The 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. 2
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 3
promised to end the religious wars of the iron century 4
Ultimately it led to the idea of sovereignty, 5
the unity of territory 6
(eventually nation) and religion. 7
Each state's religion would be determined by the religion of the
Each land would determine its own system of governance 9
but would refrain from interfering in its neighbors' internal
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. 11
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.
In this system, states 13
were the sole subject of *25
law, having final and absolute authority within their sovereign
States in the Westphalian system were hermetically isolated from
each other and granted a right to make war, 15
even aggressive war, as a self help remedy. 16
Skeptics could thus ask whether international law was law. 17
The Westphalian system also left open the question of whether
international law and national law were unitary, i.e., monist, 18
or independent from each other, i.e., dualist. 19
shortcomings, the Westphalian system of nation-states 20
roughly worked to preserve peace from 1684 to 1914. The end of the
so-called “iron century,” 21
ushered in an era of *26
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,” 22
rather than guarantor of peace, assured that all conflicts over
market share would be mutually reinforcing and zero sum: 23
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” 24
was no longer a guarantor of peace but rather of war. 25
I. De Facto Transformation
the de facto breakdown of the Westphalian system can be traced to
the first and second world wars. 27
The system which *27
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.
The first de facto
challenge to the system of nation-states and national empires was
the idea of national self determination. 29
In a first wave of national liberation following the First World
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 31
national liberation movements sprang up throughout the third world
leading ultimately to decolonisation. 33
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. 34
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. 35
the same time, however, capital's tendency to be monopolized 36
continued and even intensified. Multinational corporations (MNCs)
have grown to the point of literally having a larger annual
than many third world states. 38
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. 39
With so much economic power, MNCs sometimes also exercise military
power and have been known to hire mercenary armies. 40
Arguably, the MNC enjoys limited international legal personality 41
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. 42
are a main cause of these consequences. 44
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. 45
Warfare has also
National military strength is no longer the primary index of state
power as the collapse of the U.S.S.R. illustrates. 47
Instead, economic power is the primary index of state power. 48
Military power is less and less relevant 49
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. 50
Thus nuclear weapons are of little use 51
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. 52
As a consequence of these facts guerrilla warfare, terrorism, and
proxy warfare 53
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
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. 55
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)
While some argue that we now we live in a global village, 57
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.
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 58
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. 59
II. De Jure Transformation: Self Contradictions in the
Foundations of International Law
For the reasons
mentioned above, it is clear that we are now, factually speaking,
in a very different world 60
than that described by the *32
realist presumptions reflected in the failed Westphalian system. 61
Realism sees the world as a struggle for power--essentially, a
zero sum game. Norms, for realists, are enforced for practical
reasons of state. 62
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
Judicially speaking, we
can briefly characterize the immediate post-war changes in
international law as a recognition of human rights, 63
a legal order founded on the pacific resolution of disputes 64
and on national self determination. 65
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
of the Westphalian system via transfer of state functions to
supra-national institutions 67
and the devolution of *33
functions of the state regional 68
or local entities 69
or even to private actors (privatization). 70
This double stress on the state, globalization 71
and localization, diminishes the practical reach of the state in
the lives of people. However globalization 72
and devolution/privatization, both key parts of the contemporary
world order, are problematic for democracy. 73
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. 74
The illegality of aggressive war is reaffirmed in the United
Nations Charter. Next, during the second global war, states
recognized “exile governments” 75
no territory (one *34
the defining characteristics 76
of statehood), 77
but with a claim to govern.
Next, following the
Second World War, the U.N. was formed to prevent future wars of
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 79
(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. 80
However, the right to national self determination raises a serious
contradiction within the international legal system: 81
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.
