FOR EDUCATIONAL USE ONLY
23 QLR 23
QLR
2004
Articles
*23 THE TRANSFORMATION OF THE INTERNATIONAL LEGAL SYSTEM: THE POST-
WESTPHALIAN LEGAL ORDER
Eric Allen Engle [FN1]
Copyright © 2004 Law Review Association of the Quinnipiac University School
of Law; Eric Allen Engle
IntroductionThe
rise of private rights and duties under national and international law
enforced through universal jurisdiction and supranational trading
systems both global and regional together mark the end of the
Westphalian state system.
[FN2]
The best way to understand the rise of private rights and duties of
non-state actors under national and international human rights law is
to see it
as a function of the transformation of the Westphalian state system. The treaty of Westphalia
[FN3] promised to end the religious wars of the iron century
[FN4] *24 (1600s). Ultimately it led to the idea of sovereignty,
[FN5] the unity of territory
[FN6] (eventually nation) and religion.
[FN7] Each state's religion would be determined by the religion of the sovereign.
[FN8] Each land would determine its own system of governance
[FN9] but would refrain from interfering in its neighbors' internal affairs.
[FN10]
By linking state and religion and separating states from other states
it was hoped that the divisive transnational religious and civil wars
that tortured Europe would be ended.
[FN11] Peace would be preserved through the mutual independence of sovereign states essentially isolated from each other.
The
Westphalian model of hermetic sovereign states promising not to
intervene in their neighbors' purely internal affairs lasted roughly
from 1648-1989.
[FN12] In this system, states
[FN13] were the sole subject of
*25 international law, having final and absolute authority within their sovereign territory.
[FN14] States in the Westphalian system were hermetically isolated from each other and granted a right to make war,
[FN15] even aggressive war, as a self help remedy.
[FN16] Skeptics could thus ask whether international law was law.
[FN17] The Westphalian system also left open the question of whether international law and national law were
unitary, i.e., monist,
[FN18] or independent from each other, i.e., dualist.
[FN19]
Despite those shortcomings, the Westphalian system of nation-states
[FN20] roughly worked to preserve peace from 1684 to 1914. The end of the 17th century, the so-called "iron century,"
[FN21] ushered in an era of
*26
trade and expansion which ultimately sparked the industrial revolution,
perhaps because the Westphalian system assured a certain minimum of
order in national and international affairs. However, the resulting
industrialization and global trade brought an end to the unity of the
economy, language, and religion in the (formerly) autarchic entity "the
State." By the 1890s, German, British, and French goods were competing
in a global market place. Now the unity of territory and economy under
the heading "sovereignty,"
[FN22] rather than guarantor of peace, assured that all conflicts over market share would be mutually reinforcing and zero sum:
[FN23] if one state gained territory it also gained market share--at the expense of its neighbors.
In
a pre-industrial world, where international trade was limited, this
linkage could be tolerated. But in the industrial world where global
trade was possible and profitable, the linkage of trade and territory
led to two world wars with millions killed and fortunes and empires
destroyed. The religious wars that the Westphalian system were intended
to replace were thus themselves replaced by wars for market share
justified by nationalist ideology. The
Westphalian system thus contributed to and, as a consequence, was transformed by two world wars because "sovereignty"
[FN24] was no longer a guarantor of peace but rather of war.
[FN25]
I. De Facto TransformationHistorically,
[FN26] the de facto breakdown of the Westphalian system can be traced to the first and second world wars.
[FN27] The system which
*27
had guaranteed peace and security failed catastrophically and resulted
in the deaths of literally millions. This historical fact has changed
the legal rules of the international system fundamentally.
[FN28]
The first de facto challenge to the system of nation-states and national empires was the idea of national self determination.
[FN29] In a first wave of national liberation following the First World War,
[FN30]
Europe's multinational empires were disbanded and re-aggregated into
nation-states with a rough congruence of borders and ethnos. In a
second wave following the Second World War
[FN31] national liberation movements sprang up throughout the third world
[FN32] leading ultimately to decolonisation.
[FN33]
However, these new states did not have a correspondence between nation
(ethnos) and territory. National liberation and decolonization doubled
the number of states in the international system, which now include
several new micro-states.
[FN34] These facts further strained the logic and credibility of the
system--particularly because many of the newly
created states, such as Somalia or Afghanistan have failed, sometimes
catastrophically, to maintain even the minimum order necessary for
statehood--again undermining classical sovereignty.
[FN35]
*28 At the same time, however, capital's tendency to be monopolized
[FN36]
continued and even intensified. Multinational corporations (MNCs) have
grown to the point of literally having a larger annual turnover
[FN37] than many third world states.
[FN38]
Comparing corporate sales and country gross domestic products (GDPs)
reveals that of the largest 100 economies in the world, fifty-one are
corporations and forty-nine are states. The largest 200 corporations
are estimated to account for 27.5% of world economic activity.
[FN39] With so much economic power, MNCs sometimes also exercise military power and have been known to hire mercenary armies.
[FN40] Arguably, the MNC enjoys limited international legal personality
[FN41]--certainly de facto, if not de jure. All of these changes are further challenges to the Westphalian order.
The
transformation of the system of imperial states as a result of the
problem of war also implied changes in the international system. Both
the League of Nations and the United Nations resulted from a
recognition that the international system required fundamental change.
In the post-war world a number of regional trading blocs and an
international trade system (first GATT
then the WTO) arose.
[FN42] *29 Technological changes
[FN43] are a main cause of these consequences.
[FN44]
Instant global communication and cheap global transportation is a
reality which explains why power simultaneously is shifting to the
sub-national and super-national level.
[FN45]
Warfare has also changed.
[FN46] National military strength is no longer the primary index of state power as the collapse of the U.S.S.R. illustrates.
[FN47] Instead, economic power is the primary index of state power.
[FN48] Military power is less and less relevant
[FN49]
because conventional war is impossible due to nuclear proliferation.
Nuclear weapons make conventional war among nuclear powers suicidal not
only for masses but also for elites.
[FN50] Thus nuclear weapons are of little use
[FN51]-- for what
*30
is the difference between a weapon which does not exist and a weapon
which you cannot use? Some argue that nuclear weapons even make
conventional war less relevant.
[FN52] As a consequence of these facts guerrilla warfare, terrorism, and proxy warfare
[FN53]
are the preferred methods of fighting war in the contemporary world.
Thus the primary threat to physical security today in the first world
is terrorism. However, terrorism is an essentially unstoppable
[FN54]
unconventional threat. Large conventional armies are inadequate to stop
terrorism. This highlights once again the fact that military power is
of only limited utility in the contemporary
international arena. Just as terrorism routinely
ignores state boundaries and defies solution, so also do the related
problems of international arms dealing, (both legal and illegal) and
international drug dealing undermine the claim of the state to
sovereignty. Terrorists, arms merchants, and drug dealers simply ignore
the boundaries of the state.
[FN55]
And though a refugee seeking a better life in the first world is
certainly no criminal, the instant global mobility which permits
migrants from Sri Lanka to emigrate (legally or not) to France shows
one more stress on the concept of the "sovereign" (nation) state.
[FN56] While some argue that we now we live in a global village,
[FN57] that
*31
is not so realistic when one considers that villages are usually
peaceful places and the world is far from peaceful: space and time have
been largely abolished, but institutions for peaceful governance,
though constantly growing are still lacking.
All
this leads to the conclusion that state boundaries are increasingly
irrelevant and that conventional military power, the flywheel of the
Westphalian system, is no longer the primary instrument of state power.
Violence is of course still a daily reality for the international
system, however in the age of sail or even steam, violence could be
controlled by distance. In the jet and nuclear, age it cannot. Force
can destroy world order. But it probably can't build it. Destructive
power has become so cheap that the only way to maintain peace is to
assure prosperity for all.
