|
|
Previous
|Next |Title |Contents
Surprisingly enough, a rudimentary system for the protection of individuals' rights in the international arena may be traced back to ancient history. As Sohn effectively summarizes, "the oldest method of protecting the rights of individuals was self-help, not only by the victim, but also by his family, his clan, his nation, and ultimately his sovereign or state."[9] The eminent author then refers to examples of self-help throughout history, such as the Bible's adage "an eye for an eye, a tooth for a tooth." More importantly, however, he illustrates the historical development of self-help in the international field. Sohn describes it as the result of the tendency of states to consider their citizens (especially merchants) a valuable asset. When they suffered damage while in a foreign ruler's territory, that ruler was held responsible for what happened within its territory and the foreigner's home state was entitled to demand reparations accordingly. This was nothing other than an early and rough expression of the principles of state's responsibility for injuries suffered by aliens within its territory, and of diplomatic protection by the state of which the aliens are nationals.
In an early stage, there was no distinction between the state as such and its citizens on both sides of the dispute. "The foreign ruler, his assets, and his citizens were deemed to be collectively responsible...; as a first step, the victim's ruler was entitled to authorize the victim, his family, or his partners in the commercial venture to use self-help against the other country and its citizens. The ruler issued letters of marque and reprisal authorizing the capture of vessels or cargoes belonging to the state responsible for the wrong."[10] However, it was soon understood that such an harsh system was to be softened through appropriate procedural devices. Thus, a rough equivalent of the modern principle of exhaustion of local remedies was introduced, whereby resort to reprisals was authorized only once the victim and/or her state had not obtained justice and reparations from the wrongdoer and/or her state. Furthermore, reprisals could not exceed the extent necessary to compensate the victim for the wrong suffered. The treaty between the Greek cities of Oeantheia and Chalaeum in 450 BC, that between the Italian cities of Naples and Benevent in 836, and that between the Republic of Venice and Emperor Lothar in 840, already contained similar provisions.
This mechanism, though refined step by step, worked until the late eighteenth century, when the principle of diplomatic protection was more firmly established under the dominance of the modern concept of absolute state. This was the apex of the international order shaped by the Peace of Westphalia (1648). States took self-help away from their citizens and cross-border disputes arising out of relationships between states and foreign individuals or among individuals became disputes between the wrongdoer's state and the victim's state. However, this shift did not yet lead to dispute settlement through adjudication by an international commission/tribunal or the like. Rather, it was merely a power-oriented matter, where the stronger was often able to impose settlement on the weaker in its own terms, through the use of force if necessary (e.g. the gunboat diplomacy of Great Britain against Greece in 1850).
Finally, there was an increasingly frequent resort to some form of settlement by means of an international arbitral tribunal or commission. As a natural outcome, an institutionalized dispute settlement mechanism was provided within the system of the League of Nations by means of the establishment of the Permanent Court of International Justice (PCIJ) in 1920. After World War II, the newly established UN system replaced the PCIJ with the International Court of Justice. However, both bodies were strictly conceived as to reflect the dominant view of the time, that of legal positivism, recognizing states as the only subjects of international law, that is, the only subjects of both procedural and substantive rights and duties under international law. This is above all proved by the fact that, as to disputes concerning state responsibility for injuries suffered by aliens, the pillars of the procedure before both courts have been the principle of diplomatic protection and that of exhaustion of local remedies. However, it must be stressed that, at that same time, the international context already provided for important exceptions to the principle of states as the only subjects of international law; these exceptions were mainly although not only introduced as a result of the traumatic events (i.e. World Wars I and II) of the first half of the twentieth century. For methodological purposes, the discussion of both the dominant principle of diplomatic protection and its exceptions needs be preceded by the discussion of the status of individuals in international law, since the former is to be placed into the theoretical framework provided by the latter. To this theoretical framework the remaining paragraphs of this introduction will now be dedicated.
Few other issues of international legal theory have been as hotly debated as the status of individuals (as both natural and juridical persons) under international law. For a long time, the debate has been dominated by the positivist view whereby states are the only subjects of international law, and individuals are rather regarded as its mere objects. The major implication of this position is that individuals, not being subjects of international law, are not accorded any right, while states of course are.
It was only in the nineteenth century that legal positivism firmly established its view as the prevailing one. Indeed, in the middle ages the jus gentium was deemed to be of universal application. Afterwards, as observed by Higgins, "Plutarch and later Francisco de Vitoria in 1532 both wrote in terms that effectively acknowledged that non-state entities had internationally recognized legal rights... A century later Grotius, in his De Jure belli ac Pacis of 1625, was refining the idea."[11] In mid-eighteenth century, when the term international law had not yet been created, Blackstone, a leading scholar of his time, took the view that both states and individuals are proper subjects of the law of nations,[12] and it is fair to say that his view was generally accepted. Unlike the positivists, Blackstone focused on the sources rather than on the subjects to distinguish between the law of nations and municipal law, and he accordingly rejected the clear cut distinction between what legal positivism will later call private and public international law. The law of nations was deemed universal, common to states and individuals, and regulating international trade and commerce as well as relations among states. Rather, what made it different from municipal law, so the argument went on, were the sources of these two sorts of law; the former emanated from natural justice and/or the practice of states, the latter from a single state. However, it must be noted that this conception of law of nations was not unanimous in the eighteenth century; indeed, Vattel anticipated the forthcoming positivist exclusion of the individual from the category of the subjects of international law, and defined the law of nations as a mirror of municipal law, in the sense that states (and only states) enjoyed rights and duties under the former as well as citizens enjoyed rights and duties under the latter.[13]
The positivist view was first and strongly affirmed in 1789, when Bentham created the term international law as a substitute for law of nations, and defined it as the law concerning "the mutual transactions between sovereigns as such."[14] Accordingly, he also affirmed that "as to any transactions which may take place between individuals who are subjects of different states, these are regulated by the internal laws and decided upon by the internal tribunals of individual sovereign states." By so defining the scope of municipal law, he drawn a sharp line between it and international law. Bentham also submitted that "the persons whose conduct is the object of the law" provide the sole criterion to classify all sorts of law. As a consequence, it followed that states could be the only subjects of international law, because under his definition individuals' conduct was not the object of international law at all.
Besides a certain confusion between the terms international law and law of nations, and leaving apart for the moment the merits of this positivist vision of the individual's status, it may be interesting to make some remarks. First, it may be noted that, more or less consciously, by means of Bentham's construction, legal positivism was also clearly taking up a dualistic vision of the relationship between international and national law. Indeed, it seems to follow quite spontaneously from Bentham's definition of international and national law that they constitute two separate legal orders, and that international law needs be first transformed into national law by means of some legislative (usually constitutional) device at the national law level before it can be applied by national courts. This dualistic vision fits the model of legal positivism better than the monist one, which instead provides that there is only one legal order, of which both international and national law are part, and that therefore national courts can apply international law directly, with no transformation/mediation at the national law level. Should the monist view be accepted by legal positivists, it would be harder to be consistent with Bentham's view, since it would be more likely that international law will also be held applicable to international matters among individuals or between individuals and states.
Secondly, it is also worth noting that, while Bentham created the concept of international law, that concept, because of the contents it was given by the author, was born with what will be here considered a serious birth defect, that is, the lack of proper consideration of the status of individuals. This handicap has certainly made the process toward the recognition of individuals as subjects of international law slower and more difficult than it could otherwise be. Furthermore, it is an ironic and maybe paradoxical coincidence that the positivist view was first affirmed in the same year as the French Revolution took place; while the former disregarded the individual's status, the latter put it at the center of the stage and initiated the universal human rights movement. Also in 1789, the First US Congress passed the Judiciary Act providing that "the federal district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations."[15] Thus, as Janis points out, "in 1789, the year Bentham published his definition of international law, the United States Congress authorized suits by individuals under the law of nations."[16] Perhaps, it would be fair to say that Bentham was more influenced by the long lasting international order established under the 1648 Peace of Westphalia, which solemnly and firmly affirmed the concept of the modern, sovereign, and absolutist state, and which was strongly embraced at the philosophical level by "the poisonous Hegelian and Neo-Hegelian doctrines which postulate the state as the total integration of the individual, and the necessary repository of both his freedom and his responsibility."[17] One could however argue that Bentham was inconsistent with his own philosophy of utilitarianism, because this philosophy, together with Locke's philosophy of individualism, is usually regarded as one of the causes of a cultural process developing and emphasizing the position of the individual, which, through both gradual steps and radical events (such as the French Revolution itself), has moved in this century toward the recognition of the individual as subject of international law, contrary to Bentham's view.
