3.2. Actors in international law

Traditionally, states are considered the only subjects of (to use the terminology of international law) or actors in (to use the equivalent international relations term) international law.[1] Thus whilst the actions of non-state actors may prompt the development of an international legal rule, it is only through the acts and agreements of states that it becomes law.[2]

The rise of states to preeminence in the international legal system was one of the defining characteristics of the transition from feudalism to the modern age, marked by the Treaties of Westphalia which ended the Thirty Years’ War in 1648.[3] Prior to the Treaties of Westphalia[4] the Western world was characterised by the rise and fall of territories to various princes, each variously challenging the authority of the others, and each subject in turn to the claims of the Holy Roman Emperor to secular power.

The Treaties established the principles that each state should be equal and sovereign within its own territorial boundaries, and should in turn show comity or respect for the sovereignty of its neighbours, without interfering in their internal affairs. Westphalian states began to settle their disputes through formal diplomatic relations rather than through warfare, which ushered in an era of comparative peace, certainty and territorial stability.[5] An analogy used to describe the interactions of such states was that they were like balls on a billiard table: autonomous, atomic and impermeable.[6]

But the world has changed since 1648. In the post-globalisation era, the world is returning to a pre-Westphalian state in which multiple overlapping spheres of legal authority co-exist. No longer is the authority in question that of kings, knights, guilds, cities, and the Pope, but that of states, multinational corporations, international organisations and transnational civil society groups. Hall and Biersteker write:

We find it telling that at the beginning of the twenty-first century there are so many examples of sites or locations of authority that are neither states, state-based, nor state-created. The state is no longer the sole, or in some instances even the principal, source of authority, in either the domestic arena or in the international system.[7]

This condition, aptly dubbed “new medievalism,” will be discussed further at Section 3.2.4. But suffice it for now to say that reflecting the new reality of globalisation and the accordant diffusion of legal authority, there is growing pressure on intergovernmental bodies such as the United Nations to open up their processes to broader public participation;[8]a trend the United Nations has itself acknowledged.[9]

The Tunis Agenda therefore clearly identifies three groups of stakeholders who are to participate in Internet governance: governments, the private sector (which it also refers to as “business entities”), and civil society.[10] In the remainder of this section, the three stakeholder groups identified in the Tunis Agenda will be outlined in relation to their roles the development of international law.

Notes

[1]

Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003), 21. Strictly, an actor is lesser than a subject, the distinction being that a subject bears rights and duties under international law. The word “agent” is also sometimes seen in the international relations literature, confusingly for lawyers, but its use will be avoided here.

[2]

Arend, Anthony C, Legal Rules and International Society (1999), 43.

[3]

Aschendorff/Münster, The Westphalian Treaties from October 24th, 1648 (2006)

[4]

Or more correctly the Peace of Westphalia, marked by the Treaties of Münster and Osnabrück.

[5]

Cutler, A C, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (2003), 244–245

[6]

Slaughter, Annie-Marie, International Law in a World of Liberal States (1995), 5

[7]

Hall, Rodney B & Biersteker, Thomas J, The Emergence of Private Authority in the International System (2002), 5

[8]

See generally Held, David & McGrew, Anthony, The Global Transformations Reader: An Introduction to the Globalization Debate (2000).

[9]

Annan, Kofi, In Larger Freedom: Towards Development, Security and Human Rights For All (2005), 41

[10]

Arguably, it also identifies intergovernmental organisations and international organisations such as ICANN as separate stakeholder groups. These are not accepted as such here, as will be explained at Section 5.1.2.2.