Cornell International Law Journal

Volume 17
Article 2
Issue 1 Winter 1984

Individuals as Subjects of International Law

M. W. Janis

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Janis, M. W. (1984) "Individuals as Subjects of International Law," Cornell International Law Journal: Vol. 17: Iss. 1, Article 2.
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 INDIVIDUALS AS SUBJECTS OF
INTERNATIONAL LAW

M. W. Janist

Legal positivism has long provided the usual theory for

comprehending international law. The typical positivist definition of
international law is grounded on a subject-based differentiation
between international and municipal rules. Positivism views
international law as a set of rules with states as its subjects.
Municipal law is thought of as pertaining to individuals who are
subjects of a single state. This Article rejects the positivist subject-
based approach to international law and calls for a definition of the
discipline that recognizes individuals as subjects of international law.
This Article is divided into three parts. First, it briefly reviews
the development of the positivist theory of international law.
Second, it tests the subject-based approach against some realities of
international practice and shows that international law actually has
long involved individual rights and obligations. Finally, it suggests
that a different, albeit older, theoretical foundation for international
law may be a better way to encompass individuals as subjects of
international law.

POSITIVISM AND THE DEVELOPMENT OF THE SUBJECT-

BASED DEFINITION OF INTERNATIONAL LAW
Before positivism, there was no theoretical insistence that the
rules of the law of nations applied only to states. William Black-
stone reflected the sentiment of the middle eighteenth century.' For
Blackstone, individuals and states were both proper subjects of the
law of nations. He drew no dividing line between what later came to
t Professor of Law, University of Connecticut School of Law.
1. The law of nations is a system of rules, deducible by natural reason, and
established by universal consent among the civilized inhabitants of the world; in
order to decide all disputes, to regulate all ceremonies and civilities, and to
insure the observance of justice and good faith, in that intercourse which must
frequently occur between two or more independent states, and the individuals
belonging to each.
4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 66 (facsimile of 1st ed.
1765-1769, University of Chicago, ed. 1979).
62 CORATELL INTERNATIONAL LAW JOURNAL [Vol. 17:61

be called public and private international law.2 Blackstone distin-

guished his law of nations from other sorts of law not on the basis of
its subjects but because of its sources. He saw the rules of the law of
nations as universal, emanating either from natural justice or from
the practice of many states.3 Municipal legal rules, however, ema-
nated from a single state.
In 1789, Jeremy Bentham created the term "international law"
in his Introduction to the Princilesof Morals and Legislation. Ben-
tham defined the new concept as the law which relates to "the
mutual transactions between sovereigns as such. ' 5 He thought that
"as to any transactions which may take place between individuals
who are subjects of different states, these are regulated by the inter-
nal laws, and decided upon by the internal tribunals" of individual
sovereign states.6 Categorizing laws on the basis of "the persons
whose conduct is the object of the law," Bentham concluded that
international law had only states as its subjects. 7 While categorizing
rules on the basis of the subjects to be governed is logical enough, it
plainly was wrong for Bentham to assume that international law so
defined was equivalent to the traditional law of nations.8 There were
significant differences between the two. 9
Two early nineteenth century positivists promoted the notion
that the individual was not a proper subject of international law.
Joseph Story, complaining that no treatise existed on the subject,
crafted "private" international law to parallel Bentham's "public"
international law.10 Public international law went to international
matters affecting states, while private international law concerned
2. Blackstone's law of nations included "mercantile questions, such as bills of
exchange and the like," "all marine cases" and "disputes relating to prizes, to shipwrecks,
to hostages, and ransom bills." Id at 67.
3. Id at 66-67.
4. J. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLA-
TIoN 6 (J. Burns & H.L.A. Hart eds. 1970).
5. Id at 296.
6. Id
7. Id at 293-96.
8. Bentham knew that he was creating a new term, but he thought that he was
simply substituting one term for another without changing the scope of the field:
The word international, if must be acknowledged, is a new one; though, it is
hoped, sufficiently analogous and intelligible. It is calculated to express, in a
more significant way, the branch of law which goes commonly under the name
of the law ofnations: an appellation so uncharacteristic, that, were it not for the
force of custom, it would seem rather to refer to internal jurisprudence.
Id at 296.
9. For a fuller treatment of Bentham's views on international law, see Janis, Jeremy
Bentham and the Fashioningof "InternationalLaw," 78 AM. J. INT'L L. 405 (1984). For
an eighteenth century case reflecting Blackstone's definition, see DeLongchamps, infra
notes 17-20 and accompanying text.
10. See J. STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND
DOMESTIC v (1st ed. 1834).
1984] SUBJECTS OF INTERM4TIONAL L4W

international matters between individuals. John Austin argued that

because public international law claimed to regulate matters
between sovereign states which as sovereigns could not be regulated
by any outside authority, international law was just a form of "posi-
tive morality" and not really law at all."
Legal positivism had taken the eighteenth century law of
nations, a law common to individuals and states, and transformed it
into public and private international law. The former was deemed
to apply to states, the latter to individuals. Positivists scorned both
sides of the discipline. Public international law was "international"
but not really "law." Private international law was "law" but not
really "international." Even so insightful a modern positivist as H.
L. A. Hart assumed that the essence of international law was that it
addressed states.' 2 Although Hart saw persuasive similarities
between international and municipal law, he accepted uncritically
3
Bentham's subject-based approach to the field.'
The positivist definition of international law has had an enor-
mous impact on modern perceptions concerning the individual and
international law. 14 With few exceptions, the theory rejects the