On the other hand, it must be acknowledged that Bentham's view has greatly influenced any discussion on the status of individuals in international law since its first appearance, and it has been taken up by many scholars, to the extent that, as said, overall the positivist view has long dominated the debate. In particular, two positivist scholars of the nineteenth century developed Bentham's position; however, their thoughts also started to highlight some contradictions of the positivist view. First, Story emphasized the notion that individuals are not subjects of international law by establishing the long lasting distinction between public and private international law. In his opinion, this distinction followed naturally from the principle that only states can be subjects of international law; if international law (in Bentham's terms) is meant to regulate only relations among states, contrary to Blackstone's view of a law of nations regulating both states and individuals, then it is necessary to fill the vacuum in the field of transnational relations among individuals by creating a sort of law regulating these matters. The former is public international law (in the positivist opinion, the real international law), while the latter is private international law, which is not truly international (because it does not regulate matters among states) and rather belongs to the sphere of municipal law. Second, Austin, while supporting Bentham's approach, questioned the legal nature of international law. His argument was based on his concept of law whereby a command could only made effective by the application of sanctions; since states are not subject to any higher authority, and sanctions are not an effective instrument in ensuring compliance with international law, then what regulates relations among them cannot be law in the proper sense. These two positions, as Janis observes,[18] cannot be logically embraced, because they would lead to a situation where "public international law was international but not really law," and "private international law was law but not really international."
A further and important development of the positivist position was the creation of the so called object theory by Heilborn,[19] another prominent scholar of the nineteenth century. At the opening of this introduction it was said that individuals are mere objects rather than subjects of international law under the positivist view. This conclusion, which usually appears in many positivists' reasoning, was first enunciated by Heilborn, who started from the basic assumption that in any legal system there can only be subjects and objects. It therefore follows from Bentham's denial of individuals' subjectivity of international law that the individual must be classified as an object of international law. Such a rigid syllogism is today outdated and cannot be accepted even by those who support the positivist view. Heilborn's sharp subject/object distinction is meant to reflect the stage of development of international law at the end of the nineteenth century. In other terms, the either/or between subject and object derived from the positivists' rigid conception of subject of rights and duties under international law. Their notion of rights and duties comprehended both the substantive and the procedural elements, which were not considered separable from each other. Thus, it was not possible to conceive any intermediate form of right or duty, that is, a right or duty which was only with either a substantive or a procedural contents. If accepted, these intermediate forms of rights and duties could in turn justify either a different, less comprehensive notion of subject of rights and duties, or a status which is neither subject nor object. This lack of conceptual flexibility was also caused and worsened by the fact that the practice of international law at that time did not provide for any situation from where an intermediate form of rights and duties could emerge. The final result of this process was that, because positivists recognized as subjects of rights only those who could enforce their substantive rights before international tribunals or commissions, and it clearly appeared that only states could do so, states were deemed the only subjects of international law, while individuals were a fortiori deemed objects of international law; tertium non datur. However, while this might have been enough to justify the object theory when it was first conceived, today there are no longer grounds to justify its acceptance. In addition to showing the weaknesses of the positivist view more in general, the practice of international law in the twentieth century has certainly provided for those intermediate forms of rights and duties which prevent the positivists from regarding the individual as the object of international law. In particular, it will be seen that it is now accepted that the substantive and the procedural elements of rights and duties can be considered separately from each other.
O'Connell contributed to confirm and strengthen the above argument with a view which is here totally embraced.[20] The eminent author, who did not look at the individual from the perspective of the subject-object dichotomy, nevertheless submitted that the object theory "consisted in a generalization from the particular rules excluding individuals from certain of the capacities possessed by States." He then fiercely attacked the postulate of the theory, in turn borrowed from the Benthamite vision of the individual and of the state under which, as said, "international law of its nature addresses itself to States alone." Rather, he embraced the view that the individual is the ultimate end of law, and the law reflects the community. Therefore, he concluded that "philosophy and practice demonstrate that ...the individual as the end of the community is a member of the community, and a member has status: he is not an object."[21]
In this century, the debate has intensified, and an increasingly larger number of scholars has opposed the dominant view of legal positivism.[22] Before proceeding with the discussion on whether individuals are subjects of international law, it is appropriate, if not necessary, to answer a preliminary and fundamental question: what does subject of international law mean exactly?
Traditionally, the straightforward answer has been that a subject of law is a subject of rights and duties. However, this answer, although per se correct, is not satisfactory for the purposes of the present discussion. As Norgaard rightly observes,[23] part of the disagreement among scholars has derived from their unclear definition of subject of law, and, of course, when the contents of such a concept varies from one scholar to another, their debate on whether individuals fit into the concept may be adversely affected if not flawed. Therefore, it is necessary to go beyond the mere definition of subjects of rights and duties. Indeed, such a definition might contain too much and too little. Too much because, under an extensive interpretation, the concept of right may be understood to mean both that a legal rule exists to the holder's benefit (substantive right), and that the holder has the procedural capacity to enforce her substantive right by bringing a claim before the competent forum against a person who violates that right by violating the legal rule providing it (procedural right). Similarly, too much also because, under an extensive interpretation, the concept of duty may be understood to mean both that a legal rule exists requesting the holder a certain positive or negative conduct (substantive duty), and that the holder may be held responsible before the competent forum for breaching that duty by violating the legal rule imposing it (responsibility). Too little because the concepts of right and duty may rather be understood to contain either the substantive or the procedural element, but not both.
In an attempt to prevent any terminological and conceptual confusion, it is appropriate to adopt Norgaard's terminology, in part derived from Ross,[24] who was perhaps the first to break up the traditional concept of rights and duties in its elements. Norgaard uses the expression rights and procedural capacity to mean what indicated above as the extensive interpretation of rights, while he uses the term right as expressing the sole substantive right. Similarly, he uses the expression duties and responsibility to mean what indicated above as the extensive interpretation of duty, while he uses the term duty as expressing the sole substantive duty.
In the first half of the twentieth century the positivist view was still strong, if not dominant. Some of the leading scholars of that time, whose precious contribution to the development of international law has been an example for later generations of international lawyers, indeed supported the view that the individual is not a subject of international law, although often in less peremptory terms than their predecessors and on grounds that signaled the first cracks in the theoretical construction of legal positivism. In the following paragraphs the discussion will focus on just some of them, selected because their positions reflect the orientation of most adherents to the positivist school.
Anzilotti's view whereby individuals are objects rather than subjects of international law is the result of the author's dualistic conception of the relationship between international and national law, whereby they constitute two separate legal orders.[25] Thus, states can be the only subjects of international law, while individuals can be the only subjects of national law while being the objects of international law. Then the argument goes on by saying that both rights-procedural capacity and duties-responsibility may be provided for the individual under national law; international law may authorize or request the state to do so, but, should the state create such rights, duties, procedural capacity, and responsibility, it would create them under national law only. The consistency of this theoretical construction is questionable. As it will be seen in the next section, Anzilotti, as well as many other scholars of his time, seems not to pay sufficient attention to the developments which were taking place in international law. In other terms, besides theoretical arguments against his view, which will also be seen below, the thing is that the practice of international law had already gone beyond the limits that the author (together with many others) thought would permanently restrict the scope of international law.
An even weaker position seems to be that of Schwarzenberger.[26] This famous author's bottom line as to the status of individuals is that, although in theory international law could well create individuals' rights and duties as well as procedural capacity and responsibility, there is no evidence provided by the practice of international law in this sense. Thus, individuals could not be subjects of international law and, under the object theory, they should rather be classified as mere objects of international law. It is striking how easily the author could reach this conclusion, disregarding the evidence which the practice of international law provided to the contrary. Therefore, Schwarzenberger's conclusion is inconsistent with his own theoretical acceptance of the possibility that international law could recognize the individuals as subjects of rights and duties (meant to include both the substantive and the procedural elements). In fact, if for this possibility to become a matter of fact, the author requires evidence by the practice of international law, and since this evidence was actually provided, as will be seen, then his position cannot be accepted. Rather, the author's position is defeated by his own theoretical premise, which he rejects once he refuses to take into account that evidence properly, notwithstanding his willingness in principle to do so. It must also be observed that Schwarzenberger as well as Anzilotti embrace the object theory; it is submitted that, independently of the issue of the subjectivity of the individual, when these two authors wrote their works, international law had already reached a stage in its development where to keep considering the individual an object of international law was too a far reaching conclusion.
