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 BEYOND HUMAN RIGHTS

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.

anne peters is Director at the Max Planck Institute for Comparative

Public Law and International Law Heidelberg (Germany), and a professor
at the Universities of Heidelberg, Freie Universität Berlin, and Basel
(Switzerland). She has been a member of the European Commission for
Democracy through Law (Venice Commission) in respect of Germany
(2011–2015) and served as the President of the European Society of
International Law (2010–2012). Her current research interests relate to
public international law, including its history, global animal law, global
governance and global constitutionalism, and the status of humans in
international law.
 cambridge studies in international and
comparative law
Established in 1946, this series produces high-quality, reflective, and
innovative scholarship in the field of public international law.
It publishes works on international law that are of a theoretical, historical,
cross-disciplinary, or doctrinal nature. The series also welcomes books
providing insights into private international law, comparative law, and
transnational studies which inform international legal thought and prac-
tice more generally.
The series seeks to publish views from diverse legal traditions and
perspectives, as well as of any geographical origin. In this respect, it invites
studies offering regional perspectives on core problématiques of interna-
tional law, and in the same vein, it appreciates contrasts and debates
between diverging approaches. Accordingly, books offering new or less
orthodox perspectives are very much welcome. Works of a generalist
character are greatly valued, and the series is also open to studies on
specific areas, institutions, or problems. Translations of the most out-
standing works published in other languages are also considered.
After 70 years, Cambridge Studies in International and Comparative
Law remains the standard-setter for international legal scholarship and
will continue to define the discipline as it evolves in the years to come.
General Editors
Larissa van den Herik
Professor of Public International Law, Law School, Leiden University
Jean D’Aspremont
Professor of Public International Law, Manchester International Law
Centre, University of Manchester

A list of books in the series can be found at the end of this volume.
BEYOND HUMAN RIGHTS
The Legal Status of the Individual
in International Law

ANNE PETERS
Max Planck Institute for Comparative Public Law and
International Law Heidelberg, Germany

TRANSLATED BY JONATHAN HUSTON

Revised and updated by the author
 University Printing House, Cambridge CB2 8BS, United Kingdom

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107164307
© Anne Peters 2016
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
Previously published in German by Mohr Siebeck, 2014.
First published in English 2016
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Peters, Anne, 1964– author.
Beyond human rights : the legal status of the individual in
international law / Anne Peters.
Cambridge [UK] ; New York : Cambridge University Press, 2016. |
Series: Cambridge studies in international and comparative law ; 126
LCCN 2016028961 | ISBN 9781107164307 (hardback)
LCSH: Human rights. | Civil rights. | BISAC: LAW / International.
LCC K3240 .P48 2016 | DDC 341.4/8–dc23
LC record available at https://lccn.loc.gov/2016028961
ISBN 978-1-107-16430-7 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such Web sites is, or will remain,
accurate or appropriate.
 CONTENTS

Preface to the German Edition of 2014 page xi

Preface to the English Edition xiii
List of Abbreviations xv
Table of Cases xx

1 Definition of the Question 1

1.1 Individualization of International Law? 1
1.2 Backlash in the Age of BRICSs? 3
1.3 The Legal Acquis Individuel: Structure of the Book 7
1.4 Scope of Investigation: “The Individual” 9

2 Historical Theory and Practice of the International Legal

Status of the Individual 11
2.1 History of Ideas 11
2.2 Historical Legal Practice 25
2.3 Conclusion 33

3 The Doctrine of the International Legal Personality of the

Human Being 35
3.1 Basic Terminology: International Legal Subject and International
Legal Person 35
3.2 Traditional Classification of International Legal Subjects: The State
and Everyone Else 42
3.3 Decoupling Substantive and Procedural Individual Rights under
International Law 44
3.4 Legal Capacity and the Power to Create Law 50
3.5 Individualism, Monism, and Dualism 54
3.6 Conclusion 58

4 International Individual Obligations 60

4.1 Definition of the Problem 60
4.2 Basic Categories 62

v
vi c o n t en t s
4.3 Partially Corresponding Individual Claims 66
4.4 The Normal Case of Merely Indirect Imposition of Obligations
upon Individuals through State Duties
of Protection 67
4.5 Direct International Individual Obligations as an Exceptional
Case 71
4.6 The Need to Close Regulatory Gaps as a Reason for and Limit to
Direct International Individual Obligations 76
4.7 Further Limitation of Individual Rights by the Transnationalized
Principle of Legality 79
4.8 Legal Bases of Specific Individual Obligations 85
4.9 Individual Obligation to Observe International Human
Rights? 99
4.10 No “Fundamental Duties” of Individuals under International
Law 110
4.11 Conclusion 113

