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Participants of International Law

By: Saeed Kakeyi

July 15, 2007

This short essay will explore challenges, benefits and trade-offs of the jurisdictional and
protective reach of International Law beyond traditional state-to-state interactions.

Introduction
The traditional theories of International Law used to consider states as principal subjects of
international law. This Westphalian concept was, and to some extent still, commonly
practiced by powerful states through diplomatic and trade treaties to reflect their international
relations based on variations of theories of Realism and Marxism. However, with the
emerging of new international relations theories and the authoritative argument of the second-
half 20th century between the positivists and the publicists in their stand on dualism as legal
systems—international and national law, occupying separate jurisdictional fields—
international law grew in strength and is reaching intensely complex conditions over the last
six decades.
This progressive complexity of International law has resulted in creating great
challenges between international order as a legal system and the ideal notion of sovereign
state. These challenges have not been without controversies or conflicts.
According to Donna Arzt and Igor Lukashuk, some of these controversies or conflicts
“have been framed in the literature as disputes in which the legal community in the former
Soviet Union and the socialist bloc clung to the traditional state-centered view, while many
U.S. and other Western scholars advocated a more inclusive perspective” (Ku and Diehl:
2003, 155). These critical backlashes are based on fears that the persistence progression of
international law will breach municipal law and degrade local authorities for the sake of
international actors who hold worldviews incompatible with those of which they try to control
or govern.
Hence, this essay will also cover the benefits and trade-offs of the international law’s
ever-expanding scope of cooperation in gaining international rights and obligations with
which they can delegate their state-to-state interactions and preserve the natural rights of their
citizens as fundamental core elements in the formation of any sovereign nation.

International Law challenged by Individuals

Until late 19th century, the classic positivistic international law considered individuals as legal
“objects” of states, without any “subjects” status within international law (Janis and Noyes:
2006, 339). This was due to the political, cultural and the legal norms which commonly
considered international law as a solely legal practice in handling only diplomatic and trade
treaties between states and “completely ignoring the individual” (2003, 157). However,
during the first half of the 20th century, the traditional positivists faced with criticism, mainly
coming from the publicists, arguing that the traditional state responsibility in protecting its
“objects” can be elusive, abusive and exposed to transnational confusions (2006: 339). As a
result, scholars and students of international legal order developed “two different branches of
international law: the international law of human rights and the law on the international
responsibility of states for injuries to aliens” (Buergenthal and Murphy: 2007, 133). The first
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branch was evolved in protecting individuals regardless of their nationality, whereas the
second branch was advanced to protect “individuals against violations of their rights only
when their nationality is not that of the offending state” (2007, 133).
However, with the adoption of the United Nations Charter on 26 June 1945, the call
for international cooperation on individual’s rights within and between the states did truly
begin to address fundamental issues concerning human rights. Thus, providing legal means to
support respect and equalize individual’s fundamental rights and freedoms, including the right
to enjoy social and international order. Furthermore, the UN and its institutions, not only
orderly set the rules for individuals to fully be respected as a state “objects”, but also uplifted
them to become an active rather than a passive “subjects” in international affairs (2003, 157).
Therefore, one can easily assert that at the heart of almost all debates over
international law, there is a rift between those who consider the nature of state sovereignty has
changed as an end result of the rise of human rights and those who do not. The first believes
that state sovereignty has essentially been restricted by certain limits established by
fundamental human rights norms developed by UN’s intergovernmental organizations:
Universal Declaration of Human Rights (1948) and the three meetings in Vienna (1989),
Copenhagen (1990) and Moscow (1991) on the Final Document of the Conference on the
Human Dimension of the Conference on Security and Cooperation in Europe (2003, 157).
The second instead perceives sovereignty as bounded only by those consents which any
sovereign state accepts them as wishes to be bound by.

Jurisdictional prospects beyond state sovereignty

Under the old positivists’ international law concept, even an inquiry into the human rights
violations without a permission of the sovereign state could arguably constitute a violation of
its sovereignty because such issues were considered to be within the domestic jurisdiction of
any state and hence protected from international law. However, in present time, due to radical
change in international state system which consequently affected the character of international
law, the definition of sovereign state has undergone a drastic change. In a brief article written
by the former Secretary General of the UN, Kofi Anan, for the 19 November 1999 issue of
“The Economist,” two concepts of sovereignty were explained as:

“State sovereignty, in its most basic sense, is being redefined—not least by the
forces of globalisation and international co-operation. States are now widely
understood to be instruments at the service of their peoples, and not vice versa. At the
same time individual sovereignty—by which I mean the fundamental freedom of each
individual, enshrined in the charter of the UN and subsequent international treaties—
has been enhanced by a renewed and spreading consciousness of individual rights.
When we read the charter today, we are more than ever conscious that its aim is to
protect individual human beings, not to protect those who abuse them” (Anan, 1999).

