the individual can unconditionally claim the application of international human rights
and humanitarian law ... “ id.).
3253
. See Daes (1992) at 111, para. 122 (concerning the application of international law in the domestic order of Greece the government has
stated that ... an individual may always claim their application to his benefit.” id.).
4254
. See Daes (1992) at 112, para. 133. This formally remains the position in Sudan today after the legal system has shifted from a common
law system to a more civil law Islamic-oriented system.
5255
. See Daes (1992) at 111, para. 132 (concerning the application of international law in the domestic order of Spain the government has
stated that “the individual may claim the direct application of treaties to which Spain is a party and which have been published officially, in
the same manner as internal law, since treaties form part of the internal legal order.” id.).
6256
. See Daes (1992) at 111 and 112.
7257
. See, e.g., Malone v. Commissioner of Police [1972] 2 All England Law Reports 620 and R. v. Secretary of State for the Home
Department, ex parte Brind [1991] 1 AC 696. Although, as will be described below, the English courts have held that international law is the
law of the land, they have also shown broad deference to the legislature’s failure to incorporate international law, holding that such failure
may prevent courts from applying international human rights law such as the European Convention on Human Rights in the two cases cited
above.
8258
. This is the practice that has been developed by the courts of the United States. See, infra, at n. 262. But see art. VI of the United States
Constitution.
9259
. Art. 59 of the German Constitution. Also see European Human Rights Convention Case, 22 I.L.R. 608 (1955) (holding that generally
treaties are not to be given precedence over domestic law). But compare art. 25 of the German Constitution which does give customary
international law precedence over national law.
0260
. Art. 53 of the French Constitution of 1958 (requiring certain types of treaties to be ratified or approved by law). But compare art. 55 of
the French Constitution which states that treaties that have been ratified and published are superior to national law.
1261
. See, e.g., Kirby, M., “Implementing the Bangalore Principles on Human Rights Law” in Commonwealth Secretariat, Developing Human
Rights Jurisprudence, Vol. 2 (1989) at 53 and 54 citing [1983] 153 Common Law Reports 168, 224 (Chief Justice of Australia Mason, J.).
262
. See, e.g., Haitian Refugee Center v. Baker, 949 F.2d. 1109 (11th Cir. 1991), cert. denied, 112 S.Ct. 1295 (1992) (a treaty is enforceable in
the domestic courts of the United States when it “directly accords ... enforceable rights to persons,” id. 949 F.2d. 1110), Committee of U.S.
Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988) (a treaty “must confer rights on private individuals” to be enforceable
in the courts, id. at 937) and Head Money Cases, 112 U.S. 580 (1884) (a treaty is enforceable in the domestic courts when its “provisions
prescribe a rule by which the rights of the private citizens or subject may be determined,” id. at 598-599).
3263
. Malone v. Commissioner of Police [1979] 2 AER 620 and R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC
696.

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no such incorporation has been undertaken for either the European Convention on Human Rights or the
International Covenant of Civil and Political Rights. The result is that although the human rights and
responsibilities in each of these treaties are binding on the United Kingdom under international law,
English courts may still refuse to apply them. The English courts may therefore be allowed, or even
required, to violate international law. This is an oddity that does not enhance the achievement of the
common community values of human dignity in British society. By comparison the courts in Zimbabwe
have made strong strides toward applying international human rights law in domestic cases by using the
ECHR to interpret a similar provision in the Constitution of Zimbabwe264 and holding that
[t]he courts of this country are free to import into the interpretation of s. 15(1)
interpretations of similar provisions in International Human Rights Instruments such as,
among others, the International Bill of Human Rights, the European Convention for the
Protection of Human Rights and Fundamental Freedoms, and the Inter-American
Convention on Human Rights. In the end international human rights norms will become
part of our domestic human rights law. In this way our domestic human rights jurisdiction
is enriched.265
In some cases treaties may create an expectation that they will be followed. The creation of such a
limited expectation was illustrated in a recent case decided by the Australian Supreme Court.266 The Court
held that the government can create an expectation that it would abide by its international treaty
obligations by ratifying a treaty.267
Another distinction must be made between customary law and treaty law. In several recent cases
United States courts have relied on customary international law to find a cause of action. A notable
example is the case of Kadic v. Karadzic.268 This case involved a private civil suit against the Bosnian
Serb leader Radovan Karadzic. The suit was brought by victims and family members of victims of
Bosnian Serb violence in the former Yugoslavia. They claimed that Radovan Karadzic, the leader of the
Bosnian Serbs, had played a role in the commission of these atrocities. The case was brought under the
Aliens Tort Act of 1899 which vests jurisdiction in an American court for violations of international law
where the violator is on American soil. It is important to recognise that this case involved a civil law
matter and not the imposition of criminal liability; it is nevertheless equally important to note that the
cause of action was based on violations of both international human rights and international humanitarian
law. Without having found these violations of law there could not have been a cause of action. The most
striking part of Judge Newson’s holding was his statement that private individuals could violate
international human rights and international humanitarian law. Although this has been stated by
international tribunals, it is one of the few examples of such a holding by a domestic court. This holding
expands upon earlier holdings, finding individuals responsible for acts contrary to international law where

4264
. Art 15(1) of the Constitution of Zimbabwe.
5265
. A Juvenile v. The State, 1990(4) SA 702 (ZS); [1988] LRC (Const.) 774 quoted in Dumbutshena, E., “Role of the Judge in Advancing
Human Rights” at 49, 52 in Commonwealth Secretariat, Developing Human Rights Jurisprudence, Vol. 5 (1993).
6266
. Minister of State for Immigration and Ethnic Affairs v. A.H. Hin Teoh F.C., No. 95/013 (High Court of Australia, Canberra) (7 April
1995) (it should be noted that government official immediately criticized this case and threatened to override it with legislation, which is
possible under Australian law). Also see R. v. Secretary of State for the Home Department, ex parte Patel, Civil Division
of the English Court of Appeal, QBCOF 98/0650/4 and QBCOF 98/0762/4, 30 July 1998.
7267
. Id..
8268
. Jane Doe I, on behalf of herself and all others similarly situated, and Jane Doe II, on behalf of herself, as administratrix of the estate of
her deceased mother, and on behalf of all others similarly situated, Plaintiffs, v. Radovan Karadzic, Defendant and S. Kadic, on her own
behalf and on behalf of her infant sons Benjamin and Ongen, Internacionalna Iniciativa Zena Bosne i Hercegovine “Biser,” and Zene Bone i
Hercegovine, Plaintiffs, v. Radovan Karadzic, Defendant, 866 F. Supp. 734 (United States District Court for the Southern District of New
York, decided 7 September 1994). But compare S. Kadic, et al., v. Radovan Karadzic, 1995 U.S. App. Lexis 28826 at 14 (decided 13 October
1995, as amended per 6 November 1995) (the opinion of Judge Jon O. Newman of the United States Court of Appeals for the Second Circuit
reversing the lower District Court, 866 F.Supp. 734, on this point).

