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7 - The individualistic conception

Published online by Cambridge University Press:  05 October 2010

Roland Portmann
Affiliation:
Swiss Ministry of Foreign Affairs and Universität St Gallen, Switzerland
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Summary

The individualistic conception of international personality asserts that, as a matter of fundamental legal principle, the individual human being is an international person and, as such, has certain basic international rights and duties. The conception as presented here was forcefully put forward by Hersch Lauterpacht before and immediately after World War II. However, Lauterpacht was neither the only nor the first advocate of an individualistic conception of international personality in the twentieth century. Various forms of this conception had been formulated earlier in the interwar period by distinguished international lawyers, including Georges Scelle, Hugo Krabbe, James Leslie Brierly, Nicolas Politis, Maurice Bourquin and Alejandro Alvarez. The common denominator of all these theories is that the status of the individual as a subject of international law does not depend on explicit or implicit expression of state will to that effect, but exists a priori. The lines of reasoning employed to arrive at this conclusion are, however, rather diverse, making use of sociological, psychological and natural law approaches, as are the consequences attached to the individualistic presumption, with some, most notably Scelle, arguing that states do not exist and that only individuals can be international persons. It was then Hersch Lauterpacht, it is submitted, who encapsulated and sometimes tempered (e.g. by reaffirming the reality of states) the different lines of reasoning into one coherent theory of the individual's international personality. It was his theory that was most influential in subsequent legal practice, particularly in international criminal law and human rights law.

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Publisher: Cambridge University Press
Print publication year: 2010

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References

AJIL Supp., 39 (1945), 257–58
In re Goering and Others (International Military Tribunal at Nuremberg, Judgment), 41 AJIL 1947, 172–333, at 217)
Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte No. 3 (UK House of Lords, 1999), 119 ILR 136
Yerodia Case (Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ 14 February 2002, esp. at p. 84 (para. 71 of the Joint Separate Opinion).
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ 26 February 2007, paras 155–79.
Kadic v. Karadzic II (US Court of Appeals, Second Circuit, 1995) (Chief Judge Newman), 104 ILR 135, at 149–65.
Filartiga v. Peña-Irala (US Court of Appeals, Second Circuit, 1980), 77 ILR 169.
Tel-Oren v. Libyan Arab Republic (US Court of Appeals, District of Columbia Circuit, 1984) (Judge Edwards, concurring), 77 ILR 193.
Sanchez-Espinoza v. Reagan, (US Court of Appeals, District of Columbia Circuit, 1985) (Judge Scalia), 80 ILR 586, at 590–1.
Kadic v. Karadzic II (US Court of Appeals, Second Circuit, 1995) (Chief Judge Newman), 104 ILR 135, at 149–65.
Kadic v. Karadzic I (US District Court for the Southern District of New York, 1994), 104 ILR 135, at 146.
Presbyterian Church of Sudan v. Talisman Energy, Inc. (US District Court for the Southern District of New York, 2003), 244 F.Supp.2d 289, at 313.
Iwanowa v. Ford Motor Company (US District Court for the District of New Jersey, 1999), 67 F.Supp.2d 424, at 443–5
Doe I v. Unocal Corporation (US Court of Appeals, Ninth Circuit, 2002), 395 F.3d 932, at 945–7
Ken Wiwa v. Royal Dutch Petroleum Company (US District Court for the Southern District of New York, 2002), WL 319887, at *12
Sosa v. Alvarez-Machain et al. (US Supreme Court, 2004), 127 ILR 691, at 794
Loizidou v. Turkey I (Grand Chamber, Preliminary Objections, 1995), ECHR Series A No 310
Ireland v. United Kingdom (Judgment, 1976), ECHR Series A No 25, para. 239.
Al-Adsani v. United Kingdom (Grand Chamber, Judgment), ECHR Reports 2001-XI, para. 55.
Bankovic and Others v. Belgium and Others (Grand Chamber, Decision on Admissibility), ECHR Reports 2001-XII, para. 57.

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