3.1.1. International law

The distinction between the “legal relations” of states and their other modes of interaction can be a fine one, but the positivist definition discussed earlier at Section 1.4.1 would have it that a legal rule is a binding and enforceable obligation, regarded as law, that has been posited through a political process by a body politic, to whom obedience to the legal rule is owed.

Traditionally, international lawyers would explicitly or implicitly qualify this definition by requiring that the bodies by whom international law is posited be states,[1] consigning the activities of other actors in the international arena to “political” rather than “legal” status. The extent to which this constriction is problematic depends on whether it is intended to be semantic or empirical. That is to say, if international law is defined by the fact that it is the result of agreements between states, then that may be a useful way to narrow the field of study, but may at the same time consign the field of international law to irrelevance if as a matter of fact, bodies other than states have an equally important role to play in international governance.[2]

There are however schools of international lawyers who have adopted a broader treatment of their subject, which incorporates the activities of bodies other than states, recognising international law as a supranational regime of governance—that is, a regime which in certain circumstances can prevail over the sovereignty of states, and in which states are therefore by definition not the ultimate authorities. As a corollary of this, non-state actors are not, or at least not by definition, precluded from participating in such a regime in their own right.

This is already uncontroversial in some contexts, for example in that individuals are the subject of international human rights instruments, even possessing direct rights of audience before the Human Rights Committee of the United Nations in respect of alleged infringements of their rights[3] (and conversely, facing their international obligations at war crime tribunals such as those of Nuremberg and the International Criminal Court). The more controversial question is as to the extent that non-state actors can be involved not only as subjects of international law, but as its authors.

The New Haven school of international law, whilst not in the mainstream, does accommodate this possibility. New Haven scholars contend that international law is characterised by the conjunction of authority and control; that is, the authority of a decision-maker to posit an obligation, as perceived by those to whom it is directed, and the control of their actual behaviour by the posited obligation.[4] Put more simply, international law can be found wherever a lawmaker’s claim to exercise authority is accompanied by submission to it in practice. Accordingly for the New Haven scholar, expectations of authority can be drawn not only from states, but from members of the international community at large.[5]

Another school of international legal scholarship more receptive to the inclusion of non-state actors as sources of authority, and which also seeks to unify the study of domestic and international, public and private law, is described as the study of “transnational legal process,”[6] “transnational law”[7] or “global law.”[8]

As radical as these schools of international law may be to the mainstream scholar, in many ways they are commonplace to the liberal student of international relations.

Notes

[1]

For example, Akehurst, Michael, A Modern Introduction to International Law (1970), defining international law at page 9 as “the system of law which governs relations between states.”

[2]

Slaughter, Annie-Marie, International Law in a World of Liberal States (1995), 2

[3]

Optional Protocol 1 to the International Covenant on Civil and Political Rights, 16 Dec 1966, 1980 ATS No 23 (entry into force for Australia (except Article 41) 13 November 1980); see Shearer, Ivan, United Nations: Human Rights Committee: The Toonen Case (1995).

[4]

Suzuki, Eisuke, The New Haven School of International Law: An Invitation to a Policy-Oriented Jurisprudence (1974), 36; Lasswell, Harold D & McDougal, Myres S, Jurisprudence for a Free Society: Studies in Law, Science, and Policy (1992)

[5]

See Arend, Anthony C, Legal Rules and International Society (1999), 76–85.

[6]

Koh, Harold H, Transnational Legal Process (1996); Koh, Harold H, Opening Remarks: Transnational Legal Process Illuminated (2002)

[7]

Jessup, Philip, Transnational Law (1956); Zumbansen, Peer, Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation (2004)

[8]

Teubner, Gunther, Global Bukowina: Legal Pluralism in the World Society (1997)