11. See J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 140, 201 (ed.
1954).
12. See H.L.A. HART, THE CONCEPT OF LAW 208-31 (1961).
13. On Hart's positivism and Professor Jones's article in this journal, see infra note
66.
14. The following are but a few examples: "[In international law] the whole social
body is united into one sovereign independent state, and only its relations with other
such bodies are the subject of its investigations." J.T. ABDY, in KENT's COMMENTARY
ON INTERNATIONAL LAW 7 (1866); "International law may be defined as the rules which
determine the conduct of the general body of civilized states in their mutual dealings."
T.J. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 1 (4th ed. 1910); "The exclu-
sive business of International Law is to define the Rights and Duties of each State with
reference to the rest." T.E. HOLLAND, LECTURES ON INTERNATIONAL LAW 53 (1933);
"International law consists of a body of rules governing the relations between states." 1
G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 1 (1940); "The term international law
may be fairly employed to designate the principles and rules of conduct declaratory
thereof which States feel themselves bound to observe, and, therefore, do commonly
observe in their relations with each other." C.C. HYDE, 1 INTERNATIONAL LAW CHIEFLY
AS INTERPRETED AND APPLIED BY UNITED STATES I (2d ed. 1947); "The Law of Nations,
or International Law, may be defined as the body of rules and principles of action which
are binding upon civilized states in their relations with one another." J.L. BRERLY, THE
LAW OF NATIONS 1 (6th ed. 1963). Brierly accepts Bentham's equation of the law of
nations and international law.
International law has been defined as the body of "rules which are considered
legally binding by states with each other," or "the principles which are in force
between all independent nations." While some would see law as much more
than-or even something different from--"rules" or "principles," there is com-
mon acceptance that international law is that law which governs relations
between states, the basic units in the world political system during more than 300
years.
L. HENKIN, R.C. PUGH, 0. SCHACHTER & H. SMIT, INTERNATIONAL LAW CASES AND
MATERIALS LVII (1980). See also P. HIGGINS, STUDIES IN INTERNATIONAL LAW AND
64 CORNELL INTERATIONAL LAW JOURNAL [Vol. 17:61

notion that individuals are proper subjects of public international

law.15 Originally, the subject-based approach was merely Bentham's
attempt to provide a rational way of explaining that law may have
different subjects: individuals and states.' 6 While law can be catego-
rized on the basis of its subjects, in practice the law of nations and
international law have concerned more than the legal rights of states.
As the next section demonstrates, positivism's subject-based defini-
tion was and remains oftentimes wrong in practice.

THE SUBJECT-BASED DEFINITION OF INTERNATIONAL

LAW AND SOME REALITIES OF
INTERNATIONAL PRACTICE
A prominent example of the failure of positivism to describe
adequately the reality of the individual as a subject of international
law comes from the time of Bentham himself. In Respublica v. De
Longchamps, 7 an American municipal court indicted the defendant
for assaulting the Consul General of France to the new United
States. It was held that the case "must be determined on the princi-
ples of the laws of nations.""' There was, following Blackstone, no
doubt that an individual could be guilty of an infraction of the law
of nations. 19 De Longchamps, for his violation of the law of nations,
was ordered to pay a fine of one hundred French crowns to the Com-
monwealth of Pennsylvania and to be imprisoned for "a little more"
20
than two years.
Even during the high tide of positivism, the United States
Supreme Court had no difficulty seeing individuals as subjects of
international law. In The PaqueteHabana,21 the United States Navy
had seized two Cuban fishing smacks in the opening days of the

RELATIONS 16 (1928); I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 69 (3d

ed. 1979); D.W. GRIEG, INTERNATIONAL LAW 1, 116 (2d ed. 1976); M. AKEHURST, A
MODERN INTRODUCTION TO INTERNATIONAL LAW 1 (4th ed. 1982); A. FAVRE, PRINCI-
PLES DU DROIT DES GENS 11, 17 (1974); AKADEMIE DER WISSENSCHAFTEN DER UDSSR
RECHTSINSTITUT VOLKERRECHT 1 (1960).
15. A greater willingness to see international law include individuals as its subjects is
found in H. KELSEN, PRINCIPLES OF INTERNATIONAL LAW 180-290 (1966). Kelsen sees
all law as applying to individuals and the international legal responsibility of a state as
"nothing but the collective responsibility of the individuals belonging to the community
represented as a juristic person." Id at 182.
16. See supra notes 4-9 and accompanying text.
17. 1 U.S. (1 Dall.) 111 (1784).
18. .1d at 114.
19. The Court stated that "[t]he person of a public minister is sacred and inviolable.
Whoever offers any violence to him, not only affronts the Sovereign he represents, but
also hurts the common safety and well-being of nations; he is guilty of a crime against the
whole world." Id at 116.
20. Id at 118.
21. 175 U.S. 677 (1900).
19841 SUBJECTS OF INTERNATIONAL LAW

Spanish-American War. A lower federal court condemned the boats

as prizes of war. The masters for themselves, their crews, and their
owners, argued before the Supreme Court that peaceful fishing craft
were exempt from seizure under the rules of international law. In
perhaps the most famous statement ever made about international
law by a United States court, the Supreme Court held that
"[i]nternational 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."2 2 The Court held that:
By an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law, coast fishing vessels, pur-
suing their vocation of catching and bringing in fresh fish, have been recog-
nized23 as exempt, with their cargoes and crews, from capture as prize of
war.
Individuals had a right to rely on this rule as against the United
States. The Court ordered the government to pay over the proceeds
of the sale of the vessels and their cargoes to the individual
24
claimants.
However inadequately subject-based theory accounted for indi-
vidual rights and obligations in international law in the eighteenth
and nineteenth centuries, positivism has done an even poorer job in
explaining the practices of the twentieth century. The trials of Nazi
war criminals after the Second World War highlighted the limita-
tions of positivism. Faced with the excesses of a seemingly "civi-
lized" state, those formulating and applying international law
discarded any pretense that international rules applied only to state
behavior.
The Charter of the International Military Tribunal at Nurem-
berg explicitly made individuals subject to international rules relat-
ing to crimes against peace, war crimes, and crimes against
humanity. 25 At Nuremberg and in other war trials, thousands of

