Non-State Actors as New Subjects of International Law: International Law - From the Traditional State Order Towards the Law of the Global Community. Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, March 25 to 28, 1998 [1 ed.] 9783428499632, 9783428099634

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Non-State Actors as New Subjects of International Law

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel Herausgegeben von J o s t D e l b r ü c k und R a i n e r

Hofmann

Walther-Schiicking-Institut für Internationales Recht 125

Volkerrechtlicher Beirat des Instituts:

Daniel Bardonnet TUniversité de Paris II Rudolf Bernhardt Heidelberg Lucius Caflisch Institut Universitaire de Hautes Études Internationales, Genève Antonius Eitel New York; Bonn

Fred L. Morrison University of Minnesota, Minneapolis Albrecht Randelzhofer Freie Universität Berlin Krzysztof Skubiszewski Polish Academy of Sciences, Warsaw; The Hague

Luigi Ferrari Bravo Università di Roma

Christian Tomuschat Humboldt-Universität zu Berlin

Louis Henkin Columbia University, New York

Sir Arthur Watts London

Tommy T. B. Koh Singapore John Norton Moore University of Virginia, Charlottesville

Rüdiger Wolfrum Max-Planck-Institut für ausländisches öffentliches Recht und Volkerrecht, Heidelberg

Non-State Actors as New Subjects of International Law International Law - From the Traditional State Order Towards the Law of the Global Community Proceedings of an International Symposium of the Kiel Walther-Schiicking-Institute of International Law March 25 to 28, 1998

Edited by

Rainer Hofmann Assistant Editor:

Nils Geissler

Duncker & Humblot • Berlin

Die Deutsche Bibliothek - CIP-Einheitsaufnahme Non-state actors as new subjects of international law : international law - from the traditional state order towards the law of the global community ; proceedings of an international symposium of the Kiel Walther-Schlicking-Institute of International Law, March 25 to 28, 1998 / ed. by Rainer Hofmann. Assistent ed.: Nils Geissler. Berlin : Duncker und Humblot, 1999 (Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel; Bd. 125) ISBN 3-428-09963-X

Alle Rechte, einschließlich das der Übersetzung, vorbehalten. Ohne ausdrückliche Genehmigung des Verlages ist es nicht gestattet, das Buch oder Teile daraus in irgendeiner Weise zu vervielfältigen. © 1999 Duncker & Humblot GmbH, Berlin Fotoprint: Werner Hildebrand, Berlin Printed in Germany ISSN 1435-0491 ISBN 3-428-09963-X Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 ©

Foreword Since the early 1990s, the biannual symposia of the Kiel Walther-SchiickingInstitute for International Law have been devoted to the academic discussion of legal problems connected with and resulting from the on-going developments of international law and their repercussions on some of the traditional concepts of this branch of the law. Thus, under the title The Future of International Law Enforcement: New Scenarios - New Law , the 1992 symposium dealt with the question whether and to what extent the increasing number of cases of humanitarian interventions by the international community upon prior authorization by the competent United Nations organs is compatible with the applicable rules of international law. It appeared that international law is increasingly characterized by legal norms having an erga omnes-Qffect and, thus, binding upon also those states that had not participated in the process of their creation. If, however, the violation of such norms with an erga omnes-effect indeed justifies the recourse to sanctions by the international community, the question arose as to which body was competent to authorize such sanctions. Therefore, this issue, namely the Allocation of International Law Enforcement Authority in the International System , was chosen as the subject of the 1994 symposium. Its participants came to the conclusion that the pertinent changes in the field of international law enforcement resulted from fundamental modifications concerning the rules pertaining to the creation and application of international law. Consequently, the 1996 symposium was concerned with Afew Trends in International Law-Making: International 'Legislation ' in the Public Interest, in particular with the question as to whether the specific quality of ius cogens and erga omnes-norms could be explained by the "international public interest" which such norms reflect. The discussions of the 1996 symposium revealed, inter alia , that - in particular with a view to the gradually changing role of the state as a consequence of the increasing process of globalization - there seems to be a growing tendency to involve non-state actors as participants in the international law-making process.

6

Rainer Hofmann

Therefore, this development and the consequences thereof were chosen, under the title International Law - From the Traditional State Order Towards the Law of the Global Community: Non-State Actors as New Subjects of International Law , to be the subject of the 1998 symposium. As such non-state actors were identified non- and para-governmental organizations, multinational enterprises, individuals and groups of individuals, in particular minorities. This symposium, held at the Walther-Schücking-Institute of International Law at Kiel from 25-28 March 1998 brought together 26 leading international legal scholars from the United States and Europe. Based upon four thorough reports delivered by two American and two European scholars, namely professors Ruth Wedgwood, Yale Law School, Thomas Franck, New York University, Daniel Thürer , University of Zurich, and Stephan Hobe, University of Cologne, the participants had the opportunity to discuss in depth the thesis, formulated with slight modifications by all four rapporteurs, that due to the far-reaching consequences of the process of globalization, states are losing their previous position as the only or at least the by far most - important actors of the international legal order. Moreover, it was held that the above-mentioned non-state actors, i.e non- and para-governmental organizations, multinational enterprises, individuals and groups of individuals, had assumed - to a varying degree, however - the status of (partial) subjects of international law. These views constitute a fundamental challenge to some of the basic structures of traditional public international law. Therefore, it was not surprising that the ensuing discussions did not bring about full consensus. Nonetheless, it is important to stress that the participants shared the view that the on-going process of globalization already has resulted in an important change of the traditional international order: The hitherto unchallenged role of states as the dominant actors within the sphere of public international law is being modified or even decreasing due to the increasing role of non-state actors. The Walther-Schücking-Institute is greatly indebted to the Volkswagen-Stiftung which by a generous grant made the 1998 Kiel International Law Symposium possible. It also wishes to express its gratitude to the Deutsche Forschungsgemeinschaft for its considerable financial support. Moreover, it is pleased to recognize the great hospitality extended to the participants of the symposium by the Government of Schleswig-Holstein, namely to State Prime Minister Heide Simonis, and to State Secretary Dr. Ralf Stegner who hosted a dinner reception for the participants. Many thanks are also due to the Christian-Albrechts-University which provided for a very convenient conference room and bus transportation, and to the local Süverkrüp Mercedes-Benz-Company and Schmidt & Hoffmann Volkswagen-Company for their provision of excellent means of transportation.

Foreword

7

My personal thanks are extended to the entire staff of the Walther-SchückingInstitute whose efforts have, as always, made this symposium possible. I am especially grateful to Dr. Nils Geissler and Mrs. Carmen Thies for their effective management of the symposium and its follow-up. Kiel, December 1998

Rainer Hofmann

Contents Addresses by Jost Delbrück

13

Rainer Hofmann

15

Ralf Stegner.

17

Legal Personality and the Role of Non-Governmental Organizations and NonState Political Entities in the United Nations System Ruth Wedgwood

21

The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State Daniel Thür er.

Discussion

37

59

Individuals and Groups of Individuals as Subjects of International Law Thomas M. Franck

97

Individuals and Groups as Global Actors: The Denationalization of International Transactions Stephan Hobe

115

Discussion

136

List of Participants

174

Abbreviations

AJIL

American Journal of International Law

Am.U.L.Rev.

American University Law Review

BDGVR

Beiträge der Deutschen Gesellschaft for Völkerrecht

BGBl.

Bundesgesetzblatt

BVerfGE

Bundesverfassungsgerichtsentscheidung

CCPR

Covenant on Civil and Political Rights

Corr.

Corrigendum

EA

Europa Archiv

ECHR

European Convention on Human Rights

ECJ

European Court of Justice

ECOSOC

Economic and Social Council

EJIL

European Journal of International Law

EPIL

Encyclopedia of Public International Law

EuGRZ

Europäische Grundrechte-Zeitschrift

Europ. T.S.

European Treaty Series

EuZW

Europäische Zeitschrift für Wirtschaftsrecht

FYROM

Former Yugoslavian Republic of Macedonia

GA Res.

United Nations General Assembly Resolution

GAOR Supp.

General Assembly Official Records Supplement

GYIL

German Yearbook of International Law

Harv.L.Rev.

Harvard Law Review

HRLJ

Human Rights Law Journal

HRQ

Human Rights Quarterly

ICJ

International Court of Justice

ICRC

International Committee of the Red Cross

ICS Rep.

International Commission of Jurists

ICSID

International Centre for Settlement of Investment Disputes

IGO

Intergovernmental Organization

Abbreviations

IJGLS

Indiana Journal of Global Legal Studies

ILC

International Law Commission

ILM

International Legal Materials

ILO

International Labour Organisation

ILR

International Law Reports

IRRC

International Review of the Red Cross

JRMP

Jugoslovenska Revija za Medunarodno Pravo

JZ

Juristen Zeitung

LNTS

League of Nations Treaty Series

MNC

Multinational Corporation

MNE

Multinational Enterprise

NGO

Non-governmental organization

NILR

Netherlands International Law Review

NJW

Neue Juristische Wochenschrift

N.Y.U.L.Rev.

New York University Law Review (NYU L Rev.)

OAS

Organization of American States

OAU

Organization of African Unity

11

P.C.I. J.

Permanent Court of International Justice

PDK

Party of Democratic Kampuchea (Khmer Rouge)

RdC

Recueil de Court

RSDIE

Revue Suisse de Droit International et de Droit Européen

SZIER

Schweizerische Zeitschrift für internationales und europäisches Recht

TNC

Transnational Corporation

UN

United Nations

UNHCR

United Nations High Commissioner for Refugees

UNTS

United Nations Treaty Series

VVDStRL

Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer

Yale L.J.

Yale Law Journal

ZaöRV

Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

ZRP

Zeitschrift für Rechtspolitik

Opening Address Jost Delbrück* Excellencies, dear colleagues, ladies and gentlemen, welcome to the 1998 symposium "International Law - From the Traditional Interstate Order Towards the Law of the Global Community: Non-State Actors as New Subjects of International Law"! This is the last of our traditional biennial symposia in this century. I hope you are aware of this "historical" dimension of our meeting. But rest assured, it will not be the last symposium altogether. We shall certainly continue the tradition of these conferences, but the next one will not be until the next century. We are very glad to have you, and we are pleased that most of our invitations have been followed. We are grateful for this positive response to our invitation, and we feel encouraged to continue with the format of our symposia which are literally roundtable talks providing for two papers presented in the morning and then a long discussion period in the afternoon. This has been proven a very fruitful procedure in the past. Many participants have been here several times. A l l those who join us for the first time are especially welcomed. We sadly miss, of course, one particular participant of recent years, Richard Lillich , who died shortly after our last symposium - a very sad loss for all of us. The subject of this symposium is one that I like to call a prelude to the next conference of the German Society of International Law which will have the impact of globalization on the structure of public international law and international conflict of laws as its subject. We are convinced that international law is in a period of a very radical transformation. Witness to this is the rather antagonistic debate over whether international law still is an interstate legal order or is transforming to something else. Those who are convinced protagonists of sovereignty almost tautologically argue that, since international law is an interstate legal order, nobody else can have standing in this legal order, which certainly is, at a closer look, not in conformity with international realities, nor is it very convincing logically. We thought, as we have done in the previous three symposia since 1992,

* Prof. Dr. Jost Delbrück , Director of the Institute of International Law at the University of Kiel; Visiting Professor at the Indiana University School of Law, Bloomington.

14

Jost Delbrück

that we use the opportunity of this rather small but elite round to discuss the processes of transformation that are going on. Social science has given attention to the new actors in the international system for quite some time. However, the international legal science, particularly but not exclusively in Germany, has until recently tended to pay random or no attention to these new developments. O f course, the individual has attracted some attention as a potential or actual subject of international law - human rights protection has led to that development - , international organizations have by now a well established standing in international law. Now is non-governmental organizations (NGOs) and some other powerful players in the international system which need to be looked at from also an international legal point of view. The recent literature has produced a wealth of material and empirical data about the role of NGOs. There is hardly any piece of legislation, recommendation, or whatever done in the United Nations, especially in the Economic and Social Council, where NGOs have not had a heavy hand in influencing or even drafting some of these documents. We will hear more about this at this symposium. So I think it is very adequate that we are giving our attention to these new phenomena, and to the fact that international law is transforming into something like the legal order of international civil society. I think this is a challenging topic, and I hope that this elite group will have pleasure in addressing these things from a doctrinal and also from a practical point of view, since in the case of NGOs, particularly, we have a coincidence of practical relevance and doctrinal challenge. So I wish us all a fruitful meeting. My second task this morning is this: The 1998 symposium is mainly organized by Rainer Hofmann. It is a kind of business card that he is now handing out every one of you as the new co-director of this Institute. Thus, it is with pleasure that we can officially welcome you in our midst and also thank you very much for doing the hard work of organizing our meeting together with Institute's staff. Rainer Hofmann has joined us as of 1st April last year, but the process of becoming a part of this northern most German institution working on international law is not the easiest task for someone who has grown up in the south. But others before you coming from the south have taken roots up here and so will you. As the saying goes among Kiel University professors: they shed tears only twice - the first time when they come, the second time when they have to leave! Herr Hofmann , please, take over the chair for this morning's session.

Opening Address Rainer Hofmann* Excellencies, ladies and gentlemen, first of all, I should like to welcome all of you in Kiel. And, dear Professor Delbrück, thank you very much for this kind introduction. I am trying my best in achieving a good survival training in Kiel and you will be able to judge after this symposium, as a first part of that survival training, whether it is going to be a success or not. The topic of our symposium is, as you know, a twofold one, globalization and non-state actors as new subjects of public international law. Looking at the participants, we must admit that we have not quite succeeded in a globalization of participants due to some reasons I do not want to mention right here. But at least we have a North-Atlantic meeting here, it is Europe and North-America. As regards new actors, I think we have succeeded quite well, and that is so not only because of the fact that you, Professor Delbrück , referred to, namely the new co-director as a new actor in Kiel, but also in particular because of the very large number of persons who participate for the first time in this symposium. Obviously, I cannot mention all of you, but I should like to make one exception, and that is Judge Vereshchetin : not so much because you are a judge at the International Court of Justice, but because of the fact that you are known for your capacity in new thinking - I am referring, of course, to your famous article in the 1988 edition of the Gosudarstvo i Pravo , which, under the title New Thinking and International Law , sort of introduced new thinking to the then Soviet school of public international law. I am sure that this capacity in new thinking will assist us very much in our discussions. Thank you very much for having accepted our invitation! This is also an opportunity to express our gratitude to those who have made it possible that we are here. I am particularly glad that Dr. Schmidt representing the VolkswagenStiftung is among us. Something which is often forgotten among academics is the fact that without the financial basis supported by institutions like the one you represent all our intellectual thinking would be rather futile. Thanks very much to

'Professor Dr. Dr. Rainer Hofmann , Director of the Walther-Schücking-Institute of International Law at the University of Kiel.