Quite in line with Schwarzenberger is another prominent author: Gihl.[27] The Scandinavian scholar accepts in principle the possibility that states may agree to let individuals bring international claims before international tribunals. However, in his opinion there was not yet any such mechanism in practice, and, above all, even if there were any, it would not be sufficient to recognize the individual as a subject of international law, because the above procedural capacity would be conferred by the will and the agreement of states rather than by international law directly. Thus, he takes the view that states are the only subjects of international law, and that those few cases where individuals could bring an international claim are exceptional and insufficient to consider them subjects of international law, since these cases would be an emanation of states' will. In addition to attracting the same type of criticism as that attracted by Schwarzenberger, Gihl seems not to convince when he submits that the ground for the exclusion of individuals from being subjects of international law is that their procedural capacity would eventually derive from rules created by agreements between states and not by international law. It is argued that indeed international law is also made up of rules conventionally created by states, and therefore Gihl's distinction is not sound; what matters is that those rules are rules of international law (and they are), not that the rule-making process involves the agreement between states. Furthermore, it is wrong to conclude that individuals cannot be subjects of international law because those few cases where they might be accorded international procedural capacity would be deemed exceptional and not sufficient to confer that status. This view cannot be accepted to the extent that it assumes that a person needs be a subject of all or most rules of international law to be a subject of international law. First, it is submitted that even if there is just one rule of international law conferring any right or procedural capacity on the individual, the individual can and ought to be regarded as a subject of international law at least in respect of that rule, and this should be enough to reject Gihl's construction. Second, even assuming that his construction is right, then, as a general matter, how do we determine whether a person or other entity is a subject of law? Should there be a minimum threshold of rules of which it is necessary to be a subject? Where do we draw the line? It seems reasonable to predict that this kind of determination might well be arbitrary.
A more original though yet unsatisfactory view is expressed by Sperduti.[28] Although the famous Italian author is a member of the pluralist school, and not a positivist in the strict sense, he thinks in terms similar to the positivists as concerns the individual. Indeed, notwithstanding Sperduti rejects the view of the individual as a mere object of international law, he accepts the view that rules of international law concerning individuals are exclusively addressed to their states, that in turn translate these rules into national law, of which individuals are subjects. However, in the end Sperduti opts for a classification of the individual as neither a subject nor an object of international law. Rather, he gives the individual the ambiguous status of material subject. This status appears to provide the individual with substantive rights and duties, while procedural capacity and responsibility tend to be excluded. To be sure, such an exclusion is not meant to be absolute, also because Sperduti rejects the categorical denial of individuals' access to international tribunals based on the dualistic and positivist conception that individuals cannot be subjects of international law. Nevertheless, Sperduti's position can hardly be accepted, first and foremost because of its excessive ambiguity, and secondly because of its tendency not to recognize the individual's procedural capacity and responsibility under international law.
The above discussion of Sperduti's and some of the leading positivists' position intends to provide the flavor of the theoretical context of the first two quarters of this century, and show how hostile this context were toward the recognition of the individual as a subject of international law. At the same time, however, equally prominent scholars started questioning the validity of the positivist position. Before discussing the main voices of this increasingly stronger opposition to the legal positivist view of the individual, it is necessary to make two remarks.
First, the positivist view has continued to recruit adherents even in the second half of this century.[29] Second, and more importantly, it is interesting to observe that, while clearly supporting the positivist view of the individual's status as expressed in the last two centuries, the twentieth century positivists have placed themselves in a different perspective, that is, they have reached the same conclusion as their predecessors, but they have followed a different approach. The shift in the approach may be summarized as follows. On the one hand, Bentham and other earlier positivists held that states can be the only subjects of international law because international law has states' conduct as its only object. On the other hand, the twentieth century positivists seem rather concerned with a right-duty based approach, in the sense that the question whether individuals are subjects of international law in turn depends on the question whether international law confers any right-duty on them; since the answer to the latter is in their opinion negative, their conclusion is that the answer to the former must also be negative, because who is not a subject of rights and duties of international law cannot be a subject of that law. This shift is important, because it is submitted that while Bentham's view is an a priori exclusion of the individual's subjectivity, that same exclusion, when based on the right-duty approach of the later positivists, leaves the door open to further discussion. Indeed, it will be seen that it is that same right-duty approach which in the end leads to the recognition of the individual's subjectivity. Therefore, the type of analysis adopted is not per se wrong; rather, it will be shown that it has been wrongly applied by the positivists to the extent they have failed to recognize that international law confers rights and duties on individuals, as proved by an empirical investigation of the practice of international law. The results of this investigation also prove decisive to overcome Bentham's a priori thesis, which fails to stand against the arguments put forward by those results.
As mentioned above, while the first half of the twentieth century witnessed the dominance of the positivist view, there was also an increasing number of scholars willing to recognize that both states and individuals are subjects of international law. However, although this signaled a significant departure from the leading positivist position, the opposition to legal positivism, at least as to the status of individuals, was not homogeneous and did not lead to the creation of a well defined and antagonist school of thought. To provide a picture of this scenario, the following is a brief discussion of the view of some eminent supporters of the individual's subjectivity under international law. It will be seen how all these authors broke up the concept of subject of rights and duties in its substantive and procedural elements, and how, although they reached the same conclusion and regarded the presence of such elements as a conditio sine qua non for the recognition of the individual's subjectivity, they combined such elements in different ways.
A major contribution to the debate comes from Sir Hersh Lauterpacht,[30] who in the first place radically and rightly opposes the idea of the early positivists whereby it is impossible to recognize the individual as a subject of international law because it would be contrary to the nature of an international law having states' conduct as its sole object. Rather, Lautherpacht's idealistic conception of international law leads the author to argue that in the end it aims at regulating the rights and duties of individuals, and that there is no decisive authority in it negating the individual's subjectivity. As to what the British author regards as necessary and sufficient to positively recognize this subjectivity, a certain asymmetry must be noted between the right side and the duty side. Indeed, on the right side, Lautherpacht considers sufficient that rules of international law confer substantive rights on the individual, irrespective of whether the individual could then enforce her right by bringing a claim before an international forum. On the duty side, instead, not only it is necessary that international law impose substantive duties on the individual directly, but it is also necessary that a claim for breach of those duties can be brought before an international forum. However, in accordance with his monist perspective, the author affirms that, in respect of the enforceability of duties, the forum could also be a national court whenever it could apply international law directly. Thus, it is evident that in Lautherpacht's opinion, for the individual to be a subject of international law, she has to be a subject of rights and duties under that law, but while for the former the substantive element is sufficient, for the latter also the procedural element is necessary. On the other hand, what is not entirely clear is why this eminent scholar has not applied to the right side the same type of argument based on his monist view as that applied to the duty side, that is, enforceability of rights is also necessary but it would be deemed to exist if the enforceability could just take place before national courts. This additional requirement would eliminate the asymmetry noted above and make his overall position more consistent than it actually is.
Kelsen[31] shares Lautherpacht's idea of international law as a law addressed to individuals in the final analysis. On the other hand, he departs from that idea to the extent that he acknowledges that individuals are not always direct subjects of international law, since there might be cases where international law leaves to national law the task to confer rights and duties on them. Kelsen instead takes a view diametrically opposed to Lautherpacht's as concerns the rights and duties of which the individual must be a subject for her to be a subject of international law. Indeed, in Kelsen's opinion, subjectivity of rights must include the substantive as well as the procedural element. In other terms, it is necessary but not sufficient that rules of international law confer substantive rights upon individuals; it is also necessary that individuals can bring a claim before an international forum to enforce their rights. This procedural capacity is not required in Lautherpacht's test. On the duty side, Kelsen considers sufficient that individuals be imposed duties and sanctions by international law, while it is not necessary to enforce them through international courts. Under the author's monist view, this enforcement could rather be guaranteed by national courts. Yet, there is an asymmetry to be observed, and the author does not provide grounds to justify it.