22. Id at 700.
23. Id at 686.
24. Id at 714.
25. The Charter provided:
Article 6.
The following acts, or any of them, are crimes coming within the jurisdiction
of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or
waging of a war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such
violations shall include, but not be limited to, murder, ill-treatment or deporta-
tion to slave labor or for any other purpose of civilian population of or in occu-
pied territory, murder or ill-treatment of prisoners of war or persons on the seas,
66 CORAJELL INTERATIONAL LAW JOURNAL [Vol. 17:61

individuals were tried and convicted; hundreds were executed. 26

Nuremberg re-established plainly and forcefully that the rules of
international law should and do apply to individuals. The Nurem-
berg Tribunal held that "[c]rimes against international law are com-
mitted by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of interna-
tional law be enforced." 27
The Nuremberg trials were not isolated events. They had a
profound influence on other elements of modern international law.
For example, they had an important impact on the formulation and
implementation of the 1950 European Convention for the Protection
of Human Rights and Fundamental Freedoms. 28 The European
Convention provides that party states shall secure to everyone within
their jurisdiction certain rights and freedoms. These include the
right to life, freedom from torture or inhumane or degrading punish-
ment, freedom from slavery or servitude, the right to liberty and
security of person, the right to a fair trial, freedom from ex post facto
laws, the right to private life and correspondence, freedom of
thought and religion, freedom of expression, the rights to assembly
29
and trade unions, and the right to marry and found a family.
The European Convention has been accepted throughout West-

killing of hostages, plunder of public or private property, wanton destruction of

cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed against any civil-
ian population, before or during the war, or persecutions on political, racial or
religious grounds in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the domestic law of
the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formula-
tion or execution of a common plan or conspiracy to commit any of the forego-
ing crimes are responsible for all acts performed by any persons in execution of
such plan.
Article 7
The official position of defendants, whether as Heads of State or responsible
officials in Government Departments, shall not be considered as freeing them
from responsibility or mitigating punishment.
Article 8.
The fact that the Defendant acted pursuant to order of his Government or of a
superior shall not free him from responsibility, but may be considered mitigation
of punishment if the Tribunal determines that justice so requires.
AGREEMENT FOR THE PROSEcLrION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS
OF THE EUROPEAN Ams, signed August 8, 1945, 59 Stat. 1544, 1547-48, E.A.S. No. 472
(emphasis added).
26. See E. DAVIDSON, THE TRIAL OF THE GERMANS 1-38 (1972).
27. The Nuremberg Trial, 6 F.R.D. 69, 110 (Int'l Military Tribunal 1946).
28. Convention for the Protection of Human Rights and Fundamental Freedoms.
November 4, 1950, 213 U.N.T.S. 221 [hereinafter cited as European Human Rights
Convention].
29. Id at arts. 1-12.
1984] SUBJECTS OFINTERNATIONAL LAW

erm Europe.3 0 The Convention not only formulates substantive

international rights, but also creates a set of institutions to enforce
these rights: a European Commission of Human Rights and a Euro-
pean Court of Human Rights, both sitting in Strasbourg. 31 The
structure of these institutions and individuals' access to them is
important and worth noting in some detail.
The Commission consists of twenty members, one from each
contracting state. 32 Any contracting state may refer to the Commis-
sion any alleged breach of the provisions of the European Conven-
tion by another contracting party.3 3 Furthermore, persons, non-
governmental organizations, and groups of individuals may petition
the Commission with claims of violations of the Convention. The
right of individual petition is limited to complaints against states that
have recognized the competence of the Commission to receive such
petitions, 34 but sixteen of the twenty contracting parties have
declared their recognition of such competence. 35 The Commission
decides the admissibility of petitions by referring to the rules of the
Convention.3 6 If the petition is admissible, the Commission investi-
gates the complaint and attempts to secure a friendly settlement
between the parties. 37 If the parties can not reach an amicable settle-
38
ment, the Commission submits a Report to the Council of Europe.
After the Commission has reported, a case may be referred to
the European Court of Human Rights.39 There are twenty-one
judges on the Strasbourg court, one for each member of the Council
of Europe.4° Eighteen of the twenty Convention members recognize
the compulsory jurisdiction of the court. 41 Either the Commission or
a member state may refer a case to the court. 42 Although an individ-
ual complainant does not have a right to refer a case to the court, the

30. Twenty countries are now parties: United Kingdom, France, West Germany,
Italy, the Netherlands, Belgium, Luxembourg, Ireland, Denmark, Greece, Norway, Swe-
den, Iceland, Austria, Switzerland, Spain, Portugal, Cyprus, Malta and Turkey. EURO-
PEAN COMMISSION OF HUMAN RIGHTS, STOCK-TAKING ON THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 8 (1982) [hereinafter cited as STOCK-TAKING ON THE
EUROPEAN CONVENTION].
31. European Human Rights Convention, supra note 28, art. 19.
32. Id at art. 20.
33. Id at art. 24.
34. I.d at art. 25.
35. STOCK-TAKING ON THE EUROPEAN CONVENTION, supra note 30, at 8. The non-
consenting states are Greece, Cyprus, Malta, and Turkey. Id
36. European Human Rights Convention, supra note 28, at art. 27.
37. Id at art. 28.
38. Id at art. 31.
39. Id at arts. 46-49.
40. Id at art. 38.
41. STOCK-TAKING ON THE EUROPEAN CONVENTION, supra note 30, at 8. The two
non-consenting states are Malta and Turkey. Id
42. European Human Rights Convention, supra note 28, at art. 44.
68 CORNELL INTERNAWTIONAL LAW JOURNAL [Vol. 17:61