16

Rainer Hofmann

you and also to the Deutsche Forschungsgemeinschaft! This is also an opportunity to thank two persons, Carmen Thies and Nils Geissler , who bore the largest part of the burden of organizing this symposium. Thank you! About the topic, Professor Delbrück has already said what had to be said. I might just add that someone who - like me - grew up in the 60s is obviously reminded of Bob Dylan's famous song „The times they are a-changing" and this is definitely also true as regards the present status of international law: it is characterized by the globalization of international law and the problems resulting therefrom which cannot be solved by the traditional actors. Over the years, there has been a growing number of non-state actors, starting with individuals - as you know, we are celebrating this year the 50th anniversary of the Universal Declaration of Human Rights, so this is already a rather old development - to which came later NGOs and para-governmental organizations, the revival of the discussion on group rights held by minorities, these are all subjects which are very much at hand right now. To some extent one might say that we are facing some kind of a marginalization of the traditional role of the state in public international law, at least that could be a thesis worth of discussing. Now my last remark: i f you look at the title of this symposium, you might see that there is no question mark. Of course, that does not mean that you may not add in the discussion a question mark, a question to the statement that there are non-state actors as new subjects of international law. To conclude, I want to thank in particular those four persons who have come to speak to us. Thank you very much for accepting this task!

Opening Address Ralf Stegner* Excellencies, ladies and gentlemen, I am honored to welcome you on behalf of the state government of SchleswigHolstein and especially Prime Minister Heide Simonis here in our guest-house in Kiel. Let me add that Professor Delbrück and Professor Hofmann deserve the credit for inviting you as high-level experts in the field of international law to this conference in Kiel. As participants of the symposium "International Law from the Traditional Interstate Order Towards the Law of the Global Community: New Non-State Actors as Subjects of International Law" - already the name sounds quite complicated - you are guests of the renowned Walther-Schücking-Institute of International Law at the Christian-Albrechts-University Kiel. It has been a long preparation effort before your arrival and hopefully you will be able not only to enjoy three interesting days of academic discussion and exchange but also the hospitality and beauty of Schleswig-Holstein and the city of Kiel. Especially, I want to welcome those of you who had a long way to get here and still made it in time before the symposium started. With this symposium the Walther-Schücking-Institute can look back on a 84-year-old history. It was in February 1914 when Theodor Niemeyer founded the Institute just a mile away from this guest-house in Kiel. Niemeyer was then successful with the acquisition of the private library of Franz Kahn and laid the foundations to the now more than 100.000 volume library of the Institute. He started the edition of periodicals for international law which has been a continuing tradition ever since. Niemeyer's interest in an international order of peace is documented in publications about the League of Nations and the edition of a handbook concerning disarmament problems. With regard to Jost Delbrücks edition of the "Peace Documents from five Centuries" in 1994 you can see that this is a living tradition at the Institute.

* State Secretary, Schleswig-Holstein state government. 2 Hofmann, R.

18

Ralf Stegner

Niemeyer was followed by Walther Schücking in 1926 until his dismissal by the Nazi government in 1933. The internationally renowned academic focused on international peace-keeping problems. Schiicking advocated an international jurisdiction as a means of preventing or settling conflicts between nations and consequently he was named judge at the Permanent International Court of Justice. Schiicking's successors followed that tradition, let me just name pars pro toto Hermann von Mangoldt , Rudolf von Laun and Eberhard Menzel. Finally, in 1976 Menzel was succeeded by Jost Delbrück who has led the Institute since. Delbrück not only continues to see after the publications of the Institute as a forum for monographies in international law but also for international conferences as the one that starts today. In 1997 Rainer Hofmann, who is particularly involved with minority rights, joined the Institute as its co-director and successor to Rüdiger Wolfrum. I have learned that this symposium - and I hope you excuse that this is not at all my field of knowledge - focuses especially on the ever stronger globalization process and its influence on international law. The international system obviously undergoes a structural change. After the classic period of sovereign states as the only actors in the field of international law, and the then following era of international institutionalized cooperation and international organizations, we have come to yet another period in the international law. While the 1992 and 1994 symposia dealt with the problems of enforcing international law, and the 1996 symposium focused on international legislation in the public interest, this year's conference mainly concerns the question, whether we have to deal with new subjects in international law. There is a growing importance of individuals and groups of people who influence international law in a way that until then was reserved to states or international organizations. Therefore it has become an interesting subject to analyze the rights and obligations of these groups and organizations in terms of the changes in international law. After the Second World War the legal status of the individual underwent a very important change since the basic human rights became to be understood as rights of the individual, thus the human being developed from the object of international law to its subject. Non-governmental organizations have gained importance in the field of international law. Very different ones like the Red Cross societies, Amnesty International, or Greenpeace to name just a few, have influenced the development of international law in many respects. Therefore, it is an interesting question, whether such non-governmental organizations should be seen as independent subjects of international law comparable with the status of nation states. Another important development is the fact that multinational companies enter into agreements

Opening Address

19

and contracts with states. Finally, we observe the phenomenon of para-governmental organizations as, for example, the ones that enforce the so-called Dayton agreement. Those entities are obviously different from the parties of the civil war. Given all of this, your symposium can add an important part to the current debate in international law and promote the academic discussion in a field that seems to be underrated in this country. Ladies and gentlemen, Winston Churchill , who himself was quite an impressive orator, once said that a good speech should exhaust the topic rather than those who listen to it. Of course, I was not able to achieve the first, thus I hope that at least I have not done the latter. Thanks for your patience and I hope you will have an interesting and successful symposium. Before that you should enjoy the commodities of this reception.

Legal Personality and the Role of Non-Governmental Organizations and Non-State Political Entities in the United Nations System Ruth Wedgwood* The reach o f international legal personality beyond the nation state is a formal question that may interest analytical lawyers more than legal sociologists. In whatever way one chooses to pose the question, nonetheless, the evolving role of non-governmental organizations (NGOs) and non-state political entities within the international system requires critical scrutiny 1 . In particular, one must judge whether giving voice and standing to these new actors w i l l help or hinder the primary tasks of the United Nations system in resolving internal and international conflicts, and enforcing human rights. Non-governmental organizations have, lately, been celebrated as the soil and seed for a new international civil society - to democratize the conversation about international matters beyond the sometimes self-regarding concerns of nation states. In an era when civil rights and democracy are regarded as fundamental, autocratic governments may seem unsatisfactory representatives o f their populations. And when transnational processes of the economy and movements of population often have their own tempo outside the control of governments, the pertinence of ambassadors and foreign offices may seem questionable. The entry of NGOs into international fora predates the U N system, of course. Foreign anti-slavery societies, conferences for world peace, and other gatherings of the flock have long competed with governments in seeking to claim legitimacy and to mobilize support. A t San Francisco in 1945, public minded associations pushed to have human rights included in the UN-Charter as one of the new organi-

* Professor of Law, Yale University, and Senior Fellow, Council on Foreign Relations; Stockton Professor of International Law, U.S. Naval War College, 1998-1999. 1 The topic has won new attention from foreign policy analysts and the popular press. See P. J. Simmons , Learning to Live with NGOs, Foreign Policy, vol. 112 (1998), 82; Jessica Mathews , Power Shift, Foreign Affairs, vol. 76 (1997), 50; Paul Lewis , Not Just Governments Make War or Peace, New York Times, 28 November 1998.

22

Ruth Wedgwood

zation's charged purposes. In Article 71 of the UN-Charter, NGOs were acknowledged as useful partners in the proceedings of the U N Economic and Social Council (ECOSOC) 2 , a role that may have seemed especially important at a time when the future preeminence of the Bretton Woods international financial institutions was not yet clear. "Consultative status" was available to properly qualified international NGOs, allowing them to attend ECOSOC proceedings, to place items on the agenda of the Council, and to submit written statements for official circulation. These privileges are also available in ECOSOC's subsidiary bodies, including the Commission on Sustainable Development, and the Commission on the Status of Women.3 Wariness of the nature of private associations - the acknowledgment that private power can be as problematic as public power - was built into the seminal ECOSOC resolution 1296. This framework resolution required that NGOs have a democratically adopted constitution and policy set through a "conference, congress or other representative body". The enigmatic role of money in politics, including international politics - that the free marketplace of ideas can be cornered when policy campaigns are bankrolled by interested parties - brought a matching prescription of financial transparency. Any financial donations and any government support of an NGO had to be revealed to ECOSOC's Committee on Non-Governmental Organizations. And a concern for the efficiency of ECOSOC (showing an early innocence, perhaps), brought the stricture that consultative arrangements should not "overburden the Council" or "transform it from a body for co-ordination of policy and action . . . into a general forum for discussion"4.

I. The New World of NGOs The number of NGOs engaged at the U N has grown exponentially. In 1948,41 NGOs had consultative status with ECOSOC; in 1968,377 NGOs; in 1998, 1350 NGOs have consultative status with ECOSOC.5 Another 1550 organizations are 2

Article 71 UN-Charter.

3

See generally Dianne Otto , Non-governmental Organizations in the United Nations System: The Emerging Role of International Civil Society, HRQ, vol. 18 (1996), 107. 4

Resolution 1296 of the Economic and Social Council of 23 May 1968, U N Doc. E/4548. This seminal resolution has been revisited by the Council on several occasions, see, e.g., ECOSOC resolution 1993/80 of 30 July 1993 and resolution 1996/31 of 25 July 1996. 5

Report of the Secretary-General, Arrangements and practices for the interaction ofNGOs in all activities of the United Nations system, General Assembly, 53rd session, UN Doc. A/53/170 of 10 July 1998, para. 2.

Legal Personality and the Role of Non-Governmental Organizations

23

associated with the U N Department of Public Information, with a right to receive U N documents and to enter its halls freely. The NGO role of intermediation may be bypassed in a new age of the Internet and web sites. But until recently, with little reporting of U N proceedings by the news media, and an archaic documents system that made U N business largely impenetrable, and a recondite political structure, the work of the U N has been opaque to most ordinary citizens. It was necessary to have a familiar at court to assure that interests, including public interests, were represented. The role of NGOs in following U N proceedings and expressing the views of sectors of the public was useful to all sides. NGOs have been important to the UN, both to member states and the Secretariat, as a way of mobilizing publics. The independent sources of legitimacy of many NGOs, in their affiliation with church groups, with widely-held political philosophies, or with public professions, and their grass roots structure, have allowed NGOs to summon public support for formal U N decisions and emerging proposals, complementing and challenging the direct voice of governments. In aid delivery, the NGOs have become an integral part of the U N administrative apparatus. The High Commissioner for Refugees and the Department of Humanitarian Affairs, for example, solicit financial support and aid packages from member governments, but much of their work on the ground is necessarily subcontracted to international and national NGOs. 6 In conflict situations, when national governments have been reluctant to deploy their civilian and military personnel, NGOs have remained in exceedingly dangerous conditions, sometimes in a formal arrangement with the United Nations, but often simply assisting ad hoc in the distribution of aid and organization of relief efforts 7. The key role of NGOs in the relief and refugee sector is shown in the new arrangements of the U N Emergency Relief Coordinator. The International Committee of the Red Cross, the International Federation of Red Cross and Red Crescent Societies, and three consortia of NGOs - InterAction, the International Council of Voluntary Agencies, and the Steering Committee for Humanitarian Response - serve with the heads of U N agencies such as the UN 6

See generally MarkDuffield , NGO Relief in War Zones: Toward an Analysis of the New Aid Paradigm, in: Thomas Weiss (ed.), Beyond UN Subcontracting: Task-Sharing with Regional Security Arrangements and Service-Providing NGOs, 1988. 7 The new Convention on the Safety of United Nations and Associated Personnel, UN Doc. A/RES/49/59, Annex, adopted by the General Assembly on 9 December 1994, does not protect private relief personnel unless their work is performed under formal contract with the United Nations. Some relief organizations have noted that such a formal link may be inconsistent with their necessary neutrality in thefield. See Antoine Bouvier , Convention on the Safety of UN and Associated Personnel: Presentation and Analysis, IRRC, 1995, 638, 655.

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Ruth Wedgwood

Development Programme, UNICEF, and the World Food Programme, on the U N Inter-Agency Standing Committee. This is the "central humanitarian policy-making body in the U N system"8. UNICEF, the U N Development Programme, and the World Food Programme also invite NGOs to attend and speak at agency executive board meetings.9 The new U N program to coordinate work on AIDS, the Joint Programme on HIV/AIDS, permits NGO representatives to serve on its coordinating board, together with the representatives of 22 member states, U N agencies, and people with H I V / A I D S . 1 0 In human rights monitoring, the role o f NGOs has also been central. 11 Groups such as the International Commission of Jurists, Amnesty International, the Lawyers Committee for Human Rights, and Human Rights Watch, have provided closeto-the-ground monitoring and reportage, with a single-mindedness and independence that few national governments can afford. Human rights groups have been willing to break through the stifling etiquette that inhibited governments from criticizing each other in formal proceedings. The era when countries could not be criticized by name in U N fora has passed, but the public reproof of countries by the U N Human Rights Commission still requires assembling the votes of government representatives, whose countries have many fish to fry. The NGOs provide a useful corrective to this trimming and tucking. As Felice Gaer notes, the ultimate tribute to the power of NGOs in the human rights monitoring process is reflected in the competition of violator countries for election to the Commission on Human Rights and the ECOSOC/NGO committee, seeking "to protect themselves from a negative vote and to reply to and often intimidate the non-governmental organisations" 12 . Formal consultative status has permitted NGOs to propose agenda items and submit statements to the U N Human Rights Commission, and its Subcommission on the Prevention o f Discrimination and the Protection of Minorities. 13 The Subcommission's Working Group on Indigenous Populations has extended the same privilege to many NGOs, largely consisting o f indigenous groups, even where they lack formal consultative status. Regionally, NGOs have been permitted to lodge com-

8 See Report of the Secretary-General, Arrangements and practices for the interaction of NGOs in all activities of the United Nations system (note 5), para. 36. 9 10

Idparas. Idpara.