These
facts--permeable borders and the irrelevancy and inefficacy of
violence-- imply that the Westphalian system, which has already twice
failed to preserve global peace, is no longer relevant and cannot be
relied upon to shape global peace. The Westphalian system is literally
obsolete, surpassed by technologies
[FN58]
which did not exist when it was created. It did not prevent two world
wars in which millions died and may contribute to the risk of a third
which would probably extinguish the human race. The world must outgrow
the presumptions which led to the failure of the Westphalian system to
prevent two world wars.
[FN59]
II. De Jure Transformation: Self Contradictions in the Foundations of
International LawFor the reasons mentioned above, it is clear that we are now, factually speaking, in a very different world
[FN60] than that described by the
*32 flawed realist presumptions reflected in the failed Westphalian system.
[FN61]
Realism sees the world as a struggle for power--essentially, a zero sum
game. Norms, for realists, are enforced for practical reasons of state.
[FN62] However, though
states do clearly seek to protect and maximize their interests, they do
not always act out of purely self interested motives. Furthermore,
commercial relations are generally positive sum. Thus the realist's
world view is essentially flawed. As a consequence, it could not
prevent two world wars and indeed vast changes in
the international system have occurred as a consequence of that
failure. What exactly are these changes?
Judicially
speaking, we can briefly characterize the immediate post-war changes in
international law as a recognition of human rights,
[FN63] a legal order founded on the pacific resolution of disputes
[FN64] and on national self determination.
[FN65]
However, the principles of national self determination and human rights
contradict the Westphalian concept of sovereignty. This contradiction
cannot be harmonized because the competing poles tend toward mutually
exclusive outcomes.
Mediate
changes in the post-war international legal system--which have only
accelerated since the end of the cold war--can be summarized as a
transformation
[FN66] of the Westphalian system via transfer of state functions to supra-national institutions
[FN67] and the devolution of
*33 other functions of the state regional
[FN68] or local entities
[FN69] or even to private actors (privatization).
[FN70] This double stress on the state, globalization
[FN71] and localization, diminishes the practical reach of the state in the lives of people. However globalization
[FN72] and devolution/privatization, both key parts of the contemporary world order, are problematic for democracy.
[FN73]
Because
these changes present contradictions to the international legal system
and represent a break from the Westphalian state system, we must
examine
them briefly.
A. The Illegalization of Wars of Aggression
The
first legal breach in the armor of Westphalia occurred with the Kellogg
Briand pact (1928) outlawing wars of aggression among its signatories.
[FN74]
The illegality of aggressive war is reaffirmed in the United Nations
Charter. Next, during the second global war, states recognized "exile
governments"
[FN75]--governments with no territory (one
*34 of the defining characteristics
[FN76] of statehood),
[FN77] but with a claim to govern.
Next, following the Second World War, the U.N. was formed to prevent future wars of aggression.
[FN78]
War, except in self-defense or collective self-defense, is now illegal
either under customary international law or under the U.N. charter and
probably both. But at the same time, the former colonial powers were
forced to recognize a legal right to national self determination of
peoples under international law
[FN79]
(a right which had roots in the post-war dissolution of the
Austro-Hungarian, Russian, and Ottoman Empires and perhaps even going
back to the liberal revolutions of the 18th century in the Americas).
Thus insurgent movements have been accorded certain rights and duties
under international law.
[FN80] However, the right to national self determination raises a serious contradiction within the international legal
system:
[FN81]
The principle of the pacific resolution of disputes and the principle
of national self determination are mutually contradictory at least
where the right of national self determination includes a right to
rebel.
*35 B. International Legal Personality for Non-State Actors
Exile governments and insurgencies are not the only examples
[FN82] of limited
[FN83] international legal personality
[FN84] granted to non-state actors
[FN85] breaking from the Westphalian principle of sovereignty. Though states remain the center of the international system,
[FN86] the periphery is increasingly important. International organizations,
[FN87] such as the U.N.,
[FN88] N.A.T.O., and the E.U.,
[FN89] also have limited international legal
*36 personality.
[FN90] Multinational enterprises,
[FN91] non-governmental organizations (NGOs),
[FN92] and even individuals
[FN93] may now have rights or duties under international law.
[FN94] That is perhaps the greatest theoretical
[FN95] and practical challenge
[FN96] to the lex ferenda
[FN97] which is the post-Westphalian
[FN98] system: non-state actors, including individuals
[FN99] and religious entities, may
[FN100] have rights or duties under international law.
[FN101] *37 The recognition, caveat lector,
[FN102] of limited international legal personality for non-state actors
[FN103] is clearly an emerging trend and lex ferenda.
[FN104] It is also the mirror image of the
rise of international organizations with limited international legal personality
[FN105] which is one more de jure
[FN106] challenge to the Westphalian order.
[FN107] The international legal personality of non-state actors is discussed infra.
*38 C. The International Legal Personality of Non-State Actors
1. Multinational Corporations
Multinational corporations (MNCs) are increasingly influential on the world stage
[FN108]
and are only one of several non-state actors challenging the role of
the state in international law. MNCs are extremely influential in world
politics.
[FN109] They
are loyal only to profit and engage in business activity on several
continents. MNCs undermine the hermetic model of Westphalian
sovereignty which saw states as isolated and as the principle object of
loyalty of their subjects. Capital mobility also undermines the state
as primary and ultimate object of power and loyalty on the
international stage because it defies the power of the state to
regulate its own currency and interest rates.
[FN110] It is hardly surprising that some have gone so far as to ask whether MNCs are or should be subjects of jus gentium.
[FN111] In fact, corporations,
[FN112] like other non-state actors,
[FN113] do have directly applicable duties and rights under
*39 international law.
[FN114] Thus to that extent corporations
[FN115] may
[FN116] be said
to have limited international legal personality.
[FN117]
2. Individuals
Individuals
also increasingly have human rights and duties both under national law
and international treaties. Evidence of the limited international legal
personality of non-state actors includes the U.N. Declaration on the
Elimination of All Forms of Racial Discrimination,
[FN118] the U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,
[FN119] the
*40 Rio Declaration on the Environment and Development,
[FN120]
inter alia. These conventions state explicitly or implicitly that
"private actors have both negative and positive duties in respect of
socio-economic rights"
[FN121] and recognize the limited international legal personality of multinational corporations.
[FN122] Thus human rights can be enforced against corporations.
[FN123]
3. Limits on the International Legal Personality of Non-State Actors
There
are, however, limits on the international legal personality of
non-state actors. Although corporations certainly have great de facto
influence in international relations, they do not have a constitutive
power in the formation of international law. Non-state actors such as
individuals, corporations, and the world bank
[FN124] can, however, contribute to the formation of customary international law
[FN125] by aiding in the process of elaborating
norms
[FN126] even if sometimes only as observers.
[FN127]
As
ordinary as directly enforceable rights and duties held by non-state
actors under international law may seem today, that is a radical
[FN128]
departure from the Westphalian system. The increasingly common
imputation of rights and duties to non-state actors under international
law is partly because of the integration of world trade and capital
mobility, i.e., globalization.
[FN129]
This shift of rights and duties from states to non-state and
super-state actors defines one aspect of the transformation of the
Westphalian state system.
D. The Right of Humanitarian Intervention
The rights
[FN130] of humanitarian assistance
[FN131] and humanitarian intervention
[FN132] pose another legal challenge
[FN133] to the Westphalian model of sovereign states,
[FN134] for they directly contradict the Westphalian
*42 general principle of non-interference
[FN135] but are clearly
[FN136] a part of state practice.
[FN137]
These rights also contradict the principles of non-intervention and the
illegality of war. Non-intervention, though remaining a general
principle of international law, now admits derogations.
[FN138] The principle of "humanitarian intervention"
[FN139] and the related (and possibly independent) concept of droit de
l'ingèrance
[FN140]
is more recent in time than the increasingly ignored principle of
non-intervention. What are the implications of these legal
contradictions for sovereignty?
*43 Though the authority of the sovereign
[FN141] within his own borders
[FN142] still exists, sovereignty is no longer seen as absolute.
