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 IV. SUBJECTS OF INTERNATIONAL LAW
The "subjects" of international law are the actors
in the international community that possess interna-
tional rights and duties. Prior to the Second World
War, only nation-states were considered to be "inter-
national legal persons," or subjects of international
law. But in recent decades, international institutions,
individuals, transnational corporations, and other
entities have come to be recognized as possessing
some aspects of international legal personality. This
topic is an important one, since the viability of an
international law claim often turns on the legal status
of a particular entity.

A. States

1. State Identity, Recognition, and Succession

a. The elements of statehood The classic state-
ment of the elements of statehood under international
law can be found in the 1933 Montevideo Conven-
tion. 7 7 Article I of this treaty declared that "[t]he
state as a person of international law should possess
the following qualifications: (a) a permanent popula-
tion; (b) a defined territory; (c) government; and (d)
capacity to enter into relations with other states."
And although this formulation has been criticized,
the dominant view is that this remains the customary
international law standard of statehood.

77Convention of Rights and Duties of States, Dec. 26,

1933, 49 Stat. 3097, 165 L.N.T.S. 19 (entered intoforce Dec.
26, 1934).
62 ASIL Handbook for Judges

Two of the four elements-territory and popu-

lation-are fairly straightforward and objective.
Territory, which is the paradigmatic "object" of inter-
national law (something that is being acted upon by
international legal players), is an obvious necessity
for statehood. The Montevideo Convention requires
only that a putative state's territory be "defined," but
even this may not be a hard-and-fast requirement. A
nation may have territorial disputes with its neighbors,
and thus its boundaries may not be fully demarcated,
yet that does not disqualify it from statehood. It will
suffice that a country's borders are sufficiently defi-
nite.
Likewise, the fact that a putative nation's popula-
tion is small or widely dispersed has been disregarded
for purposes of statehood. As long as a state's popu-
lation is a group of persons leading a common life
and forming a living community, then it qualifies.
Under this standard, the officials and support staff of
the Roman Catholic Church of Vatican City qualify.
But the World Court has indicated that even where
a population of an area is largely nomadic, and thus
widely transitory, that may still suffice for purposes
of "permanence."
Aside from the population and territory factors,
the most contentious issues of state identity arise from
the last two of the Montevideo elements: government
and a capacity to enter into international relations.
These are often combined into a single inquiry of
whether an entity has sufficient independence to ex-
ercise international rights and to discharge interna-
tional responsibilities. Some polities have delegated
responsibility for the conduct of their international
relations to other countries, and questions have arisen
as to whether they can independently engage in
international relations.
 Subjects of International Law 63

b. Recognition
i. The politics of recognition An unspoken
assumption in the criteria for statehood enunciated
in the Montevideo Convention is that other nations
are prepared to treat a particular entity as a member
of the family of nations. Issues revolving around the
recognition of states and the governments of states
for diplomatic purposes have proven to be some of
the most contentious in international relations. Un-
fortunately, the international law on these topics has
been unsatisfactory, to say the least. The legal doc-
trines that govern whether a particular political entity
rises to the level of a "state" are distinct from the
question of whether the government or particular
leadership of a state should be dealt with diplomati-
cally. For example, no one questions that Cuba is a
state satisfying all the Montevideo qualifications, and
yet the United States refuses to extend recognition
to the Castro regime and to normalize diplomatic re-
lations. Conversely, whether Palestine can be said to
be a state has more to do with resolving disputes over
the nature of the political entity, its territory, and
people, rather than recognition of a particular gov-
ernment or leader.
H.Consequences ofnon-recognitionMost of
the consequences of nonrecognition of governments
for diplomatic purposes operate on the level of
domestic law, not international law. In the United
States, at least, if a foreign government is not recog-
nized by the President, there are two potentially sig-
nificant repercussions: (1) its access to U.S. courts
may be limited, and (2) the validity of its acts may be
questioned.
Access to U.S. courts by nonrecognized govern-
ments can be affected in two ways. The first is that an
unrecognized regime cannot bring an action as a
64 ASIL Handbook for Judges

plaintiff. The second is that an unrecognized govern-

ment, if sued as a defendant, may not assert a defense
of foreign sovereign immunity from the jurisdiction
of the U.S. courts. If this seems unfair-that an un-
recognized foreign government is barred from suing
as a plaintiff, but can be freely sued as a defendant-
a host of caveats and exceptions have softened these
effects on court access.
The foremost exception is that the president (act-
ing through the executive branch) must affirmatively
act to bar a government it does not recognize from
suing in a U.S. court. The government's silence in
these situations is sometimes construed as a tacit
form of recognition. Just as often, though, the U.S.
government will expressly allow an unrecognized for-
eign government to sue private parties in U.S. courts.
The bar against unrecognized governments as plain-
tiffs has also been evaded by substituting other parties
as plaintiffs or assigning claims.7"
Exceptions also come into play when an unrec-
ognized government is sued as a defendant. The
Bolshevik government in the Soviet Union was al-
lowed by New York courts to claim sovereign immu-
nity as a defendant in the 1920s, although it was then
79
unrecognized by the U.S. government.
Thus, a better statement of the rule of court ac-
cess for an unrecognized government is that (1) if it
seeks to be a plaintiff in a case filed in a U.S. court,
it can be blocked only through affirmative action by
the executive branch, and (2) if sued as a defendant,
it will still be accorded foreign sovereign immunity