Commission can and frequently will refer the case so as to secure a

legally binding decision on the individual's behalf. Thus, the Court
can rule against a state even though the state has not referred the
43
case to the court.
The European human rights system maintains an active sched-
ule. In 1981, the Commission provisionally opened 2672 files, offi-
cially registered 404 applications, rendered 430 decisions, and
launched 21 investigations. 44 The Strasbourg Court handed down
five judgments. The Court's workload has been increasing: there
were only ten decisions between 1960 and 1969, but the Court made
twenty-four judgments in the 1970's and it already has decided six-
teen cases in the first two and a half years of this decade.
Individual applications figure prominently in the work of the
European Commission and Court of Human Rights. As of Septem-
ber 30, 1981, the European Commission had received (since 1953)
only thirteen petitions lodged by states; it had, however, received
about 9560 applications from individuals. 45 This means that the
European human rights system was receiving even fewer inter-state,
international cases than the infrequently consulted International
Court of Justice.46 It is the total of individual applications which
makes the European human rights system a vital aspect of interna-
tional law. In contrast, the International Court of Justice, in a posi-
tivist, subject-based fashion, does not accept individuals as
claimants. 47
Moreover, the European human rights system operates effec-
tively. It is an international legal system that is respected in practice.
The Court, for example, has found England in violation of a pris-
oner's right to correspond with his lawyers, 48 the Netherlands in vio-
lation of a soldier's right to a fair disciplinary hearing,49 and Italy in
violation of a detainee's right to be detained only after conviction or
for the purpose of a hearing.50 In these and other cases, the govern-
43. Id at art. 48. See the judgments of the European Court of Human Rights in The
Sunday Times Case, 1979 Y.B. EUR. CoNy. ON HUMAN RIGrHTS 403 and the Airey Case,
1979 Y.B. EUR. CONy. ON HumAN RIGHTS 420.
44. STOCK-TAKING ON THE EUROPEAN CONVENTION, supra note 30, at 224.
45. Id at 12.
46. On average, the International Court of Justice and its predecessor, the Permanent
Court of International Justice, have rendered about two judgments or advisory opinions
each year. Between 1922 and 1940 the PCIJ recorded 31 judgments and 27 advisory
opinions. The ICJ rendered 42 judgments and 18 advisory opinions between 1946 and
1982. I.C.J.Y.B. 153-64 (1982).
47. I.CJ. Stat. Art. 34(1) provides: "Only States may be parties in cases before the
Court." International Court of Justice, Series D, Acts and Documents Concerning the
Organization of the Court (May 1947).
48. Golder Case, 1975 Y.B. EUR. CON. ON HUMAN RIGHTS 290.
49. Engel Case, 1976 Y.B. EUR. CONy. ON HUMAN RIGHTS 490.
50. Guzzardi Case, 1980 Y.B. EUR. CON. ON HUMAN RIGHTS 484.
1984] SUBJECTS OF INTERNA.TIONAL LA W

ment concerned has respected the judgment of the Court. The con-
trast to the International Court of Justice, where countries often have
51
disregarded the court's proceedings, is plain.
Furthermore, the European human rights system has served as a
model for other regions. The drafters of the American Convention
on Human Rights followed the European example.52 Like the Euro-
pean Convention, the American Convention established certain fun-
damental human rights and a commission and court to protect these
rights. 53 Unlike the European human rights system, the new Ameri-
can system has no impressive collection of enforcement actions. But
an advisory opinion of the Inter-American Court of Human Rights
clarified the fundamental role of the individual in the international
54
law system existing under the American Convention.
The European Economic Community (E.E.C.) provides another
important example of rules and process applicable to individuals
under modern international law. The E.E.C. is composed of ten
nations adhering to the 1957 Treaty of Rome. 55 The Rome Treaty
primarily concerns economic matters. It provides for a customs
union, a common agricultural market, free movement of persons,
services and capital, and common policies for such matters as trans-

51. In four recent contentious ICJ cases, defendant states have simply refused to
appear: Iceland, in Fisheries Jurisdiction (W. Ger. v. Ice.), 1974 I.C.J. 175 (Judgment of
July 25); France, in Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253 (Judgment of Dec. 20);
Turkey, in Aegean Sea Contintental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Judgment of
Dec. 19); and Iran, in United States Diplomatic and Consular Staff in Tehran (U.S. v.
Iran), 1980 I.C.J. 3 (Judgement of May 24). Despite such disregard, I.C.J. proceedings
still may serve a useful purpose. See Janis, The Role of the InternationalCourt in the
Hostages Crisis, 13 CoNN. L. REv. 263 (1981).
52. American Convention on Human Rights, enteredintoforce July 18, 1978, OAS
Treaty Series No. 36, at 1-21 OEA/Ser. A/16, [English] [hereinafter cited as American
Convention on Human Rights]. For a history of the ratification of the American Con-
vention and a reprint of its text, see HUMAN RIGHTS: THE INTER-AMERICAN SYSTEM,
Part I, Ch. II, i (T. Buergenthal & R. Norris eds. 1982).
53. American Convention on Human Rights, supra note 52 at arts. 3-25, 33-73.
54. [M]odern human rights treaties in general, and the American Convention in
particular, are not multilateral treaties of the traditional type concluded to
accomplish the reciprocal exchange of rights for the mutual benefit of the con-
tracting States. Their object and purpose is the protection of the basic rights of
individual human beings, irrespective of their nationality, both against the State
of their nationality and all other contracting States. In concluding these human
rights treaties, the States can be deemed to submit themselves to a legal order
within which they, for the common good, assume various obligations, not in rela-
tion to other States, but towards all individuals within their jurisdiction.
The Effect of Reservations on the Entry into Force of the American Convention, Inter-
American Court of Human Rights, Advisory Opinion No. OC-2/82 (Sept. 24, 1982),
reprintedin 22 I.L.M. 37, 47 (1983).
55. Treaty Establishing the European Economic Community, March 25, 1957, 298
U.N.T.S. 3. [hereinafter cited as E.E.C. Treaty]. The ten countries are Belgium, Den-
mark, France, Great Britain, Greece, Ireland, Italy, Luxembourg, the Netherlands, and
West Germany.
70 CO"RELL ZNTER4ATI1ONAL LAW JOUN4AL [Vol. 17:61