[FN143] Thus, though it is premature to speak of the death of sovereignty,
[FN144] we can speak of an erosion
[FN145] and transformation
[FN146] of the sovereign power
[FN147] from a unitary hierarchy to multiple poles
[FN148] of competing influence,
[FN149] often determined functionally. One can thus properly speak of the deterritorialization
[FN150] and disaggregation
[FN151] of the state through a transformation
[FN152] of spatiality.
[FN153]
*44 E. Individual Accountability for Human Rights Violations
A final de jure challenge to the Westphalian state system is the rise of individual and corporate
[FN154]
liability for violations of international law. The direct imputation of
individual rights and duties is clearly in contradiction to the former
principle that only states had rights and duties under international
law. This change has occurred because international facts such as cross
border business transactions
[FN155] and cross border pollution
[FN156] no longer correspond to the reality described by the
Westphalian system. Consequently, it is clear that the Westphalian international legal order has fundamentally changed.
[FN157] These contradictions also present interesting paradoxes for the unilateralist-universalist tension in human rights law.
[FN158]
ConclusionAll of these developments allow us to speak meaningfully of the transformation of the Westphalian legal model.
[FN159] What does that mean for international human rights?
[FN160] Where and how far will this transformation go?
[FN161]
*45
The contours of the post-Westphalian system are increasingly clear.
These are: 1) limited international legal personality for non-state
actors;
[FN162] 2)
qualified sovereignty for state actors, partly but not exclusively due
to a) devolution of sovereignty to local or private entities
(localization and privatization) and b) sublimation of sovereignty into
transnational international organizations. These transnational
organizations, which basically all date since 1918, are a defining
feature of the post-Westphalian system. There examples are legion: the
E.U., NAFTA, ASEAN, MERCOSUR. There are even global entities such as
the W.T.O. and the U.N. All these organizations together comprise a
system of global governance predicated on free trade and the belief
that free trade encourages peace. That is the
definition of the post-Westphalian international
system. At the same time as the nation-state is declining in
importance, individual rights and duties under international law are
increasingly important. This leads to the conclusion that we are now in
a different legal landscape than that described by realist state theory
and the Westphalian state system.
In
conclusion, the implication of these changes is the necessity for legal
and international relations theory to develop new conceptual tools to
integrate these new empirical facts into a cohesive theory. Only with a
coherent synthesis of these empirical facts will states be able to
react to the new realities confronting them. Until such theories are
developed states will, like Gulliver, continue to lash out at thousands
of unseen enemies with no comprehension of the cause or cure of their
ills.
[FN1]. J.D., from St. Louis
University, D.E.A., Université Paris II (Panthéon-Assass); D.E.A.,
Université Paris X (Nanterre); LL.M.Eur., Universität Bremen. The
author maintains a personal website at http://
www.lexnet.bravepages.com with links to on-line law resources. His
other writings can be found either on his web-site, on Lexis/Westlaw or
via Google. He is a research fellow at the Center for European Legal
Policy at the Universität Bremen, where he teaches courses in United
States tort law and international human rights law.
[FN2]. Duncan B. Hollis, Private
Actors In Public International Law: Amicus Curiae And The Case For The
Retention Of State Sovereignty 25 B. C. Int'l. Comp. L. Rev. 235, 236
(2002), available at: http://www.bc.edu/bc_ org/avp/law/lwsch-/journals/bciclr/25_2/04_TXT.htm (describing transformationist theory).
Sovereign
states, originally defined as entities subject to no external authority
or control, now increasingly find themselves subject to international
regulation that has radically diminished the areas where they are free
from external influence... states no longer dominate the international
landscape, as international organisations and private actors (e.g.,
multinational corporations, non-governmental organisations (NGOs), and
even individuals) exercise increasing influence in the creation,
implementation, and enforcement of international norms.
Id.
[FN3]. Treaty of Westpahlia, October 24, 1648, available at: http:// www.yale.edu/lawweb/avalon/westphal.htm
[FN4]. Frederick J. Petersen, The Facade of Humanitarian Intervention for Human Rights in a Community of Sovereign Nations, 15 Ariz. J. Int'l & Comp. L.
871, 874 (1995).
[FN5]. William C. Plouffe,
Sovereignty In The "New World Order": The Once And Future Position Of
The United States, A Merlinesque Task Of Quasi-Legal Definition, 4 Tul.
J. Int.l & Comp. L. 49, 54 (1996). See also: Amb. Edward Marks,
From Post-Cold War to Post-Westphalia, American Diplomacy (1999),
available at:
http://www.unc.edu/depts/diplomat/AD_Issues/amdipl_14/marks_
westph.html.
Sovereignty
consists of two principle elements: territorial sovereignty (dominium)
and personal sovereignty (imperium). Territorial sovereignty is final
authority over all persons objects and acts within the territory of the
state. Personal sovereignty is final authority over the state's
citizens. Marks argues that this Westphalian concept of sovereignty has
been replaced by a sovereignty which is conditioned on compliance with
international norms.
Id.
[FN6]. Plouffe, supra note 5,
at 54 (Sovereignty requires and implies: (1) a permanent population and
exclusive jurisdiction over territory; (2) the duty of
non-intervention; and (3) duties under treaty and customary
international law).
[FN7]. This principle is summarized in the Latin maxim "Cuius regio, eius
religio" which was agreed at the Peace of Augsburg
in 1555 between Charles V and the Lutherans. See, e.g.: "Peace of
Augsburg", Columbia Encyclopedia (6th ed. 2003), available at:
http://www.infoplease.com/ce6/history/A0805318.html
[FN8]. Mark Weston Janis,
Religion and International Law, SIL Insights (Nov. 2002), available at:
http://www.asil.org/insights/insigh93.htm
[FN9]. The Treaty Of
Westphalia Remains Relevant Today, The Times of London, Dec.30, 1999
at: http://news1.beograd.com/-english/-articles_and_
opinion/t/times/treaty_of_westphalia_remains_relevant_today.html
(arguing that the treaty of Westphalia was an antecedent to the
principle of national self determination).
[FN10]. Glen Kelley, Multilateral
Investment Treaties: A Balanced Approach To Multinational Corporations,
39 Colum. J. Transnat'l L. 483, 525-26 (2001). (States have
capacity to enter into treaties with each other, to exercise
jurisdiction over their territory, and have a right of self
preservation and a right and duty of non-intervention).
[FN11]. See Christopher
Atkinson, The Thirty Years War, at http://
www.pipeline.com/~cwa/TYWHome.htm (providing a brief summary of the
history of the thirty years war); see also Virtual Library,
History - The Thirty Years War, at
http://www-geschichte.fb15.uni-dortmund.de/fnz/thirty.html
[FN12]. Petersen, supra note 4, at 874.
[FN13]. Plouffe, supra note
5, at 53 (defining a state as an entity with a territory, permanent
population, functioning government, and capacity to enter into
relations with other states).
[FN14]. Id. (Although "[s]overeignty was not formally recognised in scholarship until the Sixteenth Century.")
[FN15]. Stephan Hobe, The Era Of Globalisation As A Challenge To International Law, 40 Duq. L. Rev. 655, 657 (2002) (sovereign's rights included the right to make war; sovereignty derived from treaties of Osnabruck and Münster).
[FN16]. Robert D. Sloane, The Changing Face Of Recognition In International Law: A Case Study Of Tibet, 16 Emory Int'l L. Rev. 107, 130 (2002) (states no longer have an absolute right to make war).
[FN17]. Oona A. Hathaway, Do Human Rights Treaties Make A Difference? 111 Yale L.J. 1935, 1937-1938 (2002).
This classic debate of legal philosophy can be seen as a tension
between the realists (e.g. Thucydides) vs. the liberals and/or
transformationists.
[A]lmost
all nations observe almost all principles of international law and
almost all of their obligations almost all of the time....[T]his view
long coexisted with a much more skeptical conception of international
law among international relations scholars--a conception that holds
that, in the immortal words of Thucydides, '[t]he strong do what they
can and the weak suffer what they must,' with little regard for
international law.
Id. (quoting Lewis Henkin).
[FN18]. Interestingly,
Danilo Zolo argues that Kelsen, in postulating a radical monism,
created a theoretical environment which would be more favorable to
prescribing rights and duties to individuals under international law.