Verdross' central idea is that a person is a subject of international law when her conduct is directly regulated by that law.[32] Translating this definition into terms of subject of rights, the author affirms, similarly to Kelsen, that both the substantive right and the procedural capacity to enforce it before an international forum are necessary. The contemporary presence of these two elements would imply that the individual's rights are directly regulated by international law. As to subject of duties, in Verdross' opinion, it is necessary and sufficient that international law imposes substantive duties on the individual and that it holds the individual responsible directly, without the interposition of national law, while it does not matter whether a national or an international forum enforces such a responsibility, because the monist view provides that national courts can apply international law. However, what is unclear is the notion of direct imposition of responsibility by international law, in the sense that it presupposes that there is also an indirect imposition of responsibility. But if the monist view is accepted, once international law prohibits a certain conduct, it would always be a direct imposition of responsibility, because national courts could always enforce it without the interposition of national law; this would be true whether national law also regulates the matter or not.
A symmetric vision of rights and duties of the individual under international law was offered by Guggenheim.[33] This eminent scholar first distinguishes between direct and indirect subjects of international law, the distinction being made according to whether rights and duties are conferred on individuals directly or through the interposition of national law. The author submits that in most cases the individual is an indirect subject of international law. As to direct subjects, Guggenheim focuses on the procedural elements of rights and duties, and requires that the individual be able bring a claim and be held responsible before an international forum for her to be recognized as a direct subject of international law. The centrality of the role of the international forum is softened by the adoption of Scelle's theory of dedoublement fonctionnel, whereby international law delegates the enforcement of most of its rules to national courts, which then act as international courts. This delegation is a matter of necessity, because international law chronically lacks an appropriate system of international fora for the enforcement of its rules, and, without the above delegation, the whole international legal order would break down. This theory can be accepted only if a monist view is taken up as to the relationship between national and international laws, because under a dualistic view, national courts would always apply national law in the end. However, even in a monist context, it would be hard to believe that national courts have the same status as international fora under international law, and the practice of international law seems to exclude such a possibility.
Two conclusions (connected to each other) can be drawn from the above discussion. First, it is now possible to clarify the meaning of a statement made at the opening of this introduction, which said that the scholars recognizing the subjectivity of the individual under international law disagree on the combination of the substantive and procedural elements of individuals' rights and duties. It is now evident that the disagreement concerns the crucial relevance of the procedural elements, in the sense that all these authors of course require the presence of the substantive rights and duties, but they disagree as to whether it is also necessary that they can be enforced; in particular, they tend to disagree on whether this enforceability is relevant at all, and, if it is, on whether it is relevant only on the right side or the duty side, or on both sides. Second, for those views (the majority) which consider enforceability a decisive issue, the burden to show that it exists in international law is eased by the acceptance of the monist vision of the national-international law relationship, and it is not a coincidence that all the authors whose views were discussed above accept it. Certainly, as mentioned above, under the monist view it is more likely to consider the individual a subject of international law than under the dualistic view. For one reason, if international and national law are deemed to constitute one single legal order, as put by Lautherepacht, "now the principle that international law is, without an express act of transformation, part of municipal law, means in effect that rights and duties created by international law are directly applicable through instrumentality of municipal courts and that, to that extent, individuals are subjects of the law of nations."[34] This result is important, because, being national courts able to enforce individuals' rights and duties of international law, there is no particular need to investigate or discuss in theory the existence of international tribunals and/or commissions providing such enforcement; the existence of these international fora would only strengthen the affirmative answer to the question of the status of individuals provided by the national courts. On the other hand, should the dualistic view be taken up, a national court could never apply rules of international law directly, since these rules need be translated into national law. The ultimate result of this process of transformation of international law into national law is that the individual's rights and duties under international law become rights and duties of national law; thus the individual before a national court could never be regarded as a subject of international law. Therefore, it would here be necessary to show that there are international fora where individuals' rights and duties can be enforced.
Notwithstanding the difficulties faced by the dualistic school of thought, at least one eminent member of this school, Norgaard, regards the individual as a subject of international law.[35] The Danish author takes the view that for the individual to be recognized as a subject of international law, the fact that she is conferred substantive rights and imposed substantive duties by rules of international law would not be sufficient; it is also necessary that the individual can enforce her rights and be held responsible before an international forum. It is submitted that, as part of the thesis supported by the present paper, this emphasis on the enforceability of the individuals' duties and rights is accepted as the correct approach. This choice will be more deeply discussed below; however, for the moment it should be sufficient to say, as Norgaard himself puts it, that "the position of the individual under international law indisputably changes its character when the asserting of the rights conferred by international rules no longer rests exclusively at the discretion of a state, but the beneficiaries of the rights can enforce them at their own instance before an international court."[36] As to the requirement that enforceability be before international fora, it confirms the validity of the conclusion drawn in the precedent paragraph about the difficulties arising out of the dualistic view; as said, enforceability must be before international fora because, as a result of the dualistic theory, individuals' rights and duties of international law could never be enforced by and before national courts. Norgaard adheres to the dualistic school since he concludes that it is the theory which best reflects the reality of international law.
Finally, it is worth mentioning a position which, even if it falls short of recognizing the individual's subjectivity, certainly promotes it and rejects the object theory. It is the beneficiary theory, mainly developed by Borchard and Jessup.[37] In short, under this theory, individuals would be neither subjects nor objects of international law, but rather beneficiaries of its rules. Jessup describes the current status of international law as one where individuals could not be, in a strict legal sense, subjects of enforceable claims on an international level but in exceptional cases. The author advocates an ambitious reform of the international legal order establishing a supranational system where states would lose their centrality and the individual would be fully recognized. Meanwhile, so his argument goes on, individuals are the beneficiaries of international law through the actions taken on their behalf by their states. Jessup's idealistic proposals for the development of international law are to be admired. On the other hand, the problem with his theory is that it basically reproduces the limits of the positivist theory, in the sense that it fails to recognize those developments in the practice of international law which, without leading to his supranational legal order, nevertheless has gone beyond the secondary role of individuals as passive beneficiaries of international law through their states' initiative.
So far it has often been submitted that the positivist view negating the status of the individual as a subject of international law has failed to take into due account the evidence to the contrary which the practice of international law has offered since the beginning of this century; vice versa, this same evidence has proved very useful to support the position of those opposing the positivist view and decisive to make the former prevail over the latter. It is now time to look at this evidence.
In the previous paragraphs it was observed that it was only in the twentieth century that the practice of international law has pointed toward a recognition of the individual's subjectivity. While this is true to the extent that it is only in this century that various mechanisms for the settlement of international disputes have been set up and opened up to individuals, this statement needs be qualified, because some important evidence against the validity of the positivist view had already been provided since the eighteenth century at least. In 1784, an American court proved that the reality of international law could be different from the positivist vision even before this vision was first proposed by Bentham in 1789. In Respublica v. De Longchamps,[38] dealing with an individual who assaulted the Counsel General of France to the US, it was held that an individual could be liable for breach of the law of nations and the case "must be determined on the principles of the law of nations." Under these principles, the court held that the defendant's conduct hurt the "common safety and well-being of all nations," and that therefore he was "guilty of a crime against the whole world;" the defendant was then ordered to pay a fine and imprisoned. Therefore, the decision rejected the sharp distinction between public and private international law which would later become a basic feature of most positivists' view as a result of their definition of international law.
In more recent times, when the positivist view was certainly the prevailing one, the US Supreme Court followed an approach very similar to that in De Longchamps. First, in 1895, in Hilton v. Guyot,[39] the Court once again rejected the positivist sharp distinction between public and private international law, and rather reaffirmed the principle, closer to Blackstone's concept of the law of nations, whereby international law regulates or at least may contribute to regulate the rights and obligations of individuals. The issue before the Southern District of New York was the recognition and enforcement of a French money judgment against a US firm for debts owed in France to the plaintiffs, a French firm. This would be a matter of what is traditionally defined private international law. However, the Court rather than referring to private international law, gave a definition of international law which was so broad as to contain public as well as public international law. Then, in determining the rules to apply for the determination of the issue, it looked at the municipal law of many other developed legal systems, in order to excerpt a principle of customary international law, and in doing so, it considered both the legislation and the jurisprudence of those systems. Indeed, it was on the basis of this "international jurisprudence" that it held that the rule of reciprocity was decisive of the issue, and that, within this framework, virtually all civilized nations "allow conclusive effect to the executory judgment for the recovery of money."