78See Upright v. Mercury Bus. Machs. Co., 213 N.Y.S.2d

417 (lst Dep't 1961).
7 See Wulfsohn v. Russian Socialist Federated Soviet
Republic, 234 N.Y. 372 (1923).
 Subjects of International Law 65

so long as it is regarded as a de facto regime. Like-

wise, the rule observed by domestic courts from most
countries around the world is that the official acts of
an unrecognized government will still be given legal
validity, so long as that government has defacto con-
trol of the state (or part thereof). For example, the
U.S. Supreme Court, after the Civil War, still recog-
nized the official acts of the Confederacy (like the
incorporation of businesses and celebration of mar-
riages), as long as such acts were not, by their nature,
hostile to the Union.' Later, in the long-running liti-
gation involving the expropriatory acts of the Soviet
Union in the 1920s, a New York court ruled that as
a defacto regime, the Soviet Union's nationalization
acts would be recognized, at least for real property
situated within Russia and held by Russians (although
not for assets located outside the country)."' U.S.
courts have also been called upon to determine the
legal consequences when diplomatic recognition is
withdrawn during the course of a lawsuit.8'

c. State succession
i. Defined State succession occurs when there
has been a fundamental transformation in the iden-
tity of the state itself, not its government. Such a
change of identity can occur in a broad range of
circumstances. States can break apart or merge into
a union. Colonies can achieve independence. Parts
of the territory of one state can be sold or otherwise

oSeeUnited States v. Home Ins. Co., 89 U.S. (22 Wall.) 99

(1875).
" See Salimoff & Co. v. Standard Oil of N.Y., 262 N.Y. 220
(1933).
' SeeRepublic of Vietnam v. Pfizer, Inc., 556 F.2d 892 (8th
Cir. 1977).
66 ASIL Handbook for Judges

transferred to another nation. Understanding the

precise nature of the state succession is crucial for
determining the proper rule of international law.
U.S. courts periodically confront issues involving state
succession, and while they are obliged to follow the
pronouncements of the executive branch in such
situations,"3 the background rules of customary inter-
national law can be significant for their decisions. s4
ii. Legal Effects The legal consequences of
succession depend on the nature of the change in
state identity as well as the type of issue involved.
With respect to treaties, an important principle of
international law is that a newly independent state
begins its life with a "clean slate." In the case of de-
colonization, a new state can pick and choose among
the treaty obligations of its former colonial master
(although accession to any bilateral treaty will re-
quire the consent of the other treaty partner). The
validity of the clean-slate doctrine has been debated
in various fora, such as the United Nations General
Assembly, but in the case of ex-colonies is generally
accepted as customary international law. In the case
of an entity that has split or merged, the issue of
continuing treaty obligations is far more difficult.
Practically, these problems are normally worked out
by mutual agreement of the parties to various multi-
lateral and bilateral instruments.
The public property and debts of entities subject
to state succession reflect two sides of the same coin.
The public property of a particular piece of ceded

aSee Terlinden v. Ames, 184 U.S. 270, 286-88 (1902).

8 See United States v. O'Donnell, 303 U.S. 501,510 (1938);
Ivancevic v. Artukovic, 211 F.2d 565, 566-74 (9th Cir.
1954); Barton v. Nat'l Life Ass. Co, 398 N.Y.S.2d 941 (N.Y.
Civ. Ct. 1977).
 Subjects of International Law 67

territory can be seen as the "assets" of the transaction,

while the debts (perhaps for public infrastructure)
are the "liabilities." Not surprisingly, international
law links them together. The nationality of individu-
als resident in territories subject to transfer or a
change of state identity is also affected.
International law relieves a successor state of lia-
bility for the tortious acts of its predecessor. For ex-
ample, a U.S. citizen was injured by a denial ofjustice
committed by the South African Republic in 1895,
but before the claim was settled, the Boer War broke
out, and Britain conquered that nation. An arbitral
tribunal held that the extinction of the perpetrator
state terminated the international claim. 5 In other
words, Britain did not succeed to the South African
Republic's liabilities for international claims.
Contractual relations made by a predecessor state
have been given very uneven treatment in interna-
tional decisions. Some courts or tribunals have ruled
that a successor state is under no obligation to re-
spect the contracts or concessions entered into by
the predecessor with private parties. On the other
hand, the World Court in a number of decisions has
ruled that a successor state is obliged to pay compen-
sation if it decides to cancel the private contracts
entered into by a predecessor.