Danilo Zolo, Hans Kelsen: International Peace through International
Law, 9 EJIL 306 available at
http://www.ejil.org/journal/Vol9/No2/art5.html. Zolo is not alone in
this position. See also R. George Wright, What's Gone Wrong With Legal Theory? The Three Faces of our Split Personality, 33 Wake Forest L. Rev. 371 (1998) (arguing that dualist concepts in law leads to subjectivism), available at http://www.law.wfu.edu/lawreview/V33/docs/33-2-4.pdf
[FN19]. Hans-Jürgen Schlochauer, ed.,Wörterbuch des Völkerrechts, Berlin p. 278 (1962).
[FN20]. Michael J. Kelly, Political
Downsizing: The Re-Emergence Of Self-Determination, And The Movement
Toward Smaller, Ethnically Homogenous States, 47 Drake L. Rev. 209, 212
(1999).
[FN21]. See Henry Kamen, The
Iron Century: Social Change in Europe 1550- 1660 (Praeger Publishers
1971) (arguing that the century preceding the treaty of Westphalia was
impoverished due to war).
[FN22]. For a discussion of
the origin and evolution of the idea of sovereignty in law, see Luzius
Wildhaber, Sovereignty and International Law, in The Structure and
Process of International Law: Essays in Legal Philosophy Doctrine and
Theory 425 (Ronald St. J. Macdonald et al. eds., 1986).
[FN23]. For a good
mathematical introduction to game theory, see Jamus Lim, Fun, Games
& Economics, Undergraduate Journal of Economics 1(1999), at:
http://www.econ.ilstu.edu/UAUJE/ (parent directory) http://
www.econ.ilstu.edu/UAUJE/PDF's/issue1999/game_theory.pdf (article).
[FN24]. Daniel Orlow, Of Nations Small: The Small State In International Law, 9 Temp. Int'l & Comp. L.J. 115, 116-117 (1995).
[FN25]. Kelly, supra note 20, at 235.
[FN26]. For a brief history
of the idea of sovereignty, see Col. Michael Wansink, Whither
Sovereignty? National Defense University Executive Research Project S19
at: http://www.ndu.edu/library/ic6/95-S19.pdf (traces the history of
sovereignty and, surprisingly, argues that environmental challenges are
security issues but escape the Westphalian conception of sovereignty;
also argues that the most technologically advanced societies will be
first and best able to adapt to a post-Westphalian world).
[FN27]. David Jablonsky,
Paradigm Lost? Transitions and the Search for a New World Order, U.S.
Army War College (arguing for a multilateralist realist approach to
foreign policy) at:
http://carlisle-www.army.mil/usassi/ssipubs/pubs93e/paradigm/paradigm.pdf
(1993).
[FN28]. Louis B. Sohn, The New International Law: Protection Of The Rights Of Individuals Rather Than States, 32 Am. U. L. Rev. 1, 1 (1982).
[FN29]. The idea actually
may have earlier roots. Interestingly, one of the first recognitions of
a right of national self determination under international law can be
found in the Treaty of Amity and Commerce between His Majesty the King
of Prussia and the United States of America, The Avalon Project at Yale
Law School, 10 Sept. 1785, available at: http://
www.yale.edu/lawweb/avalon/diplomacy/germany/prus1785.htm The treaty
also included rights of free trade and residence for at least
commercial purposes.
[FN30]. Kelly, supra note 20, at 215.
[FN31]. Of course this
factual claim, like others here presented, resulted in a legal right.
Antonio Cassese describes the current international system as "a
gradually unifying world." Antonio Cassese, Human Rights In A Changing
World 153 (Polity Press) (1990).
[FN32]. For a sketch of the historical development of national self determination see Kelly, supra note 20, at 221.
[FN33]. Id. at 216 (1999).
[FN34]. Orlow, supra note 24, at 115 (1995).
[FN35]. Dinah Shelton,
Protecting Human Rights In A Globalized World, 25 B.C. Int. Comp. L.
Rev. 273, 273, available at: http://www.bc.edu/bc_
org/avp/law/lwsch/journals/bciclr/25_2/06_TXT.htm.
[FN36]. See, e.g. Vladimir
Lenin, Imperialism: The Highest Stage of Capitalism, (1916) Ch. I.
available at: http://
www.marxists.org/archive/lenin/works/1916/imp-hsc/ch01.htm; Wim
Dierckxsens, Limits on Capitalism without Citizenry: Towards a
Globalisation without Neoliberalism DEI
http://www.cseweb.org.uk/downloads/dierckxsens.pdf (2000).
[FN37]. Elisa Westfield, Globalization,
Governance, And Multinational Enterprise Responsibility: Corporate
Codes Of Conduct In The 21st Century, 42 Va. J. Int'l L. 1075, 1083
(2002) ("many MNEs' revenues today surpass the gross domestic
products of several independent nation-states.... General Motors is now
bigger than Denmark and three-and-a-half times the size of New Zealand;
the top 200 corporations' combined sales are bigger than the combined
economies of all countries minus the biggest ten.").
[FN38]. Kelley, supra note 10, at 508 ("The 100 largest MNCs are larger in
terms of revenue than most states' economies.").
[FN39]. Michael Anderson,
Transnational Corporations and Environmental Damage: Is Tort Law the
Answer? 41 Wash. L.J. 399, 400 (2002), available at:
http://washburnlaw.edu/wlj/41-3/articles/ande.pdf
[FN40]. Kelley, supra note
10, at 509. ("[T]he domestic law of several countries permits large
MNCs to pay the costs of posting official police forces near their
facilities and in local communities. In several states such forces have
been accused of gross human rights violations.")
[FN41]. Anita Ramasastry, Corporate
Complicity: From Nuremberg To Rangoon An Examination Of Forced Labour
Cases And Their Impact On The Liability Of Multinational Corporations,
20 Berkeley J. Int'l L. 91, 159 (2002) (arguing that MNCs have international legal personality).
[FN42]. John King Gamble, Teresa A. Bailey, Jared S. Hawk & Erin E. McCurdy, Human Rights Treaties: A Suggested Typology, An Historical Perspective, 7 Buff. Hum. Rts. L. Rev. 33, 39 (2001) (discussing the relationship between global and regional human rights instruments).
[FN43]. Alfred C. Aman, The Globalizing
State: A Future-Oriented Perspective On The Public/Private Distinction,
Federalism, And Democracy, 31 Vand. J. Transnat'l L. 769, 780-781 (1998) (technology and capital mobility equate to the rise of private actors and the decline of state actors).
[FN44]. Stephen Kobrin, Back
to the Future: Neomedivalism and the Postmodern Digital World Economy,
Journal of International Affairs, 361 (1998)
http://www-management.wharton.upenn.edu/kobrin/Research/hartrev2.pdf
(arguing that national markets are too small to serve as economic units
and that technology, especially information and telecommunication
technology, has driven economic integration and deterritorialized
commerce).
[FN45]. Shelton, supra note 35, at 275.
[FN46]. The
transformationists can point to repeated efforts not only at
peacekeeping but also at peacemaking. For an essay of transformationist
theories of conflict resolution as an example of this fact, see John
Galtung, Dietrich Fischer, Peaceful Conflict Transformation and
Nonviolent Approaches to SECurity (1999) (Working paper available at:
http:// www.globalsolidarity.org/pdf-files/bk.pdf).
[FN47]. Plouffe, supra note 5, at 85 (arguing that once economic power is lost, a loss of military power will follow).
[FN48]. Id. (linkage of economic and military security)
[FN49]. For an incisive
argument that military power is outmoded but has been replaced by
financial power which is more subtle and effective than direct control
see: Susan George, The International Geo-economic System p. 275 in
Human Rights in Perspective, Asbjorn Eide, Bernt Hagtvet, Oxford:
Blackwell (1992).