Second, in 1900 the Paquette Habana[40] offered the court the opportunity to distance itself from the strict positivist position not recognizing the individual as a subject of rights and duties under international law, and from the implication that, as a result, the individual cannot invoke its application. The issue was the application of the rules of international law to the seizure of two Cuban fishing vessels by the US Navy during the Spanish-American War, against which the vessels owners appealed to US courts. In particular, the question before the Supreme Court was whether the vessels were prizes of war, as held by a lower federal court, or were to be exempted from seizure as non-military vessels. First the Court held that, as a general and fundamental principle, "international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." By means of this straightforward statement, the Court embraced the monist vision of the international/national law relationship. Then, it held that it was an ancient usage of the civilized nations "gradually ripening into a rule of international law...that fishing vessels have been recognized as exempt, with their cargoes and crews, from capture as prize of war." Accordingly, the US governments was ordered to pay the proceeds of the sale of the vessels and their cargoes to the individual plaintiffs, who were allowed to rely on the above rule of international law and to enforce it. By allowing the individual plaintiffs to invoke rules of international law, the Court implicitly regarded them as subjects of international law. Moreover, in accordance with Blackstone, it defined international law on the basis of its sources rather than its subjects; thus, whenever the subject matter is one of international law (as defined by the sources), it applies independently of who the parties are. Had the Court embraced the positivist view, since the dispute was between a state (the sole subject of international law) and (foreign) individuals who were not subjects of international law, the matter could not be one of international law.
However relevant the above cases may be considered, they were too sporadic to represent a serious threat to the strength of the positivist theory of the individual. Instead, the reality has changed throughout this century, when several treaties have conferred procedural rights upon individuals to be exercised against foreign states in respect of specific issues of international law; moreover, for the purposes of enforcing these rights, ad hoc international commissions and tribunals have also been set up. Following a chronological order, this process started with the establishment of the International Prize Court (IPC) under Hague Convention XII of 1907. Articles 4 and 5 of the Convention conferred upon neutral individuals the right to bring a claim against a foreign state before the IPC. Notwithstanding this individual's procedural right on the international law level could have an enormous, if not revolutionary, impact on the traditional mechanics of international law, such an impact could never be tested in practice because the convention was not ratified and thus the IPC never started operating. Moreover, it must be noted that the opening of the court to individuals was partly offset by a veto power actionable by the individual's own state, which could prohibit its nationals from bringing the claim before the IPC, and instead institute proceedings before that same court on their behalf. The fact that the IPC never came into existence played in favor of those negating its relevance as evidence of the shift in the practice of international law leading towards the recognition of the individual's subjectivity.
The argument against the relevance of the IPC instrument was partly reproduced as to the Central American Court of Justice (CACJ). Indeed, this court was established in 1907, but functioned just for a ten year period (1908-1918), and dealt only with five cases of claims brought by individuals. Under the Convention, individuals from one of the five contracting Central American Republics could:
"...raise (questions) against any of the other contracting Governments, because of the violation of treaties or conventions, and other cases of an international character; no matter whether their own Government supports said claim or not; and provided that the remedies which the laws of the respective country provide against such violation shall have been exhausted or that denial of justice shall have been shown."
It is important to observe that here, unlike the IPC instrument, there is no veto power conferred on the contracting state as to claims brought before the CACJ by its own nationals. On the other hand, there is an express provision of the principle of exhaustion of domestic remedies/denial of justice as a condition of admissibility of the claim. This principle was so strictly applied that four out of the five individuals' claims were dismissed for failure of exhausting the local remedies first. Nevertheless, and besides its limits (i.e. short existence, small caseload, and limited territorial scope), the CACJ certainly signaled an increasing willingness in the practice of international law to let the individual bring her claim against a foreign state directly before an international forum.
Further and significant steps in this same direction were made between World War I and II. As part of the package of harsh measures imposed on Germany and the other powers vanquished in World War I, the Peace Treaty of Versailles (Articles 296, 297, 304, and 305) and other similar (bilateral) peace treaties provided for the establishment of Mixed Arbitral Tribunals and Commissions, before which nationals of the victor states could bring claims against the vanquished states for compensation of injury to their property rights and interests in the territory of the latter. Compared to the experience of the CAJC, although these tribunals also functioned for no more than ten years, their caseload was more significant than the CAJC's. It must be stressed that the Mixed Arbitral Tribunals certainly set an important precedent for the movement pressing for the opening up of international law and forums to claims brought by individuals against foreign states. On the other hand, it cannot go unnoticed that the mechanism was provided pursuant to exceptional and dramatic circumstances, and that its functioning was shaped and dictated by the victor states. It is thus open to question whether these tribunals functioned under the rule of law, or under the rule of political and economic considerations connected to the tragic events of the First World War. For instance, while Friedmann submits that the tribunals "developed some interesting new principles of international law, such as the principle of unjust enrichment,"[41] Brownlie argues that "their decisions turned to a large extent on points of private law and the interpretation of the peace treaties,...they included enforcement provisions of unusual strength as a result of their origin, and in some of the more important cases governments intervened in support of their nationals."[42] Moreover, Brownlie, who seems quite skeptical about the effective relevance of all these compensation devices as to the individual's status, also noted that, as a result of the rules of procedure of many of these Mixed Tribunals/Commissions, although individuals were formally regarded as claimants and the award of damages referred to the loss suffered by them rather than by their states, they were not conferred procedural capacity since their claims were taken up by government representatives in accordance with the principle of diplomatic protection.
In the same context of the Post World War I period there was another mechanism for international dispute settlement relevant for the purposes of the present discussion. The Peace Treaty of Versailles contained provisions on the protection of minorities which were separately implemented at a bilateral level. This was above all the case of the German-Polish Convention of 15 May 1922, which established the Arbitral Tribunal of Upper Silesia. Although Germany was again dictated the terms of the Convention, the mechanism and the functioning of the Tribunal were balanced and effective, also because its president was the distinguished scholar Kaeckenbeeck, appointed by the Council of the League of Nations. The tribunal had some unique, very interesting, and very innovative features. Its task was the settlement of private disputes arising out of the application of the Convention, and the Convention was held to apply between the parties as a contractual law prevailing over general international law. In particular, the tribunal was competent to set indemnities for the abolition or diminution of the vested rights of individuals or minority groups living in this border region, always cause of bitter territorial disputes between the two states. Under Articles 16-24, containing the rules of procedure of the Tribunal, individuals were conferred the right to bring claims before it not only against the foreign government but also against their own government. The language of these articles clearly vested individuals with a full procedural capacity, equal to that of the governments (as represented by their officials). Another extremely important feature of this mechanism was the creation of the Upper Silesia Mixed Commission, whose President was also appointed by the Council of the League of Nations. Through its Minority Office, the Commission functioned as a semi-judicial organ with investigative powers; further to its determinations, it could petition the Tribunal. This Commission plus Tribunal structure recalls the later and more sophisticated structure of the machinery of the European Convention of Human Rights (ECHR). However, the ECHR, as will be seen, does not provide for individuals' direct access to the European Court of Human Rights, but rather filters this access through the European Commission of Human Rights, although this is going to change soon, while under the Upper Silesia mechanism, both the Minorities Office and individuals could sue before the Tribunal.
The provisions of the Peace Treaty of Versailles on the protection of minorities provided the basis for another crucial step in the process toward individuals' recognition as subjects of international law. Indeed, it was with reference to these provisions that the Advisory Opinion of the Permanent Court of International Justice was sought in the Danzig Railway Officials or Jurisdiction of the Courts of Danzig case of 1928.[43] The relevant issue was whether the Beamtenabkommen, an agreement between Poland and Danzig as to the regulation of the conditions of employment of former employees of the Danzig railways who had passed into the service of the Polish Railways Administration, were to be considered part of the contract of service between those employees and the Polish Railways Administration. In other terms, the issue was whether the international treaty were of direct application to the contract of service, in which case the Danzig employees could directly sue the Polish railways before the courts of Danzig in order to recover the compensation claims based on that treaty. Poland submitted that the international treaty with Danzig only created rights and obligations between them, and that, since it had not been incorporated into Polish municipal law, it could not create rights and obligations for individuals; these arguments, if accepted, would leave the Courts of Danzig with no jurisdiction to hear individuals' claims. However, the PCIJ rejected this construction and focused its analysis on the intention of the parties (Poland and Danzig) as to the position of the parties under their treaty. The court held:
"It may be readily admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the parties of some definite rules creating individual rights and enforceable by the national courts. That there is such an intention in the present case can be established by reference to the terms of the Beantenabkommen."
