OUVRAGE : A. Peters, Beyond Human Rights: The Legal Status of the Individual in International Law

Anne PETERS

A paradigm change is occurring, in the course of which human beings are becoming the primary international legal persons. In numerous areas of public international law, substantive rights and obligations of individuals arguably flow directly from international law. The novel legal status of humans in international law is now captured with a concept borrowed from constitutional doctrine: international rights of the person, as opposed to international law protecting persons. Combining doctrinal analysis with current practice, this book is the most comprehensive contemporary analysis of the legal status of the individual. Beyond Human Rights, previously published in German and now revised by the author in this English edition, not only deals with the individual in international humanitarian law, international criminal law and international investment law, but it also covers fields such as consular law, environmental law, protection of individuals against acts of violence and natural disasters, refugee law and labour law.


TABLE OF CONTENTS

Preface to the German Edition of 2014
Preface to the English Edition
List of Abbreviations
Table of Cases 

1. Definition of the Question

1.1. Individualization of International Law?
1.2. Backlash in the Age of BRICSs?
1.3. The Legal Acquis Individuel: Structure of the Book
1.4. Scope of Investigation: “The Individual”

2. Historical Theory and Practice of the International Legal Status of the Individual

2.1. History of Ideas
2.2. Historical Legal Practice
2.3. Conclusion

3. The Doctrine of the International Legal Personality of the Human Being

3.1. Basic Terminology: International Legal Subject and International Legal Person
3.2. Traditional Classification of International Legal Subjects: The State and Everyone Else
3.3. Decoupling Substantive and Procedural Individual Rights under International Law
3.4. Legal Capacity and the Power to Create Law
3.5. Individualism, Monism, and Dualism
3.6. Conclusion

4. International Individual Obligations

4.1. Definition of the Problem
4.2. Basic Categories
4.3. Partially Corresponding Individual Claims
4.4. The Normal Case of Merely Indirect Imposition of Obligations upon Individuals through State Duties of Protection
4.5. Direct International Individual Obligations as an Exceptional Case
4.6. The Need to Close Regulatory Gaps as a Reason for and Limit to Direct International Individual Obligations
4.7. Further Limitation of Individual Rights by the Transnationalized Principle of Legality
4.8. Legal Bases of Specific Individual Obligations
4.9. Individual Obligation to Observe International Human Rights?
4.10. No “Fundamental Duties” of Individuals under International Law
4.11. Conclusion

5. The International Responsibility of the Individual

5.1. Foundations
5.2. The International Criminal Responsibility of Individuals
5.3. The International Non-criminal Responsibility of the Individual
5.4. Conclusion

6. Individual Rights Arising from International Responsibility

6.1. Definition of the Problem
6.2. Law of International (State) Responsibility
6.3. Human Rights and International Humanitarian Law: Remedy and Reparation
6.4. Rationale and Necessity of Individual Rights Arising from International Responsibility
6.5. Conclusion

7. Individual Rights and Duties in the Law of Armed Conflict

7.1. Individual Rights at the Primary Level
7.2. Secondary Rights of Individuals de lege lata
7.3. Secondary Claims of Individuals de lege ferenda
7.4. Ownership of Claims and Waiver
7.5. Individual Enforcement of Secondary Claims in the Law of Armed Conflict
7.6. Individual Obligations in the Law of Armed Conflict
7.7. Conclusions

8. Protection against Acts of Violence and Forces of Nature

8.1. Definition of the Problem
8.2. Obligations Arising from the Responsibility to Protect (R2P)
8.3. Obligations to Protect in the Event of Natural Disasters
8.4. Appraisal
8.5. Conclusion

9. The International Legal Status of Victims of Crime

9.1. The Duty to Prosecute and Punish
9.2. The Legal Status of Victims in International Criminal Proceedings
9.3. No Privatization of the Right of Punishment

10. Rights and Duties in Investment Protection Law

10.1. Definition of the Problem
10.2. The Procedural Right of Investors under International Law: Power to Institute Arbitration Proceedings
10.3. Substantive Rights of Investors Arising from Contracts (Contract Claims)
10.4. Rights Arising from Inter-State Investment Protection Treaties: The “Direct”/“Derivative” Rights Debate
10.5. Investor Rights Are Not Human Rights
10.6. Practical Consequences of Individual Rights (“Direct Rights”) Arising from Treaties
10.7. Secondary Claims of the Investor under International Law
10.8. Obligations of Investors under International Law
10.9. Conclusion

11. Individual Rights in Consular Law

11.1. The Right to Consular Contact
11.2. Rights of Detained Foreigners
11.3. The Quality of Individual Rights Arising from Article 36 of VCCR
11.4. Enforcement of the Individual Right
11.5. Legal Consequences of the VCCR Violation, Especially in Criminal Proceedings
11.6. Conclusion

12. Individual Rights in Diplomatic Protection

12.1. Foundations and Definition of the Question
12.2. Rights against the Injuring State: The End of the Vattelian Fiction
12.3. International Right to Diplomatic Protection vis-à-vis the Home State?
12.4. Conclusion

13. The Legal Basis for the International Legal Personality of the Individual and the Question of its Independence from the State

13.1. States as Overlords?
13.2. International Legal Personality Independent of the State?
13.3. Treaty Basis
13.4. Customary International Law
13.5. General Principle of Law
13.6. Natural Law
13.7. Human Right
13.8. Conclusion

14. Human Rights and Other Rights

14.1. Two Groups of International Individual Rights
14.2. Possibility of a Distinction
14.3. Desirability of the Distinction: Against the Trivialization of Human Rights
14.4. Consequences of the Distinction
14.5. Superposition of Human Rights and New Orientation of a Regime: The Example of Refugee Law
14.6. Divergences and Tensions between Simple Rights and Human Rights: The Example of International Labour Law
14.7. A Practical Conception of Human Rights

15. The Individualized Enforcement of International Law

15.1. Individuals as Guardians of the International Legal Order
15.2. Addressees of International Individual Rights
15.3. The Enforcement of International Individual Rights
15.4. International Individual Rights as the Foundation of the Emerging International Guarantee of Access to Justice

16. Direct Effect of Norms Establishing Individual Rights and Duties

16.1. Definition of the Problem
16.2. Terms and Distinctions
16.3. Direct Effect and the Substantive International Legal Status of the Individual
16.4. Traditional Criteria of Direct Effect
16.5. The Direct Effect of Secondary Law
16.6. Rejection of Direct Effect as a Mechanism of Legitimacy
16.7. Direct Effect as the Normal Case
16.8. Conclusion

17. The International Individual Right

17.1. Rights as a Paradigm of Modernity
17.2. The Postmodern Critique of Rights
17.3. The Lack of Global Citizenship
17.4. The Global Bourgeois

Bibliography
Index

Anne PETERS, Beyond Human Rights: The Legal Status of the Individual in International Law, Cambridge, Cambridge University Press, 2016 (644 pp.)