2. State Responsibility
a. Defined The term state responsibility refers to
the entirety of a nation's duty to respect the interna-
tional law rights of other states and individuals and,
when it has violated those rights, to make proper
amends and reparations. In this broad sense, state

' See Brown Claim (U.S. v. U.K.), 6 U.N. Rep. Int'l Arb.
Awards 120 (1923).
68 ASIL Handbook for Judges

responsibility is at the core of all modem interna-

tional law, and governs the manner in which entities
may enforce their rights under that law.

b. Main issues While fundamental sources and

principles of the international law of state responsi-
bility remain fluid and dynamic, the critical elements
of international claims may be summarized as follows:'
an international claim, (1) if otherwise admissible,
arises when (2) an act or omission, (3) attributable to
a state, (4) wrongfully violates a duty owed under
international law to another state or its nationals,
when (5) it is the cause of the claimant's injuries,
and (6) there is nojustification or excuse for it. Some
of these elements are procedural in character and
may be regarded as the concern of the international
law of diplomatic protection-i.e., the circumstances
under which a state may raise an international legal
claim on behalf of individual persons or business as-
sociations that are its nationals. The remaining ele-
ments are substantive in the sense that no assertion
of state responsibility can be made without them.
L Admissibility An international claim is
"owned" by the nation making, or espousing,the claim
on behalf of its injured national (whether an individ-
ual or business). The espousing state, rather than its
national, controls the international litigation. More
fundamentally, the espousing state can choose whether
or not to bring the claim at all, whether to subse-
quently settle or compromise it, or whether to hand
over the proceeds to the victim or pocket them for

6 E.g., Int'l Law Comm'n, Draft Articles of the Responsi-

bilities of States for Internationally Wrongful Acts, available
at <www.un.org/law/ilc/texts/State_responsibility/
responsibilityfra.htm> (text and commentaries).
 Subjects of International Law 69

its own use. Although a handful of international claims

commissions (including the U.S.-Mexican General
Claims Commission established in 1923, the Iran-
U.S. Claims Tribunal created in 1981, and NAFrA
Chapter 11 Investment Dispute panels) interpreted
their constitutive instruments to dispense with the
espousal requirement for claims, the vast majority
insist on government sponsorship as an element of
the claim. Once the issue of espousal is favorably re-
solved, the next major question to be addressed is
usually the claimant's nationality. A state may only
make a claim on behalf of its nationals.
Another restriction on the admissibility of claims
is the exhaustion of local remedies rule. This is pre-
mised on the notion that injured aliens at least should
seek redress from local courts before seeking satisfac-
tion through their own government's espousal of the
claim under international law. If a claimant has failed
to exhaust local remedies offered by the respondent
state, the claim is normally barred. There are, how-
ever, reasonable exceptions to this rule. Claimants
are under no obligation to pursue local remedies if
to do so would be clearly futile, or if the remedies
offered were not adequate and effective for relief.8 7
The World Court has consistently held over the last
fifty years that the rule of exhaustion of local reme-
dies remains significant, and unless the requirement
has been explicitly disavowed by treaty, it will act to
render a claim inadmissible. Nevertheless, the Court
noted in ElettronicaSicula that the burden of proof
was on the state wishing to show that local remedies
had not been exhausted.

s SeeFinnish Shipowners Claim (Fin. v. U.K), 3 U.N. Rep.

Int'l Arb. Awards 1479 (1934).
88 (U.S. v. It.) 1989 I.C.J. 15.
70 ASIL Handbook for Judges

ii.Attribution Assuming that a party can show

that its claim is otherwise admissible, the party must
then demonstrate that the respondent state is actu-
ally responsible for the act that gave rise to the claim.8 9
Such acts might include expropriations of foreign
property or investments, regulatory interference with
foreign contracts, or denials of justice. (States are
also liable for their omissions, such as the failure to
protect an alien's property from depredation.) What-
ever the underlying wrongful act or violation of a
duty owed under international law (considered next),
the question is whether that conduct is attributable,
or imputable, to the respondent government. The
reason for the attribution requirement is that, under
international law, host states cannot be the absolute
guarantors of the safety of foreign visitors or the
profitability of foreign business concerns.
International tribunals have consistently ruled
that when any government official or agent engages
in an act affecting the rights of aliens, even if that
conduct is illegal or ultra vires under the laws of the
host state, it is still attributable to that government."
Likewise, even though the acts of mobs or rioters
may not normally be imputable to a government, if
it is manifest that police authorities failed to take
reasonable measures to protect the lives and prop-
erty of foreigners, then state responsibility is engaged.
In one notorious incident, the United States ac-
knowledged responsibility for the lynching of Italian
nationals in New Orleans in the 1800s.9 1