17-20. 30.

11

See generally Felice D. Gaer , Reality Check: Human Rights NGOs Confront Governments at the UN, in: Thomas Weiss/Leon Gordenker (eds.), NGOs, the UN, and Global Governance, 1996, 51-66. 12 Id., 3. 13

See generally Dianne Otto (note 3).

Legal Personality and the Role of Non-Governmental Organizations

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plaints with the Inter-American Commission on Human Rights 14 , and have been able to provide legal and investigative assistance.15 Plainly, a premier contribution of human rights organizations has been their skill in bringing human rights complaints to public attention through the media, with investigative reports, public platforms for victims and dissidents, and cultivation of a public voice. In the norm-building exercises of international conferences and in treaty negotiations, the NGOs have gained perhaps their most prominent new role. The Women's Conference in Beijing, for example, defied the Chinese government's wish to diminish the influence of attending NGOs. Though the NGO meeting was held at a considerable distance from the states assembly, the impact on Chinese society was widely remarked. NGOs played a prominent role in the environmental negotiations at Rio, with a formal role preserved for future review conferences. 16 In the campaign against landmines, the NGO community is given credit for accelerating the political process, successfully seeking the transfer of negotiations from the U N Committee on Disarmament in Geneva to a convocation of "like-minded" states in Ottawa. This yielded a Treaty on Anti-Personnel Landmines in 199717, a signal achievement in so short a time, though a cautionary tale as well, since the negotiations failed to accommodate the expressed military needs of the United States in defending South Korea, and also failed to gain the adherence of landmine manufacturing countries such as the Russian Federation and China. NGOs were extraordinarily prominent at the Rome negotiations for a permanent International Criminal Court in June and July 1998, lobbying national delegations, and claiming to represent the sense of the meeting by keeping a tally of announced country positions on the treaty draft's difficult details (These tallies were important to the U N Conference Bureau in the formulation of the final treaty draft, presented for an up-or-down vote without amendment on the final day of the conference.). In the view of some, the Rome experience may show the solipsistic danger of a close relationship between NGOs and international personnel. Mutual agreement between 14 American Convention on Human Rights (Pact of San José), ILM, vol. 9 (1970), 673, Art. 44. For example, the human rights clinic of the University of Minnesota School of Law has prosecuted complaints concerning the practice of juvenile capital punishment before the Inter-American Commission. See generally Martin Olz, Non-Governmental Organizations in Regional Human Rights Systems, Colum. Human Rights L. Rev., vol. 28 (1997), 307. 15 Cecilia Medina Quiroga , The Battle of Human Rights. Gross, Systematic Violations and the Inter-American System, 1988. 16 Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, UN Doc. A/CONF.151/26, para. 27.4. 17 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on Their Destruction, ILM, vol. 36 (1997), 1507.

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NGOs and like-minded states, or between NGOs and secretariat officials, does not mean that a treaty w i l l reflect the real political forces necessary to its successful implementation (The contrast between Chile's vote in favor o f the International Criminal Court, and its reticence about the arrest of Pinochet , is one case in point). Nonetheless, it is indisputable that the tone and tenor of the Rome conference was in large part set by NGOs. In international adjudication, NGOs have also found an increasing role in providing information to the decision makers. The International Court of Justice (ICJ), designed to resolve state-to-state complaints, has not yet followed the practice of some other courts in permitting nonparties to advise as amicus curiae in contentious cases. But several of the judges have expressed private interest in the practice. In the recent case on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict 18, the Court refused a formal request for participation as amicus curiae by a non-governmental group (the Physicians for the Prevention of Nuclear War), yet the government of Zimbabwe included information from the International Committee on the Red Cross as part of its filing. Professor Shelton has argued that the ICJ is entitled within its existing statute and rules to allow amicus participation in such advisory cases19 (indeed the ICJ did so in the South-West Africa Case, though the N G O in question failed to file on time). Amicus filings in contentious cases would arguably require an amendment of the Court's rules. Amicus curiae , including NGOs, have been permitted to appear before the International Criminal Tribunal for the former Yugoslavia 20 , and have appeared before the European Court o f Justice 21 , the European Court o f Human Rights 22 , and the 18

1996 ICJ, 66 (Advisory Opinion of 8 July 1996). Dinah Shelton , The Participation of Non-Governmental Organizations in International Judicial Proceedings, AJIL, vol. 88 (1994), 611, 628. 20 See Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Dusko Tadica/k/a Dule , International Criminal Tribunal for the former Yugoslavia, IT-94-1-AR72, Appeals Chamber, 2 October 1995, Decision on the Objections of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, Prosecutor v. Blaskic, IT-95-14-PT, Trial Chamber II, 18 July 1997, reversed in part and affirmed in part in Judgment on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, Prosecutor v. Blaskic, IT-95-14-AR108 bis, Appeals Chamber, 2 October 1997. 21 See Protocol on the Statute of the Court of Justice of the European Economic Community of 17 April 1957, Art. 37, 298 UNTS 147, as amended by Council Decision 88/591, 1989 O. J. (C 215) 1; Shelton (note 19), 628. 22 See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS, No. 155 of 11 May 1994, Art. 36 (third-party intervention); Council of Europe: Explanatory Report and Protocol No. 11, ILM, vol. 33 (1993), 943; Andrew Drzemczewski/Jens Meyer-Ladewig, Principal Characteristics of the New ECHR Control Mechanism, as Established by Protocol 11, HRLJ, vol. 15 (1994), 81. 19

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Inter-American Court of Human Rights. 23 In the European Court of Justice, interveners have included trade associations such as the Federation of European Bearing Manufacturers Associations, as well as more classical "public interest" groups 24, a latitude that the U N system might bear in mind when U N activities come to affect commercial and industrial practices. Even in the Security Council's deliberations on international peace and security, NGOs have newly been permitted a role. The Council has traditionally been an opaque political organ, conducting its most delicate discussions in private (Indeed, some of the pressure to "democratize" the Council and to make it more representative of member countries has stemmed from the Council's discreet practices.). Yet on two recent occasions, to gather information and advice on the crisis in the Great Lakes region of Africa, the Council has engaged in consultations with NGOs. These were informally dubbed "Arria" consultations, after the former Permanent Representative of Venezuela who initiated the practice. Technically, the Council adjourned its session, and continued in an informal meeting. But parliamentary technique aside, the Security Council recognized that NGOs working in remote areas have a unique pool of information on local conditions and political currents. So, too, recent U N peacekeeping operations and U N force commanders have discovered that NGOs working in the area provide one of the few reliable sources of local intelligence concerning political conditions, refugee flows, and relief needs. Another unique security role for NGOs in the international system is evidenced in mediation work, in particular, mediation by the faith community of Saint Egidio in Mozambique. Saint Egidio ("Comunità di Sant'Egidio") had particular stature with the Renamo insurgents in the former Portuguese colony after many years of humanitarian work in the countryside, also because a widely-noted audience with insurgents against Portuguese colonial rule was held in the Vatican in the late 1960s. Their success in facilitating peace accords in the Mozambique conflict was notable. Saint Egidio has also attempted mediation in Algeria and in Albania. The informal political groupings of states that have been of assistance to the SecretaryGeneral in resolving civil conflicts - such as the Friends of the Secretary General for Haiti, El Salvador, and Georgia - may be mimicked in the future by non-state mediators that have equal standing with the warring parties. Non-government actors have also entered the field as military forces. One may decline to use the term NGO, for these actors are for-profit companies, solicited by state parties to strengthen their security. Operators such as Executive Outcomes and Sandline International have been involved in African conflicts including Namibia, 23 24

See Martin Olz (note 14), 359; Shelton (note 19). See Shelton (note 19), 628, n. 114.

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Sierra Leone, and Zaire, and are often paid through swap transactions involving mineral concessions.25 Military Professional Resources, Inc. (MPRI), was similarly recruited to train the Croatian forces for Operation Storm in 1995, helping to end the Bosnian war (though allowing a brutal swathe of Croatian ethnic cleansing in the Krajina). MPRI has also operated the "train and equip" program for the Federation armed forces in Bosnia, as part of the Dayton package. This privatization of the core security functions of the state is highly problematic, to be sure - it challenges international law's traditional strictures against mercenaries, and decouples any link between military strength and the popularity of a government. The private forces have not always been delicate in their methods, and lack the direct responsibility of a government under the Geneva system of humanitarian law. But they appear to be a new feature of a period in which the juridical state may not command loyalty among varied groups, and in which the limits of post-colonial state building have become evident. In theory, there is no reason why a third-party security function must be for profit. Volunteer forces could operate as well. The new importance of NGOs and actors is thus undeniable. Though NGOs do not enjoy the legal accouterments of states - they cannot sue in the ICJ , have no vote in the General Assembly, and do not enjoy the protections of territorial integrity and political sovereignty - and hence may not be said to have full legal personality, nonetheless NGOs are real actors in international systems, affecting outcomes, mobilizing publics, and constraining states.

II. Problems of NGOs The problems posed by the newly active role of NGOs are also apparent. First, NGOs lack the political legitimacy of the state itself. To be sure, states are often undemocratic and do not have to pass any minimum test of popular participation in government in order to take their seat in the General Assembly. The UN's most recent step toward reaffirming an international right to democracy was, unhappily,

25

See David Shearer , Outsourcing War, Foreign Policy , vol. 112 (1998), 68; Al J. Venter , Market Forces: How Hired Guns Succeeded Where the United Nations Failed, Jane's International Defense Review, 1998. Executive Outcomes advertises its services on the web to interested countries and clients, see http://www.eo.com/about/about.html. See also Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, UN Doc. E/CN.4/1996/ 27 of 17 January 1996, paras. 85, 96, 98.

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a rather timid document.26 But states do purport to speak for their whole population, even i f the method of measuring general will is deficient. NGOs, on the other hand, are avowedly limited membership organizations, in which policy may be set by a few people. The strength of an NGO's voice may not reflect a breadth of membership, but instead be amplified by the deep pockets of a few members. NGOs' direct political operations at the international level may also seem an evasion of the ordinary give-and-take of democratic national politics. Every position that an NGO espouses could be presented at the national level, seeking reflection and inclusion in the official positions of a state member of the UN. I f a particular minority group is systematically excluded from national political participation or lacks the strength to have its interests reflected 27, or i f there is a majority that has difficulty mobilizing politically (often observed of women because of their responsibilities in the family), the pursuit of a direct voice at the international level is more understandable. International voice provides a form of proportional representation, allowing small minorities and interest groups in many countries to aggregate their power to achieve effective influence. But the ground level challenge still remains: why shouldn't most NGO interests be mediated through the representation of the nation state? The theory of pluralism and interest group politics presumes that even when a group cannot succeed in electing its own member as a direct representative, it may succeed in tipping an election to favor the more moderate of majority candidates. Its interests may be represented indirectly. Certainly the enfranchisement of blacks in the American South in the last thirty years has given weight to this claim. The availability of direct participation in the international arena may distract some interest groups from focusing reasonable efforts towards the achievement of influence in national politics, preferring to bypass the more local forum. The "sheer number" 28 of NGOs is another reason for valuing the intermediation performed by nation states. The General Assembly is thought to be a less efficient body than the Security Council for crisis response by dint of its 185 members. Yet NGOs number in the thousands; any obligation to include them in deliberations, other than through a representational scheme, would pose obvious problems. 29 26

See Boutros Boutros-Ghali , An Agenda for Democratization, UN Doc. A/51/761 of 20 December 1996. 27 See John Hart Ely, Democracy and Distrust, 1980. 28 Report of the Secretary-General, Arrangements and practices for the interaction of NGOs in all activities of the United Nations system (note 5), para. 34. 29 The growth of representational government within the NGO sector itself is evidenced in the Secretary-General's optimistic remark that "By forming alliances, networks and caucuses, NGOs also demonstrated that their fast-growing numbers do not necessarily lead to increased logistical or political difficulties for the organizers of UN conferences." Id ., para. 58.