[FN50]. See Christopher B. Stone, Signaling
Behavior, Congressional-Executive Agreements, And The Salt I Interim
Agreement, 34 Geo. Wash. Int'l L. Rev. 305, 305 (2002) (quoting former President R. M. Nixon)
(It
was clear to me by 1969 that there could never be absolute parity
between the U.S. and the U.S.S.R. in the area of nuclear and
conventional armaments... [A]bsolute parity in every area of armaments
would have been meaningless, because there is a point in arms
development at which each nation has the capacity to destroy the other.
Beyond that point the most important consideration is not continued
escalation of the number of arms but maintenance of the strategic
equilibrium while making it clear to the adversary that a
nuclear attack, even if successful, would be suicidal.)
Id.
[FN51]. Paul W. Kahn, American
Hegemony And International Law Speaking Law To Power: Popular
Sovereignty, Human Rights, And The New International Order, 1 Chi. J.
Int'l L. 1 (2000). "A strand of military analysis asserts that nuclear weapons are quite useless devices." Id. at 7 (emphasis added).
[FN52]. See generally Stone, supra note 50, at 305.
[FN53]. Gregory H. Fox, International Law And Civil Wars, 26 N.Y.U. J. Int'l L. & Pol. 633 (1994). "[T]he dominant form of interstate conflict in the Charter era [is] proxy warfare through armed insurgencies." Id. at 644.
[FN54]. Commentary, Reflections On September 11: Reconsidering Social Change In The Wake Of Tragedy, 26 N.Y.U. Rev. L. & Soc. Change 431 (2001).
A
single individual willing to die for a cause is virtually unstoppable.
The fabric that holds diverse societies together is an uncompromising
defence of individual rights and civil liberties. Security arrangements
can prove dangerous if they target or harm specific segments of a
population, driving people to extremism. Retaliation, unless surgically
precise, will always create
a mushroom affect--new men and women willing to
die if their loved ones are slaughtered. We see it now in the United
States: thousands of Americans willing to die to exact vengeance on
those responsible for Tuesday's attacks. We are doomed to an ongoing
cycle of terror unless the struggle Americans are willing to die for is
one for justice--not revenge.
Id. at 433.
[FN55]. Adila Abusaharaf,
The Legal Relationship between Multinational Oil Companies and the
Sudan: Problems and Prospects, 43 JOURNAL OF AFRICAN LAW 18, 27 (1999).
[FN56]. Colin Harvey Dissident Voices: Refugees, Human Rights and Asylum in Europe 9 Social and Legal Studies 367.
[FN57]. Tesfatsion Medhanie,
Lomé: Can it help reverse Africa's marginalisation, in: Peter Meyns
(ed.), 16 Staat und Gesellschaft in Afrika. 397, 402 (1996).
[FN58]. See, e.g., Stephen
Kobrin, Sovereignty@Bay: Globalisation, Multinational Enterprise, and
the International Political System, in Alan Rugman and Thomas Brewer,
eds., The Oxford Handbook of International Business, Oxford University Press 2001) available at:
http://www-management.wharton.upenn.edu/kobrin/Research/Oxford%20rev2%20print.pdf
(Describes a "post-Westphalian system" . Kobrin argues that although
multinationals are creations of national law, sovereignty is being held
in check. Most notably he ascribes the impetus for the circumscription
of sovereignty as technological changes which empower non-state actors
such as multinational enterprises).
[FN59]. Ollivia Sexton, An Environmental World Beyond Sovereignty, at: http://papers.pitas.com/ (2001).
[FN60]. Sergio Galvez, The
Future of Regionalism in an Asymmetrical International Society in R.
Macdonald, supra note 22, at 661. However in the 15 years since that
was written the process of globalisation has intensified: capital now
moves freely as do goods (W.T.O.) and even labour (E.U.). Not only have
the trends that the author there already identified not abated they
have intensified due to technologies such as the internet which
literally make instant global communication possible.
[FN61]. Id. at 668.
[FN62].
Samuel P. Baumgartner, Human Rights And Civil Litigation In United
States Courts: The Holocaust-Era Cases, 80 W.U.L.Q. 835, 837 (2002)
available at: http://ls.wustl.edu/WULQ/80-3/p835Baumgartnerbookpages.pdf
[FN63]. Cassese supra note 31, at 22.
[FN64]. Id.
[FN65]. Id.
[FN66]. For a good summary
of the competing positions of transformationism and realism in the
contemporary world and a summary of the processes which characterise
post-war IR see David Held, Anthony McGrew, Globalisation,
Regionalisation and the Transformation of Political Community, PSA-UK
(2000)
http://www.psa.ac.uk/cps/2000/Held%20David%CC20&%CC20McGrew%20Anthony.pdf
(concluding that the world is indeed evolving into interdependent
entities and implicitly affirming the transformationist theses).
[FN67]. In IR theory this
led first to "regime theory" then to "institutionalism" as competing
with or complementing realist theory. Anne-Marie Slaughter Burley, International Law And International Relations
Theory: A Dual Agenda, 87 Am. J. Int'l L. 205, 206 (1993).
[FN68]. E.g., in the U.K. devolution of former Crown functions to Scotland and Wales. Kelly, supra note 20, at 228.
[FN69]. But see id.
([A]
downward shift of power has occurred from national capitals to
intermediate and local government level. Broadly speaking, the northern
European democracies have proceeded by the merging and strengthening of
existing local governments: in the Napoleonic states of southern
Europe, lower levels have been left unreformed and a new level of
elected government inserted at the regional tier.).
[FN70]. Oliver Gerstenberg,
Justification (and Justifiability) of Private Law in a Polycontextural
World, 9 Social and Legal Studies 421.
[FN71]. Globalization is "a
consequence of...enhanced communications, greatly increased trade and
capital flows, and technological developments, [that has] open[ed] new
opportunities for sustained economic growth and development of the
world economy, particularly in developing countries." Enrique R.
Carrasco, Critical Issues Facing the Bretton Woods System: Can the IMF, World Bank, and the Gatt/WTO Promote An
Enabling Environment For Social Development? 6 Transnat'l L. &
Contemp. Probs. I, III (1997)
[FN72]. See Abusaharaf, supra note 55, at 20-22.
[FN73]. See Claude Nigoul & Maurice Torrelli, Les Mystifications du Nouvel Ordre International, 108-09 (Paris: PUF, 1982).
[FN74]. Ryan C. Hendrickson, Article 51 and the Clinton Presidency: Military Strikes and the U.N. Charter, 19 B.U. Int'l. L.J. 207, 209-211. (2001)
[FN75]. Sloane, supra note 16, at 170-71.
[FN76]. "[T]he state as a
person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory;
(c) government; and (d) capacity to enter into relations with other
states." Orlow, supra note 24, at 117.
[FN77]. Article 1 of the Montevideo Convention stipulates that a state's international legal personality requires
(a) a permanent population; (b) a defined territory; (c) government; and (d)
capacity to enter into relations with other
states." These criteria imply, respectively, a stable community,
occupying a reasonably well-defined territory, administered by a
competent government, which is capable of entering into relations with
other states. Possession of each criterion may not be indispensable;
nor, by the same token, does possession of all, ipso facto, establish
statehood. Under the Montevideo Convention, however, their existence
creates a presumption in favor of statehood.
Sloane, supra note 16, at 115-116 (citation omitted).
[FN78]. However, nothing in the U.N. charter impairs the right of self-defense. Hendrickson, supra note 74, at 210.
[FN79]. Sloane, supra note
16, at 108-09. (arguing that recognition is no longer the exclusive
province of sovereign states, due to legitimacy based in national
self-determination). Again, the fact that non-state actors can be
recognised and possibly even have the power to grant recognition,
represents a major break from the Westphalian system.
[FN80]. David Wippman, Hearing
Voices Within The State: Internal Conflicts And The Claims Of
Ethno-National Groups, 27 N.Y.U. J. Int'l L. & Pol. 585, 599 (1995) (arguing for international legal personality of insurgents)
(citing Gerhard Von Glahn, Law Among Nations 90-92 (6th ed. 1992).