5 The International Responsibility of the Individual 115

5.1 Foundations 115
5.2 The International Criminal Responsibility of Individuals 117
5.3 The International Non-criminal Responsibility of the
Individual 152
5.4 Conclusion 164

6 Individual Rights Arising from International

Responsibility 167
6.1 Definition of the Problem 167
6.2 Law of International (State) Responsibility 170
6.3 Human Rights and International Humanitarian Law: Remedy and
Reparation 175
6.4 Rationale and Necessity of Individual Rights Arising from
International Responsibility 189
6.5 Conclusion 192

7 Individual Rights and Duties in the Law of Armed

Conflict 194
7.1 Individual Rights at the Primary Level 194
7.2 Secondary Rights of Individuals de lege lata 202
7.3 Secondary Claims of Individuals de lege ferenda 210
7.4 Ownership of Claims and Waiver 213
 c o n te n t s vii
7.5 Individual Enforcement of Secondary Claims in the Law of Armed
Conflict 216
7.6 Individual Obligations in the Law of Armed Conflict 220
7.7 Conclusions 231

8 Protection against Acts of Violence and Forces of

Nature 233
8.1 Definition of the Problem 233
8.2 Obligations Arising from the Responsibility to Protect
(R2P) 236
8.3 Obligations to Protect in the Event of Natural Disasters 240
8.4 Appraisal 246
8.5 Conclusion 253

9 The International Legal Status of Victims of Crime 255

9.1 The Duty to Prosecute and Punish 255
9.2 The Legal Status of Victims in International Criminal
Proceedings 269
9.3 No Privatization of the Right of Punishment 276

10 Rights and Duties in Investment Protection Law 282

10.1 Definition of the Problem 282
10.2 The Procedural Right of Investors under International Law: Power
to Institute Arbitration Proceedings 285
10.3 Substantive Rights of Investors Arising from Contracts (Contract
Claims) 293
10.4 Rights Arising from Inter-State Investment Protection Treaties:
The “Direct”/“Derivative” Rights Debate 301
10.5 Investor Rights Are Not Human Rights 318
10.6 Practical Consequences of Individual Rights (“Direct Rights”)
Arising from Treaties 321
10.7 Secondary Claims of the Investor under International Law 331
10.8 Obligations of Investors under International Law 339
10.9 Conclusion 346

11 Individual Rights in Consular Law 348

11.1 The Right to Consular Contact 349
11.2 Rights of Detained Foreigners 350
11.3 The Quality of Individual Rights Arising from Article 36 of
VCCR 356
11.4 Enforcement of the Individual Right 365
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viii co ntents
11.5 Legal Consequences of the VCCR Violation, Especially in Criminal
Proceedings 368
11.6 Conclusion 385

12 Individual Rights in Diplomatic Protection 388

12.1 Foundations and Definition of the Question 388
12.2 Rights against the Injuring State: The End of the Vattelian
Fiction 389
12.3 International Right to Diplomatic Protection vis-à-vis the Home
State? 396
12.4 Conclusion 405

13 The Legal Basis for the International Legal Personality of

the Individual and the Question of its Independence from
the State 408
13.1 States as Overlords? 408
13.2 International Legal Personality Independent of the State? 412
13.3 Treaty Basis 413
13.4 Customary International Law 419
13.5 General Principle of Law 421
13.6 Natural Law 428
13.7 Human Right 430
13.8 Conclusion 431

14 Human Rights and Other Rights 436

14.1 Two Groups of International Individual Rights 436
14.2 Possibility of a Distinction 438
14.3 Desirability of the Distinction: Against the Trivialization of Human
Rights 443
14.4 Consequences of the Distinction 447
14.5 Superposition of Human Rights and New Orientation of a Regime:
The Example of Refugee Law 450
14.6 Divergences and Tensions between Simple Rights and Human
Rights: The Example of International Labour Law 457
14.7 A Practical Conception of Human Rights 469

15 The Individualized Enforcement of International

Law 472
15.1 Individuals as Guardians of the International Legal Order 472
15.2 Addressees of International Individual Rights 474
 c o n te n t s ix
15.3 The Enforcement of International Individual Rights 479
15.4 International Individual Rights as the Foundation of the Emerging
International Guarantee of Access to Justice 492

16 Direct Effect of Norms Establishing Individual Rights and

Duties 495
16.1 Definition of the Problem 495
16.2 Terms and Distinctions 496
16.3 Direct Effect and the Substantive International Legal Status of the
Individual 501
16.4 Traditional Criteria of Direct Effect 504
16.5 The Direct Effect of Secondary Law 507
16.6 Rejection of Direct Effect as a Mechanism of Legitimacy 514
16.7 Direct Effect as the Normal Case 519
16.8 Conclusion 523