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the acts committed involved torture and inhuman treatment. 269 While the earlier holdings always
concerned individuals acting on behalf of a state, Kadic involved an individual acting as a private non-
state actor.
The determination that there is a duty under international law may not be enough if immunity
applies to the individual. The recognition of sovereign immunity is a factor that may immunise individuals
from responsibility for their violations of international human rights law when the individual is acting on
behalf of a state. The foreign sovereign immunity legislation in the United States270 and the United
Kingdom271 has been interpreted to protect states and individuals acting on their behalf of states from
claims that they have violated international human rights law. In the United States Case of Nelson v. Saudi
Arabia,272 concerning a suit by Nelson under the Alien Torts Act for his being tortured at the hands of
Saudi Arabian authorities, when the petitioner had worked in Saudi Arabia. He claimed that when he
decided to end his employment he was arrested, taken to a Saudi police station and tortured. The
government of Saudi Arabia claimed immunity from suit in an United States court by virtue of its quality
as sovereign country. Although there seemed to be little dispute about Mr. Nelson’s treatment, this was
not even an issue decided by the courts because it was decided that Mr. Nelson’s relationship with a Saudi
state company was of a public, not private nature, and thus fell within the ambit of the Foreign Sovereign
Immunities Act. This case is troubling because the court seemed unaware that it was sanctioning torture
by state authorities. Little attention was given to the fundamental nature of human rights. A similar
conclusion can be drawn from the decision of a United Kingdom Court in the Case of Suliman Al-Ahsani
v. the Government of the Kuwait272a that held that a member of the royal family in Kuwait was immune
from suit for his role in the torture of a Kuwait citizen who had fled to the United Kingdom. The court
applied the Foreign Sovereign Immunity Act of 1976 to prevent action against the government of Kuwaiti
or the individual who had committed or ordered the acts of torture. In both these cases, serious questions
arise as to whether or not the values of human dignity are being furthered. The cases indicate that recent
trends in authoritative decisions within the United States and the United Kingdom are still battling with
the value of a state-centred world public order and the values of the individual-centred concept of human
dignity. These developments are closely linked to the developments concerning international criminal law
and an international criminal tribunal, as well as the cautious tendency of international human rights
bodies to apply human rights horizontally; past trends in each of these sectors are liable to reinforce those
in the others. The fact that individuals are making claims based on violations of international human rights
law evidences a distinct, but cautious development towards recognising individual responsibility for
violations of international human rights law. The conclusion that emerges may be that while there is a
developing expectation that individuals as well as their governments must respect international human
rights law, it is also clear that it is exceptional that individuals will be held responsible for their violations.
Finally, to complete this anecdotal glance at the domestic concern with individual responsibility
for ensuring respect for human rights, it is interesting to note the recent comments of Jack Straw. In the
Ambassador’s Lecture in 1995 on the future of a Bill of Rights in Britain, he suggested that one of the
greatest threats to society is the development of a “something-for-nothing, me-first society in which
people have been encouraged to take what they can for themselves without contributing to the common
good ... [w]ithout reciprocity, what can be given can be easily taken away.”273
9269
. See, e.g., Filartiga v. Peña-Irala, 630 F.2d. 876 (1980) and Forti v. Suarez-Mason, 694 F.Supp. 707, 711 (N.D. Cal. 1988).
0270
. Foreign Sovereign Immunities Act of 1976, 15 I.L.M. 1388 (1976).
1271
. Foreign Sovereign Immunities Act 1978, entered into force 22 November 1978.
272
. Saudi Arabia, King Faisal Specialist Hospital and Royspec v. Scott Nelson, 61 United States Supreme Court Law Weekly 4235 (23 March
1993).
272a
. Al Adsani v. Government of Kuwait, The Times Law Reports (29 March 1996).
3273
. Young, R., “Straw Urges Bill of Rights and Duties,” The Times, 8 November 1995, at 6, col. 5 and 6 (Jack Straw was shadow Home
Secretary for the Labour party in the United Kingdom when he made these comments).

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Part III: Future Directions: The Individual in a World Society Respecting the Values of Human Dignity

PART III

FUTURE DIRECTIONS

THE INDIVIDUAL IN A WORLD SOCIETY

RESPECTING THE VALUES OF HUMAN DIGNITY

The point of all this is not that every contribution the behavioral scientist can make has been made before and
found wanting, but rather that the proffered contributions of many of them have been rendered ineffective by
a failure to comprehend the significance of the political framework of international action.
Waltz, K., Man, the State and War 76 (1959)

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 Chapter Eleven: The Prediction of Future Trends

CHAPTER ELEVEN

THE PREDICTION OF FUTURE TRENDS

For the world’s marginalized, the effect of emphasising the nation-state over the individual has been
catastrophic.
1
Vale, P., 36 Harvard International Law Journal 283 (Spring 1995)

1
. Vale, P., “The United Nations Family. Challenges of Law and Development. Engaging the World’s Marginalized and Promoting Global
Change. Challenges for the United Nations at Fifty,” 36 Harvard International Law Journal 283 (Spring 1995).

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 Chapter Eleven: The Prediction of Future Trends

THE PREDICTION OF FUTURE TRENDS

Looking Forward

The key to looking forward is to be conscious of one’s past, goals and values. This study thus
began by defining the problem to be addressed in terms of the traditions of international law. It explained
why the traditional approaches to law are inadequate for achieving the practical protection of individual’s
rights. And it suggested a value-oriented policy approach as a more appropriate means of understanding
and shaping the law to achieve its professed policy goals. In order to evaluate the utility of such an
approach its relevant components were described as concepts with special attention to ‘social process’ and
‘individual participation’. Past trends were then described in terms of four dimensions of the individual in
the process of international human rights law: theory, procedural capacity, rights, and responsibilities.
This final chapter looks to the future. It seeks to predict future directions for development of the
law and to suggest alternative policies for optimalising the values of human dignity. Attention is focused
on past trends. In this regards, it must be remembered that past trends are largely the products of an
international system in which states have been the pre-eminent actors. The past trends concerning
individual participation have emerged in the mists of a contemporary international law that is “a
‘spontaneous’ submission to the established order and to the orders of the guardians of that order.”2
Realising this, a broad net has been cast when selecting past trends to be described. In this net actions and
activities not generally included in legal analysis have been captured. But despite the breath of the study, it
reflects only a small piece of a more complex puzzle. Much more research is needed into how individuals
participate; how their participation is influenced; how individuals might be influenced so as to achieve a
society respecting the values of human dignity; what the values of human dignity are; and, how these
values can be legitimately determined.
Finally, no secret is made of the motivation behind this study. It is a study aimed at contributing to
the improvement of the conditions of individual human beings. It is a study that seeks to use law to the
fullest extend possible to ensure respect for the values of human dignity. This use of law is not new. From
the natural law theories of John Locke3 to the communitarianism of Amitai Etizoni4 and humane global
governance espoused by Richard Falk,5 the law has been used as the champion of individual values in
their social context. This study builds on the assumptions that have been justified by these previous trends
in social thinking, namely, that law is a strategy individuals employ to help them achieve shared values.