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The direct intervention of interest groups at the international level creates a puzzle on what decision rule should be employed. In matters requiring a vote of the General Assembly or Security Council, the nation state will continue to reign supreme, with votes tallied according to Charter requirements. But there are a great many discretionary decisions that rest with the Secretariat and specialized agencies. Many U N activities are funded through voluntary contributions and these can come from private sources. Private contributions may distort the choice of priority areas, and may even influence policy itself. Certainly in the operation of U N organs where the appearance of neutrality is essential, such as the international war crimes tribunals, the receipt of private monies is troublesome. And there are concerns voiced, from time to time, that NGOs may seek greater influence within U N councils by providing undue material consideration to delegations from member countries. The incompleteness of NGO representation of public society is also apparent when one sees which groups have chosen to take part in international proceedings. To be sure, industry and business took an active role at the U N Conference on the Environment at Rio and the chemical industry has been deeply involved in the implementation of the Chemical Weapons Convention. Groups such as the National Rifle Association and the American tobacco industry have become newly involved in a defensive posture in U N affairs as U N agencies have begun to entertain the idea of regulating small arms traffic and controlling the use of nicotine as a pharmacological agent. Still, the bulk of NGOs espouse positions that may be considered liberal rather than conservative. The requirement that NGOs enjoy nonprofit status may have favored, at least initially, the representation of certain points of view. In the politics of Washington and Brussels, industry groups understand the importance of making their views known through lobbying and informational meetings with legislators and administrators. But in the multilateral arena of the UN, conservative groups have more often relied on the celebration of national sovereignty as a premier means of resisting U N actions, rather than attempting to enter interest group politics at the international level. U N delegations and Secretariat personnel must understand the truncated nature of the representation provided by NGO activity - that the voices of civil society at the international level are incomplete, and typically give little weight to the private market sector. Southern countries have also complained that NGO representation favors the North. Available financing for NGOs is more common in the industrialized economies of the North, rather than the developing economies and emerging markets of the South. Just as the South has complained of the practice of using "seconded" personnel within the UN, to help the organization carry out such critical functions as planning for peacekeeping operations, because such personnel come predomi-

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nantly from developed nations, so too the South entertains a suspicion that its voice is inadequately heard through NGOs not indigenous to the region. There are, as well, NGOs supported by government funds, directly or indirectly. Though this support is subject to disclosure in NGO filings with the Economic and Social Council, a so-called "Quango" (quasi-autonomous non-governmental organization) may appear to multiply the influence of a single nation in the UN's deliberations. Certainly, in the dissemination of information to influence debate, NGOs have wielded a power that dwarfs some nation states. Many First World NGOs are highly skilled in the use of the media and in the techniques of building a grass roots campaign to influence public opinion. The attractive aims of these campaigns may justify overlooking the question of appropriate influence. But one has to worry when the net effect of a campaign is to propound standards that nation states have no intention of observing. International law's crab-wise progress has depended on maintaining a strong link between aspirational norms and the actual behavior of states, especially states with a stake in the subject matter. This state compliance is part of legitimacy, evidencing state consent, and of relevance, allowing international law to describe the international community as it is, rather than as a political philosopher would have it be. In recent multilateral negotiations, such as the treaty banning anti-personnel land mines, reached at Ottawa, or the Rome statute for a permanent criminal court, some would argue that the prominence of NGO voices distracted a number of "likeminded" governments from paying sufficient heed to useful compromises to bring along other key national actors, such as the United States, Russia, and China at Ottawa, and the United States and China at Rome. NGOs may create an inward turn, in which it is forgotten that a multilateral negotiation is designed to engineer a compromise among states, rather than a perfect product that lacks widespread adherence. The emergence of the caucus of so-called "like-minded" states has brought this problem to the fore. Vocal support by international NGOs has at times seemed to distract the like-minded from the desirable task of gaining large power adherence. Another question about NGOs is accountability - whether they should be bound by the same principles of legal responsibility and financial liability that attach to nation states. One example mentioned in the literature is the boycott campaign conducted by Greenpeace against Royal Dutch Shell when the oil company proposed to scuttle an oil rig on the floor of the North Sea. The consumer boycott was highly effective, reducing Shell's sales in Germany by 30 percent, and Royal Dutch Shell abandoned the Brent Spar rig scuttling, even though Shell had received the neces-

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sary approvals from national and international agencies. Such a boycott might give rise to financial responsibility on the part of a state, Professor Spiro has suggested, but an NGO such as Greenpeace lacks any direct responsibility under international law 3 0 (Any potential responsibility under national law faces limitations of the prescriptive and adjudicative jurisdiction of national courts.). Without international personality, NGOs may avoid any adequate schema of responsibility. So, too, when NGOs are used for program implementation by the UN, such as by UNHCR, methods o f assuring their financial responsibility remain important. Recent criticism o f the relief operations of UNHCR has centered on the question whether monies distributed through some African NGOs were well spent or distributed through African NGOs were well spent or not. 31

I I I . The Future of NGOs Despite these questions of legitimacy, it is hard to deny the function of NGOs in helping the arguably archaic structure of the U N adapt to a changed international system. In a time when the nation-state is less relevant to international transactions, NGOs help to create a reasonable isomorphism between the structure of formal international organizations, and the real actors in international politics. The state is no longer able to control the information received by its population, with the exception of a few autarkic countries such as North Korea. The state is no longer in effective control of the economy, facing the attractions and the debilities o f opening itself to global investment. So, too, the state is facing a competition for legitimacy and the loyalty of its citizens, with the re-emergence of substate actors such as 30 See Peter Spiro , New Players on the International Stage, in: James E. HickeyJr. (ed.), International Legal Personality, Hofstra Law & Policy Symposium, vol. 2 (1997), 26-27,34. 31 See Jimmy Burns/Frances Williams, Refugees' agency lost in wilderness of bungling and waste, Financial Times, 29 July 1998: less than 50 percent of required audit certificates for 1995 received from NGOs for "necessary assurance about the propriety of the expenditure"; Letter to the Editor from Soren Jessen-Petersen, Assistant High Commissioner for Refugees, Financial Times, 30 July 1998; and related articles in Financial Times, 1,3,4, and 7 August 1998. The Secretary-General voiced a more general concern to an annual conference of NGOs at the United Nations, see Secretary-General Calls for New United Nations-NGO Partnership Amidst Ongoing Human Rights Revolution, UN Press Release SG/SM/ 6697, PI/1079, 14 September 1998: "We are convinced that there are no limits to what a strong civil society can achieve in partnership with governments. But that is why I am so troubled when the NGO idea is abused; when NGOs are established to procure funding and nothing more; or when NGOs are used as fronts claiming to be one thing when, in fact they are another . . . it may be time for NGOs to consider ways to protect your own invaluable franchise."

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ethnic groups and nations that demand autonomy or even independence. The stateto-state system of representation created at the U N thus no longer reflects many of the most powerful determinants of international and internal conflict. The NGO system allows some mitigation of this inadequacy, as interests other than those of the state can make themselves known. So, too, with the undemocratic structure of many U N members, it is attractive to allow dissentient and minority groups another bite at the apple, making their case directly when official diplomatic representatives will not deign to pass along their views. The UN-Charter's preamble speaks of the representation of "peoples" of the world, and a voice for many indigenous minorities can only be obtained bypassing the formal seating of state delegations. Special rapporteurs appointed by the Commission on Human Rights and the Secretary-General can help fill out the portfolio of interests in other ways; for example, there is a special rapporteur for internally displaced persons - a group that cannot expect to wield much direct political power. NGOs also speak, i f only indirectly, for groups that lack national voice, and help to cure the representational inadequacies of an inter-governmental organization. In a political system that still has some faith in "scientism" - use of expert knowledge to aid the resolution of problems - the NGOs will retain a role as well. Whether in environment, regulation of hazardous substances, refugee flows, or small arms control, national governments may be goaded by parochial interests. The availability of expert information from NGOs can supplement the record that governments provide, and bolster the assurance of objectivity. Finally, NGOs provide international organizations with a political opportunity that is as old as it is effective - the ability to appeal to ordinary people over the heads of government. There may be times when most governments fail to represent the preferences of their populations. The schemes of the Progressive era in American politics, the notion that elected representatives should be subject to check by referendum, recall, or direct instruction, can be mimicked through the use of NGOs. The mobilization of interested citizens through NGOs can give international organizations the chance to create their own constituency, and allow them to show national governments that popularity can subsist with internationalism.

IV. The Role of Non-State Political Entities Substate political units have gained a new importance in international organizations since the end of the Cold War. With the outbreak of civil conflicts, the Security Council has felt compelled to address its decisions on peace and security to the real combatants on the ground, including insurgent forces such as the F M L N 3 Hofmann, R.

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in El Salvador 32, the PDK in Cambodia33, UNITA in Angola 34 , and "local Serb authorities" in Bosnia. 35 So, too, in the Dayton Peace Accord, the international community created new governmental entities close to nineteenth century forms of demi-sovereignty. The peace settlement recognized the Muslim-Croat Federation and the breakaway Bosnian Serb polity, Republika Srpska, as so-called "Entities" (a solecism whose Serbo-Croatian equivalent was not agreed upon at Dayton), each enjoying its own police force and army, and its own educational system, self-governing except for required deference to a national parliament and presidency on issues of foreign relations, national security, and national economic policy. The absence of any formal international personality for these entities can be troublesome. It has created problems in aid distribution. For example, aid to Republika Srpska from the World Bank and the International Monetary Fund has to be distributed through a sovereign state, the overall national government of Bosnia and Herzegovina, which has not been functioning except when it is pushed by the international community's High Representative. Republika Srpska is not permitted to take direct international responsibility for a loan even though its credit is at stake in making repayments. So, too, the distrust of the national government has led the Bosnian entities to pursue their own foreign policy interests through "special parallel relationships" with Croatia and the Federal Republic of Yugoslavia - creating an ethnic "near-abroad" and challenging the multi-ethnic ambition of Bosnia and Herzegovina. Direct international personality, at least in limited ways, might avoid the entities' crippling dependence on the international voices of more awesome neighbors. Non-state political entities have also not shared the direct responsibility of governments under the conventions of humanitarian law. Although individual actors who commit grave breaches can and must be arrested by the territorial sovereign, the non-state political entity functioning as a local government may avoid direct international financial responsibility, even where it has instigated the acts. The effective observance of international humanitarian law in a conflict may also require backdoor negotiation i f the warring parties include an insurgent or belligerent that has succeeded in displacing the international sovereign. 32

S/RES/888 of 30 November 1993, urging government of El Salvador and the Frente Farabundo Marti para la Liberación Nacional (FMLN) "to prevent political violence and accelerate compliance" with the peace accords. 33 S/RES/792 of 30 November 1992, "[c]ondemn[ing] the failure by the PDK to comply with its obligations" under the peace plan). 34 S/RES/1045 of 8 February 1996, urging Government of Angola and UNITA to maintain ceasefire and conclude talks on integration of armed forces. 35 S/RES/981 of 31 March 1995.

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The invisibility of non-state political entities within the international legal system was designed, of course, to allow each nation state the latitude to decide for itself how to implement its international obligations. But the insulation of such entities from direct international responsibility may also encourage a behavior that takes international law lightly. In the United States, for example, Virginia declined to delay the execution of a Paraguayan defendant named Breará , despite an admitted violation of the Vienna Convention on Consular Relations in the failure to notify the Paraguayan consul of Breará' s arrest for murder. The ICJ ordered as a provisional measure that the United States "should take all measures at its disposal" to assure that the execution was delayed until a decision on the merits of the treaty claim. 36 The Secretary of State requested Virginia to delay the execution, but the U.S. Solicitor General took the position in the Supreme Court that there was no direct power to order Virginia to do so. 37 Within a system of federalism, such incomplete power in the national government creates the possibility of unconstrained action - a subnational state can act without considering the question of financial responsibility. A lack of international legal personality on the part of substate political entities thus can detract from compliance with international law. On the other hand, there is an argument that allowing direct international address to substate entities may, at times, make it harder to solve civil conflicts. In the former Soviet Republic of Georgia, for example, there is a long-standing conflict between Tblisi and Sukhumi over the status of the Abkhaz region in the north. The Abkhaz consider themselves a distinct people, but enjoyed independence only for a brief period following the Russian Revolution, making do thereafter with an "autonomous republic" within Georgia. In 1991, after the rupture of the Soviet Union, the Abkhaz declared their independence, and despite a population that is too small to be viable and the fierce fighting and embargoes that have shut down the economy, they have declined to return to any form of union. Though the wrongs and rights of the dispute are hard to untangle, one could argue that Abkhaz resistance to settlement is strengthened, rather than weakened, by the attention they have received from the international community, with a Special Representative of the Secretary-General present in the area, and U N Military Observers. An Abkhaz political representative who was fluent on the Internet went so far as to set up a home page for the "Permanent Representative of Akhazia to the United Nations" - using self-help to claim a formal international personality. It is an empirical question whether international presence is likelier to salve or exacerbate civil war 36

Case concerning the Vienna Convention on Consular Relations (Paraguay v. United States), 1998 ICJ, Provisional Measures Order of 9 April 1998. 37

See Agora: Breará, AJIL, vol. 92 (1998), 666^712.

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conflicts, but one should at least consider the possibility that international address to insurgents may delegitimize the current national government and give new confidence to the rebel group. Certainly in bilateral diplomacy, direct address to insurgent groups by foreign diplomats is seen as derisive of the authority of the existing government. Though the U N Security Council and Secretary General have a broad security responsibility, it needs to be carefully considered each time whether addressing the insurgent groups may create an undesirable form of moral equivalency.

V. Conclusion The matter of international legal personality is best not answered as a formal question. We can easily agree that NGOs and non-state political entities do not enjoy the full panoply of rights and responsibilities of nation states. But the interesting inquiry, each time, is whether according rights of participation and address, or imposing some limited form of direct responsibility for non-state actors in the international community will usefully increase the capacity to resolve conflicts and enforce standards of human security. The test for the "privatization" of the international legal order must be a functional one. In the case of non-governmental organizations, their role has been seen as beneficial and creative, subject to suitable cautions. In the case of non-state political entities, the international community has treated with them from necessity where the nation state did not have full control of its own domain, but it remains to be seen whether these political imperatives may require a more formal status outside the state orientation of the Westphalian system.

The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State Daniel Thürer* In recent years, the international system and, as a consequence, the system of international law has changed considerably due to the emergence and activities of various non-state actors such as non governmental organizations (NGOs) and transnational enterprises . These new global and transnational entities may not yet have reached the stage of being fully fledged subjects of international law, but they certainly contribute to creating a "social milieu" or "ambiance" {Dietrich Schindler sen.)1 in international life out of which new legal structures and entities may grow. The international system has therefore been given new functions with which it has to deal. With the changing nature of the international legal order, the role of states has been transformed and is still being transformed. Has it declined under the pressure of events? Or have states, in this whole process of evolution, rather gained in weight and profile as the "trustees" of those tasks which are inherent in the concept of statehood under modern international law? These are the questions I would like to deal with in this essay. Given the sweeping nature of our theme I have chosen to divide our subject up into the following three parts. First, it would be useful to define the concept of the state in modern international law in order to set a frame of reference against which its supposedly "changing role" can be measured. Second, we shall deal with the emergence of new transnational or global legal entities - i. e., NGOs and transnational enterprises which, it is submitted, represent the main factors and forces which are leading to the changing nature of states. Thirdly, an attempt is made to evaluate this new situation from the perspective of present international law and to inquire i f and in what manner the international legal order needs to be reconceived, redefined or reshaped in light of the abovementioned developments.

