SEE THE PINK ELEPHANT IN THE COURTROOM? Private individuals should have legal standing before international courts

Abstract

Imagine that you, as a British citizen, are abducted at gunpoint in Kuwait and held responsible for spreading sexual videotapes involving Sheikh Jaber Al-Sabah Al-Saud Al-Sabah. Once imprisoned on false charges in the Kuwaiti State Security Prison, you are beaten by the guards for several days running. Forced to sign a false confession, you are released on the third day, but the Sheikh abducts you again at gunpoint and takes you in a government car to the Emir of Kuwait's brother's palace. Amongst other ordeals, your head is repeatedly held underwater in a swimming pool containing human corpses, and you are dragged into a small room, where the Sheikh sets fire to mattresses soaked in petrol. Once back in England, you are hospitalized for six weeks, treated for burns covering 25 per cent of your body and the doctors diagnose you as suffering from a severe form of post-traumatic stress disorder. This is not screenplay for the newest James Bond film, but what allegedly happened in real life to a pilot, Sulaiman Al-Adsani.

You might find it a thrilling experience, or you might consider that you had deserved it for being naughty, or you may believe that “the King can do no wrong,” but Al-Adsani believes that some of his fundamental rights were violated, such as the right not to be tortured. Following the British government’s refusal to assist him, he tried to sue the government of Kuwait in the British courts, but he discovered that the principle of state immunity prevented him from suing a state in the courts of another state, even in cases of torture, despite being one of the peremptory norms of international law, “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” The European Court of Human Rights upheld the British courts’ decisions with a majority of one and, in his dissenting opinion, Judge Loucaides called this decision a ‘travesty of law.’

Al-Adsani’s case is just one example of the many that make an adjustment of the current international law imperative. What I want to argue in this paper is that individuals should have the possibility of bringing claims against states, their own or foreign, at international courts, enabling them to compel states to take, or refrain from taking, certain actions, or to compensate them for damages or for violations of their rights which have been brought about by a state’s actions.

When taking courses in International Law, one gains the impression that individuals have a smidgen of rights and a crumb of legal personality, but that they are left in the clutches of states when it comes to deciding their fate. The most classical positivistic theories claim that individuals have never had a standing before international courts and that they should not have it. They are, and should be, addressed through their states, not directly. In the first part of the paper, I want to submit that there are many legal precedents that give individuals legal standing against states, their own and foreign, that individuals even have international legal rights, independent of the will of the states, and that states cannot nowadays take those rights away. Thus the positivistic view does not correspond to the reality.

Public International Law is customary, meaning that if the participants regularly behave in certain ways, believing that they act in accordance with the prescription of the law, they thus create the law and make it stronger. I will show that we can see an evolution in international law, starting in the nineteenth century, which gives individuals legal standing. There were some initial tentative occurrences and then, gradually, more and more courts began to give individuals legal standing. We could view this as an emerging principle of international law, one which gives individuals legal personality and legal standing. We could also argue that these precedents reflect a need.

Another impression one is left with after courses in International Law is that there is something in the nature of International Law that prevents individuals from having legal personality and legal standing. I will submit that this image is erroneous. Even during the deliberations on the statute of the Permanent Court of Justice, it was not self-evident that individuals should be excluded as parties. Moreover, there have been numerous propositions to give individuals standing before the court. States and great legal scholars alike have regularly pleaded for individuals to be given legal standing and for the creation of international courts of human rights. In the second part of the paper, I will present a number of those dissenting opinions.

I intend to close the legal argument with a proposition for a system of international courts which give individuals the chance to sue states, outlining how the system itself might work and the law that should be applied in those courts.

After presenting the legal argument, I will set out to justify the necessity of giving individuals locus standi before international courts from a philosophical point of view. There are two complementary reasons for doing this. First, we have a right to life and to defend ourselves. As a measure of self-defence, one can impose a judicial system upon others, one that renders final decisions on the way the world should be changed by the present actors. Second, it is rational to sign a contract with all the other actors in the world whereby important conflicts are conclusively decided by neutral third parties. Finally, presenting those arguments I will submit that John Rawls should have come to the same conclusion in his treatise about international law.