Theory: The Individual’s Status in the International Community

One can predict how the concept of the individual in the process of international human rights will
develop based on the past trends described in chapter four. This prediction is characterized by two
tendencies. The first of these is the tendency to take individuals into account as participants. This is being
done in textbooks on international law that increasingly include the individual as a relevant actor in both
the prescription and application of international human rights law. This is also compatible with the
intentions of many of the earliest international lawyers who believed that international law applied to
2
. Bourdieu, P., The Logic of Practice 160 (1990) (translated by Nice, R., from Le sens pratique (1980)).
3
. Locke, J., Two Treatises of Government 395 (3rd ed. 1698, Laslett, (ed.), rev. ed 1963) (“If Man in the State of Nature be so free, as has
been said; If he be absolutely Lord of his own Person and Possession, equal to the greatest, and subject to no Body, why will he part with his
Freedom? ... To which ‘tis obvious to Answer, that though in the state of Nature he hath such a right, yet the Enjoyment of it is very
uncertain, and constantly exposed to the Invasion of other ... . And ‘tis not without reason, that he seeks out, and is willing to join in Society
with other who are already united, or have a mind to unite for the mutual Preservation of their Lives, Liberties and Estates” id.).
4
. Etizoni, A., “Liberal and communitarianism,” 2 Partisan Review 216-218 (1990) (“the shared moral values, ‘virtues’, and traditions of the
community, rather than the rational choices of abstract individuals, are the bedrock of moral-philosophical discourses” id.).
5
. Falk, R., On Humane Global Governance. Towards a New Global Politics (1995).

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 Chapter Eleven: The Prediction of Future Trends

individuals as well as states. It is also a trend that is likely to continue. At present no reputable
international legal scholar still argues that international law is the exclusive domain of states.
The past trends in prescriptive fora also indicate an increasing acceptance of the individual as a
participant under international law. The best examples of this are, of course, international human rights
treaties that provide for individuals rights and responsibilities. But also other types of treaties are
beginning to consider individuals directly. Examples include the treaties on European union, the treaty
forming the Central American Court and the numerous treaties on friendship and commerce. Each of these
treaties build on the theoretical foundation established by writers as manifestations of the opinio juris and
practice of states. Additionally, recent United Nations Resolutions and Declarations as well as state
practice in international affairs have shown that states are beginning to concede that individuals are
participants in fora that were hereto closed to individuals. Several examples of each of these have been
described above. It suffices here to recall the examples of the United Nations Resolution recognising that
terrorists are directly bound by international human rights law,6 the draft Declaration concerning
individual rights and responsibilities for ensuring respect for human rights,7 and the interventions of
Former United States President Jimmy Carter in Korea, Haiti, Sudan and elsewhere. This is also reflected
in the emergence of numerous transnational human rights movements such as Amnesty International, the
Helsinki Citizens Assembly, the ‘People’s Movement in Italy’, and other individuals acting in accordance
with their own conscience and not that of their governments. Again this is a trend that is likely to continue
as treaties and resolutions increasingly recognise individual rights and responsibilities.
There is also a slowly growing awareness that individuals in special situations—ranging from
positions of enhanced authority to positions of special vulnerability—are being recognised as actors under
international law. The special characteristics may lead to greater rights and responsibilities. Two examples
mentioned above are refugees and the judges of the International Court of Justice. In both cases the
individuals in special positions acquire both rights and responsibilities in addition to those of other
citizens. For example, refugees have a right not to be sent back to a country where they have a well-
founded fear of persecution and an expressed legal responsibility not to violate the laws or public order of
the country in which they find themselves. Judges of the International Court of Justice enjoy the immunity
of United Nations personnel as well as the responsibility of applying the rules of international law,
including human rights, in their decision making. While it is not innovative to recognise that individuals
have rights and responsibilities commensurate to their circumstances, recognising these in legal
instruments is a recent phenomenon. It is also one that is likely to continue.
At a more general level, contemporary trends also indicate that authoritative decisions-makers are
increasingly recognising that it is impossible to filter the law from politics when it comes to making
decisions concerning the most basic and fundamental values of individuals. For example the jurisprudence
of the South African Constitutional Court illustrates of how decisions-makers in legal fora are influenced
by values. Describing it early jurisprudence, Professor Alfred Cockrell has observed that the South
African Constitutional Court often refers to “values” in deciding hard questions of constitutional
interpretation where individual rights are concerned.8 This is a reflection of the tendency to blur the
distinction between law and politics.
But for all the advances that have been made in recognising the participation of individuals there
are also trends that contradict, if not reverse, some of the expected advances. For example, development
remains unevenly shared among the individuals in ‘recipient’ countries where new unempowered or
victimised classes are created while elites profit by honouring the dictates of their foreign donors. This
contradicts the very basis of the human right to development that emphasises participation. Access to
6
. See U.N. G.A. Res. A/RES/48/122, 85th plenary meeting (20 December 1993) and U.N. G.A. Res. A/RES/49/60 (17 February 1995).
7
. See U.N. Doc. E/CN.4/1997/WG.6/CRP.1 (24 February 1997).
8
. See Cockrell, A., “A Rainbow Jurisprudence,” 12 South African Journal on Human Rights 1 (1996) and his lecture at the London School of
Economics and Political Science on 16 January 1997 (unpublished, but expected to appear in a 1997 number of the Modern Law Review).

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education and adequate access to justice have become increasingly difficult to secure for those without
substantial resources. Thus, while professions of adherence to human rights have become more frequent
the rights themselves have become more elite.
The net result of these predictions is a slowly and precariously developing acceptance of
individuals as legitimate participants under international legal theory.

