New York University School of Law

International Law’s Duties to Individuals: The Answer from Rule of Law
Tamar Megiddo

New York University School of Law

Global Trust Research Project Proposal

Tel Aviv University Buchmann Faculty of Law

February 2015

“… [T]he principle that the rights and duties of States are but the rights and duties of man is of importance inasmuch as it lends emphasis to the idea – with which is bound up the progress of international law – that the individual human being is the ultimate in it and end of all law, national and international law, and the effective recognition and protection of ‘the dignity and worth of the human person’ and the development of human personality is the final object of law.”[1]

Overview

The project I propose to carry out as part of the Global Trust research project develops a framework for understanding the relationship between the international legal system and its individual human subjects, and for examining the duties owed to these subjects by the system. Drawing on the scholarlywork on Rule of Law, primarily that of Lon Fuller and his followers, I argue that this theoretical framework provides a firm basis in which to ground the standing of individuals to put forward demands not only towards their states, but also towards the international legal system.

To a large extent, my project shares the purpose of the Global Trust research project. It similarly focuses on humanity in the context of international law, and on the duties it is owed. The road I propose to take, however, is different from that taken by Benvenisti’s Sovereigns as Trustees framework.[2] Whereas Benvenisti seeks to reframe the relationship between sovereigns and humanity by drawing on the model of a trusteeship, I propose to reframe the relationship between the international legal system and humanity in light of insights drawn from Rule of Law literature.

To paraphrase on Benvenisti’s global high rise metaphor,[3]instead of focusing on the relationship between different apartment owners and the people living in the building,I propose to look at the relationship between the building management and these people. The project therefore furthers Global Trust’s vision of spelling out the duties owed to humanity and the grounds for these duties, by proposing a complementary framework to consider the duties owed to humanity not only by states, but also by the global legal order.

This framework cannot, and does not presume, to take care of the democratic deficit that is one concern underlying the Global Trust project. However, it can offer additional support to the principled argument forcefully put forward by the trusteeship framework according to which humanity is owed due consideration and respect by those governing it. The argument from Rule of Law makes a similar point by demanding legal systems to meet minimum standards of legality (or the Rule of Law) that are important in and of themselves in addition to being fundamentally connected, if fulfilled, to providing an atmosphere that is respectful of the human dignity and agency of their individual subjects.

Outline of the Project

Using conceptual analysis as the primary method, the project’s theoretical point of departure is that international law’s subjects are ultimately individuals. As discussed in further detail below, the project’s theory argues that since every legal system depends on cooperation on the part of individual subjects to actually function, if international law is to function, then, like any other legal system, it must live up to standards of legality that would facilitatessubjects’ ability to follow and uphold its rules. Further, since all legal systems rely on individuals’ self-application and none can police all subjects at all times, creating room for active, self-driven agents is indispensable for a legal system. By meeting the standards of legality, the legal system creates a dignity-respecting environment that provides room for agency and autonomy and allows each person to write her own life story. In this sense, the relationship between the legal system and its human subjects is mutually-constituted, no one party to the relationship can completely determine or dominate the other; they stand in interplay. Inasmuch as the system relies on the subjects’ cooperation, the subjects may demand its recognition of their human dignity and agency. Individuals therefore have standing to make such demands to the international legal system.

More often than not, international law scholars privilege states in their study of international law.[4] However, as demonstrated in theoretical and empirical work undertaken as part of my doctoral dissertation, individuals are, in fact, the ultimate subjects of international law. Although a state can set a meaningful framework for their action, in order for a state to act, legislate, adopt a policy and generally operate within the framework of international law, it must be that it was people who were actually responsible for bringing about such result. Moreover, these people are not only the ‘great men of history,’ namely heads of states, or even members of powerful elites. In fact, I argue that it is fair to assume that in all but the most centralized, authoritarian states international law is practiced well beyond the hands of select individuals: even an oppressive dictator must rely on police or militia personnel to persecute certain groups or to spread terror among civilians. Therefore, in today’s modern administrative states a multitude of individuals play a role in the everyday practice of international law within their states. This includes formal state organizations and officials, high- and low-ranking, but also private organizations and private individuals operating outside the machinery of the state.