[FN81]. "[T]he very creature
that has helped transform once large empires into smaller
nation-states, 'self-determination,' has developed a multi-faceted
aspect that alternatively or simultaneously attacks the sovereignty of
the nation-state as a viable political entity." Kelly, supra note 20,
at 211.
[FN82]. A. Maniruzzaman, International
Development Law As Applicable Law To Economic Development Agreements: A
Prognostic View, 20 Wis. Int'l L.J. 1, 13 (2001) (arguing that
international organisations, insurgents, and even individuals may have
some form of international legal personality).
[FN83]. Even the idea that
only states may be the source of customary international law is now in
question. See Ralph Wilde, NGO Proposals for an Asia-Pacific Human
Rights System, 1 Yale H.R. & Dev. L.J. 137, 137 (2001) (arguing
that NGOs participate in elaboration of international norms by
proposing rules in human rights laws), available at http://
www.yale.edu/yhrdlj/vol01/ND_Ralph_Wilde_YHRDLJ.pdf. See also Hobe,
supra note 15, at 662 (proposing that multinational corporations could
be a source of customary international law); Michael Byers, Custom, Power, And The Power Of Rules Customary International Law From An Interdisciplinary Perspective, 17
Mich. J. Int'l L. 109, 157-158 (1995)
(arguing that MNCs have only limited rights under international law but
should be granted limited international legal personality).
[FN84]. "States remain the
primary subjects of international law, but during the twentieth century
states began to apply international law directly to natural persons and
public international corporations. In addition, states have granted a
limited form of international legal personality to international
organisations such as the United Nations." Kelley, supra note 10, at
526 (emphasis added).
[FN85]. "The international
legal community is made up of all subjects of international
law--sovereign states, states enjoying a limited international legal
personality, intergovernmental organisations, peoples and minorities,
belligerent parties, individuals, as well as special entities like the
Holy See." Bardo Fassbender, The United Nations Charter As Constitution Of The International Community, 36 Colum. J. Transnat'l L. 529, 597 (1998).
[FN86]. "States remain at
the epicenter of international law--their activities continue to
dictate not only what the law is today, but also who determines what
the law is tomorrow." Duncan B. Hollis, Private Actors In
Public
International Law: Amicus Curiae And The Case For The Retention Of
State Sovereignty, 25 B.C. Int'l. & Comp. L. Rev. 235, 237 (2002), available at http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/25_2/04_TXT.htm
[FN87]. Robert L. Bledsoe
And Boleshaw A. Boczek, The International Law Dictionary 75-76 (1987)
(Defines international organisations as established by treaties between
two or more states with transnational functions and having limited
international legal personality).
[FN88]. Kelley, supra note 10, at 527(emphasis in original)
([I]n
the Reparations Case the International Court of Justice found that the
United Nations enjoyed international legal personality but did not have
the same rights and duties as a state under international law. This
principle of limited international legal personality could be applied
to MNCs as well. A duty for MNCs to uphold selected human rights,
created by an investment treaty, would be enforceable by states under
international law without expanding the rights of MNCs under
international law.)
[FN89]. Esa Paasivirta, The European Union: From An Aggregate Of States To A Legal Person? 2 Hofstra L. & Pol'y Symp. 37, 37 (1997).
[FN90]. R. Macdonald, supra note 22, at 809.
[FN91]. Kelley, supra note 10, at 526 (MNCs have limited international legal personality).
[FN92]. Jost Delbruck, A
More Effective International Law Or A New "World Law" ?--Some Aspects
Of The Development Of International Law In A Changing International
System, 68 Ind. L.J. 705, 705-706 (1993) (argues that NGOs have limited international legal personality).
[FN93]. Jordan J. Paust, The Other Side Of Right: Private Duties Under Human Rights Law, 5 Harv. Hum. Rts. J. 51, 62 (1992) (argues that individuals have rights independent of those of the state of which they are a national under international law).
[FN94]. The examples of this
fact are numerous. See, e.g. Amanda Bixler, Private Enforcement Of
International Human Rights Laws: Could A Small Church Group
Successfully Combat Slavery In The Sudan?, 3 Chi. J. Int'l 511
(2002)(arguing that private citizens can, and sometimes do, have
remedies under international law for human rights violations).
[FN95].
For a discussion of the different theoretical bases of the emerging
international legal personality of non-state actor see James E. Hickey,
Jr., The Source Of International Legal Personality In The 21st Century, 2 Hofstra L. & Pol'y Symp. 1, 12 (1997).
[FN96]. Maniruzzaman, supra note 82, at 12 (2001).
[FN97]. Id. at 14 (Although
the recognition of international legal personality of non-state actors
is lex ferenda, literally every type of non-state actor can credibly
claim to enjoy a recognised but limited international legal
personality).
[FN98]. Hickey, supra note 95, at 3-4
(From
the Peace of Westphalia in 1648 until the second half of this century,
the source of international legal personality was, for the most part,
relatively easy to determine. States were subjects of international law
with international legal personality and other entities were not,
unless either states specifically conferred personality on them
(through some discernable legal principle, a municipal law statute, or
an international law instrument such as a treaty), or states by
acquiescence accepted their personality. The evolution of international
legal personality for non-state entities has focused
principally on international organizations, specialized agencies, regional organizations, and human beings).
[FN99]. P.K. Menon, The International
Personality of Individuals in International Law: A Broadening of the
Traditional Doctrine, 1 J. Transnat'l L. & Pol'y 151 (1992).
[FN100]. Maniruzzaman, supra note 95, at 14.
[FN101]. Paust, supra note
93, at 51 (private individuals have duties under treaties and customary
international law including human rights and duties).
[FN102]. A. Maniruzzaman,
supra note 82, at 10. Maniruzzaman concludes "States are the main
subjects of international law" Id. Notice that Maniruzzaman chooses the
word "main" and not "sole", "only" or "unique" implicitly accepting the
limited legal personality of non-state actors.
[FN103]. Maniruzzaman speaks of "a lesser claim for 'limited international legal personality' of individuals" Id. at 12-13.
[FN104]. Symposium, States' Rights Vs. International Trade: The
Massachusetts Burma Law, 19 N.Y.L. Sch. J. Int'l & Comp. L. 347, 363 (2000)
(Lex ferenda is increasingly recognizing international legal rights and
duties of sub-national actors). International law does distinguish
between lex lata and lex ferenda: much of "soft law" implies in fact
lex ferenda. See, e.g., Alfred Verdross & Heribert Franz Koeck,
Natural Law: The Tradition of Universal Reason and Authority, in THE
STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY
DOCTRINE AND THEORY Martinus 514 (Ronald St. J. Macdonald et al. eds.,
1986). See also Theodor Meron, Human Rights and Humanitarian Norms as
Customary Law 42 (Clarendon eds., Oxford 1989).
[FN105]. International
organizations with international legal personality are.subject to
international law proportional to their object and nature. See Malcolm
N. Shaw, International Law 913-914 (4th ed. 1997).
[FN106]. For an analysis
of de jure transformation of the Westphalian order see, e.g., Gearóid Ó
Tuathail'/ Gerard Toal, De-Territorialised Threats And Global Dangers:
Geopolitics And Risk Society, (1998) (Working paper at http://
www.majbill.vt.edu/geog/faculty/toal/papers/newman.html).
[FN107]. Francois
Gianviti, Economic, Social and Cultural Human Rights and the IMF, in
The Right to Development 13 (2002) available at http:// www.odi.org.uk/pppg/activities/concepts_ analysis/rightsinaction/Publications/righttodev.pdf.
(Though
the international human rights obligations of international
organizations is a contested concept there are three avenues to argue
that they hold such obligations: (i) as organizations with
international legal personality bound by general norms of international
law; (ii) as specialized UN agencies, bound by the UN charter; and
(iii) through the international human rights obligations of member
states.)
[FN108]. "Economic
globalisation has been accompanied by a marked increase in the
influence of international financial markets and transnational
institutions, including corporations, in determining national policies
and priorities." Shelton, supra note 35, at 276.
[FN109]. See id. at 104.
