Position of Individual in International Law
Key Takeaways
- Individuals have an important but limited position in international law. Traditionally, States were treated as the principal subjects of international law, while individuals were largely regarded as objects whose interests were protected through their States.
- Modern international law recognises individuals as holders of international rights. International human rights law grants individuals rights relating to life, liberty, equality, fair trial, freedom of expression, religion and protection from discrimination, torture and other abuses.
- Individuals can also have direct obligations under international law. International criminal law imposes personal responsibility for serious international crimes such as genocide, crimes against humanity, war crimes and the crime of aggression where the applicable jurisdictional requirements are satisfied.
- The Nuremberg developments fundamentally changed the traditional approach. They established that individuals may be personally responsible for crimes under international law even when acting as government officials or under State authority.
- Individuals may, under certain international legal systems, directly approach international bodies. For example, Article 34 of the European Convention on Human Rights permits individuals, groups and non-governmental organisations claiming to be victims to make applications before the European Court of Human Rights, subject to admissibility requirements.
- Individuals do not possess the same international legal personality as States. Their rights, duties and capacity to act internationally depend upon treaties, customary international law and particular international legal regimes.
- The modern position is therefore that individuals are subjects of international law for specific purposes. Their international personality is generally described as limited or functional rather than equivalent to the full international personality enjoyed by States.
What Is the Position of Individuals in International Law?
The position of individuals in international law refers to the extent to which human beings possess rights, duties, responsibilities and legal capacity directly under international law.
The central question is whether an individual is merely an object whose interests are protected through States or whether an individual can independently be regarded as a subject of international law.
Add LawBhoomi as your preferred source on Google.
Classical international law was primarily concerned with relations between sovereign States. States entered into treaties, recognised governments, claimed territory, exercised diplomatic protection and incurred international responsibility. Individuals generally did not participate directly in these processes.
Modern international law is considerably different. Human rights treaties create rights for individuals, international criminal law imposes duties directly upon individuals and some international mechanisms permit individuals to present claims against States.
Therefore, individuals can no longer be regarded merely as objects of international law.
Who Is a Subject of International Law?
A subject of international law is generally an entity capable, to some extent, of possessing rights and obligations under international law and exercising legal capacities recognised by the international legal system.
Explore practical law courses to build career-ready legal skills.
International personality does not necessarily have to be identical for every subject.
This principle is reflected in the International Court of Justice’s advisory opinion in Reparation for Injuries Suffered in the Service of the United Nations (1949). Although the case concerned the international legal personality of the United Nations rather than individuals, the Court made an important general observation that subjects of law in a legal system need not be identical in their nature or in the extent of their rights. Their nature depends upon the needs of the community.
This observation helps explain the present position of individuals. A person does not need to possess all the powers of a sovereign State in order to possess international legal personality for particular purposes.
What Was the Traditional Position of Individuals in International Law?
Traditional international law was predominantly State-centred.
Under the classical approach, States were considered the principal, and according to some writers the only, subjects of international law. Individuals were treated mainly as objects of international law.
The distinction can be understood as follows:
- A subject possesses rights or obligations under the legal system and may have the capacity to exercise or enforce those rights within the limits recognised by that system.
- An object receives protection or is affected by the rules without necessarily possessing an independent capacity to enforce those rules.
Under the traditional approach, an injury suffered by an individual at the hands of another State was generally treated internationally through the individual’s State of nationality.
For example, if a national of State A was unlawfully treated by State B, the individual ordinarily could not independently bring an international claim against State B. State A could exercise diplomatic protection and take up the claim at the international level.
Join live law courses and learn directly from legal professionals.
Therefore, the international claim formally belonged to the State even though the factual injury might have been suffered by the individual.
This approach reflected the structure of classical international law, which was mainly concerned with legal relations among sovereign States rather than direct relations between States and individuals.
What Are the Main Theories Regarding the Position of Individuals?
Different theories have developed regarding whether individuals are subjects of international law.
Object Theory
The traditional or object theory treats States as the real subjects of international law.
According to this view, international law regulates relations between States. Any benefit received by an individual under an international rule operates through the State rather than directly in favour of the individual as an international legal person.
This theory had greater relevance when international law contained relatively few mechanisms through which individuals could independently assert rights.
Its explanatory value has considerably declined with the development of human rights law and international criminal law.
Subject Theory
A broader theory recognises individuals as subjects of international law because international law can confer rights and impose duties directly upon human beings.
This approach gained considerable strength during the twentieth century.
Discover the latest legal jobs and career openings.
If international law can make an individual criminally responsible for an international crime or expressly grant a person a right capable of being invoked under an international mechanism, it becomes difficult to maintain that the person is merely an object of the legal system.
Limited or Functional Personality Theory
The most convincing modern position lies between the two extremes.
Individuals are subjects of international law, but their international legal personality is limited and functional.
States retain much broader legal capacities. They can conclude treaties, establish diplomatic relations, claim sovereign rights over territory, become members of many international organisations and invoke international responsibility in circumstances unavailable to ordinary individuals.
Individuals, on the other hand, possess international rights, obligations and procedural capacities only to the extent recognised by relevant legal rules.