17 The International Individual Right 526

17.1 Rights as a Paradigm of Modernity 527
17.2 The Postmodern Critique of Rights 530
17.3 The Lack of Global Citizenship 544
17.4 The Global Bourgeois 551

Bibliography 556
Index 591
 PREFACE TO THE GERMAN EDITION OF 2014

The topic of this book has concerned me for more than ten years.
In December 2000, I held my trial lecture in Basel on the LaGrand case,
which had not yet been decided by the International Court of Justice.
I delivered my inaugural lecture – entitled “The Rise of the Individual in
International Law” – in November 2002, which was attended by friends,
colleagues, and supporters (not least of all Jost Delbrück and his wife
Gesa). I have learned quite a bit more since then. But this is not the only
reason I am happy that I never published that inaugural lecture. Far more
important is that over the course of the past decade, the international
legal position of the individual has become dramatically stronger.
Intensive judicial and codification activity has set out and determined
more and more individual rights and duties. This phenomenon has not
only quantitative but also qualitative significance. A paradigm shift,
which has been called the humanization of international law, has taken
place. The basic thesis of this book – namely that the individual is an
original (and not only a derivative) subject of international law and the
owner of international individual rights – aims to give this topos of
humanization a doctrinal and empirical legal foundation.
Chapters 1–3 and 17 began with the study “Das subjektive interna-
tionale Recht”, which was published in Jahrbuch des öffentlichen Rechts
der Gegenwart (59 (2011), 411–456); however, I have substantially
further developed and modified my findings. I would like to thank the
publisher for the kind permission to reuse these parts. Shorter remarks
on the international legal position of the individual as the most impor-
tant member of the international constitutional community can be
found in my Chapter 5 of The Constitutionalization of International
Law (Oxford: Oxford University Press 2009 (rev. ed. 2011), 157–179),
the book being co-authored with Jan Klabbers and Geir Ulfstein.
Sections from a preliminary version of Chapter 11 have been included
in an article I wrote together with my Basel colleague, Sabine Gless

xi
xii preface t o t he german edition of 2014

(Verwertungsverbot bei Verletzung der Pflicht zur Belehrung nach Art.

36 WÜK? Der Strafverteidiger 31 (2011), 369–377).
Generations of research assistants, first and foremost Liliane Probst,
retrieved the literature and documents for this study. For special research
and constructive criticism of my drafts, I would like to thank Thore
Neumann and Simone Peter. Ralf Alleweldt, Sigrid Boysen, Tillmann
Rudolf Braun, Oliver Dörr, Sabine Gless, Tatjana Hörnle, Markus
Krajewski, Christoph Schreuer, and Antje von Ungern-Sternberg criti-
cally reviewed parts of the manuscript and provided valuable feedback.
Birgit Bürgy, Henriette Beisel-Welti, and Margit Dagli helped proofread.
Jannika Jahn compiled the Index and Table of Cases. The intellectual and
elegant surroundings of the Berlin Institute for Advanced Study offered
the perfect home for finalizing the book. Only thanks to the freedom it
offered from all everyday concerns, teaching, and university administra-
tion – and not least of all with the help of the phenomenal library service –
was I at last able to complete this manuscript. Finally, I would like to
thank the publishers of Jus Internationale et Europaeum, Thilo Marauhn
and Christian Walter, for including me in their publication series.
The help I received from my assistant Claudia Jeker is so wide-ranging
and important that a simple thank you does not suffice.
I dedicate this book to Heiner, Charlotte, and Johannes.
 PREFACE TO THE ENGLISH EDITION

Since the finalization of the German edition in 2013, the international

political and legal system has been changing. The trend of “humaniza-
tion” of international law (Chapter 1) may have slowed down or stopped,
while State sovereignty may have become more important again. This
may have to do with the recognition that strong and well-functioning
States are needed to protect human rights, that the basic “Westphalian”
principles such as territorial integrity and the prohibition on the use of
force have been violated and thus need to be re-emphasized, and that
non-Western States and cultures which have their own views on the
meaning of human rights are in economic and political terms on the rise.
For the English edition, I tried to accommodate these changes and
challenges, notably in Chapters 1 and 17. At other places, I clarified some
passages and inserted new literature and case law. In particular,
I thoroughly revised Chapter 8 on the responsibility to protect, and on
protection of persons in the event of disaster in order to accommodate
the final articles of the ILC on the latter topic, and a certain sobering
about R2P. I also quite intensely revised Chapter 10 on rights and duties
of investors so as to reflect the rising concern about the imbalance of the
regime. In Chapter 14 on human rights and other rights, I was able to
refine my thoughts on refugee rights and on labour rights. I added
a section on the postmodern critique of rights in Chapter 17. These
revisions not only seek to incorporate the current evolution of the
relevant law, but are also owed to reviewers’ comments on my English
draft manuscript, to important comments by Giulio Bartolini and
Tommaso Natoli on Chapter 8, and to lucid observations by Evelyne
Lagrange, Julie Maupin, Dalia Palombo, and the participants of my Max
Planck research seminar on Chapter 10. I have further benefited from
comments by Alessandro Bufalini on reparations in Chapter 6, by John
Quigley on consular protection in Chapter 11, by Franz Ebert on labour
rights in Chapter 14, and by James Hathaway on refugee rights in the
same Chapter.
xiii
xiv p r e f a c e to th e e n g l i s h e d i t i o n