* Professor of Law, University of Zurich, Switzerland. I thank Ms Marie-Ursula Kind, lic.iur., LL.M. (Cambridge), Attorney-at-Law, for her very valuable assistance. {

Dietrich Schindler sen., Verfassungsrecht und soziale Struktur, 5th. ed., 1970,92 et seq.

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A. The Notion and Shape of Statehood in Modern International L a w We shall start our considerations with the question as to what sovereign statehood means in public international law. In approaching this problem I shall make some remarks concerning the nature and notion of the sovereign state as a concept of modern international law and then add some observations concerning two basic changes of or inroads into the traditional inter-state system of international law. I shall then try, in the light of this evaluation, to restate our problem. I. The Changing Notion of Sovereign Statehood What is meant - as the basic concept on which my following analysis is based - by sovereign statehood? Traditionally, sovereignty has been stated as meaning the special quality a state has as the highest authority under international law within the territorial limits of its jurisdiction. However, this purely formal qualification of statehood does not satisfy the inspirations, tendencies and conceptions of modern international law. Considering the evolution and integration of the international legal order, sovereignty cannot just mean the final, superior decision-making power ("Höchstmächtigkeit" or "letzte Entscheidungsgewalt") under international law. It also implies, as convincingly put by Jörg Paul Müller 2, the idea that a state is a political community which is invested with the effective power to grant, to realize and to implement certain basic values inherent in the principle of the "rule of law" understood in a substantive sense. In support of this thesis is the opinion of Max Huber , who stated already in 1928 in his arbitral award in the Palmas Case: Territorial sovereignty cannot limit itself to its negative side, i. e., to excluding the activities of other states; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum protection of which international law is the guardian. 3 2

Jörg Paul Müller , Wandel des Souveränitätsbegriffs im Lichte der Grundrechte - dargestellt am Beispiel von Entwicklungen des internationalen Menschenrechtsschutzes auf die schweizerische Rechtsordnung, in: René Rhinow!Stephan Breitenmoser ¡Bernhard Ehrenzeller (eds.), Fragen des internationalen und nationalen Menschenrechtsschutzes (Bibliothek zur Zeitschrift für Schweizerisches Recht/Beiheft 25), 1997, 45, 61 et seq. 3

Quoted by Müller , id., 62. As a general perspective see also Jost Delbrück , Die Konstitution des Friedens als Rechtsordnung, 1996, 192 et seq., 275 et seq., 319 et seq.-, Stephan Hobe, Statehood at the End of the 20th Century - The Model of the "Open State" : The German Perspective, Austrian Review of International and European Law, 1997, 127 et seq.

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Thus, the basic idea which provides the foundation for our analysis and evaluation of the globalizing evolution of the international system is that due to its purpose and because of its very nature state sovereignty represents a value-laden notion. It does in fact, as a concept of present-day international law imply the capacity to realize human rights and other basic values recognized by the international community. 4

II. The Changing "Shape" of Sovereign Statehood Two further observations of a rather theoretical character should be added, before coming to grips with the question i f and to what degree the role of states has been transformed under the impact of new non-state actors such as NGOs and transnational enterprises. It is not the normative substance of the concept of states which is concerned here but rather the function as well as the extent of the power which states exercise in a rapidly changing - i.e., integrating and at the same time shrinking - public international system. The first consideration may be labeled the "federalizing trend" of international law, while the second refers to a shift of power from the system of public order to the realm of private actors and is generally dealt with under the heading of "globalization". By the "federalizing tendency" or "paradigm", which has been so well described by Christoph Schreuer 5,1 am referring to a move within the international order towards a greater diversity of participants. Nowadays international law is to a diminishing extent state-centered. Power within the international system becomes more and more diffused into two directions. On the one hand a number of state constitutions concede limited authority to sub-state entities to regulate certain matters with other states or subdivisions of states across national boundaries 6; on the other hand, international institutions are becoming, to an ever growing extent, actors in their own right, exercising a certain measure of authority, and must, in so far, be seen as highly relevant members of the international community. Both trends are confined to the sphere of public authority and are, within this domain, opening up the state monopoly of public power in order to include additional 4

In this sense Müller, id. Christoph Schreuer , The Warning of the Sovereign State: Towards a New Paradigm for International Law, EJIL, 1993, 447 et seq. 6 See, e. g., Daniel Thürer, Föderalismus und Regionalismus in der schweizerischen Aussenpolitik: Zum Verhältnis von Bundeskompetenzen und kantonalen Kompetenzen unter veränderten Umständen, Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht, 1992, 49 et seq. 5

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groups of subjects of international law within a "vertical" structure. They are thus conducive to a diversification and pluralization of the international legal system. On the "horizontal" plane the paradigm of " globalization " has emerged which has been described by Jost Delbrück 7 and Alfred C. Aman 8 as well as Stephan Hobe9 in a most illuminating way. According to this trend, the state system has been gradually transformed in the sense that states - in accordance with EC-law, WTO/GATT-law and other international regimes, or on the basis of unilateral arrangements of national law - have gradually delegated or relinquished parts of their functions to private, societal actors. I am referring here to large-scale measures of de-regulation which have been taking place in a most dramatic fashion not only within former communist states but also within western-type liberal democracies. A consequence of this has been the rapid growth of an internationally highly integrated private economic sector: a movement driven and shaped mostly by powerful multinational enterprises. "Federalization" has thus been followed by "globalization" as a second inroad into the traditional inter-state system and new paradigm of international order.

I I I . Problem Restated Thus, the question to be dealt with in this essay, in examining the changes brought about by new global and transnational actors, has a double character: - In conceiving the state as a normative concept, namely as a legal entity designed to realize basic values of justice and the "rule of law" (i. e., as a "communauté de droit" 10 ), we should inquire in what sense and to what degree do non-state actors in fact enhance, strengthen and enable states to realize their proper function in the face of pressure from opposing forces, or the failing will of state authorities to fulfil their proper tasks as legitimizing agencies within the overall international system. 7 Jost Delbrück , Globalization of Law, Politics, and Markets - Implications for Domestic Law: A European Perspective, IJGLS 1993, 9 et seq.; id., The Role of the United Nations in Dealing With Global Problems, IJGLS, 1997, 277 et seq. 8

Alfred C. Aman Jr., The Globalizing State: A Future-Oriented Perspective on the Public/Private Distinction, Federalism and Democracy (Manuscript). 9

See Stephan Hobe's contribution in this volume.

10

This term coined by the European Court of Justice in order to characterize the European Community might well be used to define the concept of State sovereignty in modern international law (Case 294/83, Les Verts (Parti écologiste "Les Verts" v. European Parliament), judgment of 23 April 1986, [1986] ECR 1365).

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- Does and to what degree does the international community have to step into the vacuum of the "rule of law" and of "public order" which has been created both by the processes of privatization and by the fact that some individual states are incapable of exercising public control because of a fragmentation or collapse of their internal order?

B. Emergence of New Transnational or Global Entities Having defined sovereign statehood as the frame of reference for our considerations, we now turn to the question whether the emergence of new transnational (global) entities lead to a decline or otherwise affect the role of states. In dealing with these new challenges I shall concentrate on two types of actors: NGOs and transnational enterprises. I am quite aware that they do not cover the whole spectrum of the relevant phenomena which emanate from the "grey zone" between international and domestic law. However, I think that their selection enables us to obtain a more or less representative picture of the broader questions raised concerning law, facts and values.

I. Non-Governmental Organizations 7. General development NGOs are an important feature of modern international life. With a wide diversity of purpose and structure they perform their activities in fields such as human rights, humanitarian action, environmental protection, women's rights or consumer protection and thus give color and shape to issues of international relations. Historically, NGOs are a typical product of Western civilization, often displaying a somewhat missionary character. One of the first examples of what we nowadays regard as NGOs were the associations set up in the 17th and 18th centuries to promote the abolition of the slave trade and eventually of slavery itself. 11 The year 1863 then saw the establishment of the Red Cross Movement which developed out of the "Société d'utilité publique" in the Protestant city of Geneva. Since then a multitude of NGOs have emerged, some of which are still flourishing today. 11 In this sense see the especially valuable analysis of Peter Macalister-Smith , NonGovernmental Organizations, Humanitarian Action and Human Rights, in: Ulrich Beyerlin/Michael Bothe/Rainer Hofmann/Ernst-Ulrich Petersmann (eds.), Recht zwischen Umbruch und Bewahrung - Festschrift für Rudolf Bernhardt, 1995, 483.

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However, it is only in recent times that NGOs have appeared as a salient phenomenon in world-wide policy-making and execution. Three factors and stages might, according to the pertinent analysis of Leon Gordenker and Thomas G. Weiss 12, be distinguished in this process of growth: - First, the political environment during the Cold War should be mentioned as being a powerful factor in shaping and facilitating the rise and influence of NGOs. Within range of the powerful Soviet empire they emerged as the conscience and visible manifestations of an awakening "civil society" claiming its rights for political, cultural and economic freedom. In this context NGOs played their role initially behind the diplomatic scenes dominated by states and the United Nations. But undoubtedly they were a most effective force in paving the way for glasnost, perestroika and finally for the break-down of the communist regime. After its collapse and dismantlement, they also effectively contributed to the building up of democratic and free-market institutions. - A second factor conditioning the growing influence of NGOs was a gradual shift in post Cold War international relations from "high politics" to "low politics". As long as matters such as security, particularly over nuclear issues, preoccupied the international actors, NGOs were at a comparative disadvantage. But as soon as issues such as human rights, environmental protection or women's rights began to dominate the international agenda, NGOs active in these fields gradually succeeded in gaining direct access to policy makers and making their voices heard. - Finally, developments in information technology should be put forward as being a possibly general, but a very powerful explanation for the increasing prominence of NGOs in international life. Throughout history governments have frequently succeeded in monopolizing information or in effectively preventing transborder communication but this capacity of state power is nowadays being gradually eroded. The flow of information through Internet and fax communications cannot be inhibited and NGOs enjoy full freedom to interact and network without state control. This newly emerging scene of world public opinion-making has been well described in the following words by Leon Gordenker and Thomas G. Weiss : "Electronic means", they observe, "have literally made it possible to ignore borders and to create the kinds of communities based on common values and objectives that were once almost the exclusive prerogative of nationalism.

12

Leon Gordenker I Thomas G. Weiss , Pluralizing Global Governance: Analytical Approaches and Dimensions, in: Thomas G. Weiss and Leon Gordenker (eds.), NGOs the UN, and Global Governance, 1997, 24 et seq.

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Modern communications technology is independent of territory. 'By providing institutional homes in the same way that states have accommodated nationalism', one author suggests, 'NGOs are the inevitable beneficiaries of the emergence of the new global communities'. 'Consequently', as another study claims, 'global social change organizations may represent a unique social invention of the postmodern, postindustrial, information-rich and service-focused, globally-linked world system'."13

2. Definition and Phenomenological Description NGOs encompass a wide diversity of organizations, social movements and pressure groups which are active in fields of public concern. They can be classified according to different criteria such as size, aims, statutes, structure, membership, geographical reach of activity or methods and means of action. 14 Legally they have according to the definition of Peter Macalister-Smith - the following three elements in common: 1. They are, as their name indicates, not established by a government nor by an intergovernmental agreement; 2. they are typically private institutions: associations, foundations, federations or other unions founded on the basis and under the regime of the private law of a state; 3. the concerns, purposes and objects of NGOs are, in contrast to their origins, of a public nature. 15 Some NGOs act on the international plane while others limit their actions to the internal domain of a state. As far as the international NGOs are concerned, they are not, unlike international organizations, generally recognised as subjects of 13

Gordenker/Weiss (note 12), 25. See the phenomenological survey of Henry J. Steiner, Diverse Partners - Non Governmental Organizations in the Human Rights Movement, 1991; Yves Beigbeder, Le rôle international des organizations non-gouvernementales, 1992; Elmar Altvater/Achim Brunnengräberl Markus Haake/Heike Walk (eds.), Vernetzt und Verstrickt - Nicht-Regierungs-Organisationen als gesellschaftliche Produktivkraft, 1997; Florian T. Furtak, Nichtstaatliche Akteure in den internationalen Beziehungen, 1997; Theo C. van Boven/Cees Flinterman/Fred Grünfeld/Rita Hut (eds.), The Legitimacy of United Nations: Towards an Enhanced Legal Status of Non-State Actors; Jackie Smith / Ron Pagnuccof George A. Lopez, Globalizing Human Rights: The Work of Transnational Human Rights NGOs in the 1990s, HRQ, vol. 20, 379 et seq. Among the large number of publications concerning specific 14

fields of action see e. g., Oran R. Young!George J. Demko/Kilaparti

Ramakrishna (ed.),

Global Environmental Change and International Governance, 1996. 15 In this sense Macalister-Smith, op.cit., All, 480 f.; Jürgen Schramm (ed.), The role of Non-Governmental Organizations in the new European Order, 1995.

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international law. Therefore, as a general rule, NGOs and their personnel do not benefit from the special privileges, standing, facilities or immunities under international law which may be accorded to intergovernmental organizations. 16 However, such special treatment may be granted to NGOs as parties or beneficiaries of specific international instruments. 17 The broadest acknowledgment of the existence and formal standing of the non-governmental sector as a whole was included in Article 71 of the UN-Charter which enables the Economic and Social Council to consult with NGOs which are concerned with matters within its competence.18 NGOs serve different functions. They may: -

-

collect information on the spot, i. e., bring to light facts and material concerning disputed, controversial or desperate situations which would otherwise be neglected or forgotten by public opinion; report to bodies within intergovernmental mechanisms for consultation and or supervision; plead and advocate, lobby and monitor, mobilize or educate public opinion; aim at holding states accountable to honor commitments they have accepted under international law; undertake field activities and render services, for instance in the course of the implementation of aid programs;

16 A special status is recognized, under international law, to the International Committee of the Red Cross (ICRC). This institution forms part of the Red Cross Movement which also embraces, as further components, the National Red Cross Societies, the Federation of National Red Cross Societies and the International Red Cross Conference. The Red Cross Movement thus represents in our international system a somewhat old-fashioned, but at the same time (post-)modern, framework and instrument of states and forces of international civil society for humanitarian action. Among the different components of the Red Cross Movement only the ICRC is recognized as a subject of international law. For further details see Denise Bindschedler-Robert, Red Cross, in: Rudolf Bernhardt {tá.), EPIL, vol. 5 (1983), 248 et seq. ; François Bugnion , Le Comité International de la Croix-Rouge et la protection des victimes de la guerre, 1994; Christian Dominici , La Personnalité juridique internationale du CICR, in: Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l'honneur de Jean Pictet, 1984, 663 et seq.\ Paul Reuter, La personnalité juridique internationale du Comité International de la Croix-Rouge, op.cit., 783 et seq. 17 18

See Macal ister-Smith, op.cit ., 487/88.