portation and competition.5 6

An important component of the regional international legal sys-
57
tem of the E.E.C. is the European Court of Justice in Luxembourg.
The Luxembourg Court hears cases brought not only by states and
by the Community's international institutions, the Council and the
Commission, but also by individuals.5 8
The European Court of Justice also may advise municipal
courts on cases that involve individual claims against states or other
individuals. 59 In addition, the court has jurisdiction in cases involv-
ing damages caused by the institutions of the Community or its ser-
vants and in cases brought by employees of the E.E.C. against
60
Community institutions.
The European Court of Justice explicitly recognized the appli-
cability of E.E.C. law to individuals in the famous Van Genden Loos

56. Id at arts. 9, 38, 48, 59, 67, 74, 85, 86.

57. The court is composed of eleven judges, one from each member country, and an
extra judge appointed on a rotating basis from one of the four largest E.E.C. member
states. D. LAsOK & J. BRIDGE, LAW AND INSTITUTIONS OF THE EUROPEAN COMMUNI-
TiEs 221 (3d ed. 1982).
58. For example, Article 173 of the E.E.C. Treaty provides:
The Court of Justice shall review the legality of acts of the council and the
Commission other than recommendations or opinions. It shall for this purpose
have jurisdiction in actions brought by a Member State, the Council or the Com-
mission on grounds of lack of competence, infringement of an essential proce-
dural requirement, infringement of this Treaty or of any rule of law relating to
its application, or misuse of powers.
Any naturalor legalpersonmay, under the same conditions,instituteproceedings
against a decision addressed to that person or against a decision which, although
in the form of a regulation or a decision addressed to another person, is of direct
and individual concern to the former.
E.E.C. Treaty, supra note 55 at art. 173 (emphasis added).
59. Article 177 of the E.E.C. Treaty states:
The Court of Justice shall have jurisdiction to give preliminary rulings
concerning:
(a) the interpretation of this treaty;
(b) the validity and interpretation of acts of the institutions or the Community;
(c) the interpretation of the statutes of bodies established by an act of the
Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the question is
necessary to enable it to give judgment, request the Court of Justice to give a
ruling thereon.
Where any such question is raised in a case pending before a court or tribunal
of a Member State, against whose decision there is no judicial remedy under
national law, that court or tribunal shall bring the matter before the Court of
Justice.
Id at art. 177. The purpose of Article 177 is "to ensure a uniform interpretation and
application of Community law," Bebr, PreliminaryRulings of the Court of Justice: Their
Authority and Temporal Effect, 18 COMMON MKT. L. REv. 475 (1981). For a further
discussion of Article 177, see Van Gerven, he Legal Protectionof PriatePartiesin the
Law ofthe European Economic Community, in EUROPEAN LAW AND THE INDIVIDUAL 1
(Jacobs ed. 1976).
60. E.E.C. Treaty, supra note 55, at arts. 178, 179.
1984] SUBJECTS OF INTERNATIONAL LAW

case. 6' The Court has also held that the conflicting rules of munici-
62
pal legal systems must give way to E.E.C. law.
As with the European Court of Human Rights, 63 the vast bulk
of cases before the European Court of Justice has been brought by
individuals, not by states. As of December 31, 1982, 272 of the 322
cases brought against the E.E.C. under Article 173 have been
brought by individuals.64 In addition, there have been 1030 Article
177 cases, most involving individual rights and obligations, and 1983
65
actions brought by E.E.C. employees.
Again, the contrast with traditional positivist doctrine is strik-
ing. The European Court of Justice is a busy international court. In
terms of actual caseload, it is far more important than the Interna-
tional Court of Justice. It hears, on a regular basis, cases brought by
and involving individual litigants and determines the rights and obli-
gations of individuals based on the international legal rules embod-
ied in the Treaty of Rome and formulated by the E.E.C.'s
international institutions. In the face of this practice, it is unrealistic
to theorize that individuals are not subjects of international law.
Clearly, in E.E.C. law individual rights and obligations are very
much at issue. In E.E.C. practice, individual litigants often are
66
important subjects of the international proceedings.