89 See Underhill v. Hernandez, 168 U.S. 250, 254 (1897).

9' See Way Claim (U.S. v. Mex.), 4 U.N. Rep. Int'l Arb.
Awards 391 (1928); Kenneth P. Yeager & The Islamic
Republic of Iran, 17 Iran-U.S. Cl. Trib. Rep. 92,108 (1987).
91 SeeJohn Bassett Moore, DIGEST OF INTERNATIONAL LAW
837 (1906).
 Subjects of International Law

iii. WrongfulnessDepending on the nature of

the conduct affecting the rights of aliens, interna-
tional law will impose different standards of care on
host states. One historically common class of interna-
tional claims goes by the name "denials of justice."
These are claims arising in situations where the host
state's law enforcement system or judiciary failed to
operate properly, and, as a consequence, a foreigner's
rights were affected. Such a case was the B.E. Chattin
Claim, where the U.S.-Mexico General Claims Com-
mission ruled that the procedural defects in the claim-
ant's show-trial (including the failure to be informed
of the charges, the lack of oaths for the witnesses,
and the long delays) amounted to a denial ofjustice."
With the advent of international standards of crimi-
naijustice-often contained in international human
rights instruments-a host state is highly likely to be
held responsible for its failure to follow those rules.
Another class of claims involves assertions that a
host state has failed to protect foreign persons or
their property residing within its territory. In cases
such as these, a state is being charged with an omis-
sion. The standard adopted by most international
tribunals is some form of due diligence: a state is
required to exercise the same care in protecting for-
eigners as it would in protecting its own similarly
situated nationals. In the William E. Chapman Claim,
for example, a claims commission ruled that Mexico
had failed to grant the police protection for a U.S.
consul (who had earlier been threatened by a pri-
vate Mexican citizen) that it would for one of its own
officials, and was therefore liable.9 3

9 4 U.N. Rep. Int'l Arb. Awards 282 (1927).

934 U.N. Rep. Int'l Arb. Awards 632 (1927).
72 ASIL Handbook for Judges

B. International Organizations and Tribunals

Collectivities of nations, often called international
organizations or international institutions, have be-
come a notable feature on the landscape of interna-
tional relations. Even so, international law was rather
slow in recognizing the legal status, or international
legal personality, of these entities. The story of this
transformation in international law--recognizing inter-
national actors other than states-not only presaged
the revolutionary idea that individuals could carry
international legal rights and duties, but was also a
significant advance for functional cooperation among
countries.

1. The League of Nations and the United Nations

The dream of a universal international organi-
zation, aspiring to garner global membership and
addressing a wide range of international problems,
was first seriously attempted by the creation of the
League of Nations in 1919, after World War I. The
institutional structure of the League was to provide
the model for virtually every subsequent international
organization. The League "organs" included an Assem-
bly, where each member of the organization had one
vote, and which set the general policies of the insti-
tution, adopted budgets, and was assigned specific
tasks for debating issues of disarmament and eco-
nomic cooperation. Counterpoised with the Assembly
was the League Council, a much smaller body in which
the great powers had permanent representation and
other nations had rotating membership. In addition
to these organs was the creation of a permanent staff
for the League, led by the Secretariat.The idea for this
was that the institution could rely on a professional,
international civil service that owed its primary
 Subjects of International Law

loyalty to the League, not to individual countries of

nationality. Lastly, ajudicial entity to provide neutral
decisions on legal disputes, the Permanent Court of
InternationalJustice, was established in association
with the League (although, technically speaking, a
separate institution).
When plans were made to launch a new interna-
tional organization after the Second World War-
the United Nations-the template and institutional
design were already in place. And, indeed, the UN's
organs closely tracked those of the League: a General
Assembly, Security Council, Secretariat, and the Inter-
national Court ofJustice along with an Economic and
Social Counciland Trusteeship Council (the latter now
defunct with the end of colonialism). As with the
League, the UN's real successes have been in areas
such as promoting human rights, spurring decoloni-
zation, facilitating aid and development, negotiating
disarmament and arms control, and generally en-
couraging the rule of law in international relations.