Process: The Procedural Capacity of the Individual

Although not widespread and sometimes existing side by side with established systems of
discrimination against some members of society, individual procedural capacity is something that was
known in ancient times. In more modern times, the nineteenth and twentieth centuries have been
characterized by ad hoc isolated attempts to provide individuals with access to international decision
making fora in the field of human rights. These fora have been both universal and regional; exclusively
devoted to human rights and open to broader types of claims.
The most recent past trends described in this study indicate that individuals are increasingly
making claims, demands and exhibiting expectations to greater participation rights. There are two points
about these trends that are particularly important. The first is that they are motivated by different
influences. Individuals are making claims based on aspirations to democracy, the pursuit of economic
development or appeasing contemporary popular sentiments, to name just a few categories of interests.
The underlying feature of these diverse interests, however, is their commonly shared objective in
promoting basic values concerning the welfare of individual human beings. The other point is that this
trend has included harmful alternatives. Although often undermining human rights, individuals have
shown themselves willing to use armed violence and coercive suppression and exploitation when they are
denied access to basic rights and, especially when they are denied participatory rights inherent in social
functioning. To a degree this is an inevitable result of the unending comprehensive process of
authoritative decision making, whereby different interests are reconciled to provide an acceptable social
order. But to a large degree this trend is one over which decisions-makers hold substantial influence.
When they are not able to resolve societal differences in ways that relieve the frustration of individual
participants, dissatisfaction will often erupt into violence as so many terrorist activities in the latter half of
the twentieth century have shown. On the other hand, where greater procedural rights have been granted
by creating more fora, ensuring easier access both to the dispute resolution mechanisms as well as to the
authoritative decision making itself, conflict can be defused. The hypothesised relationship between
peaceful co-existence and the degree of procedural capacity enjoyed by individuals for the exoneration of
their human rights is not easy to prove, but one that needs more study. Nevertheless, it is where the ideal
of preserving world public order and achieving the values of individual human dignity converge, and thus,
an appropriate point for further development.

Rights: Protecting of Other Individuals’ Human Rights

Human rights defenders enjoy the protection of applicable existing international human rights law.
This law consists of treaties and customary international law.9 Other instruments like the Declaration for
Human Rights Defenders, which was discussed chapter six and seven, are interpretative aids that may be
used to determine the latest opinio juris of states. As a declaration,10 as distinguished from a resolution,
and because so much care was taken during its drafting to ensure that every article and even parts of
articles were agreed by consensus, it may be said to codify customary international law. Unfortunately, as

9
. Jennings and Watts (1996) at §10 at 27.
010
. See generally Asamoah, O.Y., The Legal Significance of the Declarations of the General Assembly of the United Nations (1966).

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discussed above, it may do as much damage as good to the cause of human rights defenders. The benefits
are that it reiterates something that was previously common knowledge—that human rights defenders can
use existing human rights to defend others’ human rights—and that it provides another recognition of the
work of individuals and organisations fighting to protect human rights. The damage is in its repetition of
existing rights in language that may be interpreted more restrictively and that it isolates human rights from
those who they defend by providing enhanced recognition of their efforts, if not enhanced protections.
Most damaging, however, is the fact that the draft declaration maintains the tradition of viewing
individuals—and other non-state actors—as lesser participants than states in the process of international
human rights law. This is accomplished by the declarations failure to provide individuals with anything,
but the most sparse responsibilities. It is as if the international community—as represented by the
governments and NGOs taking part in the working group drafting the declaration—were saying to a child:
‘you can protect human rights if you want, but you don’t have to’. The drafters missed a chance to say
instead: ‘you have a responsibility to protect human rights that is commensurate with your abilities and
resources’. This missed opportunity is a substantial setback to the development of the individual’s role in
the process of international human rights law.

Responsibilities: Who Will Ensure Respect for International Human Rights Law?

The individual’s responsibility for human rights may be the greatest challenge facing the
individual in the modern world. It is a challenge that requires change. It requires us to free ourselves from
the constraints of tradition and to employ the creativity of the future. Václav Havel emphasised the
importance of responsibility in 1990 stating:
Without a global revolution in the sphere of human consciousness, nothing will change for
the better in our being as humans, and the catastrophe towards which our world is
headed ... will be unavoidable .... We are still incapable of understanding that the only
genuine backbone of all our actions—if they are to be moral—is responsibility:
responsibility to something higher than my family, my country, my firm, my success,
responsibility to the order of being where all our actions are indelibly recorded and where,
and only where, they will be properly judged.11
It is essential for world society and each individual herein to discern where they stand along this
continuum of responsibility for achieving respect of the values of human dignity. If these values are the
principles of a society, there is a legitimate expectation that the society will try to achieve them in
practice, whether by clear policies of optimalisation or by achievement of social policy goals with
constant consideration of the common interest. A democratic society that takes its common responsibility
and policies seriously must be one based on the responsibility of every participant. If there is even one
individual in society that does not participate in a responsible manner then the accomplishments of the
whole society towards achieving respect for human dignity may be compromised. It is true that the actions
of one person may have little influence on other individuals, but it is more important to note that one
individual’s actions can have grave consequences for society.
This concept of individual responsibility under international law must begin by an
acknowledgement that the individual is relevant to international law. This conceptual step has been taken
by the majority of states in the international community. The wisdom of this step is apparent when one
considers the practical role that individuals have played in world society. The importance of individual
actors highlighted by Philip Allott draws attention to how prominent individuals throughout society have
influenced society by managing “to turn the drama of their own personality into the drama of a whole
society ... managed to fuse the development of their individual consciousness with the development of the
11
. The Commission on Global Governance, Our Global Neighborhood 353 and 354 (1995) (quoting Havel, V., addressing the U.S. Congress
in 1990).