[FN110]. See Hans Corell, Towards the Twenty First Century, 89 ASIL Proceedings 568 (1995).
[FN111]. Daniel Thürer,
Modernes Volkerrecht Ein System Im Wandel und Wachstum -
Gerechtigkeitsgedanke als Kraft der Veränderung 557-87 (2000).
[FN112]. The preamble to the Universal Declaration of Human Rights provides that:
every
individual and every organ of society shall strive...to promote respect
for these rights and freedoms and... to secure their universal and
effective recognition and observance, both among the peoples of Member
States themselves and among the peoples of territories under their
jurisdiction. Corporations are creations of the state and thus are
addressees of this norm because of that and also because the preamble
states "universal" observance i.e. observance by all actors in all
times and places.
Preamble to Universal Declaration of Human Rights, available at http:// www.hrcr.org/docs/universal_decl.html.
[FN113]. Shelton, supra note 35, at 301-02 ("international law is increasingly regulating non-state behavior directly").
[FN114]. Para. 42 of
General Comment No. 14, The right to the highest attainable standard of
health (Article 12), 4 July 2000, U.N. Doc: E/C.12/1999/5,CESCR,
available at http://www.fao.org/Legal/rtf/cescr-e.htm.
While
only States are parties to the Covenant and thus ultimately accountable
for compliance with it, all members of society--individuals, including
health
professionals, families, local communities,
intergovernmental and non-governmental organisations, civil society
organisations, as well as the private business sector - have
responsibilities regarding the realisation of the right to health.
State parties should therefore provide an environment which facilitates
the discharge of these responsibilities.
Id.
[FN115]. Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, 25 Brook. J. Int'l L. 1, 25 (1999).
"'Every 'individual' includes juridical persons. Every individual and
every organ of society excludes no one, no company, no market, no
cyberspace. The Universal Declaration applies to them all." Id.
[FN116]. Of course the
majority view is that transnational corporations do not enjoy any form
of legal personality. However that view is criticised for the practical
reason that if transnational corporations have no international legal
personality then they would escape international human rights
obligations. International Council on Human Rights Policy, Whither the
State of Human Rights Protection? (New ways to hold non-state actors
accountable) (1998) available at
http://www.humanrights.ch/bildungarbeit-/
seminare/pdf/000303_danailov_clapham.pdf.
[FN117]. Robert
McCorquodale, Feeling the Heat of Human Rights Branding: Bringing
Transnational Corporations within the International Human Rights Fence,
1 Human Rights & Human Welfare 21, 27 (2001) available at: http://
www.du.edu/gsis/hrhw/volumes/2001/1-4/mccorquodale-addo.pdf.
[FN118]. Adopted on 20
November 1963 by U.N. General Assembly Resolution 1904 (XVIII). Article
2(1) states that, "No State, institution, group or individual shall
make any discrimination whatsoever in matters of human rights and
fundamental freedoms in the treatment of persons, groups of persons or
institutions on the ground of race, colour or ethnic origin." CERD,
Art. 2(1), available at: http://www.unesco.org/human_rights/dcb.htm.
[FN119]. "No one shall be
subject to discrimination by any State, institution, group of persons,
or person on grounds of religion or other beliefs." Declaration on the
Elimination of All Forms of Intolerance and Discrimination Based on
Religion or Belief of Resolution 36/55 (1981) United Nations at Art.
1,2 available at:
http://www.church-of-the-lukumi.org/Resolution%2036-02.htm
[FN120]. Rio Declaration On Environment And Development, Rio de Janeiro, 3-
14 June 1992 U.N. Doc. A/CONF.151/26 (Vol. I)
(1992) available at: http://
www.un.org/documents/ga/conf151/aconf15126-1annex1.htm
[FN121]. Danwood Mzikenge
Chirwa, Obligations of non-state actors in relation to economic, social
and cultural rights under the South African Constitution,
Socio-Economic Rights Project, Community Law Centre, University of the
Western Cape (2002) available at:
www.communitylawcentre.org.za/ser/docs_2002/Researchseries1.doc
[FN122]. Article 2 of the
Charter of Economic Rights and Duties of States states that
multinationals are not to interfere with the internal affairs of a host
country. This implicitly recognizes the (limited) international legal
personality of multinational corporations. Charter of Economic Rights
and Duties of States, adopted 12/12/1974 A/RES/3281 (XXIX).
[FN123]. Claire Moore Dickerson, Human Rights: The Emerging Norm Of Corporate Social Responsibility, 76 Tul. L. Rev. 1431, 1441-1442 (2002)(noting that individuals have rights under international law in cases of violations of jus cogens).
[FN124]. Hollis, supra note 2, at 246
(At
the World Bank, NGOs or groups of individuals may request an Inspection
Panel to investigate claims of injury arising out of an act or omission
of the Bank resulting from its failure to follow operational policies
and procedures with respect to the design, appraisal, and/or
implementation of a Bank project).
[FN125]. However non-state
actors do play a marginal role in the formation of customary
international law. Hollis, supra note 2, at 243("Looking at the
activities of individuals, and more specifically NGOs, one finds
evidence of an influence both in the formation and the application of
international law, albeit one that is qualitatively and quantitatively
less than that of states and international organizations").
[FN126]. For example, in the North American Agreement on Environmental Cooperation, Sept. 8-14, 1993, arts. 14-15, 32 I.L.M. 1482 (1993)
[hereinafter NAAEC] permits private parties to petition the NAAEC
Secretariat where those petitions are aimed at enforcement rather than
at harassing industry. The Secretariat may request a government to
respond to the allegations, and in cases where two of the three states'
representatives agree, prepare a factual record and release it to the
public. NAAEC arts. 14(2), 15.
[FN127]. Hollis, supra note 2, at 244.
[FN128]. Gamble, supra note 42, at 33 (argues that the second half of the 20 th century was propicious for human rights).
[FN129]. Westfield, supra note 37, at 1108.
[FN130]. Plouffe, supra
note 5, at 79("The strongest reason advanced by the United States for
its intervention [in Haiti] was the human rights violation. Emerging
principles of international law tend to recognize this reason as
legitimate justification for intervention"); see also, Petersen, supra
note 4, at 882 (arguing for a right to humanitarian intervention in the
face of massive human rights violations, a fortiori in cases of
genocide, and that the sovereign right of states is limited).
[FN131]. Lois E. Fielding, Taking
The Next Step In The Development Of New Human Rights: The Emerging
Right Of Humanitarian Assistance To Restore Democracy, 5 Duke J. Comp.
& Int'l L. 329, 340 (1995).
[FN132]. Robert M. Cassidy, Sovereignty Versus the Chimera of Armed Humanitarian Intervention, 21 Fletcher F. World Aff. 47 (1997); see also,
Kelly, supra note 20, at 227 (noting that "state irresponsibility has become a justification for international intervention").
[FN133]. See, e.g., David
Dickens & Guy Wilson-Roberts, Non-Intervention and State
Sovereignty in the Asia Pacific Region, (2000), available at
http://aus-cscap.anu.edu.au/NonInterv.pdf.
[FN134]. Thomas
Buergenthal argues that the Westphalian principle of non-interference,
a valid principle of international law prior to the Second World War,
has been abandoned as evidenced by the adoption of universal human
rights conventions. Thomas Buergenthal, Codification and Implementation
of International Human Rights, in Human Dignity: The
Internationalisation of Human Rights, (Alice Henkin ed. 2000).
[FN135]. Asborn Eide, National Sovereignty and International Efforts to Realise Human Rights, in Human Rights in Perspective 4 (1992).
[FN136]. There is no
absence of Resolution of both the Security Council and the General
Assembly which demonstrate the state practice of humanitarian
assistance and humanitarian intervention. A brief list of relevant
resolutions follows: S.C. Res. 688, U.N. SCOR, 46th Sess., 2982d mtg.
at 1-2, U.N. Doc. S/RES/688 (1991) (Iraq); S.C. Res. 770, U.N.