2. Specialized Agencies and Regional Institu-

tions
Today, the UN stands in the center of a vast net-
work of international institutions. Known generically
as "specialized agencies," their precursors were numer-
ous functional bureaus and commissions created in
various forms as early as the 1860s. For virtually every
realm of human interaction-economic, social, and
scientific-there is a specialized agency established
(along the same lines as the organs of the League
and UN) to manage cooperation, prepare new trea-
ties, and draft needed regulations. In the area of
international banking and finance, the "Bretton
Woods" institutions of the World Bank and Inter-
national Monetary Fund (IMF) occupy a central
74 ASIL Handbook forJudges

position. In international transportation, such agen-

des as the International Maritime Organization (IMO)
and International Civil Aviation Organization (ICAO)
make possible safe shipments of crude oil by sea and
smooth flight connections (ICAO, for example, man-
dates that the international language of civil aviation
be English). Likewise, institutions like the World
Meteorological Organization (WMO) and World
Health Organization (WHO) coordinate vital weather-
monitoring and disease-prevention initiatives. All of
this is a veritable "alphabet soup" of international
cooperation across the broadest spectrum imagin-
able of global problems.
While universal, or global, institutions play a
major role in international law-making, regional inte-
gration has also accelerated. Starting with the Pan
American Union (now the Organization of American
States) in the Western Hemisphere, such regional
institutions have played a significant role in develop-
ing international law, especially in distinctive ways.
Of course, the leading example of this would be to-
day's European Union (EU), formerly the European
Community or Communities. Beginning as merely a
coal and steel trading bloc, it has evolved into a com-
prehensive economic integration regime, granting
extensive competence to central institutions (located
in Brussels, Belgium) for European economic, finan-
cial, labor, and social issues of virtually every kind.
The European single currency (euro) is here, as is
growing political, diplomatic, and security coordi-
nation.

3. The International Court of Justice

As was already noted in the context of tribunal
decisions as an evidence of international law (see
section II.D, supra), there is today a wide variety of
 Subjects of International Law

international dispute resolution institutions. Some

are subject-matter focused (such as human rights
institutions, trade panels, and the Law of the Sea Tri-
bunal), while others have regional competence. Some
international mechanisms are available only for
state-to-state controversies, while others are open to
individuals and corporations. Of these institutions,
the International Court of Justice still remains the
most prominent for the resolution of international
disputes.

a. HistoricalBackground Proposals for the cre-

ation of an international adjudicatory bodywere first
made in earnest at the Hague Peace Conferences of
1899 and 1907. In spite of the relative allure of ad
hoc international arbitration, many states believed
that international law would not truly be followed
and enforced until there was a permanent institution
for settling interstate disputes. It was only in 1920,
with the end of World War I and the creation of the
League of Nations that the Permanent Court of
InternationalJustice (PCIJ) was founded at the Peace
Palace, in The Hague, The Netherlands. The PCIJ
was conceived as a separate institution from the
League of Nations, with potentially different mem-
berships. A commission of jurists drafted the PCIJ
Statute in 1920; although the PCIJ was eventually
dissolved in 1946, the text of that effort is largely
reflected in the current Statute of the ICJ. Indeed,
for all practical purposes, the ICJ (created as part of
the UN in 1945) is the successor to the PCIJ, and
they are together referred to as the World Court.

b. Structure The structure and operating pro-

cedures of the ICJ are fairly straightforward. The
current Court consists of fifteen members, each of
whom serve nine-year terms. By tradition (though
76 ASIL Handbook for Judges

not by rule), each of the permanent members of the

Security Council has a national on the Court. The
remaining ten seats are distributed by region, so as
to reflect as many of the world's legal systems as pos-
sible. Judges are picked in their individual capacity,
and are not political appointees of their respective
governments. Nominations of outstanding interna-
tional lawyers from government ministries, law facul-
ties, the bench, and the bar are made by members of
another institution, the Permanent Court of Arbi-
tration, according to nationality. Judges are elected
when they receive a majority vote in each of the UN
Security Council and the General Assembly. In addi-
tion, any party appearing before the ICJ which does
not have a judge of its nationality on the Court is
entitled to appoint an ad hocjudge of its choosing
for purposes of the particular case.

c. Operating procedures The World Court tra-

ditionally hears cases in plenary sessions, with a full
bench of fifteen judges (or sixteen or seventeen, if
there are ad hocjudges appointed). A majority vote
determines the case. (In case of a tie, the president
gets to cast the deciding ballot.) Because the Court
hears cases in full benches, the proceedings can be
exceedingly slow, and it normally takes years before
a final decision is rendered. Proposals to increase the
use of chambersof the Court, consisting (usually) of
five hand-picked judges to hear specific cases, have
received mixed reviews. A decision of a Court chamber
has the same binding effect as one made by the full
bench, and (presumably) the same precedential
weight (although there is no strict doctrine of stare
decisis in international law).
Every matter that comes before the ICJ does so
because of the consent of the litigants. The only ques-
tion is how that consent is manifested. The Court
 Subjects of International Law