Moreover, in many cases, individuals are not mere receptors of state or international legal dictates; their actions can influence and shape state action and possibly international law as well, independently of the state.Although in a great many cases they are influenced by the state, their agency is not determined byit.[5]

Furthermore, the scope of non-state actors actually involved in the practice of international law is much broader than recognized by international legal scholarship. Most theorists do not reach beyond specific actors, such as transnational networks of non-governmental organizations’ activists or state officials,[6] to acknowledge the potential and actual influence of each and every one of us on the way our states operate and on the international legal system.[7]

Recognizing the role of individuals in the practice of international law is important since people operate for diverse reasons, personal as well as collective or organizational. Thus, individuals’ reasons for action can include concerns particular to the state (such as its national economic or security interests), but they may also include entirely self-interested reasons for action (such as an individual’s own economic interest). Finally, even when individuals do operate for reasons of state interests or even state ideals they are often divided on how to define those and what would best fulfill them. The definition of state interests and ideals is subject to contestation.

Recognizing the mutually constituted relationship between the international legal system and its individual human subjects leads to a variety of related inquiries regarding the rights and obligations of individuals under international law.

The proposed project aims to develop an analytic justification for the classification of individuals as subjects of international law and to identify the implications that follow from it. In order to do so, I propose to apply the theoretical framework offered by Rule of Law scholarship, following a Fullerian line of thought.

The tentative argument is that every legal systemdepends on cooperation on the part of subjects. To facilitate that cooperation, the system must live up to standards of legality, whose consequences intrinsically include creating an environment that respects the dignity and agency of individual subjects. Since the system relies on the individual’s cooperation, I argue, the individual has a legitimate basis to make demands that will facilitate her cooperation. These demands resonate with the standards of legality, including their dignity-respecting conditions. I now elaborate on these propositions.

Using law as an instrument of governance is intrinsically contingent upon the cooperation of subjects.[8]Moreover, no legal system can plausibly coerce each and every subject into following all of its rules at all times. For law to be generally effective it must succeed in communicating its message to its subjects and getting them to self-apply its rules and orient their behavior in accordance with the rules’ guidance. Hence, law is not merely projected unto subjects, but rather presents itself for their use and assigns them the responsibility for applying it.[9]

Self-application is therefore an essential element in the success of a legal system to fully realize its mission.[10]A system of law’s adherence to principles of legality[11] (or Rule of Law) is at least a condition for enabling citizens to follow its rules. When these principles are met, clear, promulgated rules are presented to the subject for self-application. She is able to understand what is required of her, she is not presented with contradicting directives or ones whose fulfillment is beyond her capacity, and she can predict, to an extent, that these rules will be in force in the future and that her conduct will be judged according to them.

In laying down the law with which a person is required to comply in accordance with principles of legality, the legal system provides the subject with a relatively stable, secure framework of predictable scenarios and consequences. These certainly constrain the individual whose freedom is curtailed by rules directing herwhat to do and what to refrain from doing. But the rules also furnish the subject with a baseline against which she can plan her life, formulate her own goals and go about pursuing them, and thus allow her another kind of freedom and autonomy, and permit her to write her own life story within these constraints.[12]

As a consequence, meeting the standards of legality entails a certain treatment of the subject on the part of the system: respect for her as a free, autonomous, responsible agent and hence recognition of her human dignity.[13] To qualify this argument: of course, legal systems can be oppressive, both in design and in the content of the rules they produce, and not all ensure the freedom of some or all of their subjects. Some systems of law positively deny or infringe upon the human dignity of all or some. And so, in extreme cases, the respect for humans implicit in adhering to principles of legality may be dwarfed to the point of insignificance by disrespectful actions and policies of the system, for example, by the legislation of abusive laws.[14]This fact of life does not stand in contradiction to what I have now argued. The argument is much more modest: the use of the instrument of law under criteria of legality provides freedom for the subjects to pursue their own goals and to exercise their agency and autonomy within the constraints set by the system, and in that, and to that extent, it is respectful of their dignity.[15]

This respect for dignity emanates from, while also reaffirming an interactive, mutually-constituted relationship between the system of law and its subjects. In such a relationship no party can completely determine or dominate the other; they stand in interplay. The same is true for the international legal system and its human subjects. Inasmuch as the international legal system may demand its subjects’ cooperation, they have standing to similarly make demands to the international legal system to recognize and respect their human dignity and agency.

This theory faces several challenges. An important criticism is directed against the limited nature of benefits of the rule of law for individuals and their inability to provide comprehensive answers to the international legal system’s democratic deficit. Another important issue refers to delimiting the significance of international law in providing rule of law benefits to individuals when domestic law may already has done the same. Finally, a question may arise with respect to hard law’s supposedly unique ability to provide such benefits and the grounds for differentiating it from soft law. The work on the project aims to take these challenges seriously and engage with legal theory as well as international legal theory scholarship in an attempt to address them.