The impact of this opinion was enormous, as acknowledged by most scholars. In particular, Lauterpacht considers it one of epoch-making importance:
"(The decision) dealt a decisive blow to the dogma of the impenetrable barrier separating individuals from international law... The pronouncement is among the most important rendered by the Court. On the first occasion on which it was confronted with the traditional argument, it rejected it. It laid down, in effect, that no considerations of theory can prevent the individual from becoming the subject of international rights if States so wish. That affirmation by the Permanent Court of International Justice of the right of individuals to acquire rights directly under treaties was not an isolated event. It was followed - and the coincidence is significant - by other judicial decisions pointing in the same direction."[44]
The author's evaluation of the impact of the opinion is to be embraced. The most important international judicial body of the time expressly recognized for the first time the individual as a subject of substantive rights and obligations under international law; in particular, these rights and obligations were conferred by an international treaty.
However, quite paradoxically this pronouncement came from a judicial body which, as well as the International Court of Justice, its successor, was not opened up to hear claims brought by individuals against foreign states, but rather applied the principle of diplomatic protection, reflecting the positivist view not recognizing the individual as a subject of international law. Claims before the PCIJ could be only claims between states. The Court did not expressly address the key issue of the procedural capacity of the individual before international forums. Moreover, it seems that the Court took a monist view about the international-national law relationship when it held that the provisions of the treaty could be directly enforced by the employees before the national courts of Danzig.
These remarks raise another important issue connected to Lauterpacht's reading of the case. The author concludes that the PCIJ's pronouncement recognized the individual as a subject of international law. But did it? In other terms, can the Court's statement that the individual is a subject of (substantive) rights and obligations be read as equivalent to say that she is a subject of international law, thus disregarding the relevance of her procedural capacity and responsibility in respect of those rights and obligations before an international forum? As said, Lauterpacht's answer is affirmative; in order to strengthen his position, he also refers to the following passage in the PCIJ's Peter Pàzmàny University Case (1933):
"It is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself."[45]
The argument would be convincing to the extent that one embraces a priori the view that the substantive element of rights and obligations is not only necessary but also sufficient to recognize the individual's subjectivity under international law. Indeed, Lauterpacht's reading of these two cases may be better explained if framed in the context of the overall idealistic as well as a priori theory of the British author as to the status of the individual, which, as mentioned above, suggests that procedural capacity on the international level would not be decisive. Thus, it is now appropriate to see this theory as enunciated by its eminent author:
"The position of the individual as a subject of international law has often been obscured by the failure to observe the distinction between the recognition, in an international instrument, of rights to the benefit of the individual and the enforceability of these rights at his instance. The fact that the beneficiary of rights is not authorized to take independent steps in his own name to enforce them does not signify that he is not a subject of the law or that the rights in question are vested exclusively in the agency which possesses the capacity to enforce them. Thus in relation to the current view that the rights of the alien within foreign territory are the rights of his state and not his own, the correct way of stating the legal position is not that the state assert s its own exclusive right but that it enforces, in substance, the right of the individual who, as the law now stands, is incapable of asserting it in the international sphere."[46]
However, this theory cannot be embraced to the full. To be sure, it is perfectly reasonable and legitimate to accept Lauterpacht's idealistic vision of the individual. Moreover, to the extent that it convincingly rejects the positivist view, his theory is sound and deserves deference. However, as a matter of theory, and with an eye to the enormous impact that the theoretical position might have on the practice of international law, it is submitted that the individual's substantive rights and duties of international law must go together with her procedural capacity and responsibility for them to be effective; otherwise, it would only be a formalistic recognition of her subjectivity in international law, while de facto the individual would be relegated to a secondary role on the international law level. Accordingly, an a priori exclusion of any relevance of the procedural element cannot be embraced, because this element is essential as well as the substantive one.
As a result of the different theoretical approach which may be followed, the construction of the Court's reasoning in both cases might also change. While Lauterpacht's construction was clearly influenced by the author's view of the individual, alternative constructions are also available which are more in accordance with the theoretical view of the individual embraced here. The following is an example of such alternatives. As said above, the Court, while expressly recognizing the individual as a subject of substantive rights and duties of international law, did not expressly determine whether this would be per se sufficient for the individual to be a subject of international law, or individual's procedural capacity and responsibility were also necessary. In accordance with Norgaard,[47] it may be argued that the Court implicitly addressed the issue of the relationship between the substantive and procedural elements, in the sense that: (i) it held that the individual can be a subject of substantive rights and obligations without being a subject of proceedings, but did not conclude that a mere subject of substantive rights and obligations can also be a subject of international law; (ii) it held that a subject of international law is a subject of proceedings, but not that a subject of proceedings is a subject of international law. This approach would suggest that the individual should be a subject of proceedings before international forums for her to be a subject of international law. This conclusion cannot be definitive, because the interpretation on which it is based is and cannot be other than a tentative one, but it is to prefer at the theoretical level.
Having regarded the procedural capacity as a necessary element, the crucial question now becomes: what procedural capacity and responsibility? In this regard, the choice between a monist and a dualistic approach may be relevant. In fact, as said, the Court did not say whether the individual is subject of proceedings on the international law level or not. The monist vision, implicitly embraced by the Court, would make the procedural requirement more likely to be fulfilled, because it would fill the gaps of the Court's omission in its reasoning by regarding procedural capacity and responsibility before national courts as sufficient. Otherwise, if the dualistic rather than the monist view were accepted, national courts would not be able to provide enforceability of the individuals' rights and obligations of international law, and this enforceability should be provided by international forums for the procedural requirement to be fulfilled. However, first the practice of international law in this century has supplied the evidence sought for filling the gaps of the Court and recognizing the individual's procedural capacity and responsibility before international forums. The procedural element requirement is therefore fulfilled. Second, even if the monist view might allow to fulfill it without looking at the international law level, there would still be something missing. This something is the lack of a full completion of the individual's status on the international law level, because it is submitted that an international dispute settlement machinery in which the individual is a full participant is a conditio sine qua non of the full recognition of the individual as a subject of international law. Indeed, even if the monist view is sound and perhaps should be preferred to the dualistic one, its acceptance does not suffice to eliminate the need for an adequate international enforceability of the individual's rights and obligations, because otherwise there would be a fracture between the substantive and the procedural elements of the individual's subjectivity under international law; the two are the two sides of the same coin. Furthermore, if it is only for the national courts to enforce the individual's rights and obligations of international law, there would be even more problems than the current ones in establishing a certain consistent jurisprudence of international law as to the status of individuals, which is important for ensuring certainty and predictability of law. Last but not the least, one of the main factors causing the progressive recognition of the individual's subjectivity (above all on the procedural side) in international law has been the need to delocalize disputes between individuals and states, on the right assumption that the former would be more likely to be disadvantaged, because they are the weaker parts, there is normally more deference toward the states by national courts rather than international courts, and often national courts do not have the necessary extent of expertise for dealing with issues of international law.
However, the position embraced here must not be confused with an Austinian sanctionist view of rights and duties, whereby the legal nature of rights and duties is identified with the concept of the sanction applicable whenever they are violated; a right or a duty, so the argument would go on, would not exist at all if it is not enforceable, because the sanction could not be applied. The view which is taken here is not sanction-based, but rather seeks to highlight the need to enable the individual to fully express, enjoy, and be accountable for her subjectivity in international law. To be sure, the lack of procedural capacity and/or responsibility which still characterizes the individual under international law in respect of many important issues does not mean the individual cannot as a result be a subject of international law. On the other hand, in these same cases it would be hard to disagree that it is a diminished subjectivity; the individual is missing something important, while the solutions traditionally provided, such as the nationality of claims, are artificial and inefficient, since they fail to reflect the developments of contemporary international law and reality in respect of many substantive issues.