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social consciousness of a whole society.”12 Allott’s recognition of the power of the effect of most
influential and empowered individuals—the tyrants, prophets, dictators, emperors, generals and statesmen
—also acknowledges the damaging influence that some of these prominent individuals have had on
society. Our perception of society is informed by historical examples of individuals influencing the social
process. But this history is not limited to the actions and ideas of prominent people on whom historians
tend to focus their attention. It includes the actions of individuals of whom we will never hear or whose
actions will never be properly attributed. More importantly, while there are some factors that place some
individuals in a better position than others to influence the social process, there are numerous examples of
individuals who have acquired the necessary authority for influencing the authoritative decision making
process or even become the authoritative decisions-maker in a particular society. The mere fact, that
individuals from so many varied civil, political, economic, social and cultural backgrounds have
influenced the decision making processes in society is a prima facie argument for recognising the
responsibility of each individual as a necessary constituent of a society respecting human dignity.
To date no exact measurement of an individual’s capability has been discovered to identify how a
particular individual or what particular individual can or will influence social policy and the social
process. Even speculative determinations of policy influence depend on numerous variables such as the
decision being made, the decisions-maker, the civil, political economic, social and cultural conditions
predominant at the time, the competing claims, demands and expectations of others, just to name a few
determinants that must be analysed individually and in infinite combinations. The complexity of this
problem is an argument for accepting both the principle of respect for human dignity on a consensual
basis as well as the responsibility of every individual for achieving this respect.
The relationship between individual responsibility and human rights is a reflection of the changing
socio-political reality of relations between individuals and governments.13 Andrew Clapham draws our
attention to the fact that
the emergence of new fragmented centres of power, such as associations, multinationals,
universities, churches, interest groups, and quasi-official bodies, has meant that the
individual now perceives authority, repression, and alienation in a variety of new bodies,
whereas once it was only the apparatus of the State which was perceived in the doctrine to
exhibit these characteristics.14
A example of the change Clapham identifies is the move towards privatisation of public tasks. The
fragmentation of power requires the decentralisation of responsibility to the new power holder. Failure to
do so means that new power arrangements will emerge in society without society being able to secure that
they operate for the public good. And additional example is the increasing empowerment of selected
individuals in terms of economic authority. James Dale Davidson and William Rees-Mogg have devoted a
book to identifying how individuals may become so empowered in the global economy that they can
compete to the degree of states.14a
The recognition of individual responsibility of these new bases of power, including individuals,
through international law enhances the ability of society to achieve respect for the values of human
dignity. This development enhances, not replaces, the numerous responsibilities that individuals already
have under the laws of a domestic legal system and it enhances the chance that rights will be exercised
with due regard for the common good. Such responsibility does not have to arrest individual development.
As Fredrieke A. Hayek has recognised

212
. Allott (1990) at 186-187.
313
. See generally, Falk, R., Humane Governance (1995).
414
. Clapham (1993) at 137.
414
a. See generally, Davidson, J.D., and Rees-Mogg, D. The Sovereign Individual: How to Survive and Prosper in It (1998).

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[t]hat the sphere of individual freedom is also the sphere of individual responsibility does
not mean that we are accountable for our actions to any particular persons. True, we may
lay ourselves open to censure by others because we do what displeases them. But the chief
reason why we should be held wholly responsible for our own decisions is that this will
direct our attention to those causes of events that depend on our actions. The main
functions of the belief in individual responsibility is to make us use our own knowledge
and capacities to the full in achieving our ends.15
Individual responsibility is not the enemy, but the ally of rights. It is an ally that is indispensable to the
development of world society towards achieving respect for the values of human dignity. It is
indispensable unless one believes that the ad hoc interests of all the individuals who are world society will
somehow coincide with the interests of society without encouragement.

515
. Hayek, F.A., The Constitution of Liberty 79 (1976).

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 Chapter Twelve: Alternatives to the Present Future

CHAPTER TWELVE

ALTERNATIVES TO THE PRESENT FUTURE

Until we are able to transcend the ... fixation with sharply separating law from politics, we will continue to
fluctuate between the traditional polarities of ... legal discourse, as each generation continues frantically to
hide behind unhistorical and abstract universalisms in order to deny, even to itself, its own political and moral
choices.
Horwitz, M.J., The Transformation of American Law 272 (1992)

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ALTERNATIVES TO THE PRESENT FUTURE

Alternatives to the present future focuses on what the future can be if suggested policies and
strategies are adhered to by the individuals who are world society. Again the central theme is the
individual in the process of international human rights law. And again, the suggestions are based on past
trends, values and policies. However, as distinguished from the above predictions, it is not the reliability
of the prediction that is the predominate standard, but rather the idealistic goal of optimalisation of the
values of human dignity. Thus, while the predictions of the future represent the status quo, the suggested
alternatives to this future represent society being the best it can be.
But these suggestions are more than mere detached idealism. As Paul Kennedy has pointed out
“the fact remains that simply because we do not know the future, it is impossible to say with certainty
whether global trends will lead to terrible disasters or be diverted by astonishing advances in human
adaption.”16 Indeed, the future is in the hands of individuals who seek to shape it and respond to the
challenges of the claims, demands and expectations for human dignity that individuals share commonly
across borders, over time and as world society. As Kennedy concludes ‘[i]f these challenges are not met ...
humankind will have only itself to blame for the troubles, and the disasters, that could be lying ahead.”17
Like the prediction above, the suggestions for alternative policy, strategies and actions are divided
into four sub-headings. These generally correspond to the four preceding chapters on theory, process,
rights and responsibilities.

Theory: Thinking About Individuals in a Way Which Maximises

the Achievement of Human Rights

In the realm of international human rights law the obvious starting point seems to be the
individual. Arguments for this can be made based on the tradition of international human rights law,
which unlike traditional international law did not find its roots in the protection of the nation-state. Instead
international human rights law has emerged from a concern with the individual. It is a concern whose
philosophy can be traced back to long before modern human rights law. In early social, political, religious
and cultural history individuals dealt with other individuals as the basic units of the social process.
Conventions and practices emerged from these dealings. And while one may criticise ancient society as
being less developed than our modern society, it must be noted that is was the antecedent to modern
society and at least had the capability of creating modern society. By gaining admission to decision
making forums individuals are also able to directly influence and sometimes take part in authoritative
decision making processes. And, of course it must never be forgotten that individuals do in fact make
almost all the authoritative decisions in the international political and legal forums. This must be
repeatedly emphasised given the contrast in thinking about international law that has pervaded the works
of legal scholars. The words of Kenneth Waltz that “[t]he events of world history cannot be divorced from
the men [sic] [and women] who made them,”18 are still true today.
Although it may be appropriate to exercise caution when developing some areas of competence of
individuals in the process of international human rights law, it is harmful to encourage legal scholars to
continue their discourse without taking into consideration the advances individuals have made in regards
to the participation in international affairs relevant to this process. Lawyers who speak about individuals
as objects of the law are like the ostrich who tries to hide from the stampede by hiding its head in the sand.
Other areas of law may be able to tolerate such cowardly behaviour, but an area of law so open to public

616
. Kennedy (1993) at 349.
717
. Id..
818
. Waltz, K., Man, the State and War 26 (1959).