Thanks to generous funding of the Max Planck Society I was able to

recruit a brilliant translator, Dr Jonathan Huston. It proved to be
a challenge to find the adequate expressions for doctrinal constructs
originating from German legal doctrine and theory. Most of them have
to some extent been used in international law, but often mainly by
international lawyers with a German basic legal education. Of course,
this made me reconsider the usefulness of such concepts for international
law. And although the German origins of my legal training will probably
remain visible to readers, I am confident that − in a joint enterprise with
the translator − I have managed to communicate the ideas to an inter-
national audience. This endeavour then is, hopefully, an example for the
potential enrichment of international legal scholarship through the
hybridization of national background traditions and understandings.
In this context, I would like to thank my student research assistants for
their diligent work, notably for checking the English translations or
English original versions of books quoted.
 ABBREVIATIONS

ABGB General Civil Code (Austria)

ACHR American Convention on Human Rights
AIDI Annuaire de l’Institut de Droit International
AJIL American Journal of International Law
AöR Archiv des öffentlichen Rechts
AP Additional Protocol
ArbGG Labour Court Act (Arbeitsgerichtsgesetz, Germany)
ARIEL Austrian Review of International and European Law
ATCA Alien Tort Claims Act
AVR Archiv des Völkerrechts
BBl. Federal Gazette (Bundesblatt, Switzerland)
BGB Civil Code (Bürgerliches Gesetzbuch, Germany)
BGE Decisions of the Federal Supreme Court
(Bundesgerichtsentscheide, Switzerland)
BGH Federal Court of Justice (Bundesgerichtshof, Germany)
BGHSt Decisions of the Federal Court of Justice in Criminal
Matters (Entscheidungen des Bundesgerichtshofs in
Strafsachen, Germany)
BGHZ Decisions of the Federal Court of Justice in Civil Matters
(Entscheidungen des Bundesgerichtshofs in Zivilsachen,
Germany)
BIT Bilateral Investment Treaty
BRICS Brazil, Russia, India, China, South Africa
BVerfG Federal Constitutional Court (Bundesverfassungsgericht,
Germany)
BVerfGE Decisions of the Federal Constitutional Court
(Entscheidungen des Bundesverfasssungsgerichts,
Germany)
BVerfGK Chamber Decisions of the Federal Constitutional Court
(Kammerentscheidungen des Bundesverfasssungsgerichts,
Germany)
BVerwG Federal Administrative Court (Bundesverwaltungsgericht,
Germany)

xv
xvi list of abbreviations
BVerwGE Decisions of the Federal Administrative Court
(Entscheidungen des Bundesverwaltungsgerichts,
Germany)
BYIL British Yearbook of International Law
CAT Committee Against Torture/Convention Against
Torture
CEDAW Committee on the Elimination of Discrimination Against
Women/Convention on the Elimination of
Discrimination Against Women
CEDEAO Communauté Economique des Etats de l’Afrique de
l’Ouest
CERD Committee on the Elimination of Racial Discrimination
CERN European Organization for Nuclear Research
CESCR Committee on Economic, Social and Cultural Rights
CFI Court of First Instance of the European Communities
CFSP Common Foreign and Security Policy
CST European Union Civil Service Tribunal
CTS Consolidated Treaty Series
DÖV Die öffentliche Verwaltung
DSU Understanding on Rules and Procedures Governing the
Settlement of Disputes
ECCC Extraordinary Chambers in the Courts of Cambodia
ECE Economic Commission for Europe
ECHR European Convention on Human Rights
ECJ Court of Justice of the European Union
ECOWAS Economic Community of West African States
ECT Energy Charter Treaty
ECtHR European Court of Human Rights
EEC European Economic Community
EJIL European Journal of International Law
EPIL Max Planck Encyclopedia of Public International Law
ETS European Treaty Series
EU European Union
EuGRZ Europäische Grundrechte-Zeitschrift
EULEX European Union Rule of Law Mission in Kosovo
FES Fair and equitable treatment standard
FGO Code of Procedure for Fiscal Courts
(Finanzgerichtsordnung, Germany)
FTA Free Trade Agreement
GA General Assembly
GA res. General Assembly resolution
GAOR General Assembly Official Reports
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