Thus, international personality exists in different degrees.
How Did the Position of Individuals Change After the World Wars?
The twentieth century witnessed a major transformation in the status of individuals under international law.
The experience of the two World Wars demonstrated that international law could not effectively protect humanity if it concerned itself exclusively with the conduct and responsibility of States.
Two developments became particularly important:
- the emergence of international criminal responsibility of individuals; and
- the rapid development of international human rights law.
These developments weakened the traditional view that only States could possess international rights and duties.
How Did the Nuremberg Principles Change the Status of Individuals?
The Nuremberg trials following the Second World War were a landmark development in international criminal law.
The underlying principle was that international crimes may be committed by human beings and that responsibility cannot always be avoided merely because the wrongful conduct was carried out through State machinery.
The International Law Commission formulated the Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal in 1950. Principle I states that a person who commits an act constituting a crime under international law is responsible and liable to punishment.
The Nuremberg Principles further recognised important propositions:
- Domestic law does not automatically remove responsibility for conduct amounting to an international crime.
- Being a Head of State or responsible government official does not by itself remove responsibility under international criminal law.
- Acting pursuant to orders of a government or superior does not automatically eliminate responsibility where a moral choice was possible.
- A person charged with an international crime is entitled to a fair trial.
These principles were important because they strengthened the proposition that international law may impose obligations directly upon individuals rather than operating exclusively through States.
What Rights Do Individuals Have Under International Law?
Modern international law recognises a wide range of rights belonging to individuals.
The most important development has occurred through international human rights law.
Civil and Political Rights
International instruments recognise rights relating to matters such as:
- life and personal liberty;
- protection against arbitrary detention;
- protection against torture and cruel, inhuman or degrading treatment;
- equality before the law;
- fair trial and procedural safeguards;
- privacy and family life;
- freedom of thought, conscience and religion;
- freedom of expression;
- peaceful assembly and association; and
- political participation where applicable.
The International Covenant on Civil and Political Rights places obligations upon States Parties to respect and ensure the rights recognised under the Covenant.
These rights illustrate the shift from a purely State-centred system towards an international legal framework in which individuals themselves are the beneficiaries of substantive legal protections.
Economic, Social and Cultural Rights
Individuals also benefit from international protection concerning economic, social and cultural rights.
The International Covenant on Economic, Social and Cultural Rights addresses rights connected with areas such as work, social security, adequate living conditions, health, education and cultural participation.
The Covenant requires States Parties to take steps towards the progressive realisation of recognised rights using appropriate means and, in general, to ensure their enjoyment without prohibited discrimination.
Together with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, it forms an important part of the modern international human rights framework.
Rights Under Specialised Treaties
Specific treaties provide protection against particular forms of harm or protect particular groups.
International law contains legal frameworks relating to matters such as racial discrimination, discrimination against women, torture, children’s rights, enforced disappearance and rights of persons with disabilities.
These instruments further strengthen the position of individuals as beneficiaries and, in appropriate systems, holders of internationally recognised rights.
Can Individuals Enforce Rights at the International Level?
In some legal regimes, individuals can directly invoke international procedures.
This is one of the clearest indications that modern international law grants at least limited procedural personality to individuals.
European Convention on Human Rights
Article 34 of the European Convention on Human Rights allows the European Court of Human Rights to receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of Convention rights by a High Contracting Party.
The right of individual application gives individuals a procedural capacity at the international level that was largely absent under classical international law.
However, this right is subject to requirements, including admissibility conditions and, generally, exhaustion of domestic remedies.
UN Treaty Body Procedures
Certain United Nations human rights treaties and optional protocols also establish procedures under which individuals may submit communications concerning alleged violations by States that have accepted the relevant procedure.
For example, the Human Rights Committee considers individual communications under the Optional Protocol to the International Covenant on Civil and Political Rights.
Such mechanisms demonstrate that the traditional rule requiring every international claim to be channelled exclusively through a State is no longer universal.
What Did the ICJ Hold in the LaGrand Case?
The LaGrand (Germany v United States of America) judgment of 2001 is particularly significant when discussing individual rights under international law.
The dispute arose after two German nationals, Karl and Walter LaGrand, were detained in the United States without being informed of their rights relating to consular notification under Article 36 of the Vienna Convention on Consular Relations.
The International Court of Justice held that the United States had violated its obligations towards Germany and also recognised that Article 36, paragraph 1, created individual rights for the LaGrand brothers which Germany was entitled to invoke before the Court.
The case is significant because it confirms that rights arising from an international treaty may, depending upon the treaty, belong directly to individuals rather than merely creating obligations between States.
This development must be understood within the broader law of treaties in international law, under which treaties are capable of establishing binding international obligations and may, depending on their wording and object, recognise rights concerning individuals.
What Duties Do Individuals Have Under International Law?
The position of individuals is not limited to receiving rights. International law can also impose obligations directly upon them.
The clearest example arises under international criminal law.
Individuals may incur criminal responsibility for serious international crimes, irrespective of the fact that international law continues to impose separate responsibilities upon States.
This means that the same general situation may involve:
- international responsibility of a State; and
- individual criminal responsibility of particular persons.