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scrutiny as international human rights law, cannot. Attempts to obscure the transparency and openness of
international human rights law will undoubtedly be met with suspicion and loss of credibility. To maintain
and reinforce its credibility, international human rights law needs a theoretical foundation which expands
upon the realities of the social process and reflects the importance and diversity of the central component
of this process, the individual. The theory of international human rights law must renew its fundamental
vows. The protection of the individual must become linked to the conferment of respect at the most basic
stage of the process. The only way these necessary repairs can be effected is for the architects of the
process to rebuild the foundation more solidly. This requires the accomplishment of many intellectual
tasks19 in a systematic and comprehensive fashion. The task particularly relevant to this study is the re-
writing of international human rights law including, and to include, the individual as a full participant with
rights and responsibilities commensurate to his or her abilities.
To re-write international human rights law in this way we need to be cognisant of contemporary
practice, values and policies for deciding upon the norms that will guide society. This can be done through
the accomplishment of three intellectual tasks: (1) viewing law in its social context, (2) taking account of
the other disciplines that inform individuals, including those who make the laws, and (3) clarifying policy
objectives. The first, requires lawyers and other observers of fora and problems in the process of
international human rights law to realise that international law and even law itself is often of insignificant
or at best of subsidiary value for protecting individuals’ human rights. At the same time they must
recognise that effective strategies require legal techniques to be intermeshed with other non-legal
disciplines and techniques. Thus, the second suggested alternative or additional strategy for thinking and
acting in the process of international human rights is for actors and observers to take into account more of
what can be learned from other disciplines that are concerned with the quality of life of human beings. For
example, individuals can evaluate their strategies for ensuring human rights by using sociological research
methods to determine whether or not these strategies are improving the lives of human beings. Finally, it
is suggested that clearer policy objectives be established. This does not require replacing policy objectives
that have been developed through centuries of practice, but it does require reformulating and revalidating
these objectives on the basis of their contemporary legitimacy. For example, human rights theorists should
critically evaluate such pronunciations recently made by the International Court of Justice in the Advisory
Opinion on the Legality of Nuclear Weapons, whereby the basic values of human dignity were opined to
be of lesser value than the world public order interests of the existence of a particular state.20

Process: Optimal Individual Access to Procedures

in Processes of International Human Rights Law

Ideally, international courts, tribunals or other bodies of authoritative decision making should be
open to every individual raising an issue relevant to the whole of humanity. As human rights are such
issues the willingness of authoritative decisions-makers to hear individuals should be very open indeed. At
one extreme this might mean that individuals should have locus standi to bring cases before every
international adjudicatory body. In this ideal world, bodies such as the International Court of Justice, the
European Court of Justice, the Central American Court of Justice as well as the traditional human rights
bodies would allow equal access to individuals whose claims are based on international human rights law.
Arguments that this expanded right of access would over tax particular authoritative decision making
bodies or that it would be too expensive for society must be subordinate to concerns of justice and
commitment to achieving the optimalisation of the values of human dignity in world society. In the end
919
. Among them the re-establishment of the consensual basis of human rights.
020
. Nuclear Weapons Advisory Opinion, No. 95 (Opinion of 8 July 1996) at para. 96 and 97 (together these two paragraphs indicate that the
Court was of the opinion that a state might use nuclear weapons “in an extreme circumstance of self-defence, in which its very survival would
be at stake” id. at 97).

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sceptics of expanding individuals’ participatory rights should be frowned upon because their ideas are
undemocratic and harmful to society.
As past trends, indicate allowing individuals full access to all dimensions of international
adjudication is unrealistic at this juncture in time. Nevertheless, the examples of practice described in
preceding chapters also indicate that individuals are making claims to limited forms of procedural
capacity; that these claims are relevant, if not vital to ensuring human rights; and the these individuals are
influencing authoritative decision making processes concerning these rights. They include claims to
provide information on issues relevant to international human rights law and the general well-being of
human beings in specific cases. Such claims are clearly illustrated through the example of the World
Court Project that has been discussed above. They include claims to bring to the attention of authoritative
decisions-makers general information relevant to the protection of individuals human rights. Together
these claims plead for a greater participatory role for individuals in international litigation. At the very
least individuals should be allowed to present information to courts and tribunals which deal with issues of
general international law when these issues affect human rights. For example, the International Court of
Justice should create a formal entitlement (or at least provide the Court the discretion) for individuals to
provide the court with material in the form of amicus curie briefs or expert or eyewitness evidence.
Similarly, this body should ensure that when it is aware of evidence demonstrating strong popular
sentiments it take into account this information in a very clear way. The failure to develop these
procedures and practices will lead to the marginalisation of the ICJ in a world that is becoming
increasingly globalised and where state authority more frequently is taking account of private actors.
There are also improvements that should be considered for the existing international human rights
tribunals such as the Human Rights Committee and the Commission and Court of the European and Inter-
American systems and the Commission in the African system. This is an area where there is a huge
amount of work to do, and the following suggestions are only the tip of the an iceberg that plunges deep
into the depths of a system that is achieving only a fraction of its potential. First, active information
campaigns should be undertaken by the organisations under whose auspices these bodies were created as
well as by NGOs, to encourage individuals to petition these bodies. Second, human rights education
should be improved, especially among lawyers and human rights representatives so that they know how to
adequately use these bodies. Third, access to the existing bodies should be expanded and made more user-
friendly. To expand access, individuals should be given the right to petition for advisory opinions and
there should be recognised a general principle of actio popularis and the right—and not mere possibility
—to submit evidence to the court on cases other than one’s own. This last should be accompanied by the
adjudicatory body’s duty to address all relevant evidence, whatever its source. To make the fora more
user-friendly, the bodies themselves need to recruit staff with the ability to communicate with the least
empowered individuals in society and able to explain to them in plain, non-discouraging language exactly
what is needed for them to bring an admissible claim. Too often today, even lawyers are discouraged by
the technical or delayed responses that they get from these bodies. Admittedly, this is partly a problem of
states refusing to provide these bodies adequate resources. But this is also something that each individual
can object to in their own state and accordingly something for which each individual shares the blame
when they do not object. Fourth, NGOs should begin to provide and encourage petitions to these bodies
when they see human rights violations. And finally, states must agree to provide adequate resources for
the bodies to function and for competent advice and representation of individuals before these bodies.
Where such practices cannot be immediately implemented, policy commitments should be made to
strive for their implementation in the future and to monitor and report on the progress that is being made.
But improvements in the existing mechanisms aside, there are also, finally, suggestions for new
mechanisms, specifically for an International Court of Human Rights, that demand serious consideration.
Such an idea is not new. Between 1946 and 1948 the Australian government urged the international

