INTERNATIONAL LAW, Sixth edition

46 international law
The growth of positivism in the nineteenth century had the effect of
focusing the concerns of international law upon sovereign states. They
alone were the ‘subjects’ of international law and were to be contrasted
with the status of non-independent states and individuals as ‘objects’ of
international law. They alone created the law and restrictions upon their
independence could not be presumed. 8 But the gradual sophistication of
positivist doctrine, combined with the advent of new approaches to the
whole system of international relations, has broken down this exclusive
emphasis and extended the roles played by non-state entities, such as
individuals, multinational firms and international institutions. 9 It was, of
course, long recognised that individuals were entitled to the benefits of
international law, but it is only recently that they have been able to act
directly rather than rely upon their national states.
The Nuremberg and Tokyo Tribunals set up by the victorious Allies after
the close of the Second World War were a vital part of this process. Many
of those accused were found guilty of crimes against humanity and against
peace and were punished accordingly. It was a recognition of individual
responsibility under international law without the usual interposition of
the state and has been reinforced with the establishment of the Yugoslav
and Rwanda War Crimes Tribunals in the mid-1990s and the International
Criminal Court in 1998. 10 Similarly the 1948 Genocide Convention
provided for the punishment of offenders after conviction by national
courts or by an international criminal tribunal. 11 The developing concern
with human rights is another aspect of this move towards increasing the
role of the individual in international law. The Universal Declaration of
Human Rights adopted by the United Nations in 1948 lists a series of
political and social rights, although it is only a guideline and not legally
binding as such. The European Convention for the Protection of Human
Rights and Fundamental Freedoms signed in 1950 and the International
Covenants on Human Rights of 1966 are of a different nature and binding
upon the signatories. In an effort to function satisfactorily various bodies
of a supervisory and implementational nature were established. Within
the European Union, individuals and corporations have certain rights of
direct appeal to the European Court of Justice against decisions of the
various Union institutions. In addition, individuals may appear before
certain international tribunals. Nevertheless, the whole subject has been
highly controversial, with some writers (for example Soviet theorists prior
8 See the Lotus case, PCIJ, Series A, No. 10, p. 18. 9 See further below, chapter 5.
10 See below, chapter 8.
11 Ibid.