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The nature of the International Law and the Law of Nations

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发表于 1/24/2018 17:52:31 | 显示全部楼层 |阅读模式
the nature of International Law

The Classical View of International Law:
       The Restatement of the Foreign Relations Law of the United States defines international law as "those rules of law applicable to a state or international organization that cannot be modified unilaterally by it."[1]

Professor Brierly begins his treatise by declaring: "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."[2] These are examples of the classical, or traditional, definition of international law, according to which only states, and not individuals, have rights and obligations under the law of nations.
According to D. P. O'Connell:
     The "object" theory rests on double foundations: first, it postulates as a necessary emanation from the concept of sovereignty and the consent of States that international law of its nature addresses itself to States alone; secondly, it asserts as a matter of fact that the rules of international law treat the individual as an object.[3]

Modern classicists, such as Georg Schwarzenberger, no longer assert that international law is by its very nature absolutely unable to bind individuals.[4] Schwarzenberger recognizes that there is no reason why, in principle, an individual cannot be fully subject to international law.  

It was not until 1946, however, that a multi-national tribunal imposed sanctions on individuals for violations of international law. The Nuremburg International Military Tribunal, in pronouncing judgment on Nazi war criminals, declared: "It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals .... Crimes 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.''[5]  

United Nations General Assembly resolution "reaffirmed the principles of international law recognized by the Charter of the Nurnberg Tribunal and the judgment of the Tribunal.[6]

Sir Hersch Lauterpacht. In his seminal work entitled International Law and Human Rights, Lauterpacht asserted that
     As a result of the Charter of the United Nations-as well as of other changes in international law-the individual has acquired a status and a stature which have transformed him from an object of international compassion into a subject of international right, For in so far as international law as embodied in the Charter and elsewhere recognizes fundamental rights of the individual independent of the law of the State, to that extent it constitutes the individual a subject of the law of nations. There is nothing in what is often referred to as the structure of international law which prevents that result from being achieved.[7]

PhillipJessup hasacknowledged that international law may "be applicable to certaininterrelationships of individuals themselves, where such interrelationshipsinvolve matters of international concern."[8]

C. Wilfred Jenks maintains that internationallaw "represents the common law of mankind in an early stage ofdevelopment, of which the law governing the relations between States is one,but only one, major division."[9]

Although a majority of the World Court has neveraccepted the individualist view, Judge Azevedo, in dissent, consideredthat the 1948 Universal Declaration ofHuman Rights[10]resulted in "the spectacular reception of the individual into theinternational field."[11]














[1] Restatement (Second) of the Foreign Relations Law of the United States § 1 (1965).

[2] J. Brierly, The Law of Nations 1 (H. Waldock ed. 6th ed. 1963).
[3] Id.D. O'Connell, International Law 117 (1965).P.1
[4] See G. Schwarzenberger & E. Brown, A Manual of International Law 64 (6th ed. 1976); 1 G. Schwarzenberger, International Law 139-40 (3rd ed. 1957)
[5] International Military Tribunal (Nuremburg), Judgment and Sentences, 41 Am. J. Int'l L. 172, 220-21 (1947)
[6] G.A. Res. 95 (I) (1946), reprinted in 1 The United Nations Resolutions (Series 1) 175 (D. Djonovich ed. 1972).
[7] . H. Lauterpacht, International Law and Human Rights 4 (1968) (first published in 1950).
[8] Jessup, The Subjects of a Modern Law of Nations, 45 Mich. L. Rev. 383, 385 (1947).

[9] C. Jenks, The Common Law of Mankind 58 (1958).

[10] G.A. Res. 217 (II), U.N. Doc. A/810, at 71 (1948).

[11] Asylum Case, [1950] LC.J. 266, 341 (Azevedo. J., dissenting).