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community to consider establishing an International Court of Human Rights.21 At one point the proposal
was even circulated in the Human Rights Commission as a draft statute for such a court and providing
individuals full rights of participation in cases against states who are violating their human rights. 22
Needless to say the proposal was not accepted because of states unwillingness to open their sovereign
powers to international scrutiny. Later commentators have suggested that subsequent proposals would
face the same fate.23 In light of the exceptional courage and stamina that individuals have shown for
maintaining their claims and demands for basic human rights, this seems more a matter of the aggregate
will of individuals than of any predetermined will of states. Recognising the fallacy of visions of world
society based on the predetermined attitudes of states, the World Service Authority has proposed a
“Statute of the World Court of Human Rights”.24 This statute includes provision for a hierarchical
structure of a high court and several regional courts presided over by judges designated by a single Chief
Justice, “in consultation with legal faculties and schools of law, and sections of academies devoted to the
study of world law.”25 The competence of the court established in article XXIII is stated in the following
terms: “Only INDIVIDUALS or GROUPS OF INDIVIDUALS may be parties in cases before the
COURT to seek redress for deprivation of any human right.”26 Furthermore, article XXIV, paragraph 2,
states that “[s]ince human rights are innate and inalienable, independent of state limitations, the COURT
shall be open to all individuals notwithstanding whether such State agrees to submit the cause to the
COURT for inquiry or disposition.”27 Although this proposal undoubtedly needs much work, there are
several factors that strongly recommend it. First, it is the product of individuals and not states. In this
sense it is likely that it better reflects the values of human dignity which are based on individual claims
and demands. Second, it relies on individual support and only indirectly state support for its acceptance.
The exact relationship between states and this World Court of Human Rights, however, is not made
entirely clear by the proposal. And third, and most importantly, the proposal provides an efficient
alternative to the fragmented system for the protection of human right that currently exists. Finally, it is
not the prospect of ultimate acceptance of the proposal that is most encouraging for enhancement of the
procedures for the protection of human rights, but the fact that the proposal indicates that since 1946
individuals have developed the courage to make such proposals without the support of states. It points to
what might be the ultimate way forward in securing adequate procedures for the protection of human
rights: individual, or at least non-governmental, initiatives.

Rights:
The Optimal Development of Individuals’ Ability to
Exercise Their Human Rights to Protect Other Individuals’ Human Rights

One of the great questions of our time is whether individuals can live humanely with each other
throughout world society. This is the question that is crucial to the concept of universal human rights. But
the question crucial to international human rights law is somewhat different. It is the question, to borrow
from a question put some years ago by Kenneth Waltz:28 Human rights begin in the minds of individuals,
121
. Gormley (1966) at 47.
22
. U.N. Doc. E/CN.4/AC.1/27 (10 May 1948).
323
. Gormley (1966) at 47.
424
. The statute is still in the revision process and a copy of the latest version may be obtained from the following address: World Judicial
Commission, c/o Legal Department, World Service Authority, 1012 14th Street N.W., Washington D.C. 20005, The United States of
America, telephone number +1-202-638-2662 and fax number 638-0638.
525
. See article V of the draft “Statute of the World Court of Human Rights.”
626
. Draft “Statute of the World Court of Human Rights.”
727
. Id..
828
. Waltz, K.N., Man, the State and War 9 (1959) (Waltz asks the question: “War begins in the minds and emotions of men, as all acts do; but

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as all acts do; but the crucial question is not this realisation, but whether the minds of individuals can be
changed and how?
It is also probable that human rights will have to be reformulated. 29 This reformulation, however,
must not be left to states, it must include as equal participants all entities of civil society. Among these
entities must be individuals. Individuals must exercise their creative capacities and express their
preferences for particular expectations through claims and demands. Furthermore, these claims and
demands must be given prominent relevance by the authoritative decision-makers in society, whether they
be states or non-state entities which have acquired a position of authority for particular actions. The result
may echo existing manifestations of human rights or may diverge from them in different ways. What is
necessary is that the result be universal and truly a standard for all of humanity.
This ideal is not illusionary. Within the United Nations and elsewhere, formerly unempowered
individuals are increasingly gaining access to international forums. Prompted by technical developments
in the fields of communications and transportation, for example, individuals are increasingly in positions
that enable them to influence state policies. The increase in avenues of individual complaint on matters
relating to human rights, whether under human rights treaties or economic co-operation agreements, are
also providing the individual with increased rights that may themselves be used to protect other’s human
rights.

Responsibilities:
Holding Individuals Accountable for the Future of the Community

If we are serious about human rights being inalienable basic rights of individuals we must treat
them as such. We cannot continue to distinguish between denial or violations of these rights by state and
non-state actors. Instead, society must concentrate on the ability of an actor or violator to ensure respect
for individuals’ human rights. This will require educating future generations to understand at least three
basic postulates. First, that human rights are rights that adhere to the human person and are vital for the
existence of the human person in dignity and with respect. Second, that individuals have these rights
against all other human beings, although it may only be the state or some supra-national organisation that
can enforce human rights. And third, and consequent upon the second postulate, we must understand that
individuals have responsibilities for ensuring that each others’ human rights are respected. All three of
these are necessary. The collective necessity emanates from the changes in society, which have been
elaborated above, whereby non-state actors, including individuals, are increasingly in positions of
authority over other private individuals’ human rights. In other words, the public-private divide is closing,
public functions are increasingly being carried out by private contractors, and the widening gap between
the “have’s” and the “have-nots” is creating classes of empowered and unempowered individuals. These
insidious divisions must be remedied before social malcontent decrees its own strategy of violent revolt.
The recognition of individual responsibilities enhances the social power of the most vulnerable by
legitimising their claims for basic rights against the empowered elites and even the merely more fortunate.
In an unequal society, empowerment through the recognition of individual responsibility will have the
effect of lightening the burden of the unempowered. Of course, there will continue to be inequalities of
ability, resources and achievement. But the goal is not perfect equality, it is merely to take a step towards
truly equal opportunity for each member of world society.

can minds and emotions be changed?” id.).

929
. See Özdek, Y., “Recent Debates on Human Rights: Universalism or Cultural Relativism,” 16 Turkish Yearbook of Human Rights 23-53, at
51-53 (1994) (arguing that an appropriate means of addressing the dispute about cultural relativism is to redraft a universal code of human
rights that are truly universal in stating that “[t]he need to initiate a novel process that will really universalize human rights, by relieving them
from a nature presently characterized by the dominance based on class, culture and sex, is apparent.” Id. at 52).

