The panel was convened at 10:45 a.m., Friday, March 31, by its chair, Alexandre Ch. Kiss of the National Center for Scientific Research, who introduced the panelists: John Cerone of the New England School of Law; Vincent O. Nmehielle of the University of Witwatersrand School of Law; Anne-Marie La Rosa of the International Committee of the Red Cross; and Dinah Shelton of George Washington University Law School. *
REMARKS BY DINAH SHELTON ([dagger])
In Oppenheim's classic treatise on the topic, international law was defined as a law governing the relations among states, exclusively. (1) Defining international law in this manner meant that by definition individuals and other nonstate actors could not be subjects of international law. Instead, Oppenheim and other writers at the beginning of the twentieth century classified individuals as potential objects of international law. States were perceived as hermetically sealed entities, and only interstate relations were deemed proper matters for international regulation.
Was this theoretical approach ever true in practice? Historically, international law regulated some conduct of individuals, reflected in the ancient prohibition of piracy and certain war crimes, followed by the nineteenth century outlawing of slave-trading. The lex mercatoria developed as a private customary international law, widely implemented and enforced in domestic courts. Rights were granted by treaty, although such grants were consistent with Oppenheim's view of individuals as objects of conventional law, if states so intended.
There were also, however, rights and duties derived from non-conventional law. The well-known Martens clause referred to "the usages established among civilized peoples, the laws of humanity, and the dictates of the public conscience." (2) Following World War I, a commission of the Peace Conference reported that the war carried on by the central powers was conducted by "barbarous methods in violation of the established laws and customs of war and the elementary laws of humanity." (3) According to the commission, "all persons belonging to enemy countries, however high their positions may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity are liable to prosecution." (4) Article 237 of the treaty with Germany thereafter provided:
The Allied and Associated Powers publicly arraign William II of
Hohenzollern, formerly German Emperor, for a supreme offence against
international morality and the sanctity of treaties. A special tribunal
will be constituted to try the accused, thereby assuring
him the guarantees essential to the right of defence. It will be
composed of five judges, one appointed by each of the following Powers:
namely, the United States of America, Great Britain, France, Italy and
Japan. In its decision, the tribunal will be guided by the
highest motives of international policy, with a view to vindicating the
solemn obligations of international undertakings and the validity of
international morality. (5)
Notably, the emperor was not accused of violating the laws and customs of war, but of what would later be called "crimes against peace." The sealed box of the state was clearly broken open.
During the hundred years of the American Society of International Law, the number of such "exceptions" to the classic states-only construct of international law has expanded to the point that the definition itself no longer holds true. The changes were largely incremental until the end of World War II, when human rights law and international criminal law became major topics of international regulation. The transformed world vision is perhaps best reflected in the well-known statement of Justice Jackson during the Nuremburg proceedings, when he noted that crimes are not committed by states, they are committed by individuals. Today, the Restatement (Third) of Foreign Relations expresses the general understanding that international law governs the relations among states and other actors in the international arena.
This changing status of the individual can be seen in three main domains: procedural standing, substantive rights, and obligations imposed by international law.
On the topic of procedural standing, the direct access of individuals to national and international fora irrespective of the nationality of the claimant is a marked departure from traditional rules of diplomatic protection whereby only the state of nationality could pursue a claim on behalf of an injured individual against the wrong-doing state. Although Christian Tomuschat considers that the matter of whether or not individuals are subjects of international law is still highly controversial, the procedural access afforded individuals is an important indicator of "subject" status.
Tribunals created to enforce human rights and settle economic disputes now often grant individuals competence to bring claims independent of the will of any state. The state of nationality may disagree with "internationalizing" the dispute, but the injured individual, regardless of nationality, can nonetheless assert rights directly against the responsible state. Impeding access to international procedures is treated by all human rights bodies as a grave violation of the underlying obligations of the state. While most of these obligations are derived from treaties and thus remain within the consensual framework of international law, the procedural capacity of individuals is increasingly mandated and not optional. Examples include the European Court of Human Rights, the Inter-American Commission on Human Rights, and the African Commission on Human and Peoples Rights. These and other international tribunals also allow individuals and nongovernmental organizations to participate in advisory or interstate proceedings as amicus curiae or to otherwise participate in some manner. (6)
In substantive law, the internationalization of human rights most clearly indicates the changing status of the individual. Classic international law, reflected in the Nottebohm judgment of the International Court of Justice, emphasized the bond of nationality and the rights and duties conferred on the individual by the state. In contrast, human rights texts and tribunals today emphasize that human rights are not derived from the state (or from international law), but are inherent attributes of the human person. Several examples reflect this new approach. First, the UN Human Rights Committee in its General Comment No. 26 (Continuity of Obligations) emphasized the objective regime...