How "PUBLIC" IS PUBLIC INTERNATIONAL LAW? DESPITE ITS NATURAL LAW origins, international law has long privileged the role of the state. Today, NGOs and civil society actors play an increasingly important role--offering a voice for the disenfranchised through their advocacy and a helping hand for the disadvantaged through their operations. Calls for accountability from these actors are understandable, but often founder on their diversity. This essay develops a typology of such actors, based on their activities and their drivers, to distinguish justifications for and potential mechanisms of accountability. In addition, it suggests a possible evolution in the international order where the status of an actor (state, intergovernmental organization, NGO, etc.) is less important than its function.
A preliminary hurdle that must be crossed is the fact that the subject of public international law embodies a series of hypocrisies within its very name. The most remarked on tends to be whether this discipline really achieves the august status of being "law." Treaties may be written, advocates may put on robes and appear in court, but when push comes to shove states will do as they wish. "Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must." (1) So observed Thucydides 2,500 years ago, and realists and neorealists continue to raise eyebrows or turn up their noses at international lawyers today.
A second hypocrisy at the heart of public international law is its claim of being truly "international." Anthea Roberts recently published a book-length treatment of this question, challenging the discipline's claim to universality in application and the suggestion that its practitioners exist as a kind of invisible college. (2) As a public international lawyer based in Asia, this is not exactly a revelation. One of the reasons why Asian states lack a continent-level regional organization and remain suspicious of international treaties is that they were rarely the author of or invited to play a lead role in those regimes. (3)
For present purposes, however, it is the remaining word that will be my focus: international law's claim to being "public," in the sense of concerning the people as a whole, analogous to public institutions at the national level and distinguished from those that are private. Here, we find tension between substance and form. In substance, the natural law origins of public international law were very much concerned with order and the reduction of human suffering. In form, however, since the Peace of Westphalia in 1648, the vehicle for addressing those concerns has been states.
In this essay, I first recount how states became the central and defining actors in international law. Second, I show how that history obscures the role of individuals and other actors, in particular the role of humanitarian organizations and civil society. Third, I outline the halting steps today toward such actors being recognized not merely as objects, but also as subjects of international law.
As signposts along the way, I organize these observations around three locations that encapsulate the story being told: Westphalia, Solferino, and Rome.
Westphalia, 1648: The Preeminence of the State
The man often called the father of international law, Hugo Grotius, wrote his master work De jure belli ac pacis in the early seventeenth century. (4) Though he drew heavily on the work of earlier theorists, the intellectual heritage of Grotius, and in particular the idea of the "international society" that he described, continues to inform our understanding of the law of nations. This conception of what Hedley Bull later termed the "anarchical society" (5) of states provided an alternative worldview to both the entirely chaotic state of nature as described by Niccolo Machiavelli and later Thomas Hobbes, and the attempts to bring this chaos under centralized control by restoring the institutions of Latin Christendom, (6) or through the construction of new institutions seeking a perpetual peace through human progress as ultimately articulated by Immanuel Kant. (7) Central to this view was that sovereignty and the state went together. "That power is called sovereign," Grotius wrote, "whose actions are not subject to the legal control of another, so that they cannot be rendered void by the operation of another human will." (8)
A century later, Jean-Jacques Rousseau argued that Grotius tended to argue by offering fact as proof of right: "It is possible to imagine a more logical method," he concluded, "but not one more favorable to tyrants." (9) Grotius wrote his treatise in a period of transition. Europe was emerging from the medieval period and the vertically structured hierarchies under the Pope and emperor, entering the modern period of horizontally organized sovereign states that was formally established in the 1648 Peace of Westphalia. That treaty provided the foundation for the balance of power policies that remained substantially unchanged until the French Revolution and the Napoleonic wars. Ending the wars of religion, the 1648 treaty affirmed the right of rulers to determine the confessional allegiance of their states and subjects (cuius regio, eius religio) and the corresponding secular supremacy of territorial rulers over their dominions (Rex in regno suo est Imperator regni sui). (10) This effectively brought an end to interventions for purely religious differences in Western Europe, though religion remained an important factor in the East.
Today, states continue to command a privileged position over other (recognized) international persons. Only states can be members of the United Nations, only states may bring contentious claims before the International Court of Justice (ICJ), and only states are entitled to the benefits of territorial integrity and sovereign immunity. The state is therefore the...