See, as an elaboration of Article 71 of the UN-Charter, Resolution 1996/31 concerning "consultative relationship between the United Nations and non-governmental organizations", adopted by the Economic and Social Council at its 49th plenary meeting on 25 July 1996 (replaces Resolution 1296/44 adopted by the Economic and Social Council on 23 May 1968).

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- promote the development and elaboration of standards and principles in various fields of social behavior. The modus operandi adopted by NGOs may be characterized by "activist" methods used when appealing to the public at large through the mass media ("mobilization of shame") or by a more cautious approach in the form of confidential dialogues with the responsible authorities.

3. Evaluation I f we now try in a few words to evaluate the impact of international NGOs on international life, we easily see that they exceed by far the informal status accorded to them in international instruments. Undoubtedly, the most prominent NGOs represent a driving and shaping force of progress in today's international political life: - by influencing the agendas of international organs and World Conferences, as was powerfully demonstrated at the Rio Conference on Global Environment (1992), the World Conference on Human Rights in Vienna (1993), the Habitat Conference in Cairo (1994), the Social Summit in Copenhagen (1995) and the World Women's Conference in Beijing (1995); - by devising new international instruments such as, most recently, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonal Mines and on their destruction 19, or the Statute of the International Criminal Court 20 ; - by providing expert knowledge, e. g., in the human rights field 21 ; - by monitoring the implementation of international law 22 and guiding political principles; - and by realizing a great variety of projects "in the field". 19

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and on their destruction of 18 September 1997, ILM, vol. 36 (1997), 1507. 20 Rome Statute of the International Criminal Court of 17 July 1998, UN A/CONF. 183/9. 21 E. g., inducing 1503- and 123 5-procedures before the UN-Human Rights Commission. See Karl Wolfram , Stille Diplomatie oder Publizität? - Überlegungen zum effektiven Schutz der Menschenrechte, in: Eckart Klein (ed.), Stille Diplomatie oder Publizität?, 1996, 40 et seq.; Dinah Shelton, The Participation ofNon-Governmental Organizations in International Judicial Proceedings, AJIL, vol. 88 (1994), 611 et seq. 22 See e. g., Agenda 21, adopted at the UN Conference on Environment and Development on 13 June 1992.

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From a substantiative perspective, the efforts of NGOs in transferring democratic principles from the domain of state constitutional law to the field of international politics are of fundamental importance. The former U N Secretary-General Boutros-Boutros Ghali rightly observed that NGOs have become "a basic form of popular participation and representation in the present-day world." 2 3 O f course, NGOs themselves are not necessarily democratically organized, since elections are infrequent within NGOs. However, on the whole and given the variety of philosophies and policies which they reflect and shape, they seem, although perhaps not always accurately, to be highly representative of world public opinion in political life. As "grass-roots" or "bare feet" movements they help to bring the values of civil society and the voice of the citizen to bear. As non-state entities, NGOs introduce an independent stance into the international arena. And, by reminding states to fulfil their obligations entered into under international law, NGOs could often be said to express the juridicial conscience of the international community. Thus, NGOs strengthen states by enhancing the "rule of law" and democracy (described at the outset as being elements inherent in the notion of the state in international law) in situations where state organs or agencies fail to fulfil their essential functions and, in exceptional situations, even by acting as the surrogates of state officials where state institutions have broken down. 24 Thus, as a general rule, NGOs support states in carrying out those tasks which are inherent in the concept of statehood under modern international law, namely, to be the guardians of the values and principles of humanity as a whole (such as human rights and democracy) and thereby to promote the public interests of those living and acting within their jurisdiction.

II. Transnational Enterprises In a similar way to NGOs, transnational enterprises are institutions founded under the domestic law of a state. They also share with international NGOs the characteristic of planning and acting across state borders. Transnational enterprises differ from NGOs in that they are not designed, or at least not principally designed, to fulfil a public purpose, but rather aim at making a profit which can be distributed

23 24

Boutros Boutros-Ghali , Foreword in Gordenker/Weiss

(note 12), 7.

Obvious examples are the "Failed States" such as Somalia, Liberia, or countries otherwise caught up in civil war or internal strife. For further evaluation see Daniel Thür er/Matthias Herdegen/Gerhard Hohloch , Der Wegfall effektiver Staatsgewalt: "The Failed State", BDGVR, vol. 34 (1996).

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to the shareholders or re-invested in the corporation. Contrary to NGOs, their intrinsic purpose is not to encourage or support state authorities to fulfill their functions under international law. Instead, they tend to escape from the control of - home or host - states and in fact often rival with state powers. This raises the question whether, according to the principle of the "rule of law", existing rules and institutions should be strengthened and new mechanisms should be set up in order to control their activities in a fairer, more reliable and effective way. In a book carrying the telling title "Global Shift", a British professor of international economy states that much of the changing shape of the global economic system is sculptured by transnational enterprises investing in particular geographical locations. The same author points out that the significance of the transnational enterprise, especially the very large global corporations, is due to three basic characteristics: 1. Its control of economic activities in more than one country; 2. its ability to take advantage of geographical differences between countries and regions in factor endowments (including government policies); 3. its geographical flexibility, that is, its ability to shift its resources and operations between locations on a global scale.25 What seems to be significant from a legal point of view is that transnational enterprises are - to put it simply - constituted according to the law of a particular country. As a general rule, they are governed by that law and the relevant rules of conflict of laws. However, although they are embedded in the system of law and the political culture of their home as well as their host state26, they are to a large extent in their practical operations liberated from state control. This is so because, on the one hand, by entering into binding international treaties or unilateral policy25 26

Peter Dicken, Global Shift, 1992. 47.

See Paul N. Doremus/William W. Keller/Louis W. Pauly/Simon Reich, The Myth of the Global Corporation, 1998. Interestingly enough, these authors underline that striking differences in corporate strategy remain in the most fundamental areas. They write: "The empirical evidence ... suggests that distinctive national histories have left legacies that continue to affect the behavior of leading MNCs. The scope for corporate interdependencies across national markets has unquestionably expanded in recent decades." (9) The authors further explain: " We see corporations internalizing both the basic political institutions and underlying ideological frameworks within which they remain most firmly embedded. And unlike other scholars who acknowledge such effects but assume that they will inevitably recede over time, we see them as 'hard-wired' into core corporate structures." (15) They conclude: "But states - especially home states - remain decisive. They do not just matter. In analytical terms, our approach remains open to the possibility that states retain their priority with respect to other factors influencing the operating environment of the modern corporation." (15)

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making, states have in many fields denationalized their economies, especially as far as processes o f transborder financing, production and distribution are concerned. O n the other hand, transnational enterprises are, by the very nature o f their operations, not easily controllable by any one political system. 27 A s C. Wilfred

Jenks

put it: (T)he relationship of their operations to the law is one of the largest questions to be resolved to create an effective world rule of law. But they are not the creation of any one legal system and are not, and cannot be, effectively controlled in the public interest by any existing legal system or combination of legal systems. They are a triumph of economic power and legal ingenuity operating on a scale which transcends and at times dwarfs the authority of individual states, and for which the existing legal order makes no appropriate provision. It is inevitable that in such a situation so much economic power and so much legal ingenuity should sometimes be tempted to take advantage of the complexity of political and legal systems to create a world of their own which must accommodate itself in the conduct of its operations to many legal systems but is not in any real sense subject to any of them. 28 We are thus confronted w i t h a g u l f between t w o " w o r l d s " or t w o types o f systems: the highly fragmented political w o r l d o f states w i t h their parliaments, governments, courts, public debates and political decisions and the partially unified, integrated w o r l d o f global economies. 2 9 This latter is characterized as an "anti27 Efforts to change this situation have been made by the UN. With Resolution 1997/11 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the preparation of a background document on the relationship of the enjoyment of human rights and the working methods and activities of transnational corporations has been induced. 28 C. Wilfred Jenks , Multinational Entities in the Law of Nations, in: Wolfgang Friedmann, Louis Henkin/Oliver Lissitzyn (eds.), Transnational Law in a Changing Society Essays in Honor of Philip C Jessup, 1972, 72/73. 29

See Martin Carnoy/Manuel Castells/Stephen S. Cohen/Fernando Henrique Cardoso , The New Global Economy in the Information Age, 1993, 1/2: " . . . the 'informatization' of the world economy changes the conditions and possibilities for national policies. It means the informatization of societies and politics. Economic globalization means the globalization of local social movements. Local becomes global, and global becomes local." However, these authors also stress the influence of the home bases on strategies of Multinational Enterprises (MNE): "We are convinced that MNEs are a product of their national origins and still depend on their home bases for economic strength. We are also convinced that there is a wide range of nation-state activity enhancing local economic development that goes beyond developing human resources for international distribution." (3) And they go on: "The nation-state's policies have a profound influence on the capacity of its MNEs to expand, for two reasons: 1) for most MNEs the home market is still crucial to the overall capital-accumulation process - national macroeconomic policies are important for homemarket development; and 2) most MNEs' research-and-development capacity is linked to home-base, nation-state R & D policies, high-skill human capital development policies, and telecommunications policies." ( 9 )

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political world" by some observers or as a "political subsystem" by others in that strategies decided on behind closed doors in Transnational Enterprise headquarters are aimed primarily at safeguarding and strengthening shareholder (and, at times, stakeholder) values. In the bygone times of national economies, economic processes were to a large extent contained within the borders of states, and public authorities were able to regulate the economy and to effectively supervise key economic actors such as banks, insurance companies and other business institutions. Nowadays, in the "noman's-land" of global economies, we are witnessing a lack of adequate control, transparency, and responsibility. Can we today - the citizens of political communities - be compared, as the French author Viviane Forrester put it, to a theater audience, watching closely the drama and admiring the actors on the stage without noticing that the real actors deserted the stage long ago, taking with them the script and leaving only their shadows...?30 Are we thus living in a time characterized by a worldwide, fundamental shift of power from the public to the private domain? The scenario so painted might be exaggerated considering the fact that there are and always will be business leaders with the capacity and potential to display enlightened vision and responsibility in a much broader, future-oriented sense than that offered by many public authorities. In fact, a code of ethics for business behavior, anchored in a sense of collective responsibility for future generations and for disadvantaged peoples or segments of society in our present world, might, i f faithfully respected by entrepreneurs, be an important key to the evolution of world public order. 31 In addition, individuals considering themselves to be "consumer-citizens", "producer-citizens" or "trader-citizens" certainly have a great potential to play a much more powerful and influential role in shaping a future public economic system. Finally, the means and devices of private law, such as product liability, have been developed in the public interest in order to assist individuals to control and contain economic power on the horizontal level. On the whole, however, the fears are not unfounded which consider that the global economy, following its own inner imperatives, tends to evade the rules con-

30

Viviane Forrester , L'horreur économique, 1996, 31.

31

See Bruno Fritsch/Stephan Schtnidheiny/Walter Seifritz , Towards an ecologically sustainable growth society: physical foundations, economic transitions and political constraints, 1994; Debora L. Spar , The Spotlight and the Bottom Line - How Multinationals Export Human Rights, Foreign Affairs, 1998/2, 7 et seq. 4 Hofmann, R.

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cerning social justice and environmental protection 3 2 w h i c h have usually been created as a result o f hard political struggles w i t h i n the framework o f traditional nation states. It is disturbing that according to the "principle o f comparative advantage" first developed by David

Ricardo , international social and economic

standards are put under pressure and that, i n reality, in the so-called "laissez-faire" economic system o f the free market guided by Adam Smith's "invisible hand", true competition between economic actors does not actually exist because there is too much interdependence between them. 3 3 Tax evasion and tax dumping are also logical consequences o f the present order characterized by competition between political systems. 34 W e should therefore not ignore the warning voices o f eminent observers, such as Michael

Walzer w h o recently wrote:

Multinational corporations... need to be constrained, much like states with imperial ambitions; and the best constraint probably lies in collective security, that is, in alliances with other states that give economic regulation some international effect. The same mechanism may turn out to be useful to the new environmental groups. In the first case, the state pressures the corporation: in the second it responds to environmentalist pressure. The two cases suggest, again, that civil society requires political agency. And the state is an indispensable agent - even if the associational networks also, always, resist the organizing impulses of state bureaucrats. 35

32

Long-term, deep and impressive visions of ecology are developed by Alexander Gillespie , International Environmental Law - Policy and Ethics, 1997, Hans Jonas, Erkenntnis und Verantwortung, 1991, who reminded us to take into account the "Fernfolgen" as integral part of responsible action (114), and Ernst U von Weizsäcker , Erdpolitik Ökologische Realpolitik an der Schwelle zum Jahrhundert der Umwelt, 2nd ed., 1990 who wrote: "Gegen (den) ökologischen Kollaps hilft die 'Unsichtbare Hand' nicht." (7) And it is further stated: "Wir treten, ob wir es wollen oder nicht, in ein Jahrhundert der Umwelt ein. In diesem wird jeder, der sich Realist nennen möchte, gezwungen, seine Handlungsweise als Beitrag zum Erhalt der Umwelt zu rechtfertigen. Die kurzfristige wirtschaftliche Optimierung bleibt natürlich als Ziel erhalten, aber wenn sie sich den ökologischen Notwendigkeiten nicht unterordnet, wird ihre Glaubwürdigkeit nicht höher sein als die der heutigen Konfessionsstreiter in Nordirland oder die von luxemburgischen Nationalisten." (9/10) 33 It has been estimated that 40 percent of international transactions in goods and capital take place within the framework of some globally active transnational enterprises; see Peter Ulrich , Integrative Wirtschaftsethik - Grundlagen einer lebensdienlichen Ökonomie, 2nd ed., 1997, 380. See also, in this context, Thomas Maak/ York Lunau (eds.), Weltwirtschaftsethik - Globalisierung auf dem Prüfstand der Lebensdienlichkeit, 1998. 34

Hans-Peter Martin/Harald Schumann, Die Globalisierungsfalle - Der Angriff auf Demokratie und Wohlstand, 1996, 269 et seq. 35

Michael Walzer , Towards a Global Civil Society, 1995, 23/24.

