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53 Nordisk Tidsskrift Int'l Ret 9 (1984)
Subjectivity in International Law and the Position of the Individual

handle is hein.journals/nordic53 and id is 121 raw text is: SUBJECTIVITY IN INTERNATIONAL LAW AND THE POSITION OF THE INDIVIDUAL By Gerasimos Fourlanos, LLB. INTRODUCTION International law is traditionally depicted as a set of norms governing relations among States. This has been the dominant view for ages, notwithstanding the fact that many dif- ferent standpoints have emerged from time to time which have regarded the individual as being the true subject of internationl law. These individualist conceptions are largely based on the assumption that international law does not exist for the benefit of the States, but, ultimately, for the benefit of the individuals who compose the States.' This might be sub- stantially true as a premise. Nevertheless, it does not necessarily imply that the individual is or should be at the centre of international law in a formal-technical sense, should such a proposition not prove to correspond to reality. The ultimate purpose of this paper will be to examine how far normative facts establish that the individual is one of the addressees of (contemporary) international law. However, this question can hardly be investigated in isolation from the more general question of sub- jectivity in international law. It is, therefore, inevitable to devote substantial parts of the present study to mainly discussing the issues: a) what is really meant by the term subject of international law, and b) who are the incontestable addressees/subjects of that law. It might seem to some readers that all these issues are of merely theoretical or terminolo- gical value. Many a reader might, therefore, a priori object to this kind of investigation, as the present intellectual climate strongly emphasizes the necessity of dealing with matters of immediate practical importance and usefullness. Still, it is an essential contention of this writer that the issue of the subjects of interna- tional law may have very important practical implications. It is not just a matter of theory or terminology, as has been suggested by many. We consider it to be of fundamental importance to know who the actual addressees of the rules of international law (general principles, customary and conventional rules, etc.) are. It is likewise important to know whether or not human rights are, in reality, rights in the legal sense of the term. To cite more concrete examples, we consider it important to now how to understand a reading such as [elveryone has the right to respect for his private and family life, his home and his cor- respondence.2 Finally, it is equally important to be able to explain such phenomena as the Nurenberg trial, or the activity of the Iran-United States Claims Tribunal, which adjudi- cates a large number of individual claims against a State. As already mentioned, the international law of the past has consistently regarded States as its natural addressees. It is true that the eminent ancient scholars, including de Vattel, did not raise the question of the subjects of international law. But international relations has developed considerably since that time. Individuals, as well as other non-sovereign entities, made their appearance on the international scene already at the end of the nine- teenth century. At the beginning of the twentieth century, the Convention Establishing the International Court of Prizes, signed during the Second Peace Conference at the Hague in