International Legal Personality for Non-State Actors
Exile governments and
insurgencies are not the only examples 82
of limited 83
international legal personality 84
granted to non-state actors 85
breaking from the Westphalian principle of sovereignty. Though
states remain the center of the international system, 86
the periphery is increasingly important. International
such as the U.N., 88
N.A.T.O., and the E.U., 89
also have limited international legal *36
Multinational enterprises, 91
non-governmental organizations (NGOs), 92
and even individuals 93
may now have rights or duties under international law. 94
That is perhaps the greatest theoretical 95
and practical challenge 96
to the lex ferenda 97
which is the post-Westphalian 98
system: non-state actors, including individuals 99
and religious entities, may 100
have rights or duties under international law. 101
recognition, caveat lector, 102
of limited international legal personality for non-state actors 103
is clearly an emerging trend and lex ferenda. 104
It is also the mirror image of the rise of international
organizations with limited international legal personality 105
which is one more de jure 106
challenge to the Westphalian order. 107
The international legal personality of non-state actors is
The International Legal Personality of Non-State Actors
corporations (MNCs) are increasingly influential on the world
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. 109
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. 110
It is hardly surprising that some have gone so far as to ask
whether MNCs are or should be subjects of jus gentium. 111
In fact, corporations, 112
like other non-state actors, 113
do have directly applicable duties and rights under *39
Thus to that extent corporations 115
be said to have limited international legal personality. 117
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
the U.N. Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, 119
Declaration on the Environment and Development, 120
inter alia. These conventions state explicitly or implicitly that
“private actors have both negative and positive duties in respect
of socio-economic rights” 121
and recognize the limited international legal personality of
multinational corporations. 122
Thus human rights can be enforced against corporations. 123
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 124
can, however, contribute to the formation of customary
international law 125
by aiding in the process of elaborating norms 126
even if sometimes only as observers. 127
As ordinary as directly
enforceable rights and duties held by non-state actors under
international law may seem today, that is a radical 128
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. 129
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 130
of humanitarian assistance 131
and humanitarian intervention 132
pose another legal challenge 133
to the Westphalian model of sovereign states, 134
for they directly contradict the Westphalian *42
principle of non-interference 135
but are clearly 136
a part of state practice. 137
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. 138
The principle of “humanitarian intervention” 139
and the related (and possibly independent) concept of droit de
is more recent in time than the increasingly ignored principle of
non-intervention. What are the implications of these legal
contradictions for sovereignty?
the authority of the sovereign 141
within his own borders 142
still exists, sovereignty is no longer seen as absolute. 143
Thus, though it is premature to speak of the death of sovereignty,
we can speak of an erosion 145
and transformation 146
of the sovereign power 147
from a unitary hierarchy to multiple poles 148
of competing influence, 149
often determined functionally. One can thus properly speak of the
and disaggregation 151
of the state through a transformation 152
of spatiality. 153
Individual Accountability for Human Rights Violations
A final de jure
challenge to the Westphalian state system is the rise of
individual and corporate 154
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
and cross border pollution 156
no longer correspond to the reality described by the Westphalian
system. Consequently, it is clear that the Westphalian
international legal order has fundamentally changed. 157
These contradictions also present interesting paradoxes for the
unilateralist-universalist tension in human rights law. 158
All of these
developments allow us to speak meaningfully of the transformation
of the Westphalian legal model. 159
What does that mean for international human rights? 160
Where and how far will this transformation go? 161
contours of the post-Westphalian system are increasingly clear.
These are: 1) limited international legal personality for
non-state actors; 162
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.
J.D., from St. Louis University, D.E.A., Université Paris II
(Panthéon-Assass); D.E.A., Université Paris X (Nanterre); LL.M.Eur.,
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
Treaty of Westpahlia, October 24, 1648, available at: http://www.yale.edu/lawweb/avalon/westphal.htm
Frederick J. Petersen,
Facade of Humanitarian Intervention for Human Rights in a
Community of Sovereign Nations, 15 Ariz. J. Int'l & Comp.
L. 871, 874 (1995).
William C. Plouffe,
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.
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).
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
Janis, Religion and International Law, ASIL Insights (Nov. 2002),
available at: http://www.asil.org/insights/insigh93.htm
Of Westphalia Remains Relevant Today, The Times of London, Dec.30,
1999 at: http://news1.beograd.com/-english/-articles_and_
(arguing that the treaty of Westphalia was an antecedent to the
principle of national self determination).
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
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
History - The Thirty Years War, at http://www-geschichte.fb15.uni-dortmund.de/fnz/thirty.html
Petersen, supra note 4, at 874.
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).
Id. (Although “[s]overeignty was not formally recognised in
scholarship until the Sixteenth Century.”)
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
Robert D. Sloane,
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).
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
Id. (quoting Lewis Henkin).
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
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,
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
des Völkerrechts, Berlin p. 278 (1962).
Michael J. Kelly,
Downsizing: The Re-Emergence Of Self-Determination, And The
Movement Toward Smaller, Ethnically Homogenous States, 47 Drake L.
Rev. 209, 212 (1999).
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).
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).
For a good mathematical introduction to game theory, seeJamus
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
Of Nations Small: The Small State In International Law, 9 Temp.
Int'l & Comp. L.J. 115, 116-117 (1995).
Kelly, supra note 20, at 235.
For a brief history of the idea of sovereignty, see Col. Michael
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).
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
Sohn, The New International Law: Protection Of The Rights Of
Individuals Rather Than States, 32 Am. U. L. Rev. 1, 1 (1982).
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
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.
Kelly, supra note 20, at 215.
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
Human Rights In A Changing World 153 (Polity Press) (1990).
For a sketch of the historical development of national self
determination see Kelly, supra note 20, at 221.
Id. at 216 (1999).
Orlow, supra note 24, at 115 (1995).
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.