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Ulrich Beck advises us that: Der Politik der Deregulierung der transnationalen Organisationen wäre die Forderung einer Deregulierung, der Wiedereinführung sozialer und ökologischer Standards entgegenzusetzen.36 ("By way o f opposition to the politics of deregulation of transnational organization there should be the postulate of a re-regulation, a re-establishment o f social and ecological standards.") Or as C. Wilfred Jenks already observed years ago about economic power: Every legal system as it develops must grapple with the problem of placing an effective restraint upon power and insuring responsibility; this is the essence of the whole concept of due process of law. 37

C . Evaluation and Need for Reconception of the International Legal O r d e r I. Plea for a "Constitutional" Approach Up to now, we have been dealing with the picture of the modern state which is, on the one hand, being orchestrated by the various activities o f NGOs as voices and exponents o f a modern and volatile international civil society. And yet on the other it is being challenged by transnational enterprises as power centers and forces of an international economic system which, in a legal sense, is not adequately regulated and might, by its very own logic, have long-term adverse consequences for the common interests o f mankind. Both situations stem from and are manifestations of a global shift in politics, economics and law and have been, as we have noticed, created, shaped and facilitated by explosive developments in the field of communication technology. Against this background we shall now evaluate the newly emerging situation from the perspective of the present international legal order and investigate i f and in what manner international law needs to be reconceived, redefined or reshaped in order to better reflect and to cope with the needs of modern international society. In trying to find a new frame of reference for the evolving international legal order, the phrase coined in the thirties by the German constitutional lawyer Hermann Heller "Juristische Denknotwendigkeit besitzt der Staat, nicht aber das Völker-

36

Ulrich Beck , Was ist Globalisierung?, 1997, 263.

31

Jenks (note 28), 71.

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recht" ("Logically necessary is the state and not public international law") 3 8 , can certainly no longer be our guide. Instead, as indicated at the beginning of this essay, the principle of the "international rule of law" should rather be placed at the center of our efforts to conceptualize the new situation. However, neither the classical definition of international law offered by the British international lawyer Lassa Oppenheim whereby the law of nations is a "law between states only and exclusively" (1905), nor the one of the American international lawyer John Westlake , for whom international law is a legal order where states are the "immediate" but men the "ultimate" members (1914) 39 , correspond to our needs. They embrace too minimal a concept to be useful as a paradigm of modern international law in its actual form and even more it does not contain any potential for future development. In the light of the processes of transformation which we have just described, I would like to suggest that a new dimension within the international legal order should be considered. We should conceive of international law "vertically" as a (hierarchical) legal system with a constitutional basis.40 The idea of a constitutional foundation of international law is, of course, not new. It was, i f I am well informed, the Austrian international lawyer Alfred Verdross 41 who, as far back as in the twenties, coined the expression "völkerrechtliches Verfassungsrecht". Eminent German international lawyers, such as Hermann Mos ler, Christian Tomuschat , Jochen Abr. Fr owein or Bruno Simma , took up this concept in their well-known Hague Lectures and in other writings. 42 Their elaborations were made against the background of such international practice as the United Nations resolutions in the General Assembly and the Security Council or the decisions and opinions made in

38

Hermann Heller , Die Souveränität - Ein Beitrag zur Theorie des Staats- und Völkerrechts, in: Christoph Müller (ed.), Gesammelte Schriften, 2nd ed., 1992, 140. 39

Both autors quoted by Jenks (note 28), 70/71.

40

In German one could speak of the "Tiefendimension der Rechtsordnung". - I f we consider in this article that vertical international law should be conceived of as a legal system with a constitutional basis, we do also suggest that on the horizontal dimension, so to speak, the reach of international law should be extended so that it includes a fully-fledged law of economic transactions as well. There is, regrettably, no opportunity in this context to further consider rules and institutions designed or to be developed to cope with the aspects of the growing power of globalization. 41 42

Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 1926.

See Hermann Mosler, The International Society as a Legal Community, RdC 1974/IV, 17 et seq.; Christian Tomuschat, Obligations Arising for States Without or Against Their Will, RdC 1993/IV, 216 et seq.; Jochen Abr. Fr owein, Reactions by Not Directly Affected States to Breaches of Public International Law, RdC 1994/IV, 355 et seq.; Bruno Simma, From Bilateralism to Community Interest in International Law, RdC 1994/VI, 256 et seq.

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the International Court of Justice. But, above all, they deduced the doctrine from key concepts such as ius cogens, which represents a category of core principles in international law, the erga omnes-effect of certain basic principles of international law and the category recently recognized by international law of "international crimes". 43 The attraction of a "constitutional" approach to international law seems to me to be especially compelling when placed against the background of the globalizing tendencies which we have just been describing. Of course, in the given international law context, we do not have in mind a "statist" model ("vision étatiste") of a constitutional order, but a much more modest, rudimentary concept. Perhaps, therefore, we should rather refer to "constitutionalism" or "a constitutional theory" or "a constitutional method" of conceiving, shaping and interpreting international law. Or perhaps it would be better to compare it with the constitutional practices and conventions developed within the British Commonwealth of Nations rather than with the logically coherent construction of the constitutional order of a state.

I I . Elements of a "Constitutional" Approach Whatever terms we might use, it is a fascinating adventure to try to discern and to identify, within the complex body of international law, those principles and rules which form the basis, the imminent goals, the framework and the core structure of this system of law as a whole. I shall try now to explain the relevance of a "constitutional approach" to international law in the context of the basic theme of this essay by looking at the following six topics: 1. One important advantage of a (coherent) constitutional theory is that it enables us to better identify the basic components of the legal system. Considered from a constitutional perspective it would seem to provide us with an easier way of escaping from the rigidly defined circle of traditional subjects of international law. Thereby we can avoid the intensely debated but largely sterile question as to whether or not NGOs or transnational enterprises have emerged as new subjects within the international legal order. Instead - using a constitutional or functional approach - these new entities can be elegantly integrated into a broader concept of "international community". To illustrate my point with a similar example from

43

See, as an endeavour of elaboration of this concept Daniel Thürer, Internationales "Rule of Law" - innerstaatliche Demokratie, SZIER/RSDIE, 1995, 455 et seq.; id., Bundesverfassung und Völkerrecht, in: Kommentar zur Bundesverfassung der Schweizerischen Eidgenossenschaft vom 29. Mai 1874 (Einleitung), 1996.

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domestic (German) law: the fact that the CDU (Christian Democratic Union) is endowed with legal personality, but the SPD (Social Democratic Party) not, might have significant consequences under German private law, but it is largely irrelevant from a constitutional point of view. In a similar way, the new actors in our globalizing world might more easily be moulded into the system of international law if we try to conceive of them as factors and forces of a broader constitutional order. 2. One of the main functions of constitutionalism is to identify the basic rules of legitimacy of the relevant legal system. Perhaps the most prominent rule of legitimacy of state constitutional law is the "consent of the people" or "popular sovereignty". Similarly does not our present study reveal a strong tendency of the NGO community to make the desires and wishes, the public opinion and public conscience of a cosmopolitan civil society heard in international relations? This revolutionary effort, not to confine democracy to inner-state systems but - as argued by W. Michael Reisman44 and Thomas M. Franck 45 - to consistently extend it to the global level might be better recognized and valued for its inner right, weight and novelty, i f we consider this aspect of globalization from a constitutional perspective. Of course, by its very nature, democracy cannot have the same place and be given the same role in international law as within the differently structured domestic legal systems. The national model as such is not transferable to the (more fluid) global scene. In international law, democracy seems to be a goal rather than a legally binding principle rooted in a set of individual rights. However, as I tried to demonstrate in a recent article 46 we may question, whether the concept of "citizenship" might be taken out of the simple national law setting which is its "natural home" and be extended to a novel form of "Union citizenship" provided for at the European Union level in the Maastricht and Amsterdam Treaties. Out of these a development might be further made up to the global level, where a concept of "cosmopolitan" citizenship might ultimately be achieved containing vaguer and more abstract elements.47 44 W. Michael Reisman , Sovereignty and Human Rights in Contemporary International Law, AJIL, vol. 84 (1990), 866 et seq.; Thomas M. Franck , The Emerging Right to Democratic Governance, AJIL, vol. 86 (1992), 46 et seq. 45

Thomas M. Franck , The Power of Legitimacy among Nations, 1990.

46

Daniel Thürer , "Citizenship" und Demokratieprinzip: "Föderative" Ausgestaltungen im innerstaatlichen, europäischen und globalen Rechtskreis (forthcoming). 47 See, in this context, David Held , Democracy and the Global Order, Cambridge 1995, especially the last chapter on "Cosmopolitan Democracy and the New International Order" on 167 et seq.

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3. The notion of human rights in its traditional, liberal and political sense is even more firmly recognized than democracy as a core component of modern international legitimacy. In connection with the establishment and the functioning of NGOs would it not be logical to see guarantees of political freedom such as the freedom of association and opinion being set? These rights are expressly secured under the Universal Declaration of Human Rights 48 , the International Covenant of Civil and Political Rights 49 and in other international instruments, and represent, as basic components of international law, a "constitutional basis" for the core NGO activities. 50 4. Constitutional legitimacy also means that no power should remain unchecked. Considered in our context, it has been recently put in this way: " A metaphor" - suggested Marc Nerfin - provides a starting point for locating NGOs in the political realm; the prince represents governmental power and the maintenance of order; the merchant symbolizes economic power and the production of goods and services; and the citizen stands for people's power. As such, the growth of NGOs arises from demands by citizens for accountability from the prince and the merchant. In this perspective, NGOs compete and cooperate with the prince and the merchant for guidance in aspects of social life. They function to 'serve undeserved or neglected populations, to expand the freedom of or to empower people, to engage in advocacy for social change, and to provide services'. 51

May - we ask in this connection - the thesis be developed that, from the viewpoint of legitimacy of the international order and, especially, of a rudimentary system of "checks and balances", movements such as Greenpeace, WWF (World Wide Fund of Nature), International Commission of Jurists or Amnesty International with their actions against the abuse of power by the "merchant" and the "prince" should be conceived of as sort of "countervailing forces ". Perhaps in the interest of the world community they should be welcomed and unrecoverable costs caused by their resistance action would have to be anticipated as a normal part of the budget of the relevant transnational enterprises or other actors concerned. To be sure, such actions are highly problematic due to an obvious lack of adequate civil liability. But are protests and challenges of this kind not, on the whole, desirable faute de mieuxl In other words they emerge due to a lack of adequate legal mechanisms to safe-guard public interests on the international plane. In this sense, the "constitutional" perspective of "checks and balances" certainly has some relevance for our discussion.

48

Art. 19 and 20.

49

Art. 19 and 21/22.

50

Macalister-Smith

51

Gordenker/Weiss

(note 11), 486. (note 12), 19.

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5. The present-day scene of world economy seems to make clear that a "total market" {Peter Ulrich) 51 cannot be an aim per se of the international society. In the production and distribution of goods and services, market mechanisms should only be valued as instruments designed for the fulfilment of values of human life, purpose and culture of a higher order. This limited place of "economic efficiency" seems to be generally accepted within the "order of ideas" of traditional state constitutions. But does not the present state of world economy with its inherent dangers for social justice, solidarity 53 and - ultimately - peace demonstrate in an especially persuasive way the potential of the idea to think about world order relations within a constitutional conception? 6. Finally let me mention a very general perspective which comes to light i f a constitutional approach to international law is taken. In some State constitutions it is laid down that the state has a federal structure or that it is based on a federal principle of legitimacy. Would it not be much easier to identify those tasks which have to be, totally or partially, dealt with on a central level of governance i f we regard this global process of distribution, balancing and sharing of power from a constitutional-federalistic perspective? Generally experiences in domestic law 54 have demonstrated above all that three types of powers or responsibilities are located at the central level of government: - The protection of basic (common) values such as human rights. These basic common bonds of a legal community should be rendered more visible in international law by being integrated into a constitutional core. - Tasks which, from their very nature, are of an embracing character. For instance in the international scene many aspects of environmental protection such as climatic change or protection of the ozone layer fit into this category as does terrorism, trade in arms or narcotics etc.

52

The same author also speaks about "market methaphysies".

53

See John Kenneth Galbraith , Die solidarische Gesellschaft - Plädoyer für eine moderne soziale Marktwirtschaft, 1998, 126 et seq. 54 See, e. g., Daniel J. Elazar , American Federalism - A View From the States, 2nd ed., 1972; Max Frenkel , Föderalismus und Bundesstaat, vol. 2 (1984-1986); Daniel Thürer, Bund und Gemeinden - Eine rechtsvergleichende Untersuchung zu den unmittelbaren Beziehungen zwischen Bund und Gemeinden in der Bundesrepublik Deutschland, den Vereinigten Staaten von Amerika und der Schweiz, 1986; id ., Switzerland: The Model in Need of Adaption? In: Joachim J. Hesse/Vincent Wright (eds.), Federalizing Europe? The Costs, Benefits and Preconditions of Federal Political Systems, 1996, 219 et seq. , Hartwig Bülck/Peter Lerche, Föderalismus als nationales und internationales Ordnungsprinzip, VVDStRL, no. 21, 1964.