61. The court held:

[T]he Community constitutes a new legal order in international law, for whose
benefit the States have limited their sovereign rights, albeit within limited fields,
and th subjects of which comprise not only member States but also their nation-
als. Community law, therefore, apartfrom legislation by the member States, not
only imposes obligationson individualsbut also confers on them legal rights.
Case 26/62 Ven Gend en Loos v. Nederlandse Administratie der Belastingen [1963]
E.C.R. 1,23, 2 Comm. Mkt. L.R. 105, 129 (1963) (emphasis added). There is sometimes
said to be a distinction in E.E.C. law between "direct applicability," i.e., the incorpora-
tion of E.E.C. law into municipal law, and "direct effect," i.e., the capability to enforce
judicially an E.E.C. rule. Both concepts concern individual rights and obligations and,
whatever the validity of the distinction, are covered by the American notion of "self-
executing" provisions of international agreements. See Winter, DirectApplicability and
DirectEffect: Two Distinctand Different Concepts in Community Law, 9 COMMON MKT.
L. REv. 425 (1972).
62. "[E]very national court must, in a case within its jurisdiction, apply Community
law in its entirety and protect rights which the latter confers on individuals and must
accordingly set aside any provision of national law which may conflict with it, whether
prior or subsequent to the Community rule." Case 106/77 Amministrazione delle
Finanze dello Stato v. Simmenthal, [1978] E.C.R. 629, 644,23 Comm. Mkt. L.R. 263,283
(1978).
63. See supra text accompanying notes 45-47.
64. COMMISSION ON THE EUROPEAN COMMUNITIES, SIXTEENTH GENERAL REPORT
ON THE ACTIVITIES OF THE EUROPEAN COMMUNITIES 1982 338-39 (1983).
65. Id
66. For an illuminating discussion of individuals as subjects of E.E.C. law, see this
journal's article by Professor Jones, 17 CORNELL INT'L L.J. 1 (1984), especially its Section
Three. Although there is much that Professor Jones and I seem to agree about, the
reader will note an important discord. Professor Jones uses the effect of E.E.C. law on
72 CORNELL INTERNATIONAL LAW JOURNAL [Vol. 17:61

One final and compelling example from modern practice is the

recent decision of the United States Court of Appeals for the Second
Circuit in Filartiga v. Peha-Irala.6 7 In Filariga,where both sides to
the dispute were individuals, the court found international law dis-
68
positive on a threshold jurisdictional question.
The plaintiffs, Paraguayan citizens, were the father and sister of
another Paraguayan, who, they contended, had been tortured and
killed in Paraguay by defendant Pefia-Irala, also a Paraguayan.6 9
The plaintiffs based their claim on a provision from the Judiciary
Act of 1789 providing that "[t]he 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. ' 70 This statutory pro-
vision is an example of the eighteenth century view of the relation-
ship between individuals and the law of nations. In 1789, the year
Bentham published his definition of international law, the United
States Congress authorized suits by individuals under the law of
nations. It is a fascinating and circuitous occurrence when a modem
court turns to an eighteenth century law of nations theory embodied
in a statutory provision that has outlasted the restrictive doctrines of
positivism.
The Filartigacourt surveyed the international rules relating to
torture looking to customary practice, treaty provisions, municipal
law, opinions of experts, and international resolutions. 71 The court
concluded that "an act of torture committed by a state official
against one held in detention violates established norms of the inter-
'72
national law of human rights, and hence the law of nations.
Moreover, the court overruled dictum from an earlier decision and
held that "international law confers fundamental rights upon all
people vis-a-vis their own governments. 73 In deciding the threshold
question of federal court jurisdiction to hear this claim of an alien
against another alien for alleged violations of international law, the
court concluded with language that echoes the concerns of the

the individual to demonstrate how different E.E.C. law is from international law; I use it
as one example to demonstrate that the positivists are wrong about the proper subjects of
international law. Thus, Professor Jones distinguishes E.E.C. and international law; I
use the one to show the nature of the other.
67. 630 F.2d 876 (2d Cir. 1980).
68. Id at 880.
69. Id at 878.
70. Alien Tort Statute, (codified at 28 U.S.C. § 1350 (1976)).
71. See Fiartga, 630 F.2d at 880-84.
72. Id at 880.
73. The court refuted the following dictum from an earlier decision: "Violations of
international law do not occur when the aggrieved parties are nationals of the acting
state." Id at 884 (quoting Dreyfus v. Von Finck, 534 F.2d 24, 31 (2d Cir. 1976), cert.
denied, 429 U.S. 835 (1976)).
1984] SUBJECTS OF INTERNATIONAL LAW

Nuremberg Charter and the 1950 European Human Rights

convention. 74
All of these examples-De Longchamps, Paquete Habana, the
Nuremberg trials, the European and American human rights sys-
tems, the European Economic Community, and Filartiga-demon-
strate that a large and important part of international law practice
establishes individual rights and obligations and provides interna-
tional and municipal procedures for enforcing these rights and obli-
gations. 75 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 sec-
ond 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 was, at the time of the Nuremberg trials, politically and mor-
ally unacceptable to say that individuals within the German State
between 1933 and 1945 were subjects only of German law to whom
international rights and obligations could not pertain. In light of the
atrocities of Nazi Germany, it would have been reprehensible to
leave victims without legal rights and perpetrators without legal obli-
gations. The lesson of Nuremberg is that there are individual inter-
national rights and obligations that transcend state boundaries.