189
 Chapter Twelve: Alternatives to the Present Future

A Final Note

Although the full participation of the individual in the processes of authoritative decision making
in international human rights law does not assume that the individual is or should be a full participant in
all areas of international law, it does have consequences for all areas of international law. The main
consequence is that individuals are responsible, in different degrees relative to their authority, for
respecting and ensuring respect for other individuals’ human rights. Above it has been argued that there is
no reason in logic why this should not be the case.
For this to come about our contemporary theory of international human rights law must be
substantially changed. At the same time it is growing increasingly evident that renewed thinking about this
law is not a major issue on the agenda of governments nor most academics. This is evidenced by a number
of indicators. First, government officials and international civil servants have been trained to believe that
the best society can only be achieved through the representation of collective interests by states. They see
the existence of the state—commonly manifested as the interest in public order—as a value higher than
that of human dignity. They claim that respect for human dignity will come only if the state’s existence is
secured. However, even in states that enjoy relative stability, human rights continue to be violated at
alarming rates. For example, the United States, continues to impose of the death penalty—especially on
minors and the mentally incompetent—while China, oppresses political expression, yet both are relatively
stable countries. In such a world society, it is mainly non-governmental actors who concentrate on human
rights norms and evaluate the levels of human dignity being achieved. Second, government officials
increasingly act to protect their own narrow and selfish interests. The tales of corruption are so frequent
that an impartial observer of our planet would probably conclude that corruption—in one degree or
another—is more the norm than the exception. Breaches of trust by politicians around the globe re-enforce
the necessity of removing the intermediary of the state in situations relating to the most basic rights and
responsibilities of the individual. Basic human rights are too important to allow them, even in a few cases,
to be subservient to political or selfish personal considerations, which politicians will continue to espouse
as long as they can benefit directly or indirectly from their own actions. And finally, much of international
law is becoming increasingly inaccessible, and thus irrelevant, to individuals. To reverse this trend it is
thus necessary for international human rights law to be asserted as guiding principles of action and not
mere theories that are not followed in practice. To so this body of law must be adapt to its social context
and must be understood within this context. This study has suggested a methodology by which an
observer can accomplish this task. This methodology consists of a value-oriented policy approach to law
in which the individual is the focus of enquiry. This does not mean that law is “only what is effective.”30
Instead, requires that we question the relevance of such a statement, posing the question: What is
effective? It is only by understanding that this is a crucial question, that alternatives policies can be
postulated and, whereby, each of us, as part of world society, can contribute to achieving respect for the
values we share. This requires the recognition of the assimilation of law, politics and other disciplinary
consideration in the processes of decision making by which we strive to achieve respect for our most basic
values. This perspective—that of an observer striving to optimalise the values of human dignity—is as
fraught with idealism as it is with pragmatism. Nevertheless, by straddling the divide between realism and
idealism, individuals may find the tools for achieving a society that respects the values of human dignity.

030
. Koskenniemi, M., “The Politics of International Law,” 1 European Journal of International Law 6 (1990) (criticizing the policy-approach
as being apologetic because it gives to much deference to the effectiveness of law which is a function of state power).

190
 Bibliography

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1949: Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed
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1949: Universal Declaration of Human Rights, adopted 10 December 1948, U.N.G.A. Res. 217 U.N. Doc. A/810 at 71 (1948).
1949: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12
August 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 (1950).
1949: Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135
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1951: Convention Relating to the Status of Refugees, adopted 28 July 1951, U.N.G.A. Res. 429, 5 U.N. GAOR Supp. (No. 20)
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1951: European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, U.K.T.S. 71,
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1954: Convention on the Political Rights of Women, open for signature and ratification by U.N.G.A. Res. 640 (VII) of 20
December 1952, entered into force 7 July 1954.
1957: Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery, 266 U.N.T.S. 3, adopted by a conference of Plenipotentiaries convened by Economic and Social Council Res.
608 (XXI) of 30 April 1956 and done at Geneva on 7 September 1956, entered into force 30 April 1957.
1965: International Convention on the Elimination of All Forms of Racial Discrimination, adopted on 21 December 1965,
G.A.Res. 2106, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1965), opened for signature 7 March 1966, 660
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1966: International Covenant of Civil and Political Rights, opened for signature 16 December 1966 entered into force January
1976, 999 U.N.T.S. 171, 6 I.L.M. 368 (1967).
1966: International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, open for signature 16 December 1966,
entered into force 3 January 1976.
1969: Vienna Convention on the Law of Treaties, adopted on 22 May 1969, opened for signature 23 May 1969, entered into
force 27 January 1980, UN Doc. A/CONF.39/29.
1969: American Convention on Human Rights (Pact of San Jose), Pan-Am. T.S. No. 36, 9 I.L.M. 673, 65 A.J.I.L. 679, 3 H.R.J.
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1973: International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted 30 November 1973,
1015 U.N.T.S. 244, entered into force 18 July 1976.
1975: The Final Act of the Conference on Security and Cooperation in Europe 1975 (The Helsinki Declaration), 14 I.L.M.
1292 (1975).
1979: International Convention Against the Taking of Hostages, reprinted in 18 I.L.M. 1450, opened for signature 17
December 1979, entered into force 6 January 1985.
1979: Convention on the Elimination of All Forms of Discrimination Against Women, adopted on 18 December 1979 by
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September 1981.
1981: African Charter on Human and People’s Rights, adopted June 1981 in Nairobi, Kenya, entered into force 21 October
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I.C.J. and P.C.I.J. Cases

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Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947
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Other International Judicial Bodies

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A.J.I.L. 684 (1941).
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National Cases

Adra v. Clift, 195 F.Supp. 857 (D. Md. 1961).

Bolchos v. Darrell, 3 F.Cas. 810 (D.S.C. 1795 (No. 1,607)
Charge to Grand Jury, 30 F.Cas. 1026 (C.C.D.Ga. 1859, No. 18,269a).
Davison v. Seal-skins, 7 F.Cas. 192 (C.C.D. Conn. 1835, No. 3,661).
Ex parte Quirin, 317 U.S. 1 (1942).
Henfield’s Case, 11 F.Cas. 1099 (C.C.D.Pa. 1793, No.6,360).
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The Merino, 22 U.S. (9 Wheat.) 391 (1824).
United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820).
United States v. Pirates, 18 U.S. (5 Wheat.) 184 (1820).
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United States v. White, 27 F.Cas. 200 (C.C.E.D. Mo. 1886).
United States v. Morris, 39 U.S. (14 Pet.) 464 (1840).
United States v. Garonne, 36 U.S. (11 Pet.) 73 (1837).
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United States v. La Jeune Eugenie, 26 F.Cas. 832 (C.C.D. Mass. 1821, No. 14,551).
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