Research questions and hypothesis
The objects of research are international rights (human rights and others) and individual obligations flowing from international law. Has a paradigm change occurred which makes humans, normatively speaking, primary international legal persons?
Starting point of the research is the observation that more and more international legal norms directly address human beings. Therefore, we must, first, examine in a systematic fashion whether and which substantive rights and obligations of individuals derive directly from international law, and whether procedural mechanisms for enforcing them have really increased in the last decades. Second, we need to find out whether the presumed quantitative development also has a qualitative significance.
It is suggested that a qualitative change is taking place, or has taken place, and that this change can be best observed and assessed by using a novel concept: the international individual right. This concept captures the new legal status of the individual, and also implies that individual international rights can be divided into human rights and “ordinary” international rights. A distinction between these two sub-groups is technically feasible, analytically convincing and normatively appropriate, although inner connections between human rights and other rights exist, and although human rights can evolve.
In order to answer the questions concerning a modified international legal status of humans, and the possible concomitant evolution of the entire international legal order, our gaze must wander between two poles: on the one hand, the international legal material must be analysed “bottom-up” with the traditional doctrinal methods. On the other hand, this examination must be conducted through a novel lens or prism, by relying on innovative concepts and terms.
The “bottom-up” examination encompasses detailed analyses of sub-branches of international law (for example the law of international responsibility, international humanitarian law, international criminal law, international labour law, refugee law, etc.), including the human rights implications. Customary law as it stands must be determined through identification of practice and opinio iuris, international treaty norms must be interpreted, and further relevant legal texts and case-law must be identified and checked. The systematic and comprehensive picture of the legal material allows us to make statements about basic underlying structures and about the legal status of the individual that is embedded in this structure.
Acknowledging “ordinary” international rights in addition to (and besides) human rights allows us to transcend the framework of purely inter-state rights and obligations under international law, without having to qualify the novel legal phenomena as human rights, which would be inflationary. The conceptualization of rights ranking “below” human rights, and the notion of an international individual right might open the door for a further modernization of international law and at the same time prevent the normative power of human rights from being undermined.
Along these lines, the extent of individual rights and obligations flowing directly from international law and the explanatory power of the conception of international individual rights need to be studied in further research projects, for example on individuals in the law of international responsibility, or individuals as international law-makers.
This research will contribute to the ERC-project “The Individualisation of War: Reconfiguring the Ethics, Law and Politics of Armed Conflict”, conducted principally by Jennifer Welsh (EUI). It examines whether, where and under what conditions individuals possess “direct” rights under IHL, and whether concomitantly states (and potentially other actors in armed conflict, even individual combatants and civilians) owe direct duties (obligations) to individual human beings − besides or instead of being bound towards the other (state or non-state) party to the conflict. The chapter examines the doctrinal soundness (e.g. their coordination with applicable human rights), possible practical consequences, and the normative desirability of direct individual rights under IHL.
While the obligations of armed groups under IHL have received some attention, potential direct obligations (duties) of individuals under IHL are understudied. Would such individual duties be in doctrinal terms conceivable and in practical terms useful? Importantly, would they be in normative terms compatible with the rights (notably human rights) that the individual actors also possess?
As a whole, the contribution mainly deals with the primary level of international law, not with the secondary law of international responsibility. However, the very practical and politicised question of claims for compensation or other forms of reparation by individuals looms in the background. The legal strategy of some national courts to split the ownership of the rights on the primary and secondary level, and to reject individual claims for reparation, is unpersuasive at first sight and requires further scrutiny. Another matter is the enforceability of claims for reparation/compensation in international forums and domestic courts which are not the focus of this contribution but which are influenced by the findings on individual rights.
Jennifer Welsh (EUI); Dapo Akande (Oxford).
Anne Peters, Beyond Human Rights – The Legal Status of the Individual in International Law.
Translated by Jonathan Huston, revised and updated by the author, Cambridge University Press 2016, 602 p.
Anne Peters, Jenseits der Menschenrechte: Die Rechtsstellung des Individuums im Völkerrecht (Tübingen: Mohr Siebeck 2014).
English translation: Beyond Human Rights, Cambridge University Press 2016.
The argument of this study is that a paradigm change is occurring in the course of which human beings are becoming the primary international legal persons. This argument is unfolded against the background of historical concepts and doctrines about the status of the individual under international law. It is notably based on the practice in numerous areas of public international law, ranging from the law of international responsibility over the law of armed conflict, the law of humanitarian assistance, international criminal law, international environmental law, the law of consular relations and the law of diplomatic protection, international labour law, and refugee law, up to international investment law. In these fields, substantive rights and obligations of individuals arguably flow directly from international law, and in some instances procedural mechanisms for enforcing them exist. All this manifests an international legal personality of individuals which is based on customary law, which constitutes a general principle and which can be derived from the human right to legal personality. The emergence of “ordinary” international rights as opposed to human rights sharpens the so-far hardly perceptible normative hierarchy in international law. The novel legal status of humans in international law is captured with a concept borrowed from constitutional doctrine: international rights of the person, as opposed to international law protecting persons.
Anne Peters: Privacy, Rechtsstaatlichkeit, and the Legal Limits on Extraterritorial Surveillance. In: Privacy and Power - A Transatlantic Dialogue in the Shadow of the NSA-Affair, Russell A. Miller (Hrsg.). CUP, Cambridge 2017, 145-179.
Anne Peters, Simple international rights, global constitutionalism, and scholarly methods – A rejoinder to comments on “Beyond Human Rights”, 3 February 2016, Völkerrechtsblog.
Anne Peters, Corruption as a Violation of Human Rights.
Anne Peters, Der Mensch im Mittelpunkt des Völkerrechts, in: Rechtswege. Kontextsensible Rechtswissenschaft vor der transnationalen Herausforderung, Dieter Grimm, Alexandra Kemmerer, Christoph Möllers (Hrsg.). Recht im Kontext / Band 2. Nomos, Baden-Baden 2015, 63-77.
Anne Peters/Tilmann Altwicker, “§ 13: Die Verfahren beim EGMR“, in: Stefan Leible/Jörg Philipp Terhechte (ed.), Europäisches Rechtsschutz- und Verfahrensrecht (Enzyklopädie Europarecht Vol. 3, Baden-Baden: Nomos 2014), 403-429.
Anne Peters, Surveillance without Borders? The Unlawfulness of the NSA-Panopticon, EJIL Talk! Blog of the European Journal of International Law, 1. November 2013.
Anne Peters, Human Rights à la Chinoise: Impressions from the 6th Human Rights Forum in Beijing on the Eve of the Second UPR of China, EJIL Talk! Blog of the European Journal of International Law, 23. September 2013.
"Der internationale Menschenrechtsschutz im Gegenwind", presentation by Prof. Anne Peters at the lecture series "Studium Generale" of the University of Heidelberg, 26 June 2017.
"Korruption und Menschenrechte“, Inaugural Lecture by Prof. Anne Peters as Honorary Professor at the Law School of Heidelberg University, Aula der Alten Universität Heidelberg, 10 June 2015.