See, e.g. Vladimir
Imperialism: The Highest Stage of Capitalism, (1916) Ch. I.
available at: http://www.marxists.org/archive/lenin/works/1916/imp-hsc/ch01.htm;
Limits on Capitalism without Citizenry: Towards a Globalisation
without Neoliberalism DEI http://www.cseweb.org.uk/downloads/dierckxsens.pdf
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.”).
Kelley, supra note 10, at 508 (“The
largest MNCs are larger in terms of revenue than most states'
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
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
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).
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
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
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
Shelton, supra note 35, at 275.
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).
Plouffe, supra note 5, at 85 (arguing that once economic power is
lost, a loss of military power will follow).
Id. (linkage of economic and military security)
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
The International Geo-economic System p. 275 in Human
in Perspective, Asbjorn Eide, Bernt Hagtvet, Oxford: Blackwell
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.)
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).
See generally Stone, supra note 50, at 305.
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.
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.
The Legal Relationship between Multinational Oil Companies and the
Sudan: Problems and Prospects, 43 JOURNAL OF AFRICAN LAW 18, 27
Dissident Voices: Refugees, Human Rights and Asylum in Europe 9
Social and Legal Studies 367.
Lomé: Can it help reverse Africa‘s marginalisation, in: Peter
Meyns (ed.), 16 Staat und Gesellschaft in Afrika. 397, 402
See, e.g., Stephen
[email protected]: Globalisation, Multinational Enterprise, and the
International Political System, in Alan
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).
An Environmental World Beyond Sovereignty, at: http://papers.pitas.com/
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.
Id. at 668.
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
Cassese supra note 31, at 22.
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
Anthony McGrew, Globalisation, Regionalisation and the
Transformation of Political Community, PSA-UK (2000) http://www.psa.ac.uk/cps/2000/Held%20David%CCCC20&%CCCC20McGrew%20Anthony.pdf
(concluding that the world is indeed evolving into interdependent
entities and implicitly affirming the transformationist theses).
In IR theory this led first to “regime theory” then to
“institutionalism” as competing with or complementing realist
Burley, International Law And International Relations Theory: A
Dual Agenda, 87 Am. J. Int'l L. 205, 206 (1993).
E.g., in the U.K. devolution of former Crown functions to Scotland
and Wales. Kelly, supra note 20, at 228.
But see id.
Justification (and Justifiability) of Private Law in a
Polycontextural World, 9 Social and Legal Studies 421.
Globalization is “a
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
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,
See Abusaharaf, supra note 55, at 20-22.
& Maurice Torrelli, Les Mystifications du Nouvel Ordre
International, 108-09 (Paris: PUF, 1982).
Hendrickson, Article 51 and the Clinton Presidency: Military
Strikes and the U.N. Charter, 19 B.U. Int'l. L.J. 207,
Sloane, supra note 16, at 170-71.
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.
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
However, nothing in the U.N. charter impairs the right of
self-defense. Hendrickson, supra note 74, at 210.
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
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
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.
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
Even the idea that only states may be the source of customary
international law is now in question. See Ralph
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
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
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
“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
The United Nations Charter As Constitution Of The International
Community, 36 Colum. J. Transnat'l L. 529, 597 (1998).
“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
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
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
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.)
The European Union: From An Aggregate Of States To A Legal Person?
2 Hofstra L. & Pol'y Symp. 37, 37 (1997).
R. Macdonald, supra note 22, at 809.
Kelley, supra note 10, at 526 (MNCs have limited international legal
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).
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).
The examples of this fact are numerous. See, e.g. Amanda
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
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,
Maniruzzaman, supra note 82, at 12 (2001).
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).
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).
International Personality of Individuals in International Law: A
Broadening of the Traditional Doctrine, 1 J. Transnat'l L. &
Pol'y 151 (1992).
Maniruzzaman, supra note 95, at 14.
Paust, supra note 93, at 51 (private individuals have duties under
treaties and customary international law including human rights and
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
Maniruzzaman speaks of “a lesser claim for ‘limited international
legal personality’ of individuals” Id. at 12-13.
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
International organizations with international legal personality
are.subject to international law proportional to their object and
nature. See Malcolm
Shaw, International Law 913-914 (4th ed. 1997).
For an analysis of de jure transformation of the Westphalian order
see, e.g., Gearóid
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).
Economic, Social and Cultural Human Rights and the IMF, in The
to Development 13 (2002) available at http://www.odi.org.uk/pppg/activities/concepts_analysis/rightsinaction/Publications/righttodev.pdf
“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.
See id. at 104.
See Hans Corell, Towards the Twenty First Century, 89 ASIL
Proceedings 568 (1995).
Modernes Volkerrecht Ein System Im Wandel und Wachstum -
Gerechtigkeitsgedanke als Kraft der Veränderung 557-87 (2000).
