Individual Rights and Needs under International Law

Under which conditions does the international law of armed conflict (or: international humanitarian law, IHL) generate individual rights, and against whom? These primary rights are distinct from secondary rights which may accrue from a relationship of responsibility between violator and victim in the event of a breach of a primary norm of IHL (the most relevant and controversial “secondary” right being a right to reparation, notably in form of monetary compensation).
 

Various provisions of IHL speak of rights of individuals on the primary level. Such rights seem to be bolstered by the drafting history and the trend of “humanisation” of IHL. But views differ on the appropriate regulatory technique for achieving effective protection of humans in war. Against a focus on duties, it is argued that IHL encompasses direct rights. Such a reading has symbolic and practical consequences, notably for remedies, reparation, and waiver. A follow-up question is against whom the IHL-based rights are opposable, who are the duty bearers. The recognition of IHL-based rights is helpful for steering IHL between the two evils of overextended human rights thinking and a static and paternalist fixation on states.

For publication in:
Dapo Akande, David Rodin, and Jennifer Welsh (eds), "The Individualisation of War: Implications for the Ethics", Law and Politics of Armed Conflict (Oxford University Press, forthcoming).
 

Related publication:
Anne Peters, “Rights to Reparation as a Consequence of Direct Rights under International Humanitarian Law”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht/Heidelberg Journal of International Law 78 (2018), 545-549.

States perceived to be highly corrupt are at the same time those with a poor human rights record. International institutions have therefore assumed a negative feedback loop between both social harms. They deplore that corruption undermines the enjoyment of human rights, and concomitantly employ human rights as a normative framework to denounce and combat corruption. But that human rights-based approach has been criticized as vague and over-reaching.

Addressing this controversy, the project seeks to examine the legal quality of the link between corruption and human rights more closely. It specifically asks the dual question whether and under what conditions corrupt acts or omissions can technically be qualified as an actual violation of international human rights (doctrinal analysis), and whether corruption should be conceptualised as a human rights violation (normative analysis). The answer is that such a reconceptualization is legally sound as a matter of positive analysis although very difficult doctrinal problems arise. The normative assessment is ambivalent, but the practical benefits of the conceptualization seem to outweigh the risks of reinforcing the anti-Western scepticism towards the fight against corruption and of overblowing human rights. The framing of corruption not only as a human right issue but as a potential human rights violation can contribute to closing the implementation gap of the international anti-corruption instruments and can usefully complement the predominant criminal law-based approach.

Publications:
Anne Peters, “Corruption as a Violation of International Human Rights“, European Journal of International Law 29 (2018), 1251-1287.

Anne Peters, “The Human Rights-based Approach to Combating Corruption: An Improper Rights Overreach?”, Bonavero Institute of Human Rights, Oxford, 11 February 2020.

The UN Agenda 2030 (adopted in 2015) is a marker for a new era of international law, an era of globalisation fatigue. Critique against the political and economic liberalism or even neo-liberalism of the international legal order and the neglect of the social (welfare) dimension in international legal regimes, procedures, and institutions is getting louder. The project examines various trends which point towards the emergence of a “more social” international law: The international anti-poverty regime, new standard procedures such as social impact assessments, and the rise of social rights. The common feature of these new or strengthened legal concepts, legal subfields, and procedures is the acknowledgment of a cross-border responsibility for the welfare of individuals.

The project assesses these trends through the lens of global constitutionalism. By absorbing the social question, global constitutionalism can mitigate its neo-liberal tilt, and would be rescued from being reduced to a project to deepen the power of capital and to extend a market civilization in which the transnational investor is the principal political subject.

Publications and Presentations:

Anne Peters, “Global Constitutionalism: The Social Dimension”, presentation at the Edinburgh Centre for International and Global Law, Edinburgh, 13 February 2020. Presentation

Anne Peters, “Global Constitutionalism: The Social Dimension”, in: Takao Suami/Anne Peters/Dimitri Vanoverbeke/Mattias Kumm (eds), Global Constitutionalism from European and East Asian Perspectives (Cambridge: Cambridge University Press 2018), 277-350.

Of possible further interest the project: Global Constitutionalism and Global Challenges

Further Publications

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.

Chapter Abstracts

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/ Tilmann Altwicker, “Kapitel 21: Das Diskriminierungsverbot“ [comparative commentary of article 14 ECHR/article 3 para. 2 and 3 German Constitution], in: Oliver Dörr/Rainer Grote/Thilo Marauhn (eds), Konkordanzkommentar EMRK/GG, Vol. II (Tübingen: Mohr Siebeck 3nd ed. (in preparation).

Anne Peters/ Tilmann Altwicker, “§ 13: Die Verfahren beim EGMR”, in: Stefan Leible/Jörg Philipp Terhechte (eds), Europäisches Rechtsschutz- und Verfahrensrecht (Enzyklopädie Europarecht Vol. 3, Baden-Baden: Nomos 2d ed.), 403-429.

Katja Gelinsky, Mensch im Völkerrecht: Auf dem Weg zum globalen citoyen?, Frankfurter Allgemeine Zeitung, 17 May 2013, 7.