This and other contemporary related articles indicate that international law jurisdiction
have gone beyond the traditional state-to-state interaction and the individual, as a human
being, become sovereign entity with which international law has significant dealings. As a
matter of fact, it is critical here to assert the importance of Anthony D’ Amato’s speculation in
this regard:
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“[I]f the nineteenth century was characterized by State v. State, and the
twentieth by Individual v. State, the twenty-first century might see international law
becoming addressed to the claims of Individual v. Individual. Transboundary
international legal claims involving individuals only, but invoking public international
law, might be the direction in which we are headed” (2003, 166).

However, this is not claim that international law has lost interest in protecting state
sovereignty. Rather, it is to signify the contentious expansions of international law’s
jurisdiction to a point at which considers individual’s sovereignty to be more and more
important than that of state’s sovereignty. In other words, with the introduction of the concept
that individuals can be subjects and objects of international law simultaneously, the need to
regulate their rights and duties by the international law was indeed a critical process,
especially during major international crises.
During the World War II, cruel human rights abuses committed by some German
officials in Europe. Accordingly, some influential members of the international community;
the United Kingdom, the United States, France, the Soviet Union announced their Moscow
Declaration of German Atrocities of October 30, 1943, “declaring that individual Germans
would be held responsible for their violations of international law” (2006, 370). By August
1945, the International Military Tribunal was established with a Charter by the
aforementioned states and immediately thereafter formed the Nuremberg Tribunal to try and
punish individuals who had committed war crimes and crimes against humanity, and "the
1946 judgment of the Nuremberg Tribunal confirmed the classical norm that individuals, as
well as states, were proper subjects of international law” (2006, 376).
Subsequently, as mentioned earlier in this paper, the establishment of the UN and the
Universal Declaration of Human Rights radically revolutionized international law by
advocating human rights not only within the boundaries of sovereign states, but also setting
firm norms for their practice within the international law. However, this rapid progression has
been impaired by the lack of political consensus amongst the international community,
especially by the developing countries and a few regional hegemonic powers which they tend
to preserve their municipal law. Meanwhile, it is extremely important to recognize the
regional successes in promoting and encouraging human rights, especially that of the
European Convention for the Protection of Human Rights and Fundamental Freedoms which
was signed in 1950 and emended in 1998 having two mandatory articles; 32 and 34 as
enforcement machinery: the first gave the European Court of Human Rights jurisdiction to
accept and try cases registered with the commission, and the second gave individuals and
states the right to petition their human rights system (2006, 388).
In summary, contemporary sovereignty is not unconditional. In order to become a full
participant in the international community, a state as well as individuals must accept that their
sovereignty will be limited by basic human rights principles, to include a fundamental core of
human rights on which there is universal agreement shared by nearly every culture and
religion. This fundamental core would include jurisdictional prohibitions on state-sanctioned
and terrorist-organized torture, genocide, and political killings.
If there was no international law jurisdiction on state and terrorist organizations’
actions, then both could openly and deliberately violate their own people’s basic human rights
and yet no outside entity would be justified in intervening to stop it. In this view, then,
Nuremburg, the International Court for the Former Yugoslavia, the International Court for
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Rwanda, and efforts to address the ongoing crimes in Darfur, Sudan through the International
Criminal Court are all unjustified acts of external morality.

Reference:

1. Anan, Kofi (19 November 1999). Two concepts of sovereignty. Retrieved July 15, 2007, from Two
Concepts of Sovereignty Web site: http://www.un.org/News/ossg/sg/stories/kaecon.htm Lecture 01: Tackling the
Best.

2. Janis, M, & Noyes, J (3rd ed., 2006). International Law: Cases and Commentary. 3rd ed. St. Paul:
Thomson West.

3. Ku, C., & Diehl, P. (2nd ed., 2003). International law: Classic contemporary readings. Boulder,
Colorado: Lynne Rienner Publishers, Inc.

4. Buergenthal, T., & Murphy, S. (4th ed. 2007). Public international law. St. Paul, MN: Thomson West.