These forms of responsibility are legally distinct.
What Is Individual Criminal Responsibility Under International Law?
Individual criminal responsibility means that a natural person may be personally responsible for conduct constituting an international crime.
The Rome Statute of the International Criminal Court provides a prominent contemporary example.
Article 25 states that the International Criminal Court has jurisdiction over natural persons under the Statute and that a person who commits a crime within the Court’s jurisdiction may be individually responsible and liable to punishment in accordance with the Statute.
The Rome Statute provides the ICC with jurisdiction over genocide, crimes against humanity, war crimes and, subject to the Statute’s jurisdictional framework, the crime of aggression.
Responsibility may arise through forms of participation recognised by the Statute, including committing qualifying crimes and, in relevant circumstances, ordering, soliciting, inducing, assisting or otherwise participating in their commission.
This framework clearly establishes that international law can operate directly upon individuals without treating the State as the sole bearer of legal responsibility.
Are Heads of State and Government Officials Above International Criminal Law?
Official position does not automatically eliminate individual responsibility for international crimes.
The Nuremberg Principles recognised that acting as a Head of State or responsible government official does not, merely by itself, relieve a person from responsibility under international law.
Modern international criminal law has further developed rules concerning official capacity. The precise operation of immunity, jurisdiction and responsibility may depend upon the tribunal involved, the relevant treaty, customary international law and the procedural context.
Therefore, the broad proposition is not that all immunity disappears in every forum. Rather, holding public office does not place an individual entirely outside the reach of international criminal responsibility.
Are Individuals Equal to States as Subjects of International Law?
No. Recognising individuals as subjects of international law does not make their legal status equivalent to that of States.
States continue to possess the most extensive international legal personality.
A State may generally possess capacities relating to:
- treaty-making;
- territorial sovereignty;
- diplomatic and consular relations;
- international claims;
- membership of international organisations;
- recognition of other States and governments;
- international responsibility; and
- participation in international dispute settlement where jurisdiction exists.
Individuals possess much narrower capacities.
They generally cannot conclude international treaties as sovereign parties, establish diplomatic relations or exercise territorial sovereignty.
Their legal capacity depends upon particular rules granting rights, imposing duties or providing access to procedures.
This difference is consistent with the principle that subjects of international law need not possess identical rights or capacities.
What Are the Limitations on the International Legal Personality of Individuals?
Although the modern position of individuals has significantly expanded, several limitations remain.
Limited Treaty-Making Capacity
Individuals generally do not possess treaty-making powers comparable to States. International treaties are primarily concluded among States and, in appropriate cases, international organisations.
The recognised sources of international law, including treaties, customary international law and general principles of law, determine the legal rules under which individual rights and duties may arise.
Limited Access to International Courts
There is no universal rule giving every individual a general right to bring a case before every international court.
For example, individuals do not ordinarily appear as parties before the International Court of Justice because contentious cases before that Court are between States.
Other systems, however, may expressly permit individual petitions.
Dependence on Specific Legal Frameworks
The rights and procedural capacities of individuals often depend on whether the relevant State is bound by a particular treaty or has accepted an individual complaints mechanism.
Therefore, individual access is not uniform throughout international law.
States Remain the Principal International Actors
Despite the expansion of individual rights and obligations, States continue to create a substantial part of international law, conclude treaties, establish international institutions and implement many international rules through domestic legal systems.
The rise of the individual has therefore supplemented rather than displaced the central role of States.
What Is the Present Position of Individuals in International Law?
The present position can be summarised by rejecting both extreme approaches.
It is no longer accurate to say that individuals are merely objects of international law. Modern international law directly grants individuals rights, directly imposes certain duties upon them and sometimes permits them to invoke international procedures.
At the same time, individuals do not possess the same degree of international personality as States.
Their position is therefore best described as that of limited or functional subjects of international law.
The extent of that personality varies according to the relevant field.
| Aspect | Position of Individual |
| Human rights | Individuals possess internationally recognised rights |
| International criminal law | Individuals may incur direct criminal responsibility |
| International claims | Direct access exists only under particular systems |
| Treaty-making | Individuals generally lack sovereign treaty-making capacity |
| International courts | Access depends upon the jurisdiction and governing instrument |
| Diplomatic relations | Individuals do not independently exercise diplomatic powers |
| International legal personality | Recognised, but limited and functional |
Conclusion
The position of individuals in international law has undergone a major transformation. Classical international law largely viewed individuals through the legal personality of States. States were considered the principal subjects of international law, while individuals generally depended upon their national States for protection at the international level.
Modern international law has considerably altered this position. Human rights law recognises international rights belonging to individuals, while international criminal law places direct obligations upon persons and may hold them personally responsible for serious international crimes.
However, individuals do not enjoy international personality equal to that of States. Their rights, duties and procedural powers depend upon particular legal rules and institutions. The most accurate modern position is therefore that individuals are subjects of international law with limited and functional international legal personality.
Note: This article was originally written by Kritika Oberoi and published on 05 June 2020. It was subsequently updated by the LawBhoomi team on 06 October 2026.
Join LawBhoomi’s 100K+ Community
