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terça-feira, 11 de novembro de 2008

Expanding the reach of international law

1- Traditional law: States as the main subjects of international law
Since the Peace of Westphalia (1648), international law has evolved as a result of, and was mainly shaped by, the interests of nation states. It is no surprise then that sovereignty was elected one of its main features. States never fully accepted giving up their right to do as they please in international affairs. The maxim par in parem non habet imperium (equals have no jurisdiction over one another) could be said to be truly one of the most evident aspects of international law. States were considered, therefore, in traditional international law, as the true holders of international legal personality and there could be no distinction among them (a view upheld by The Montevideo Convention). In The Law of Nations, E. de Vattel famously affirms that "(a) dwarf is much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom." (Janis & Noyes: 425). According to Professor Antonio Cassese, "over a long period of time - in fact during the whole of the first stage of development of the international community, from the seventeenth to the early twentieth century - human beings were under the exclusive control of States" (Cassese: 143).

Positivist commentators were particularly strong supporters of this state-centric view concerning legal international personality. According to Mark W. Janis, "(l)egal 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" (Janis & Noyes: 363). Furthermore, Janis asserts that "(t)he positivist definition of international law has had an enormous impact on modern perceptions concerning the individuals and international law. With few exceptions, the theory rejects the notion that individuals are proper subjects of public international law" (Janis & Noyes: 364).

2- Modern developments: new subjects of international law
Presently, nevertheless, positivist views on the role of individuals as non-subjects of international law no longer prevail. The atrocities committed by the Nazi regime during World War II made the world aware of the fact that individuals should be held accountable for their actions in matters relating to crimes against humanity or genocide. In fact, "the Nuremberg Tribunal held that 'crimes against humanity are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of international law be enforced'" (Janis & Noyes: 366). The Nuremberg case constitutes, therefore, a turning point in terms of the role of individuals having legal personality in international law.

In several other cases (e.g. De Longchamps, Paquete Habana, Filartiga, McCann, Kadic) courts have also established individual rights and obligations. Therefore, according to A. Cassese, "(…) as a result of historical events and the spread of new ideologies, States have lost their exclusive monopoly over individuals, in addition to gradually yielding some of their powers to other entities such as international organizations." (Cassese: 146). Mark Janis corroborates this view, stating, "(i)t is wrong,(…), 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" (Janis & Noyes: 366).

2.1- Individuals as subjects of international law
Professor Cassese concedes that "many commentators contend that individuals may not be regarded as having the legal status of international subjects. In their view, they are still under the exclusive control of States" (Cassese: 142). However true this assumption may be, the fact is that after the Nuremberg trials, individuals have been acknowledged as subjects of international law. Janis affirms that "(t)he 1946 judgment of the Nuremberg Tribunal confirmed the classical norm that individuals, as well as states, were proper subjects of international law" (Janis & Noyes: 376). Professor Cassese concurs with this view. According to him, it is possible to unhesitatingly assert that "in contemporary international law individuals possess international legal status" (Cassese: 150).

Two useful case studies can be found in Filartiga v. Pena-Irala and McCann v. United Kingdom. In Filartiga, Paraguayan citizens sued an official of the Paraguayan government over alleged human rights violations in an American court. In its verdict, Circuit Judge Kaufman famously stressed that "the torturer has become -like the pirate and the slave trader before him- hostis humani generis, an enemy of all mankind." (Janis & Noyes: 24). For Justice Kaufman, the verdict "(…) is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence" (ibid.).

In McCann, an individual petitioned before an international tribunal (The European Court of Human Rights in Strasbourg) against his own government. Following the decision of the court, the British government agreed to pay the damages ordered in the final sentence. European human rights law stands out as an example of how far reaching the inclusion of individuals as subjects of international law has been of late. The Soering and the Sunday Times cases are other well-known examples of successful petitions before the European Court of Human Rights.
The establishment of the International Criminal Court (ICC) probably represents the best example of how international law has expanded its reach in recent times. Leila Nadya Sadat wrote that the ICC "is the last great international institution of the twentieth century. It is no exaggeration to suggest that its creation has the potential to reshape our thinking about international law" (Janis & Noyes: 419). The fact that individuals may bring alleged breaches to the attention of the ICC Prosecutor, regardless of the interest of their national government, is a feature of paramount importance. This represents a very important acknowledgment that individuals do possess rights and obligations and should be granted full legal capacity in international law.

3- Challenges of expanding the reach of international law
Due to the hope invested in the ICC, its success or failure is one of the greatest challenges to expanding the reach of international law. Professor Cassese cautions, "the role of individuals' international procedural rights is limited on many scores. In addition it is precarious, for it rests on the will of States" (Cassese: 149). He affirms, furthermore, that "(…) the international legal status of individuals is unique: they have a lopsided position in the international community. As far as their obligations are concerned, they are associated with all the other members of the international community; in contrast, they do not possess rights in relation to all members of that community" (Cassese: 150).

Expanding the reach of international law must inexorably be linked to granting rights to individuals, as a counter measure to enhanced individual obligations since the Nuremberg trials and the establishment of the doctrine of individual responsibility in matters related to crimes against humanity. There can be no just obligation that is not accompanied by equivalent rights. Thus, implementing the ICC remains of considerable importance. Since the Court rests on the consent of member parties to function properly, accession of major powers, notably China and the US, is crucial for its success.

According to Professor Cassese, "the need for states' cooperation is the crucial problem international criminal courts must face" (Cassese: 461). In the end, the degree to which states are willing to relinquish some of their sovereign prerogatives for the sake of the common good of mankind will determine the outcome of the expansion of the reach of international law. Convincing reluctant states to overcome their reservations and join in important efforts such as the ICC remains, therefore, a central challenge to expanding the reach of international law. In this regard, the question of universal jurisdiction, which is essential to expanding the reach of international law, must also be addressed.

4- Benefits of expanding the reach of international law and trade-offs
Due to the scope of this essay, it is not possible to enumerate the innumerous benefits of expanding the reach of international law. Suffice it to say that preventing crimes committed against all humankind by violators (hostis humani generis) is undoubtedly a major benefit. However, in order to achieve success, sovereignty will have to be exchanged, albeit reluctantly, for greater security (Damian Thomas, Kadic, Soering). The equation sovereignty x security is probably the most eloquent example of the kind of trade-off nations will face in the near future. In fact, the punishment of crimes against humanity still depends to a large extent on the consent of sovereign states. Broadening the scope of the reach of international law is, hence, conditional to the acceptance of nation states. By giving up bits of sovereignty, nation states stand to gain a more secure world in which no individual, regardless of nationality, can escape justice in cases of crimes against humanity.

In order to end the scourge of piracy and slave trading in years past, nations had to give up some of their sovereign rights for the benefit of punishing those crimes (let us remember Justice Kaufman in Filartiga). Once that consensus was reached, there were no more safe havens for pirates and slave traders. The same applies to crimes against humanity. Because of the genocide perpetrated during the Nazi regime, the world community has slowly accepted the principle of universal jurisdiction related to crimes of genocide. The Kadic case (Janis and Noyes: 453-455) and the Ad Hoc international tribunals for former Yugoslavia and Rwanda are a reminder of how powerful a deterrent this principle of universal jurisdiction can be. The successful implementation of the ICC represents a test of how far states are willing to go in the pursuit of a truly just world, free of the scourges of crimes against humanity.

5- Bibliography
Casese, A. (2005), International Law (USA: Oxford University Press).
Janis, M. and Noyes, J. (2006), International laws, Cases and Commentary (USA: Thomson West publishing).

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