International law is usually defined in terms of its subjects. Without making any specific reference to which particular subject, international law has been broadly defined, according to its subjects, as the body of legal norms that regulate relations among the members of the international society in whom legal subjectivity is recognized.557 For the time being, states remain the main subject of international law. However, in the area of international relations, there is a growing awareness of the need to admit other actors as subjects of international law.558 This is in part thanks to the fact that international law has gradually become relevant to other international entities. Traditional legal language basically equates the subjects of international law with the state itself. And, while the focus on subjectivity may have a positive resonance, it is perhaps wiser to speak about members of the international community, on the one hand and, on the other, participants in the international legal system. At first sight, the definition of being a participant in the international legal system seems to be narrower than that of being a member of the
556 Orakehlashvili, above note 503, p. 60.
557 Remiro Brotóns et al., above note 413, p. 45.
558 Higgins, above note 417, p. 39.
international community. This may be true if we consider subjects, participants, and members, from a positivist perspective. That is, to answer the question of whether or not a certain member of the international community, or universal society, participates in the international legal system, depends ultimately on our understanding of international law, and which values and interests we understand to be protected and pursued by it.
Who are these members? Active participants in international law are considered, in the first instance, to be the legal entities possessing full political rights and obligations and, second, entities of restricted legal personality who are dependent on the acquiescence and recognition of legal entities of the first type, those possessing full political rights and obligations.559 But what of others? What of the members of the international community/universal society?
The classical debates on the subjects of international law address the state, international organizations, and the individual. The state, as long as it has a permanent population, a defined territory, a government, and the capacity to enter into relations with other states, is considered to be an authentic subject of international law.560 However, international organizations may or may not be subjects of international law; it depends upon whether or not they are endowed with legal personality. Besides some characteristics of international organizations used to determine their subjectivity, like the ability to contract, the ability to sue and to be sued, and the ability to own property, their most singular feature is that they possess a distinct will (volonté distincte). The international legal personality may be given expression through the constituent instrument of the organization, or it may be deduced from the powers that have been given to it.561 Today, in general opinion, debate centres not so much on the subjectivity of the state and the international organization, but rather on the refusal to regard the individual as a full subject of international law. For many scholars, the individual in international law plays only a limited role.562 This minimalist view prevents international society from effectively protecting and furthering the values and interests of the individual. Indeed, to allow the individual only a limited role reaffirms the supremacy of the state, its values and interests, as the primary subject of international law. That the individual not be
559 Ian Brownlie, “The rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations”, 1998, p. 35.
560 Higgins, above note 417, p. 39.
561 Ibid., pp. 46-47.
562 Cassese, above note 430, p. 4.
considered, in principle, as a subject of international law, responds first and foremost to the idea that the individual is an object of international law only in a secondary way, with the defenders of this notion, as a manifestation of their conservatism, maintaining that this basic differentiation must remain unchangeable.563 That notwithstanding, the lack of procedural rules for individual access to international adjudication clearly does not mean that the individual has no rights owed to him under international law.564 Be that as it may, when we speak about members of the global community we refer to an international legal system of a constitutional type, in its contemporary sense, thus including subjects beyond those of the classical-modern conception of international law (nation state, international organization, very limited subjectivity of the individual).
International law's constitutional model differs from the classic coordinated system of international law because it changes the criteria by which to identify the membership of the constitutional society according to the values, interests, and concerns of other entities beyond the state, notably the individual.565 The contemporary understanding of a constitutional global community focuses on the centrality of individuals; it regards state power as something that is constituted rather than exclusively constituting. Thus the state is instrumental; it is not an end in itself. The main function of the state is to be measured according to how states serve individuals as members of one human family, and not primarily as members of states.566 The most significant fact here is that the state is composed of individuals; in the final analysis, rights are owed to them. In his concurring view, in the Advisory Opinion on the Legal Status and Human Rights of the Child (2004), judge Cançado Trinidade criticized the Hegelian and neo-Hegelian position that maintains that the state is the last depositary of the freedoms and responsibilities of the individual.567 Hence, in a constitutional way, individuals are conceived in a more cosmopolitan way in the Kantian than in the traditional sense, where the individual is understood to be an exclusive subject of the nation state. If the
563 Higgins, above note 417, p. 49.
564 Ibid., p. 53. quoting Lauterpacht in International Law and Human Rights, 1950, p. 27 "Thus in relation to the current view that the rights of the alien within foreign territory are the rights of his state and not his own, the correct way of stating the legal position is not that the state asserts its own exclusive right but that it enforces, in substance, the right of the individual who, as the law now stands, is incapable of asserting it the international sphere.”