does not-and cannot-exercise a mandatory form of

jurisdiction over states. And only states may be parties
before the Court. Article 36 (1) of the Court's Statute
thus provides: "Thejurisdiction of the Court comprises
all cases which the parties refer to it and all matters
specially provided for in the Charter of the United
Nations or in treaties and conventions in force."
i.Jurisdictionbycompromisorcompromissory
clause The most common, and uncontroversial, way
for the Court to receive a case is by the special agree-
ment of the parties to submit it by special compromis.
This is an especially popular vehicle for seizing the
Court in boundary or other territorial disputes. When
cases are submitted by compromis,the Court proceeds
immediately to briefing on the merits since there is
no conceivable jurisdictional concern.
An increasingly accepted way to invoke the ICJ's
jurisdiction is through compromissoly clausesincluded
in bilateral and multilateral conventions. Such clauses
provide that, in the event of a dispute arising under
the treaty, the matter may be submitted to the Court.
Although a compromissory clause need not be for-
mally drafted, it must unambiguously indicate that
the ICJ has been selected to resolve any future dis-
putes arising under the treaty. Equivocal undertakings
to have the ICJ settle a dispute are insufficient. 4 At
last count, there are approximately 300 conventions
with clauses that invoke the Court's jurisdiction. In
cases involving compromissory clauses, the inquiry
is usually limited to whether the dispute before the
Court falls within the parameters of the relevant
treaty.

' See Aegean Sea Continental Shelf (Greece v. Turk.),

1978 I.CJ. 3.
78 ASIL Handbook for Judges

ii. Compulsory jurisdiction That leaves, as a

final basis of the Court's authority, what is rather
misleadingly called its "compulsory jurisdiction."
This is premised on Article 36 of the ICJ Statute,
paragraphs 2 and 3:
2. The states parties to the present Statute may at
any time declare that they recognize as compul-
sory ipso facto and without special agreement, in
relation to any other state accepting the same
obligation, the jurisdiction of the Court in all
legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact that, if estab-
lished, would constitute a breach of an inter-
national obligation;
d. the nature or extent of the reparation to
be made for the breach of an international
obligation.
3. The declarations referred to above may be
made unconditionally or on condition of reci-
procity on the part of several or certain states, or
for a certain time.
Of the nearly 190 nations that are parties to the Court's
Statute, only about sixty-two currently have made
"optional clause" declarations under Article 36. Of
the five permanent members of the Security Coun-
cil, only the United Kingdom today accepts the com-
pulsory jurisdiction of the Court.
iii. Findings of inadmissibility The fact that
the ICJ has some basis ofjurisdiction under the Stat-
ute-compromis, compromissory clause, or optional
clause-does not necessarily mean that it will actu-
ally hear a case. Over nearly eighty years, the World
Court has developed a number of prudential grounds
for finding a case inadmissible, and thus declining to
 Subjects of International Law

decide it. These grounds are analogous to the pru-

dential reasons that U.S. federal courts often refuse
to hear cases, even though jurisdiction is otherwise
proper. For example, the Court will dismiss a case if
its subject matter has become moot, as when in the
Nuclear Tests case France unilaterally declared that it
would no longer conduct atmospheric testing.9' Al-
though the Court was careful to say that it would
remain seized of the issue (just in case the French
decided to change their minds), the dispute was, for
all intents and purposes, concluded. Likewise, the
ICJ will not decide a case if the dispute is not suffi-
ciently ripe, or well-developed.96
iv. ProvisionalmeasuresAmong other aspects
of the World Court's procedures, it is important to
note the ICJ's power to indicate provisionalmeasures.
These are interim measures of protection, designed
to preserve the status quo between the parties while
the proceedings are underway. For example, if the
issue in the case is a border conflict, the Court might
order provisional measures for a ceasefire and no
further aggressive action to be taken by the two sides
while the case is pending. The ostensible standard
for the Court to indicate provisional measures is ir-
reparable prejudice; in practice, however, the ICJ will
often grant measures even when the underlyingjuris-
97
diction of the Court looks doubtful.
The ICJ's power to indicate provisional measures
has proven controversial. In recentyears, U.S. courts
have refused to stay the execution of Paraguayan and

9' See Nuclear Tests, (Ausl./N.Z. v. Fr.), 1974 I.C.J. 253.

96 See Electricity Company of Sofia and Bulgaria (Bulg. v.
Belg.), 1939 P.C.IJ. (ser. A/B) No. 77.
97 See Aegean Sea Continental Shelf (Greece v. Turk.),
1976 I.C.J. 3 (Interim Protection).
80 ASIL Handbook for Judges

German defendants who had argued that their con-

viction for capital offenses had violated the substan-
tive provisions of the 1963 Vienna Convention on
Consular Relations (VCCR) regarding consular ac-
cess for criminal suspects. In each case, the ICJ issued
a provisional measures order requesting that the
executions be stayed, but the U.S. Supreme Court
and relevant state officials declined to issue stays.9" In
subsequent proceedings, the World Court held (for
the first time) that its provisional measures orders
are binding on parties, and found that the United
States had breached its obligation under the Statute
of the Court to respect the ICJ's orders. 9
v. AdvisoryopinionsThe foregoing has con-
sidered the World Court's contentiousjurisdiction-
cases involving states as opposing litigants. But many
of the Court's most significant rulings have come in
advisory opinions requested by an organ of the United
Nations or one of its specialized agencies. Almost all
of the critical decisions as to the "constitutional law"
of the UN have come through the ICJ's advisory
rulings.

