I have been given the unenviable task of performing a critical appraisal of the status of the individual in international law one hundred years after the founding of the ASIL. As such, this presentation is not intended to be a neutral examination of the issue. Essentially, this critique will survey, from a conservative legal perspective, the international legal personality of the individual as evidenced by the ascription of duties and rights to individual human beings in the course of the past century.
Particular attention will be paid to recent decisions of U.S. courts indicating divergent conceptions of the status of the individual. At times, U.S. courts have given the individual a far more robust status than is generally accepted in international law; in other cases, they have demonstrated an antiquated conception of the international legal system, with the individual relegated to the status of an object, protected only as the national of a sovereign.
Commentators often cite piracy as the classical example of a rule of international law imposing a duty on individuals. It is certainly true that piracy for centuries has been regarded as an offense against the law of nations and that all states have jurisdiction to prosecute pirates. This universality of jurisdiction is affirmed in Articles 100-107 of the United Nations Convention on the Law of the Sea. However, nowhere does the Convention create international criminal liability for piracy. Indeed, it is not clear that the act of piracy has historically given rise to individual criminal responsibility in international law. (1) Thus, while international law provides jurisdiction to all states to prosecute pirates and indeed imposes a duty on states to cooperate in the suppression of piracy, (2) it is not universally accepted that international law imposes a duty on individuals to refrain from piratical acts. Ultimately, it is difficult to establish the matter definitively because, prior to the twentieth century, there were no international tribunals applying international law to individuals.
Other commentators may concede that piracy was not necessarily an international crime in the strict sense, but would then point to the International Military Tribunals convened after World War II as definitively establishing the existence of individual criminal responsibility for the breach of certain violations of international law.
However, it must be recalled that the Nuremberg Tribunal was not an international criminal court in the strictest sense of the word--certainly not within the meaning of that term as used by International Court of Justice in Congo v. Belgium. (3) Indeed, the IMT at Nuremberg did not conceive of itself as having any kind of international jurisdiction. It grounded both its jurisdiction to prescribe and its jurisdiction to adjudicate on the fact that the Allies as occupying powers had stepped into the shoes of the German government. As the IMT underscored, the Allies had simply "done together what any one of them might...