How “Public” Is Public International Law? Towards a Typology of NGOs and Civil Society Actors

[Global Governance]

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 of these actors are understandable, but often founder on their diversity. This paper therefore develops a typology of such actors, based on their activities and their drivers. That typology better reflects the reasons for and circumstances in which accountability is appropriate. 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.

Introduction

The subject of “public international law” embodies within its very name a series of hypocrisies.

The most remarked upon tends to be whether this discipline really achieves the august status of truly 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.” So observed Thucydides two and a half thousand years ago, and realists and neo-realists continue to raise an eyebrow or turn their nose up at international lawyers today.

A second hypocrisy at the heart of public international law is its claim to being truly “international”. Anthea Roberts has 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. As a public international lawyer based in Asia, this is not exactly a revelation. One of the reasons why Asian states lack a regional organization and remain suspicious of international regimes is that they were rarely the author of or invited to play a lead role in those regimes.

For present purposes, however, it is the remaining word that will be my focus in this essay: international law’s claim to being “public”, in the sense of concerning the people as a whole. Here we find a 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.

The essay first recounts briefly how states are generally regarded to have become the central and defining actors in international law. Secondly, I will show how that history obscures the role of individuals and other actors, in particular the role of humanitarian organizations and civil society. Thirdly, I will outline the halting steps today towards such actors being recognized not merely as objects but also as subjects of international law.

As signposts along the way, I will organize these observations around three locations that encapsulate the story being told: Westphalia, Solferino, and Rome.

This article is published in Global Governance, vol 24 (2018), pp. 159-168, author’s original version available in full at SSRN.com here.