74. In the twentieth century the international community has come to recognize
the common danger posed by the flagrant disregard of basic human rights and
particularly the right to be free of torture. Spurred first by the Great War, and
then the Second, the civilized nations have banded together to prescribe accepta-
ble norms of international behavior. From the ashes of the Second World War
arose the United Nations Organization, amid hopes that an era of peace and
cooperation had at last begun. Though many of these aspirations have remained
elusive goals, that circumstance cannot diminish the true progress that has been
made. In the modern age, humanitarian and practical considerations have com-
bined to lead the nations of the world to recognize that respect for fundamental
human rights is in their individual and collective interest. Among the rights uni-
versally proclaimed by all nations, as we have noted, is the right to be free of
physical torture. Indeed, for purposes of civil liability, the torturer has become-
like the pirate and slave trader before him-hostis humanigeners,an enemy of
all mankind. Our holding today, giving effect to a jurisdictional provision
enacted by our First Congress, is a small but important step in the fulfillment of
the ageless dream to free all people from brutal violence.
Filartiga,630 F.2d at 890.
75. For further examples of individual obligations at international law in municipal
courts, see Komarow, IndividualResponsibility Under InternationalLaw: The Nuremberg
Princilesin Domestic Legal Systems, 29 Irr'L & COMP. L.Q. 21 (1980). For an out-
standing examination of the rights of individuals at international law, see Sohn, The New
InternationalLaw-Protectionofthe Rights ofIndividualsRather than States, 32 AM. U.L.
Rnv. 1 (1982).
74 CORNELL INTERNATIONAL LAW JOURXNAL [Vol. 17:61

Similar considerations pertain to international communities

such as the Council of Europe and the European Economic Commu-
nity. These groups have recognized the need to extend certain basic
human and economic rights and obligations directly to individuals
even though these rights and obligations emanate not from munici-
pal law but from international law. Given the difficulty of address-
ing some issues, such as human rights and economic development,
through municipal legal systems alone, such an extension of interna-
tional law rules to individuals makes sense. It is impressive that,
with the European Human Rights system and the legal system of the
E.E.C., the Europeans have begun to open international legal
processes to individuals.
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 outside the ambit of international law rules.
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 theo-
rists 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.

A SPECULATION: A SOURCE-BASED CONCEPT OF

INTERNATIONAL LAW
If we reject the positivist's subject-based definition of interna-
tional law, then what should be our new concept of the nature of
international law? What are the objections to reverting to Black-
stone's understanding that the discipline should be characterized by
its reliance on universal and multinational sources? 76
One might say that, so characterized, international law is not
properly "inter-national," but this is a rather superficial problem.
Bentham supposed international law to be the equivalent of the law
of nations, but it was not. 77 So, the fault, if any, in matching the
term and the content of international law must rest with its creator.
We could easily use the old term, law of nations, and eliminate the
linguistic quibble. But the term "international law" is too much in
use to abandon it now. I suggest that we continue using the word
76. See supra text accompanying notes 1-3.
77. See supra text accompanying note 9.
1984] SUBJECTS OF INTERNATIONAL LAW

international but understand "nation" to mean not only the national

state but also the individuals who are the nationals of the state. This
meaning is both true to the word "nation" and finally makes sense of
Bentham's equivalence between the law of nations and international
law.
A second objection to reverting to Blackstone's emphasis on
sources as a way of understanding international law might be that
such a reversion mixes public and private international law. Even
though positivists might reject such a mixing, it may, in fact, be a
blessing. Some positivists have been dissatisfied with calling some
rules "international" because they did not properly concern state
78
behaviour. Bentham relegated "private" matters to municipal law,
while Story defined his discipline of conflict of laws in a similar
79
fashion.
From the time Bentham excluded rules relating to individuals
from his new realm of international law, all such rules concerning
individuals' contacts with foreign states and foreign parties remained
more or less unclassified until Story collected some of them in his
new discipline of conflict of laws or, as it is sometimes called, private
international law. Others of the cast-off rules, especially those per-
taining to international commercial law, really have never fit into
80
existing classifications.
If the positivists' exclusion of individuals from the ambit of
international law was wrong, then perhaps it makes no sense to
divide the discipline into "public" and "private" sides. In fact, there
exists a body of case law that makes no clear distinction between
81
private and public international law. For example, Hilton v. Guyot
a case decided in 1895 during a period of great positivist influence,
would seem to be representative of what the positivists might con-

78. Bentham stated:

Now 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 the one or the other of these states: the case is
the same where the sovereign of the one has an immediate transaction with a
private member of the other, the sovereign reducing himself,pro re nata, to the
condition of a private person, as often as he submits his cause to either tribunal
whether by claiming a benefit; or defending himself against a burthen.
1. BENTHAM, supra note 4, at 296.
79. Story's discipline of conflict of laws concerned "the operation of the laws of one
nation upon the rights and remedies of parties in the domestic tribunals, especially when
they were in any measure dependent upon, or connected with foreign transactions." J.
STORY, supra note 10, at 2.
80. Authors trying to organize and discuss the rules pertaining to international com-
merce have experienced difficulties because of the theoretical divisions of international
and municipal law. See Y. LoussouARN & J.D. BREDiN, DROIT Du COMMERCE INTER-
NATIONAL 1-13 (1969).
81. 159 U.S. 113 (1895).
76 CORAVELL INTERNTIONAL LAW JOURNAL [Vol. 17:61

sider private international law. The liquidator and members of a

French commercial firm came to the Southern District of New York
seeking to enforce a judgment of a French court for debts owed in
France by a U.S. firm. In determining whether the French judgment
was entitled to recognition, the Supreme Court broadly defined the
scope of international law, foreshadowing its holding in The Paquete
Habana.82 The Court's search for the right rule, a detailed examina-
tion of the notion of comity, was a classic example, not of the search
for a rule of municipal law, but of a search for a rule of the law of
nations. The Court turned not only to American practice but to the
practice of more than twenty-five other countries as well.83 The
Court concluded that "[i]t appears, therefore, that there is hardly a
civilized nation on either continent, which, by its general law, allows
conclusive effect to an executory foreign judgment for the recovery
of money. . . . [T]he rule of reciprocity has worked itself firmly
into the structure of international jurisprudence. '8' 4
To characterize Hilton as private, not public, international law,
is to insist upon an unnatural interpretation. Clearly, the Court felt
its job was not merely to find the municipal rule of the U.S. legal
system. Rather, the task was to examine "international jurispru-
dence" in an attempt to find in international sources some common
rule that was useful and applicable not only in the United States but
anywhere in the civilized world. The search was similar to that
made by the Court in Paquete Habana in a matter ostensibly con-
cerning what the positivists would define as public international law.
What really characterizes Hilton and PaqueteHabana is not that the
subjects involved were private and public, but that the sources of the
rules in both cases were multinational. The role of international law
in Hilton is much closer to Blackstone's eighteenth century notions
of the utility of the law of nations in commercial disputes than it is to
the ideas of either Bentham or Story. Blackstone thought that the
law of nations, rather than municipal law, should govern matters of