C. Individuals as Subjects of International Law

The real revolution in the subjects of interna-
tional law has been in the recognition of individuals
as capable of both exercising international rights and

98 See Breard v. Greene, 523 U.S. 371 (1998); Fed. Repub-

lic of Germany v. United States, 526 U.S. 111 (1999).
Compare Case Concerning the Vienna Convention on
Consular Relations (Para. v. U.S.), 1998 I.C.J. 248;
LaGrand Case (F.RIG. v. U.S.), 1999 I.CJ. 9.
9 LaGrand Case (F.R.G. v. U.S.), 1999 I.CJ. 9.
 Subjects of International Law 81

respecting international obligations. This develop-

ment, standing alone, has been what has transformed
a "law of nations"-the exclusive preserve of states,
national interests, and sovereignty-into the dynamic
international law of today. Persons are no longer the
passive "objects" ofinternational legal action by states.
Nationality of individuals, as well as their duties under
international law, will be discussed below. The sub-
stantive law of international human rights will be
considered in section IVA below.

1. Nationality
a. Bases Most nations in the world recognize
either of two bases for acquiring nationality, or some
combination of them. One basis for nationality is
known asjus sanguinis.Nationality is transmitted "by
blood," from parents to children. The other basis is
calledjus soli, "by soil," depending on the place where
one is born. U.S. nationality law, which is based on
the Constitution's Fourteenth Amendment, is cen-
trally premised on the place of one's birth. That is
why, for example, a child born in the United States
of foreign tourists (or even illegal aliens) is regarded
as a U.S. citizen. U.S. statutory law also recognizes
the children of U.S. parents as U.S. citizens or na-
tionals, even if that child is born overseas.

b. Statelessness Even in modern international

law it is often functionally necessary to have an affili-
ation with a state. International travel would be im-
possible without the necessary travel documentation,
including the indispensable passport (which is the
ultimate proof of one's nationality). For this reason,
the condition known as "statelessness" is regarded as
problematic. Statelessness can be caused by the loss
of citizenship, something that U.S. law attempts to
82 ASIL Handbook for Judges

avoid."° Classically, stateless persons were understood

to live in a perpetual legal limbo, with no right of
abode, no territory to assert as their home, and no
right of protection from any government. Interna-
tional treaties on statelessness have been adopted in
order to ameliorate this situation. Although relatively
few states have become parties, national practices
have eased, in part under the influence of develop-
ing human rights norms, which cover all persons
irrespective of nationality.

c. Dual Nationality If statelessness (having no

nationality) is a problem at one end of the spectrum,
then at the other end of the spectrum, one must also
consider the difficulties of dual nationality (having
more than one citizenship). The most common source
of dual nationality is birth in ajus soli country to par-
ents from ajus sanguiniscountry, or birth to parents
of different nationalities, both of which recognizejus
sanguinisThe combination of disparate nationality
rules among nations can easily result in dual citizen-
ship-someone who has loyalties to two states. It is
possible for U.S. nationals to acquire dual nation-
ality, 1 ' and this has periodic bearing on diversity
jurisdiction." 2

d. Tension between nationalityand rightsThere

is sometimes a tension between determination of na-
tionality and determination of an individual's inter-
national legal rights. As the 1930 Convention on
Certain Questions Relating to the Conflict of Nation-
ality Laws provided, "It is for each State to determine

" See Afroyim v. Rusk, 387 U.S. 253 (1967); Vance v.

Terrazas, 444 U.S. 252 (1980).
101 SeeKawakitav. United States, 343 U.S. 717 (1952).
'o' SeeSadatv. Mertes, 615 F.2d 1176 (7th Cir. 1980).
 Subjects of International Law 83

under its own law who are its nationals. This law shall
be recognized by other States in so far as it is con-
sistent with international conventions, international
custom, and the principles of law generally recog-
nized with regard to nationality." This statement begs
the question of under what circumstances a state may
refuse to recognize the grant of nationality made by
another country. In one decision, the ICJ ruled that
states need not recognize a grant of citizenship by
another nation if there is no "genuine link" between
the person and putative country of nationality."'3

2. Duties of Persons under International Law

and International Criminal Law
The process of requiring individuals to conform
their behavior to international norms-and directly
punishing such persons (quite apart from their state
of nationality) for infractions-has been ongoing for
nearly 500 years. Even in the era of the "law of na-
tions," where only states and their conduct mattered,
individuals were recognized as subjects of interna-
tional law duties and could be punished accordingly
(as with the commission of piracy or the slave trade)."
The key moment for the imposition of interna-
tional law duties on individuals was the Nuremberg
trials of the top political and military leadership of
the German Third Reich, held after the conclusion
of the Second World War in 1945. In 1942, the Allied
powers issued a general declaration known as the
London Charter. The Charter specified a number of
particular international crimes subject to the juris-
diction of any subsequently created international
military tribunal. After the complete victory of the

103Nottebohm Case (Liecht. v. Guat.), 1955 I.C.J. 4.