Moving on to more recent times, in the immediate aftermath of World War II, in part there was a major deference to the principle of diplomatic protection, in part there were international dispute settlement devices resembling the philosophy and structure of the Mixed Arbitral Tribunals and Commissions of the inter-war period. As a general rule, the 1947 Peace Treaties, unlike the model of the Peace Treaty of Versailles, provided for claims arising out of the conflict to be settled at the state level, without any procedural capacity being conferred upon individuals. There were exceptions though. An important one was provided by the 1952 Convention on the Settlement of Matters Arising out of the War and the Occupation; the Charter annexed to this convention established an Arbitral Commission before which nationals/residents (both natural and juridical persons) of the states listed (formerly occupied by Germany) could directly bring their claims against the Federal Republic of Germany.
The practice of international law in the second half of this century will be discussed in the following Parts of this paper. However, two aspects of this practice can be discussed before concluding this Part. The following paragraphs will deal with the contribution to the recognition of individuals' subjectivity in international law which US courts have given in this century, and with an epoch-making event in international law resulting from World War II: the Nuremberg Trial.
Earlier in the present paper three important cases decided by US courts were discussed. In an idealistic continuity with that set of cases and their doctrine, in this century US federal courts have solemnly recognized the individual as a subject of international law. In 1980, in Filartiga v. Pena-Irala,[48] a dispute between individuals, the US Court of Appeal for the Second Circuit was faced with a delicate jurisdictional issue for which resort to international law was necessary. The plaintiffs were two Paraguayans nationals suing a Paraguayan defendant for allegedly torturing and killing one of their closest relatives in Paraguay during the dictatorship. Clearly the jurisdictional issue was whether US courts could hear and decide a case which, under traditional jurisdictional connecting factors of territoriality and nationality, would fall outside their jurisdiction. The affirmative answer was grounded by the plaintiffs on the 1789 Judiciary Act mentioned earlier in this paper. The court finally accepted the plaintiffs' argument. It first held that "an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations....international law confers fundamental rights upon all people vis-à-vis their own governments." In reaching this conclusion the court went through the law of human rights as derived from typical sources of international law such as treaty and conventions provisions, resolutions by international organizations, customary rules emerging from state practice, and opinions by leading international law scholars. Then, the jurisdictional question more specifically became whether US courts could have jurisdiction in cases involving foreign parties based on alleged violations of international law occurred abroad. The court could give an affirmative answer, and its jurisdiction could be established, under the Judiciary Act of 1789, which expressly provided for jurisdiction in cases like Filartiga, but also on the grounds provided by the twentieth century developments in the international law of human rights, such as the Nuremberg, the 1950 European Human rights Convention, and the practice of international law.
This case, even if it leaves some doubts about the effective existence of a consistent practice of states in the human rights field, clearly shows that it is now accepted that the traditional limits of municipal law have lost most of their traditional meaning, and that the individual might and should well be a subject of international law for her to fully enjoy fundamental rights and be accountable for fundamental obligations. Indeed, in Filartiga the plaintiffs could not get satisfaction of their claim and the defendant could not be held liable for his terrible crimes if the court did not follow an approach whereby the jurisdictional issue was one of international law, and the parties were regarded as subjects of substantive duties (the plaintiffs) and obligations (the defendant) as well as of procedural capacity (the plaintiffs) and responsibility (the defendant) under international law. In this sense Filartiga is certainly a milestone in the development of the status of the individual in international law.
As Sohn puts it, "at the termination of the second world War, two events completely changed the status of individuals under international law. Both were closely connected with Nazi actions and with other atrocities before and during the war. The first event was the punishment of war criminals at Nuremberg and Tokyo; the second was the desire to prevent the recurrence of such crimes against the humanity through development of new standards for the protection of human rights."[49] While the latter will be the object of deeper discussion at a later stage in this paper, the former will now be briefly examined.
The Nuremberg International Military Tribunal[50] set an historical precedent as to the recognition of individual's duties and (criminal) responsibility on the international law level. There can be no question that the London Agreement and Charter clearly constituted instruments of international law under which individuals could be considered subjects of international law. Indeed, the Agreement was a treaty under international law, and the International Military Tribunal was a tribunal on the international law level. The Agreement laid down the bases for regarding the individuals as subjects of substantive duties of international law, while the Charter reaffirmed those bases in procedural terms, that is, it established both the individual's criminal responsibility under international law for violation of those duties and a truly international tribunal for enforcing such responsibility. The issue of individual responsibility was particularly crucial, because most defendants argued that their acts were immune from prosecution under the act of state doctrine: they acted as agents of the (Nazi) regime, to which they had to obey, and thus the regime was to be held responsible for those acts. In accordance with the provisions of the London Agreement and Charter, the Tribunal in its judgment vigorously and rightly rejected this argument and held:
"It was submitted that international law is concerned with the actions of sovereign states, and provides no punishment for individuals: and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as upon states has long been recognized...the very essence of the charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law....crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."[51]
However, after admitting the individual's subjectivity of international law as to international criminal responsibility, there would still be a separate but connected issue to determine, that is, was the criminal responsibility enforced against the individual in his private capacity or as an organ of the state? To be sure, this question is not in contradiction with the conclusions of the Tribunal quoted above, because it refers to an evaluation which already assumes that individuals were responsible; the question is not anymore whether individuals could be responsible, but rather in which capacity they were responsible. Norgaard's determination of the issue can be embraced. Indeed, the reading of both the Agreement and the Charter (and their preparatory works), and the outcome of the judgment suggest that "individuals acting as organs of state or - without having any official position - acting in the interests of the state by playing an important part in the state's war machinery, were subjects of responsibility under international law. On the other hand, there is no example in traditional international law where the individual acting in his private and interest has been made a subject of responsibility."[52] These conclusions were shared by Friedmann, who also implicitly suggested that it was not a coincidence that the Nuremberg Trial focused on top officials of the Nazi regime, because they were "so closely identified with the representation of policy-making of the regime that they were the government and the state rather than the servants of the state...."[53]
Another major issue was whether the prosecution of individuals for crimes which had not yet been defined as such under international law when committed amounted to a retroactive application of (new rules of) international law. It is true that it was the Charter which first introduced into international law the notion of crimes against peace, war crimes, and crimes against humanity, for which defendants were prosecuted at Nuremberg. On the other hand, first the principle of non-retroactivity of criminal law, while well-established at the level of the national law of most western states, seems not equally well-established on the international law level. Second, even if accepted, it would be a principle which could be legitimately derogated by a subsequent treaty, as it was the case with the London Agreement and Charter. This interpretative problem could not arise any more because now the principles of international criminal responsibility laid down by the Nuremberg Trial constitute well established principles of international law, also thanks to the Resolution of the General Assembly of the UN reaffirming the contents of the London Charter and the Genocide Convention.[54] Today, the only issue of retroactivity would concern the establishment of ad hoc tribunals for the prosecution of those crimes after their commission; however, this issue has never been raised in the practice of international law, which, while moving toward the establishment of a permanent international criminal court, has meanwhile seen ad hoc and temporary tribunals being set up ex post, as proved by the establishment of an International Criminal Tribunal further to the recent and tragic events in Former Yugoslavia and Rwanda.
The Tokyo Trial is subject to the same considerations expressed on the Nuremberg Trial, except for the important difference that the Tokyo Tribunal is not generally considered an international court due to its establishment by means of a Special Proclamation by the Supreme Commander of the Allied Powers rather than by international law in the form of a treaty. Although it would be interesting to discuss the legal nature of the Tribunal, the issue falls outside the scope of the present discussion.
