Wednesday, April 21, 2010

The Expanding Reach of International Law: A Historical Evaluation

The expanding reach of international law has been heralded by some and scoffed at by others during the last century. This expansion has not been without atrocity and triumph. To better understand the expanding reach and evolution of international law, it is necessary to understand its evolution from a historical perspective.
    International law, when evaluated through the historical lenses, reveals a transition from "statism" to "positivism", and more recently, "globalism". Understanding each of these concepts individually becomes a critical component when critiquing the application of international law as it applies to matters directly involving the individual.
    Statism became paramount in the nineteenth century following the dissimilation of the concept of nobility and the de facto right and capability of an individual to make decisions. The individual, through this lens, was no longer given consideration, and resulted in a period of reformation and the emergence of the nation-state.
Following the Age of Enlightenment the concept of "sovereignty" changed from Church supremacy to State supremacy. State supremacy and the modern parameters of sovereignty were established by the Treaty of Westphalia in 1648. The concept of statism, therefore, "vested [sovereignty] not in the people but in the national state, and [conceived] that all individuals and associations exist only to enhance the power, the prestige, and the well-being of the state" (Plano, 1973).
This state-centered philosophy gave rise to a positivistic concept of law. This concept of law dominated for more than two-hundred years, resulting in a "subject-based approach" (Huber, 2009). According to Huber (2009), the
"subject-based" approach to international law is firmly founded on the doctrine of inalienable state sovereignty. In this positivistic legal framework, state sovereignty prohibited the imposition of legal obligations on states for the purpose of protecting human rights. In essence, no longer was there any legal or moral authority higher than the state.
The authority of the state was finally challenged following the atrocities of World War II. Grave violations of human rights, during the war, resulted in the Nuremberg trials. The trials resulted in the ability to charge and prosecute individuals under international law.
At the request of the General Assembly of the United Nations, the International Law Commission prepared a formulation of the principles of international law recognized in the Charter and the Judgment of the Nuremberg Tribunal (Nuremberg Principles). The General Assembly unanimously affirmed these principles and in 1947 further requested the International Law Commission to take them into account in preparing the Draft Code of Crimes Against the Peace and Security of Mankind (Draft Code). (Gallmetzer & Klamberg, p. 60)
    The Nuremberg trials ushered in the return of classical political philosophy, as it applied to the individual. Whereas prior reformation had offered protection to the individual by giving supremacy to the state, the Nuremburg tribunal rejected such notions stating that, "'[c]rimes 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'" (Huber, 2009).
    Following the trials at Nuremburg international law further expanded its reach to the individual. This was evidenced by several important cases in international law. One of the first was Liechtenstein v. Guatemala which was held before the International Court of Justice in 1955. The "Nottebohm Case," as it was called, resulted in a decision that defined effective nationality.
    While Liechtensten v. Guatemala could be considered a set-back for the rights of the individual, under international law, later cases returned some protection to the individual's right to be protected under the state.
From or about 1998 the Strasbourg court [ECHR] has further implied or read into article 2, positive obligations on the state to establish and enforce a general framework of laws, regulations and procedures to ensure the due protection of the lives of individuals within their (legal) jurisdiction. (O'Neill, 2009)
    The Nuremberg and later Tokyo International Tribunals established the basis for individual and state liability, under international law, for criminal acts against human rights, global peace, and war crimes.
    The specific responsibilities and guidelines for legal application of these principles were defined by Article 6 of the Charter of the Nuremberg International Military Tribunal, and later affirmed and codified by the International Law Commission, a subsidiary of the United Nations.
    Essentially, Nuremberg was the beginning of many events which would define and recognize, not only individual rights under international law, but also individual responsibilities. This expansion and recognition of the individual forced the decline of statism, the erosion of the concept of nationality as defined by territorial boundaries, and the rise of a new concept known as "globalization".
    Globalization, driven by technology, has resulted in the high-speed sharing of information, ideals and norms between states and individuals. It has challenged the traditional view of sovereignty "by trends toward extraterritoriality, regionalization, and universality of laws" (Huber, 2009).
    The challenges for international law, created by these trends, have resulted in a world that is desperate for guidance. In an attempt to meet these needs many intergovernmental organizations (IGOs) were developed. In 1949 the recognition of IGOs as a "legal personality" by the International Court of Justice essentially transformed international law.
    Today these IGOs, the most important being the United Nations, have played important roles in protecting human rights. Human rights protection has developed and been established through various international tribunals and courts. This too, presents new challenges for international law.
These international courts can suffer from insufficient funding, lack of jurisdiction, and especially impotence in implementing their decisions. Even the International Criminal Court, with its compulsory jurisdiction, must have its jurisdiction originally accepted by parties in treaties. (Huber, 2009)
    Another challenge for the expansion of international law, as argued by many scholars today, is the erosion of the State and the over-empowerment of the individual. If an over emphasis is placed on the individual's rights, national norms and customs will be skewed. Hence the argument emerges that international law should respect and remain "rooted in a transcending moral order, the natural law" (Huber, 2009).
    Globalization has undeniably resulted in the need for structure within international law that can develop and manage mutual respect, reasonable responsibilities, and expectations between and among States, individuals and intergovernmental organizations. The establishment and recognition of human rights has been a great triumph, resulting from this evolutionary process. Nonetheless, a system lacking the power of enforcement struggles, and will likely continue to struggle to find balance.
In conclusion, international law, and the expansion thereof, must be regarded as a malleable science. It should adjust accordingly to the needs of the system, yielding when necessary to the supremacy of the State, and when necessary suppressing that same power for the protection of the individual. It is unlikely that we will see a complete resurrection of prior philosophies. However, historical lenses should be applied when necessary, and the lessons of our ancestors, both "positivists" and "statists" incorporated, in an effort to achieve and maintain this delicate balance.
Effective nationality is a principle critical determining the dual-national citizen's protection under the state. "The application of the 'genuine link' theory, borrowed from the very different context of dual nationality problems, has the unfortunate effect of depriving an individual of a hearing on the merits and the protection by a state willing to espouse his claim in the transnational arena. The net effect is an immense loss of protection of human rights for individuals" (

McCann v. United Kingdom (1996) brought into question Article 2 of the European Convention on Human Rights.

3 "Legal personality" for IGOs was established by the Reparation Case (1949). Prior to this case, international law only applied between States; as States were interpreted as having international personality and were therefore respected to have their claims heard internationally. "The 1949 Reparations of Injuries Advisory Opinion confirmed that IGOs, as well as individuals and multi-national corporations could posses rights and responsibilities as the State may attribute to them" (

Advisory Opinion. (1949). Reparation for injuries suffered in the service of the United Nations:
Advisory opinion of 11 April 1949. Retrieved on April 17, 2010 from
Gallmetzer R., Klamberg, M. (n.d.). Individual responsibility for crimes under international law:
The un ad hoc tribunals and the international criminal court. Retrieved on April 17, 2010 from
Huber, N. (2009). The challenges of expanding the scope of international law. Retrieved on
April 17, 2010 from
O' Neil, A. (2009). The European Court and the duty to investigate deaths. The Journal Online.
Retrieved on April 17, 2010 from
Plano, J. (1973). Statism. In political science dictionary. Dryden Press.
Reviews on the principle. (2004). Reviews on the principle of effective nationality. Retrieved on
April 17, 2010 from

No comments:

Post a Comment