SCOR, 47th Sess., 3106th mtg., U.N. Doc. S/RES/770 (1992) (Yugoslavia);
S.C. Res. 743, U.N. SCOR, 47th Sess., 3055th mtg., U.N. Doc. S/RES/743
(1992) (Yugoslavia); S.C. Res. 761, U.N. SCOR, 47th Sess., 3078th mtg.,
U.N. Doc. S/RES/761 (1992) (Yugoslavia); S.C. Res. 776, U.N. SCOR, 47th
Sess., 3114th mtg., U.N. Doc. S/RES/776 (1992) (Yugoslavia); S.C. Res.
781, U.N. SCOR, 47th Sess., 3122nd mtg., U.N. Doc. S/RES/781 (1992)
(Yugoslavia); S.C. Res. 819, U.N. SCOR, 48th Sess., 3199 th; mtg., U.N.
Doc. S/RES/819 (1993) (Yugoslavia); S.C. Res. 824, U.N. SCOR, 48th
Sess., 3208th mtg., U.N. Doc. S/RES/824 (1993) (Yugoslavia); S.C. Res.
814, U.N. SCOR, 48th sess., 3188th mtg., U.N. Doc. S/Res/814 (1993)
(Somalia); S.C. Res. 865, U.N. SCOR., 48th Sess., 3280th mtg., U.N.
Doc. S/RES/865 (1993) (Somalia); S.C. Res. 867, U.N. SCOR, 48th Sess.,
3282nd mtg., U.N. Doc. S/RES/867 (1993) (Somalia); S.C. Res. 733, U.N.
SCOR, 47th Sess., 3039th mtg. at 2, U.N. Doc. S/RES/733 (1992)
(Somalia); S.C. Res. 873, U.N. SCOR, 48th Sess., 3291st mtg., U.N. Doc.
S/RES/873 (1993) (Haiti); S.C. Res. 875, U.N. SCOR, 48th Sess., 3293rd
mtg., U.N. Doc. S/RES/875 (1993) (Haiti); S.C. Res. 917, U.N. SCOR,
49th Sess., 3376th mtg., U.N. Doc. S/RES/917 (1994) (Haiti); S.C. Res.
940, U.N. SCOR, 49th Sess., 3413 mtg., U.N. Doc. S/RES/940 (1994)
(Haiti); G.A. Res 47/20, P 5, U.N. Doc. A/RES/47/20 (1992); GA Res.
45/2, U.N. GAOR, 45th Sess., Supp. No. 2, U.N. Doc. A/RES/45/2 (1990)
(Haiti).
[FN137].
Points to humanitarian interventions in Iraq, Somalia, Haiti, Rwanda,
and Bosnia as leading to the conclusion that sovereignty, though not
subservient, is also no longer absolute. Petersen, supra note 4, at 873.
[FN138]. Mark Rothert, Notes: On Intervention in East Timor, 39 Colum. J. Transnat'l L. at 257, 262 (2000).
[FN139]. See id. at 264.
[FN140]. Yves Sandoz,
Droit ou devoir d'ingérence, droit à l'assistance: de quoi parle-t-on?
795 Revue internationale de la Croix-Rouge 225-37 available at http://
www.icrc.org/icrcfre.nsf/c12562ab0033995a412561f800501bb0/a657bad63af0026ec12563f000477c66.
[FN141]. For a traditional definition of sovereignty see Schlochauer, supra note 19, at 278.
[FN142]. Petersen, supra note 4, at 872. (U.N. Charter based on the principle of sovereign equality and non-intervention.)
[FN143]. Ulrich K. Preuss, The Force, Frailty, And Future Of Human Rights
Under Globalisation, 1 Theoretical Inquiries L. 283, 299 (2000) (emphasis added) (sovereigns power over its subjects is no longer absolute).
[FN144]. See Kahn, supra
note 51, at 7 (regarding post-Westphalians as visionaries but noting
that "it is too early today to proclaim the death of the state").
[FN145]. Jose E. Alvarez, The New Treaty Makers, 25 B.C. Int'l & Comp. L. Rev. 213, 216-217 (2002)
(noting proliferation in treaties and that the proliferation of
treaties is accompanied by the rise in international organisations;
admitting sovereignty has been eroded but noting that sovereign acts
such as treaty making led to that erosion Alvarez; also noting there
are exceptions where international law imposes norms either expressly,
e.g. in Iraq, or implicitly - states which do not object to customary
law are bound thereby). For a different view see Kelly, supra note 20,
at 227 (sovereignty has steadily and irrevocably eroded in the 20th
century.).
[FN146]. Aman, supra note
43, at 782. See also Hobe, supra note 15, at 663 (decentering of the
state through economic and technological processes; states will not be
abolished, rather their functions will be ever more permeable).
[FN147]. Keith Aoki, Considering
Multiple And Overlapping Sovereignties: Liberalism, Libertarianism,
National Sovereignty, "Global" Intellectual Property, And The Internet,
5 Ind. J. Global Legal Stud. 443, 455 (1998) (sovereignty is not dying but is in transformation).
[FN148]. Father Robert Araujo, Sovereignty,
Human Rights, And Self-Determination: The Meaning Of International Law,
24 Fordham Int'l L.J. 1477, 1481-1482 (2001). Even Catholic natural law theorists agree that sovereignty is being disaggregated:
a
State is not the sole possessor of sovereignty under international and
domestic law. To be properly understood within the framework of
international law, sovereignty is a compound doctrine that is best
understood by examining the relationship between the sovereignty of a
State and the sovereignty of peoples, i.e., the sovereignty of nations.
Id.
[FN149]. See, e.g.,
Kanishka Jayasuriya, Globalization, Law, and the Transformation of
Sovereignty: The Emergence of Global Regulatory Governance, 6 Global
Legal Studies Journal 425, 426 (1999) available at http://
www.larksongs.net/LawGlobSoc/globregul.pdf.
[FN150]. Aman, supra note 43, at 772(decentering of state through economic and technological processes).
[FN151]. Aoki, supra note 126, at 455-456 (decentering of state and multiplication of space through, inter alia, mass culture).
[FN152]. Aman, supra note 43, at 785(States adapt to changes in technology, economy, culture and as a result will subsist).
[FN153]. Id. at 784 (Geographic decentering of the state not only due to imports but also due to exports).
[FN154]. Joel R. Paul, Holding
Multi-National Corporations Responsible Under International Law, 24
Hastings Int'l & Comp. L. Rev. 285, 285-286 (2001)(in post-Westphalian world non-state actors have limited international legal personality).
[FN155]. Aman, supra note 43, at 785.
[FN156]. Id. at 786.
[FN157].
The rights and duties of corporations and individuals under national
and international law are explored at length in part II, supra.
[FN158]. Paul, supra note
133 (arguing that there is an asymmetry of U.S. retreat from
multilateral regimes and affirmation of universal jurisdiction under
U.S. law but appears to ignore that both trends are unilateralist).
[FN159]. Aoki, supra note
147, at 444 (1998) (Classical sovereignty no longer exists and has been
replaced by decentered multiple spaces, permeable boundaries and
shifting sources of power).
[FN160]. See, e.g., Ruti Teitel, The Future Of Human Rights Discourse, 46 St. Louis U. L. J. 449, 449 (2002).
[FN161]. Some describe or
predict "tribalism", i.e., the dis-integration of the nation state into
constituencies. Martha Minow, Rights And Cultural Difference In Austin
Sarat And Thomas Kearns Eds., Identities, Politics And Rights, 355 (Ann
Arbor: Univ. of Michigan Press) (1995)(the failure of the nation state
to correspond to the needs of people has led to the rise of
fundamentalism, either religious--whether Hindu, Christian, Jewish or
Moslem-- or nationalist. In both cases fundamentalism is more often
than not sullen, violent, and intolerant).
[FN162]. For example,
international humanitarian law applies to non-state actors.
International Committee of the Red Cross, International Humanitarian
Law and International Human Rights Law (2003) at: http://
www.icrc.org/Web/Eng/siteeng0.nsf/-0/35390D20CBBA8926C1256B66006022E0/
$File/IHL_and_IHRL.pdf?OpenElement.
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