This Part has now come to an end. What it has sought to show is that there are no grounds left to continue to support the traditional and positivist view of the individual's status in international law, while there are several grounds to affirm that the individual is a subject of (substantive) rights and duties under international law, and that both municipal and international forums provide for their enforceability. It is submitted that this end has been successfully pursued. Nor is this submission affected by the fact that "(the individual's) capacities may be different from and less in number and substance than the capacities of states."[55]
It may sound contradictory that there could be so much reference to the practice of international law in a Part of the paper (perhaps slightly ambitiously) seeking to provide the theoretical framework. However, the contradiction is apparent rather than real. The reason is that, at least in respect to the debate on the status of the individual in international law, any theoretical discussion disregarding what the practice indicates or suggests would be sterile, if not misleading. To put it in Janis' words:
"The reality of practice contradicts the positivist insistence that international law applies only to relations among states. Insofar as the purpose of theory is to describe reality, the positivist, subject-based theory is inadequate. Furthermore, restricting international law to states fails a second test by which positivism may be measured - its prescriptive worth. Surely it is counter to the proper values of international law to prescribe that individuals may not be the subjects of international law... It is wrong, both in terms of describing reality and in terms of preferential expression, for the theory of international law to hold that individuals are and should be within this realm. The positivist notion that individuals are not fit subjects for international law springs not from a description of reality, but from a jurisprudential philosophy most concerned with a subject-based categorization of types of law. In so categorizing international law, the positivist theorists simply discarded the more inclusive notions of the law of nations. Whatever the impact of positivist theory, it never absolutely represented the practice of any time. Today, reality and preference have so revealed the weakness and obsolescence of subject-based theory that the sooner we rid ourselves of it the better.... It is high time to realize that positivism's subject-based approach to international law is neither realistically descriptive nor beneficially prescriptive."[56]
These conclusions are totally shared. This means that, perhaps somehow paradoxically, the discussion ends up with the endorsement of Blackstone's position, from which it started. Indeed, with the refinements dictated by the developments of international law since its first pronouncement, Blackstone's theory appears to best satisfy the need to go beyond the unreasonable and burdensome limits of the positivist theory and fully recognize the individual as a subject of international law. The many weaknesses that the positivist theory has shown throughout the centuries have at the same time strengthen the validity and soundness of Blackstone's theory.
The above conclusions lead to take position in respect of another two key issues. First, the distinction between private and public international law. Does it still make sense? It is submitted it does not. The distinction has always been artificial to the extent that it was first conceived, as said, to satisfy the need to classify and regulate the many and very important relations between states and individuals and among individuals in an transnational context. These relations could not be classified under and regulated by international law as a result of Bentham's narrow subject-based definition of international law; therefore, Story organized this set of relations in the system of private international law, however part of municipal law, as opposed to international law as the law regulating relations among states only, that is, public international law in modern terms. It is evident that this residual and secondary character of private international law could never satisfactorily reflect the sophisticate nature and effects of the relations it seeks to cover; their international legal dimension should be emphasized rather than the municipal one, while currently it is the other way round. The private-public international law distinction still survives in the everyday practice as well as in the academic community, and it appears much stronger than the positivist notion of international law from which it was derived. This situation is at least as artificial as the causes which generated it. Today, if the view here embraced were accepted, that is, if the individual were fully recognized as a subject of international law, of course the rationale (per se wrong) to maintain this artificial distinction would disappear as a whole, and the limits of private international law as it is now would become intolerable. In the end there must be one international law. It would and should already be possible to make this step, if one considers that:
-There are already several multilateral forums where states can meet and, under a rule-oriented rather than a power-oriented mechanism, the regulation of transnational individual conduct can be agreed upon.
-States face increasing difficulties in regulating that conduct on the municipal level only, as proved by:
-the inadequacy of the instruments of national law to satisfactorily follow the pattern of development of most cross-borders activities, with serious constraints on the effectiveness of the rule of law;
-the increasing intolerance of the side effects of those instruments, such as the issues of extraterritoriality.
-the increasing tendency to coordinate, not to say to harmonize, the system of private international law of through ad hoc conventions.
-Most national courts, as proved by the above mentioned cases before US courts, already tend to go beyond the limits of private international law when applying it, and increasingly refer to international law more generally when looking for the applicable law.
However, the shift is a matter of legal culture, and so far it has not yet taken place, although there is increasing evidence that it is necessary. Moreover, it is understood that this shift has to occur at a substantive as well as procedural level.
The second issue is the choice between a monist and a dualistic view of the international-national law relationship. Notwithstanding this choice has not proved decisive for recognizing the individual's subjectivity under international law, it is submitted that the dualistic view seems less suitable once it is accepted that the individual is a subject of international law and that there should not be any distinction between public and private international law, but only one international law. Indeed, the notion that international law could not be directly be applied on the municipal law level, but would need be transformed into municipal law first, is the residual of the (here considered) outdated conception of state's sovereignty and of the inapplicability of international law to individuals, the main subjects of the municipal legal system. Under the position here embraced, the filter of municipal law would not be necessary anymore. The individual, as a subject of international law, can and must be addressed by international law directly, and municipal courts can and must look at international law more systematically to fill in the many gaps of municipal law on issues affecting the individual. Furthermore, because it is pointless to maintain the public-private international law distinction, there are many matters affecting individuals which cannot be deemed to belong to the exclusive domain of municipal law; rather, they are or are going to be integrated into the realm of international law. Finally, a monist view would also enable municipal courts to play without restrictions an essential role, consisting of providing adequate enforcement of the individual's rights and duties under international law. Adequate enforcement which the international legal system alone, although it is undergoing a process of radical changes in the right direction, cannot yet provide, due to the lack of a sophisticated, rule-oriented, judicial-like, and coordinated machinery for the settlement of disputes on the international law level.
[9] SOHN, The New International Law: Protection of the Rights of Individuals rather than States, 32 AM. U. L. REV. 1 (1982).
[10] See id.. at 4.
[11] HIGGINS, PROBLEM AND PROCESS, INTERNATIONAL LAW AND HOW TO USE IT 49 (1994).
[12] W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 66 (facsimile of 1st. ed. 1765-1769, University of Chicago, ed. 1979).
[13] VATTEL, LE DROIT DES GENS.
[14] BENTHAM, INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1789).
[15] Alien Tort Statute, [codified at 28 U.S.C. s. 1350 (1976)].
[16] JANIS, Subjects of International Law, 17 CORNELL INT'L L. J. 61 (1984).
[17] FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL LAW 247 (1964).
[18] See supra at 8.
[19] HEILBORN, DAS SYSTEM DES VOLKERRECHTS (1896).
[20] O'CONNELL, INTERNATIONAL LAW 116 (1965).
[21] See id. at 118.
[22] See, for an excellent summary, NORGAARD, POSITION OF THE INDIVIDUAL IN INTERNATIONAL LAW (1962).
[23] See id. at 26.
[24] ROSS, A TEXTBOOK OF INTERNATIONAL LAW (1947).
[25] ANZILOTTI, COURS DE DROIT INTERNATIONAL (1929).
[26] SCHWARZENBEREGER, INTERNATIONAL LAW (1965).
[27] GIHL, FOLKRATT (1956).
[28] SPERDUTI, L' Individu et le droit International 90 Rec. t. 727-849 (1956).
[29] To cite a few: BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (4th ed. 19901); AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW (7th ed. 1993), etc.
[30] H. LAUTHERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS (1950).
[31] KELSEN, PRINCIPLES OF INTERNATIONAL LAW (1966).
[32] VERDROSS, Regles Générales du Droit International de la Paix 30 REC T. 275 (1929).
[33] GUGGENHEIM, TRAITé DU DROIT INTERNATIONAL PUBLIC (1953-4).
[34] H. LAUTHERPACHT, The Subjects of the Law of Nations 63 L.Q.R. 443 (1947).
[35] Op. Cit. at. 25.
[36] Id. at 54.
[37] BORCHARD, DIPLOMATIC PROTECTION OF CITIZENS ABROAD (1928); JESSUP, A MODERN LAW OF NATIONS (1948).
[38] 1 U.S. (1 Dall.) 111 (1784).
[39] 160 U.S. 113 (1896).
[40] 175 U.S. 677 (1900).
[41] FRIEDMANN, supra note 9 at 239.
[42] BROWNLIE, supra note 21 at 589.
[43] P.C.I.J., Series B, No.15 17 (1928).
[44] LAUTHERPACHT, supra note 22 at 27-29.
[45] P.C.I.J. Ser. A/B No.61 231 (1933).
[46] H. LAUTHERPACHT, INTERNATIONAL LAW (1950).
[47] NORGAARD, supra note 14 at 50.
[48] 630 F. 2d 876 (2d. Circ. 1980).
[49] SOHN, supra note 1 at 4.
[50] Charter of the International Military Tribunal annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed on 8 August 1945.
[51] The Nuremberg Trial, 6 F.R.D. 69, 110 (Int'l Military Tribunal 1946).
[52] NORGAARD, supra note 14 at 197.
[53] FRIEDMANN, supra note 9 at 240.
[54] Res. 95 (I) of December 11th, 1946, U.N. Doc. A/64/Add. P. 188, and subsequent Resolutions on human rights.
[55] O'CONNELL, supra note 12 at 108-9.
[56] JANIS, supra note 8 at 75.
Previous |Next |Title |Contents