82. The Court stated:

International law, in its widest and most comprehensive sense-including not
only questions of right between nations, governed by what. has been appropri-
ately called the law of nations; but also questions arising under what is usually
called private international law, or the conflict of laws, and concerning the rights
of persons within the territory and dominion of one nation, by reason of acts,
private or public, done within the dominions of another nation-is part of our
law, and must be ascertained and administered by the courts of justice, as often
as such questions are presented in litigation between man and man, duly submit-
ted to their determination.
Id at 163.
83. See id at 162-227.
84. Id at 227.
1984] SUBJECTS OF INTERNA TIONAL LAW

international trade and commerce.8 5 Thus, Blackstone's answer to

the problem of conflict of laws was to find the rule agreed upon by
most or all the states. This is exactly the course followed by the
Court in Hilton.
Modern practice recognizes that conflict of laws is not just a
species of international law. Rather, conflict of laws is, as Story saw
it, a matter of municipal, not international law. My argument is not
that the theory separating public from private international law is
out of step with practice; clearly the theory is reflective of practice.
Rather, I suggest that theory should begin encouraging practice, at
least in some cases, to move closer to reintegrating public and pri-
vate international law.
My argument is partly developmental. Private international
law grew out of those rules that remained after the positivists nar-
rowed the focus of the law of nations. For the positivists, interna-
tional law or public international law properly concerned only
relations between states. This classification did not and does not
reflect the realities of international practice.
If individuals are within the scope of public international law as
well as that of private international law, what need is there to assume
that the rules of private international law are solely municipal? In
Hilton, the Court engaged in a search for a rule that was internation-
ally-founded, that is, a rule that emanated from multinational
sources. I suggest that such a multinational search is right and
proper. Given an international problem and a preference for accord
and harmony among the states, it is sensible to attempt to find rules
that are acceptable outside the narrow boundaries of a municipality.
This is true for several reasons. First, it will be fair to foreigners and
pleasing to foreign states in the specific case. Second, it will
encourage foreign states to reciprocate and treat aliens fairly and in
accordance with general rules. Finally, it will benefit international
transactions generally to have foreseeable rules applicable com-
monly in many fora. Such an approach returns to Blackstone's
belief that a uniform international law of commerce was the best
way of assuring similar and fair treatment to English merchants.
Perhaps the most telling argument in favor of a source-based
definition of international law is that it is a realistic reflection of

85. Blackstone stated:

Whereas no municipal laws can be sufficient to order and determine the very
extensive and complicated affairs of [foreign traffic and merchandize, neither
can they have a proper authority for this purpose. For as these are transactions
carried on between the subjects of independent states, the municipal laws of one
will not be regarded by the other.
I W. BLACKSTONE, supra note 1, at 263-64.
78 CORNELL INTERVATIONAL LAW JOURNAL [Vol. 17:61

what courts actualy do when they search for public and often-times
private rules of international law. All of the U.S. cases discussed
above-De Longchamps, The Paquete Habana, Filartiga,Hilton-
utilize a comparative approach and look at the practice of other
states. While there are other instances of this approach, Story's judg-
ment in UnitedStates v. Smith8 6 is one of the more compelling exam-
ples of this practice. The Court considered whether Congress
needed to define more precisely its statutory definition of the crime
of piracy. Story held that no detailed congressional definition of
piracy was needed because piracy was defined precisely by the law of
nations. 87 To demonstrate this recognition, Story wrote a footnote
that catalogued numerous foreign authorities' treatment of piracy.
The footnote, a potent display of legal scholarship and a foreboding
of footnotes in modem-day law review articles, takes up most of 18
pages of printed text, above which the unfortunate Justice Living-
stone has on each page but two lines of dissent. 88 A more recent
example of such a reliance on multinational sources is Victory Trans-
port, Inc. v. Comisaria General.8 9 The Second Circuit characterized
the Spanish governments' chartering of a vessel carrying grain as an
act jure gestionis rather than one jure imperil by showing similar
treatment in Egypt, France, Italy and Belgium. 90 If the courts so
commonly turn to multinational sources to find rules of international
law, why not recognize that it is the nature of the rule search, not the
nature of the subjects, that defines the discipline?

CONCLUSION
It is high time to realize that positivism's subject-based
approach to international law is neither realistically descriptive nor
beneficially prescriptive. While it is true that international law fre-
quently concerns states inter se, oftentimes international law directly
involves individuals. It will be better to focus our attention on the
universal and multi-state sources of both public and private interna-
tional law. Such a focus better distinguishes international from
municipal law. It usefully encourages courts and other law finders
and appliers to look outside national sources for rules of decision in
international cases.

86. 18 U.S. (5 Wheat.) 153 (1820).

87. Id at 157-63.
88. See id at 163-80.
89. 336 F.2d 354 (2d Cir. 1964).
90. I.d at 360-61. See also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972),
where the Court refers favorably to the approach of the English courts towards the
enforcement of foreign forum selection clauses.