565 Anne Peters, “The constitutionalization of International Law” J Klabbers, A Peters, G Ulfstein (eds.), 2009, pp. 153-263.
566 Ibid. p. 179.
567 Legal Status and Human Rights of the Child. Inter-American Court of Human Rights, Advisory Opinion OC 17/02 of 28 August 2002, Series A No. 17, para. 13 Opinion Judge Cançado-Trinidade.
international community were to be conceived in only universal constitutional terms, the individual would be considered as an end in itself, and only the state, in this case would be instrumental. In other words, the state is only an apparatus created for the realization of the rights of the individual.568 However, if we think to the status quo of our society, this previous description speaks to aims that, while desirable, are far from today's actual reality. It is therefore now opportune to speak about a model which is neither state-centric nor anthropocentric, but concentric, and that makes viable an effective processing of the various transformations that are taking place in our contemporary world.
Far beyond the above-outlined theoretical approaches one should take notice, too, of the role of some modern and contemporary members of the global constitutional community, such as international organizations, non-governmental organizations (NGOs), and business leaders.569 International organizations differ widely according to the objectives which they have been set up to address. Thus, the role they play as members of an international legal society will differ according to their scope and size.
For example, in the European Union, the individual is constitutionally protected against the organization. But this is not the case in the World Trade Organization. In the WTO, the individual is not empowered to institute judicial proceedings.570 Legal commentators argue that the WTO is undergoing a process of constitutionalization.571 In the debates, the researcher can observe that the term "constitutionalization" within the WTO is ambiguous572; in the end, the language is used to express a process of transformation within the WTO towards a more judicialized institution, in consonance with extra-WTO law. This process of change, in the special case of the WTO, it being a very successful organization has, as its most outstanding feature, that it provides for a "framework capable of reasonably balancing and weighing different, equally legitimate and democratically defined basic values and policy goals".573 The use by the WTO judiciary of constitutional techniques, like proportionality analysis, allows it effectively to
568 Peters, above note 565, p. 179.
569 Ibid., p. 179.
570 Ibid., p. 215.
571 See below, Part II Chapter 6 Constitutionalization.
572 Deborah Z Cass, “The Constitutionalization of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade.” The European Journal of International Law 2001 Vol. 12 No. 1, p. 47.
573 Thomas Cottier, "Limits to International Trade: The Constitutional Challenge in The American Society of International Law (ed) International Law in Ferment: A New Vision for Theory and Practice, Proceedings of the 94th Annual Meeting. 2000 p. 221 Quoted by Anne Peter, note above 565, p. 177.
balance trade issues with non-trade issues.574 In this way, contemporary international organizations play a progressive and prominent role as subjects of international law, thanks to their ability to act in an effective administrative and legislative fashion, on the one hand and, on the other, through the creation of a strong judiciary.
Broader conceptions of international law in relation to the international constitutionalization process include non-governmental organizations (NGOs) as a condition of global governance. Through NGOs, non-governmental participation increases the level of good governance for international organizations, as in the 1978 American convention on Human Rights, that allows applications to be made by representative organizations. One major example of the role of NGOs is in the admissibility of amicus curia briefs (letters from friends of the court) in WTO dispute settlement; although without vote and not subjects of international law as such, in such a way NGOs may nevertheless take part in the process of law-making and participate in the international constitutional framework. Another important part of international society is the business leader; it is undeniable how much international economic activity influences the development of international law. Taking into account that today many large multinational companies have higher income revenues than the budgets of many states, their activities touch the interests of employees, taxpayers, and consumers in general, particularly considering that their operations extend beyond the territorial limits of the nation state. This fact helps better to understand why international business leaders are accountable in international discourse. Whatever are the theoretical arguments concerning Transnational Companies and Multinational Enterprises as subjects of international law, the key issue regarding their subjectivity is precisely that they must be made subject to legal rights and obligations.575 From the beginning of the 20th century, private companies have come to occupy an extraordinary and powerful role on the international stage, through litigation against states, "as if they were their equals"576, such as in the 1965 Convention on the Settlement of Investments Disputes Between States and Nationals of Other States. As with NGOs, international business actors are not really considered to be full subjects of international law; but their
574 Peters, ibid., p. 216.
575 Ibid., p. 243.
576 Lowe, above note 414, p. 16.
responsibility towards the community in general, and the individual in particular, is fact.
In this way, international law seeks to structure and formalize their subjectivity.
CHAPTER 3, INTERNATIONAL COMMUNITY