 楼主| 发表于 1/24/2018 18:51:31 | 显示全部楼层
本帖最后由 郭国汀 于 1/24/2018 21:02 编辑

In United States v. Smith, the United States Supreme Court, in an opinion by Justice Story, declared:
     There is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinative nature .... The common law, too, recognizes and punishes piracy as an offense, not against its own municipal code, but as an offense against the law of nations (which is a part of the common law), as an offense against the universal law of society, a pirate being deemed an enemy of the human race.[1]

in article 19 of the Convention on the High Sea,[2] which provides:
         On the high seas, or in any other place outside the juris-
     diction of any State, every State may seize a pirate ship or air-
     craft, or a ship taken by piracy and under the control of pi-
     rates, and arrest the persons and seize the property on board.
     The courts of the State which carried out the seizure may de-
     cide upon the penalties to be imposed, and may also determine
     the action to be taken with regard to the ships, aircraft or
     property, subject to the rights of third parties acting in good
     faith.


Lauterpacht believes that
     The operation of the law of war constitutes a decisive refuta-
     tion of the view that States only, and not individuals, are sub-
     jects of international duties. For it is an accepted principle of
     law that individual members of the armed forces of the bellig-
     erent are criminally responsible for violations of the law of war
     and that the enemy State is entitled to punish them for war
     crimes committed by them.[3]

The Convention on the Prevention and Punishment of Genocide[4] provides powerful support for the individualists. In article 1 of the Convention, the contracting parties "confirm that genocide, whether committed in time of peace or war, is a crime under international law which they undertake to prevent and to punish." Article 4 delineates the principle of individual responsibility: "Persons committing genocide... shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals." Pursuant to article 6, persons charged with genocide may be tried by a tribunal of the state in which the act was committed, or by an international penal tribunal having proper jurisdiction. Lauterpacht's conclusion that the Convention "thus subjected individuals to the direct obligation and sanction of international law"[5]
"No one shall be subjected to torture”[6]

Article III established the principle of individual responsibility for the international crime:
    A person is responsible for committing or instigating torture
    when that person:
    (a) personally engages in or participates in such conduct; or
    (b) assists, incites, solicits, commands, or conspires with others
    to commit torture; or
    (c) being a public official, fails to take appropriate measures to
    prevent or suppress torture when such person has knowledge
    or reasonable belief that torture has been or is being commit-
    ted and has the authority or is in a position to take such
    measures.[7]


the Declaration Against Torture, declares:
     No law enforcement official may inflict, instigate, or tolerate
     any act of torture or cruel, inhuman, or degrading treatment or
     punishment, nor may any law enforcement official invoke su-
     perior orders or exceptional circumstances such as a state of
     war, or a threat of war, a threat to national security, internal
     political instability or any other public emergency as a justifi-
     cation of torture or other cruel, inhuman or degrading treat-
     ment or punishment.[8]





[1] 18 U.S. (5 Wheat.) 153, 161 (1820). The British prosecutor in the Nuremberg trials, Sir Hartley Shawcross, mentioned the case of piracy as an example of an international duty imposed directly upon individuals in his closing argument to the Nuremberg Tribunal. See The Charter and Judgment of the Nuremberg Tribunal 40, U.N. Doc. ACN.4/45 (1949). Accord, C. Norgaard, The Individual in International Law 93 (1962) (international law imposes upon individuals the duty to abstain from committing piracy);Tornaritis, The Individual as a Subject of International Law and International Criminal Responsibility, in 1 International Criminal Law 103, 106-07 (M. Bassiouni & V.Nanda eds. 1973).
[2] . Done Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82.
[3] H. Lauterpacht, International Law and Human Rights (1968) (first published in 1950).at 10.[4] Done Dec. 9, 1949, 78 U.N.T.S. 277.
[5] H. Lauterpacht, International Law and Human Rights (1968) (first published in 1950).at 44.
[6] American Convention, art. 5(2); European Convention, art. 3; International Convenant, art. 7.
[7] IAPL Draft, U.N. Doc. E/CN.4/NGO/213 (1978) art. 3 [8] CCLEO, supra note 102, art. 5, comment (a) explicitly notes that the Code's article concerning torture derives from the Declaration Against Torture.
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