1

[1] Hersch Lauterpacht, The Subjects of International Law, International Law: Being the Collected Papers of Hersch Lauterpacht149 (Elihu Lauterpacht, ed. 1970)

[2] Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders, 107 Am. J. Int’l L. 295 (2013).

[3]Id, at 295.

[4]See, for example, Ryan Goodman & Derek Jinks, Socializing States 40-41 (2013).

Note that, if confronted by an example where individuals have made an impact independently of the state, or where actors other than the few recognized powerful individuals or elites have influenced the international legal system, many theorists will not deny that this was so. The critique is not that they are unable to see the reality for its complexity or that their theories necessarily deny it (although some do). The critique is that they fail to incorporate this possibility into their theoretical accounts. Some theorists do see that human agents may have a role in shaping state action or international law more broadly, but they give this role a very minimal theoretical weight, if any. Many acknowledge the impact of domestic politics and the debate and negotiation between actors operating within the state on state action under international law, but few find a place in their theoretical accounts for incorporating such impact.

[5] Further, states are also not subjects of a one-sided indoctrination by international law; they are, at least in principle, active subjects involved in the making of law (customary international law as well as the negotiation of international treaties), its interpretation and implementation.

[6]See, e.g., Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders (1998);Sally Engle Merry, Human Rights and Gender Violence 192-217 (2006); Also seegenerally Michael S. Barr & Geoffrey P. Miller, Global Administrative Law: The View from Basel, 17 Eur. J. Int’l L. 15 (2006).

[7] See, for example, Harold K. Jacobson & Edith Brown Weiss, Strengthening Compliance with International Environmental Accords, 1 Global Gov. 119, 142-43 (1995); John Gerard Ruggie, What Makes the World Hang Together?, 52 Int’l Org. 855, 879 (1998).But seeEngle Merry, supra note 6 (studying human rights ‘translators’ who produce local “vernacularization” of the international legal language and tools to mobilize individuals hitherto unfamiliar with human rights law to take on rights discourse and to frame their demands in a language that can potentially help them to achieve their desired results.)

[8]As the sociologist Georg Simmel posits, even the most extreme instances of coercion and tyranny rarely exclude all spontaneity and choice on the part of their subject, or all possibility of interaction between coercer and coerced. “All leaders are also led” Simmel writes, and explains that it is often the case that beneath the semblance of pure superiority and pure passivity, a highly complex interaction is hidden. Such, for example, is the case of a speaker and an audience, a teacher and a class, and like relationships that are heavily yet almost imperceptibly influenced by the reactions of the seemingly passive mass. The Sociology of Georg Simmel 182-83 (transl. Kurt H. Wolff, 1950).

[9]In this way, law interacts with its subjects. It relies on the subjects’ responsiveness: without the population’s cooperation, law on the books cannot effectively become the law on the ground. Further, not only individual enactments, but also the fundamental ‘rules of the game’ in a legal system must ultimately be backed by general acceptance. In this sense, subjects are participating agents in any functioning legal order.Herbert Lionel Adolphus Hart, Positivism and the Separation of Law and Morals 71 Harv. L. Rev. 593, 603 (1957); Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller100(2012).

[10] Waldron suggests that a pervasive emphasis on self-application is definitive of law. Jeremy Waldron,Dignity, Rank and Rights 52 (2012).

[11] Following Lon Fuller, I tentatively define legality as requiring that laws will be (1) general; (2) public; (3) non-retroactive; (4) comprehensible; (5) consistent with other rules; (6) practicable; (7) stable; and (8) congruent with the their application. Lon L. Fuller, The Morality of Law 39-40 (Rev. ed. 1969).

[12]FriedrichAugust Hayek, The Road to Serfdom 72-76 (1944); Lon L. Fuller, Human Interaction and the Law, 14 Am. J. Juris. 1, 24 (1969).

[13] Hayek, id.; Joseph Raz, The Authority of Law 220 (2d ed. 2009). For an excellent illustration of the ways in which law protects dignity, seegenerally Jeremy Waldron, How Law Protects Dignity, 71 Cambridge L. J. 200 (2012).

[14] Cf. Kristen Rundle,The Impossibility of an Exterminatory Legality: Law and the Holocaust, 59 Univ. Toronto L. Rev. 65 (2009).

[15]Nadler argues that even in Hart’s concept of law there is buried the idea that law, in its indispensable component of generality, both presupposes and respects free agency, and that this is essential for law to be law. Jennifer Nadler, Hart, Fuller and the Connection between Law and Justice, 27 L. & Phil. 1, 17 (2007). See:Herbert Lionel Adolphus Hart, The Concept of Law 207 (2d ed. 1994).