1o See Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert.
denied, 518 U.S. 1005 (1996).
84 ASIL Handbook for Judges

Allies in Europe in 1945, specific indictments were

handed down for about twenty-four of the top Ger-
man government, Nazi Party, and military leaders.
The trials were conducted before a bench consisting
of judges from the United States, Britain, France,
and the Soviet Union." 5 The prosecution was led by
Justice Robert Jackson, who took a nearly two-year
leave of absence from the U.S. Supreme Court.
The German defendants raised a number of sub-
stantive defenses to the charges, at both the Nu-
remberg trials themselves, as well as the subsequent
prosecutions in the courts of occupied Germany
(these trials involved the financial, industrial, and
judicial leadership of the Third Reich). The first such
defense was the contention that every action taken
by the defendants was an "act of state," and the indi-
viduals were, therefore, immune under international
law. The International Military Tribunal (IMT) made
short work of this contention, as the London Charter
had specifically provided that "It] he official position
of the Defendants, whether as Heads of State, or re-
sponsible officials in Government Departments, shall
not be considered as freeing them from responsibility,
or mitigating punishment." The next defense raised
by the Nuremberg defendants had also been antic-
ipated by the London Charter. The defendants
argued that as military and political leaders they had
been merely followingAdolf Hitler's orders, and were
not culpable. However, the London Charter had spe-
cifically provided that"[ t] he fact that the Defendant
acted pursuant to an order of his Government or of
a superior shall not free him from responsibility, but
may be considered in mitigation of punishment."

105Se International
Military Tribunal (Nuremberg) Judg-
ment and Sentences (Oct. 1, 1946), 41 AM.J. INT'LL. 172
(1947).
 Subjects ofInternational Law 85

Nuremberg set an important precedent in de-

manding individual responsibility for violations of
international norms. The trials were followed in 1948
by the conclusion of the Genocide Convention, which
defined as a crime the targeting or destruction of
particular populations based on their ethnicity or
religion, as the Nazis had done in the Holocaust.
Today, there is a long list of individual acts that are
recognized as a breach of international law obliga-
tions. Some offenses--such as genocide, slave trading,
and piracy-have been declared to be within a "univ-
ersaljurisdiction," allowing any country to prosecute
any individual."0 6 Other crimes have been made the
subject of particular treaty regimes, in which specific
offenses are defined and then states promise either
to prosecute the suspect or extradite the person to
a country that will. This is known as the aut dedere aut
judicare principle, meaning literally "hand over or
prosecute." Aircraft sabotage and hijacking are respec-
tively the subject of two separate treaties, as are attacks
on diplomats (or other internationally protected
persons), and hostage-taking. Most controversial of
all has been the indication of terrorism as an inter-
national crime.
All of these efforts to create a broad structure of
individual responsibility under international law and
to eliminate the perceived impunity of war criminals
culminated in efforts initiated after the genocides in
Yugoslavia and Rwanda in the 1990s. The UN Secu-
rity Council established ad hoc tribunals withjurisdic-
tion to try persons suspected of genocide or crimes
against humanity or grave breaches of the laws of
war. These tribunals are currently operating and are

106 See United States v. Hudson & Goodwin, 11 U.S. (7

Cranch) 32, 34 (1812); United States v. Smith, 18 U.S. (5

Wheat.) 153, 161-62 (1820).
86 ASIL Handbook for Judges

developing a significant body of jurisprudence on

this subject, especially as to questions of whether
certain operations can ever be justified by military
necessity, how far command responsibility extends
to higher-ranked officers, or whether mass rapes of
civilian women constitute a form of genocide.
The temporary and inevitably political nature of
these tribunals concerned many states, and moti-
vated suggestions for the creation of a permanent
international criminal court. InJuly 1998, the Rome
Statute of the International Criminal Court (ICC)
was signed by many nations. (As of this writing, the
United States has formally indicated its intention not
to participate in, or cooperate with, 'the ICC). The
critical innovation of the ICC is a permanentjudicial
institution and prosecutorial staff, standing available
to commence investigations of suspected genocide,
war crimes, and crimes against humanity (in essence,
the original London Charter indictment counts). If
a nation is unwilling or unable to initiate a prosecu-
tion against one of its own nationals, then the ICC's
jurisdiction can be triggered.