The preamble to the Universal Declaration of Human Rights provides
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.
Shelton, supra note 35, at 301-02 (“international law is
increasingly regulating non-state behavior directly”).
Para. 42 of General
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.
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.
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
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.
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.
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.
“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
Rio Declaration On Environment And Development, Rio de Janeiro, 3-14
June 1992 U.N.
A/CONF.151/26 (Vol. I) (1992) available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm
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
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
Economic Rights and Duties of States, adopted 12/12/1974
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).
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).
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
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.
Hollis, supra note 2, at 244.
Gamble, supra note 42, at 33 (argues that the second half of the 20
th century was
propicious for human rights).
Westfield, supra note 37, at 1108.
Plouffe, supra note 5, at 79(“The
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).
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).
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”).
See, e.g., David
& Guy Wilson-Roberts, Non-Intervention and State Sovereignty
in the Asia Pacific Region, (2000), available at http://aus-cscap.anu.edu.au/NonInterv.pdf.
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).
Asborn Eide, National Sovereignty and International Efforts to
Realise Human Rights, in Human Rights in Perspective 4 (1992).
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.
S/RES/688 (1991) (Iraq); S.C. Res. 770, U.N. SCOR,
47th Sess., 3106th mtg., U.N.
S/RES/770 (1992) (Yugoslavia); S.C. Res. 743, U.N.
SCOR, 47th Sess., 3055th mtg., U.N.
S/RES/743 (1992) (Yugoslavia); S.C. Res. 761, U.N.
SCOR, 47th Sess., 3078th mtg., U.N.
S/RES/761 (1992) (Yugoslavia); S.C. Res. 776, U.N.
SCOR, 47th Sess., 3114th mtg., U.N.
S/RES/776 (1992) (Yugoslavia); S.C. Res. 781, U.N.
SCOR, 47th Sess., 3122nd mtg., U.N.
S/RES/781 (1992) (Yugoslavia); S.C. Res. 819, U.N.
SCOR, 48th Sess., 3199 th;
S/RES/819 (1993) (Yugoslavia); S.C. Res. 824, U.N.
SCOR, 48th Sess., 3208th mtg., U.N.
S/RES/824 (1993) (Yugoslavia); S.C. Res. 814, U.N.
SCOR, 48th sess., 3188th mtg., U.N.
S/Res/814 (1993) (Somalia); S.C. Res. 865, U.N.
SCOR., 48th Sess., 3280th mtg., U.N.
S/RES/865 (1993) (Somalia); S.C. Res. 867, U.N. SCOR,
48th Sess., 3282nd mtg., U.N.
S/RES/867 (1993) (Somalia); S.C. Res. 733, U.N. SCOR,
47th Sess., 3039th mtg. at 2, U.N.
S/RES/733 (1992) (Somalia); S.C. Res. 873, U.N. SCOR,
48th Sess., 3291st mtg., U.N.
S/RES/873 (1993) (Haiti); S.C. Res. 875, U.N. SCOR,
48th Sess., 3293rd mtg., U.N.
S/RES/875 (1993) (Haiti); S.C. Res. 917, U.N. SCOR,
49th Sess., 3376th mtg., U.N.
S/RES/917 (1994) (Haiti); S.C. Res. 940, U.N. SCOR,
49th Sess., 3413 mtg., U.N.
S/RES/940 (1994) (Haiti); G.A. Res 47/20, P 5, U.N.
A/RES/47/20 (1992); GA Res. 45/2, U.N. GAOR, 45th
Sess., Supp. No. 2, U.N.
A/RES/45/2 (1990) (Haiti).
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.
Notes: On Intervention in East Timor, 39 Colum. J. Transnat'l L.
at 257, 262 (2000).
See id. at 264.
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.
For a traditional definition of sovereignty see Schlochauer, supra
note 19, at 278.
Petersen, supra note 4, at 872. (U.N. Charter based on the principle
of sovereign equality and non-intervention.)
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
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”).
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.).
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).
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).
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.
See, e.g., Kanishka
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.
Aman, supra note 43, at 772(decentering of state through economic
and technological processes).
Aoki, supra note 126, at 455-456 (decentering of state and
multiplication of space through, inter alia, mass culture).
Aman, supra note 43, at 785(States adapt to changes in technology,
economy, culture and as a result will subsist).
Id. at 784 (Geographic decentering of the state not only due to
imports but also due to exports).
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).
Aman, supra note 43, at 785.
Id. at 786.
The rights and duties of corporations and individuals under national
and international law are explored at length in part II, supra.
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
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).
See, e.g., Ruti
The Future Of Human Rights Discourse, 46 St. Louis U. L. J. 449,
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).
For example, international humanitarian law applies to non-state
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.