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- Matters which, because of their spill-over effect, have to be regulated on the central level. In international law those areas might be included where public common goods suffer as a result of competition between political systems. As Peter Pernthaler 55 has so convincingly described, federalistic thinking might also help us to adequately perceive the role of states within the international system. In the architecture of domestic federal systems, Cantons, Länder or states are usually given a double function. Firstly within the frontiers of their territory and within the "political space" designated to them by the federal constitution, they constitute their own political order based on their specific perception of needs and collective identities. They have, in this respect, an authority which might be called "exclusive". But they are also component parts of the overarching federal system: they participate in its central decision-making process and implement law made by central organs. This process is not limited in reach to the territory of the composing unit and it has an "inclusive" character. In this sense, Cantons, Länder or states are "bridges" between the regional population and the central authorities. Might not, under the finality of federal thinking, sovereign states also be conceived as middle parts, as mediators or "bridges" between communities on the local and regional level on the one side and on the global plane, on the other? These "bridges" are, of course, in the international sense, not empty, abstract, lifeless constructions, but rather, as Peter Saladin 56 put it, a sort of Ponte Vecchio crowded with shops, houses and peoples.

Conclusion Let me end my essay by returning to the question raised at the outset. Do NGOs, transnational enterprises and other actors of globalization strengthen or lead to a decline of the role of states? I think, we should answer this question in a differentiated way. I f we consider the globalizing processes just described as a catalyzer permitting us to conceive international law as a legal system embedded in a nascent constitutional order, we easily come to the conclusion that states as "Trustees" of values recognized by the international legal order have been reenforced, reaffirmed, revitalized and even empowered by the forces of globalization. The vigilance of NGO-activities continual55

Peter Pernthaler, Globalisierung als Herausforderung an eine moderne Staatslehre, in: Heinz Schöffer/Walter Berka/Harald Stolzlechner/JosefWerndl (eds.), Staat - Verfassung - Verwaltung: Festschrift für Friedrich Koja , 1998, 69 et seq. 56

Peter Saladin, Wozu noch Staaten?, 1995, 248/249.

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ly remind states about the essence of their role and responsibility and stimulate them to live up to their true function under the rule of modern international law. Therefore, I wonder i f these new evolving new concepts under international law do in fact actually assist states, at least partially, in fulfilling their proper functions in a more adequate, meaningful, and promising way. As far as challenges by powerful transnational entities are concerned, it can be seen that there is a need for the reach of law to be extended. No accumulation of power should remain unchecked under a system of "rule of law". States should cooperate together and create new rules and institutions in order to effectively regulate and domesticate economic power. This is a requirement dictated by the raison du système international as opposed to the raison d'état dominating the traditional world of international law. Sovereignty here is not so much endangered in its traditional "exclusive" sense, but it is no doubt challenged in its "inclusive", non-territorial participative dimension and cooperation is demanded in order to strengthen the international system. By way of conclusion, it should however not be forgotten that, as a general rule, states are and remain the indispensable centers of authority and power in the world of international relations and in international law. They are, after all, the units which hold the monopoly of force and which provide the basic infrastructure in the present world public order which still has a largely non-centralized character. However we are also living in a time of transition. Globalization has created new forces. One outstanding new feature is the emergence of new non-territorial actors whose influence partially de-territorializes the notion of state sovereignty. Globalization brings a concept no longer limited to territorial control, but which extends to participating functions in an overriding, non territory-based system. Traditional institutions like the state are certainly here to stay but - in a process characterized by new, often ambiguous concepts and notions and by the tentative, partly soft-law effects of new regulations - their appearance and function are to a certain extent been changed in the present times. In the place of the crumbling "walls" of the old "state fortresses" new ivory networks are rapidly spreading and are covering up the old towers, bestowing on them a new and exciting appearance.

Discussion

Frowein : I think we heard really stimulating papers this morning, and I would like to congratulate those authors as well as the organizers for this excellent background which we have received. Let me deal with very few points which arise from the papers. First of all, the excellent description by Professor Wedgwood concerning the many, not clearly recognized entities which exercise power internally and have some sort of unclear standing in the international arena reminds me of a book which was published by an author exactly 30 years ago in a hidden language, namely in German, and which, to a certain extent, made the point that, wherever power is being exercised, it can be shown by state practice that states will in fact treat these power holders as something of importance in international law and will under certain circumstances also take up international legal relations with them without recognizing them as states. I think in principle this is again confirmed by what we have heard this morning. I think it is absolutely correct that the developments since 1989/1990 have strengthened on the one hand the factual background for that proposition because we have had so many, unfortunately frequently bloody, developments where power holders of that sort appeared, and on the other hand, since the U N system became really active in the way it was designed in 1945, the international legal links with these strange entities became, to a certain extent, even more visible, certainly from the UN's perspective. I thought it might also be important to just remind all of us that already in 1949 and then again in 1977, in the Geneva Conventions and the Protocols, we have the clear recognition that the rules of public international law do apply. Professor Thürer is much better placed to explain all that than myself. Let me from there come to the issue of recognition, which I think was correctly dealt with, and let me put a question, which arises from all these developments. Is it not correct to say that the old rule of effective independence as requirement for recognition can no longer fully operate? Of course, where we have effective independence, we have no difficulty to say that it is possible. But when do we have effective independence where the old government, or the mother country, or what

60

Discussion

ever, has military means at its disposal which could immediately crush this socalled independence or effectivity which exists in that small entity? There I think what we have to really accept - and I think it is very much the lesson of Yugoslavia - that it is not only for political reasons but, I think, also for legal reasons that the international community cannot accept that a full scale war is being waged to suppress this sort of development. You may say: "Do we go back on the Confederacy issue?" I would be willing to discuss that at some length, but I believe that Yugoslavia has shown us that it is no longer lawful to apply armed force in a warlike manner against an entity which at least has a sort of reasonable claim to statehood, confederate entity, or whatever. In that respect I would certainly also, as Professor Wedgwood did, include the human rights and democracy elements as at least one fully lawful element to condition recognition. I do not say that this is something which must be present wherever a state wants recognition, but I think it is perfectly lawful for withholding recognition and, therefore, becoming instrumental for the development of the constitutional system in the new state. I was quite interested to hear, and I think again quite correctly so, Professor Thürer mentioning that we have many federal systems where the sub-entities have some sort of limited international legal personality and, although we may say that these things are not of really very great importance i f you look at the treaties concluded by the German Länder , nevertheless it is quite interesting. The other side of the coin also mentioned is that in these federal structures frequently the contribution of the sub-entities to the foreign affairs power on the federal level is not without some importance. As Professor Wedgwood mentioned, the European Union's system has led to the fact that sometimes Germany does not quite know who is really acting, the Federal Government, or the Länder , or both together, or who is going to speak in the European fora, but this sort of complex system seems to be, to a certain extent, really answering the specific complexities of international relations nowadays, where things are no longer limited to state to state relations. A few words on NGOs. I was struck by the fact that what I have always considered to be at least one of the most important players in that respect, i f I heard it correctly, was not mentioned, namely the trade unions. I think the trade unions are really, and have been for a very long time, most important international players to export the standards of the ILO conventions into countries where they were neglected or not accepted, I think that should not be underestimated. The biggest trade union in the world, the German Metal Workers Union, was instrumental for shaping the contacts of all the big German motor car companies to South Africa, and with great success, there cannot be any doubt about it. I would also like to look into, and I can only be very sketchy on that, two issues of relations between NGOs and states. On the one hand there is the fact that the

Discussion

NGOs are buying states. That is of course something which happens in the U N all the time, where the small states are perfectly willing to become really the mouth for one international organization. Although I have no proof in my hand, I find it absolutely self-evident that this does not go without the paying of some bills, some delegations, and what else. The other problem that you have: states behind not NGOs, but behind transnational companies. That, I think, is again very important to realize, and it is certainly true for some European countries. I think Professor Thürer's mother country certainly is a very good example, which is a comparatively small country population-wise and territory-wise, but of enormous importance in its economic power, and it is clear that the relationship between big Swiss or big Dutch multinationals, transnational and the government is of a different nature than, for instance, in the United States. I think that is something which is interesting to look into. O f course, the idea that there should be a certain control of power of transnational corporations is in principle fully correct. On the other hand, I think one should also be careful not to overstate the issue for the following reason: We must be clear that we still live in a world federated to a certain extent, but with very clear sovereign powers of legislation and administration in the different countries. In itself it is, of course, no circumvention of German law if a German company, for good economic reasons, produces this or that good in a foreign country under the laws of that foreign country. The fact that environmental standards are being evaded by that procedure is correct, but the correct answer would have to be to have the same sort of environmental standards throughout the world and to have international law really applying there. I am overstating and simplifying the point, but I think in principle we should keep that in mind. My last remark concerns the Security Council's role in that whole development. As I indicated earlier, I think what not all of us have always present in mind is that today we live in a completely different world from the one before 1989, where binding decisions by the Security Council are a reality, and in principle the binding decisions under Chapter V I I are being followed and implemented. That is also a fact of life, we can prove that. I am not discussing Iraq, I am discussing the member states which are bound by the decisions, for instance, by an economic boycott decision, or what else. This means that we all of a sudden for specific areas really have a sort of world rule-making and governance body operating. To look into the procedural aspects of how that body arrives at its decisions becomes more and more important. I think there the state players and the non-state players are really most interesting. In that respect we could even argue that we have not a decline, but a strengthening of the influence and power of specific states. I am referring to the permanent members of the Security Council. There is no doubt for me that the 'club of the 5' at the moment is even in the danger and maybe the Chi-

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Discussion

nese reluctance will help them to find a better answer to overplay its powers and to arrive at a counterproductive effect. I think the last development with the Iraq decision, where in the Security Council the fact that unilateral action was not authorized on the basis of the decision was contradicted immediately after by the President of the United States in open statements, shows us an immense tension problem developing there. It may not fall fully into our topic, but I think it has to do with analysing the present situation, and therefore I thought I should mention it. Stein: I would like to make two or three short remarks. First, I do see certain distinctions between the "new actors" that were addressed this morning. On the one hand, failed states, insurgencies, and de facto regimes existed at least thirty years ago, so that the problems connected with these "actors" are not that new. International law is called upon to confer rights upon these "actors", as partial subjects of international law, to the extent to which international law wants them to be obliged by it. There is a certain reciprocity. The situation seems to be different with respect to multinational enterprises and, in particular, to non-governmental organizations (NGOs). Both do have a great factual influence these days. In the case of NGOs, we only have to remember the movement to abolish anti-personal mines. But the problem here is a different one for the international community and its component members, the states. The question is not, how many rights do we have to confer upon NGOs and, perhaps, also multinational enterprises in order to create the same amount of obligations. The question is rather whether the states want, or cannot avoid, to give up their regulatory power with regard to these new "actors". I do here support Daniel Thürer's view that the role of the state is not declining, simply because NGOs and multinational enterprises act nowadays on a global level. But the problems states have to solve have changed. Having access to the global level, these new "actors" cannot be controlled any more by individual states alone. They can rather easily avoid national control by going international. So the task of states, i f they still want to control the activities of NGOs and multinational enterprises, is to agree upon rules of international law enabling states to exercise control anywhere, and not only on the territory where a NGO has its seat. Those rules have to include rules on responsibility - a notion which I missed this morning - not only rights. Legitimacy was mentioned, and democratic structures, but not responsibility. As long as NGOs only initiate actions, later on executed by states, they do not have to be held liable. But once they act themselves, they have to be liable themselves.

Discussion

Just remember the Brent Spar incident, where Greenpeace triggered off enormous costs by publishing figures about the Brent Spar problem which later on turned out to be simply wrong. It might be enough to sue them in front of a national court, but even for that it would be helpful i f states could agree to parallel the growing influence and global acting possibilities of NGO's by agreeing upon parallel and internationally applicable rules of responsibility. Herdegen: I f we try to analyze the role of sub-state actors, non-state players, in conceptual terms, I think we can grasp some of these scenarios in terms of old-fashioned classical public international law, whilst others may call for a more dynamic approach. The scenarios recalled by Professor Wedgwood in her presentation can mostly be explained by relying on a classical set of rules, especially the rules of humanitarian law, when dealing with siblings (often illegitimate siblings) of their old state engaged in an armed conflict that is somehow internationalized. We have experienced for some time that the dichotomy between the international conflict and the merely internal strife has lost force and is waning. For some time we have come to recognize direct responsibility including criminal responsibility of individuals and sub-state organizations engaged in that kind of conflict. It suffices to recall the forceful statement of the Appeals Chamber in the Tadic case emphasizing how this dichotomy between internal and international strife is gone. I believe that international law is nowadays monitoring more closely than hitherto the whole spectrum between the fully effective state on one end of the spectrum and the entirely failed state on the other with different intermediary stages: the ailing state, the failing state and finally the fractured, fragmented state. I think we can state that nowadays public international law insists more than in the past on a state's duty to maintain effective control over sub-state and non-state actors, at least in certain areas. I should like to recall, for example, the European Court of Justice's judgment in a recent case where it held that the failure of the French Republic, of the French police, to control riotous attacks against transports from Spain and Belgium amounts to a violation of the EC-Treaty, a violation to ensure the free flow of goods in terms of Article 30 of the EC-Treaty. Or one could refer to the recent jurisprudence of the Human Rights Court in Strasbourg which has held that extradition of an alien to a non-European country where the alien risks being assassinated by local drug lords, i. e., non-state actors, amounts to a violation of Article 3 of the Convention. I think behind this recent development there is an inherent duty of the state to maintain fully effective control over sub-state actors.

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Discussion

Moreover, we have an increasing intervention of the international community into constitutional processes. Examples are the peace processes in El Salvador and Guatemala, the Dayton process, the Palestinian Process, or the Paris agreement on Cambodia. In these cases the international community, or at least a segment of the international community, acts as a kind of midwife to constitution-building, and in some of these cases we can say that a breach of the new constitutional rules by one of the sub-state actors amounts to a breach of international law. I think the implications for legal personality under international law are obvious. As to the multinational, transnational enterprises, I sympathize with Professor Thürer's concept that we should approach these phenomena with a more flexible view of a legal community, that it is not always necessary to harp on legal personality under public international law. What is more important is that we have truly internationalized mechanisms, for example, in dispute resolution. The Energy Charter Treaty, investment treaties open international channels for conflict resolution. We need not to decide at this stage of the process whether transnational enterprises have or have not legal personality under public international law. As to the consequences, I think that it is paramount to invoke the direct responsibility of non-state actors, especially in civil strife. This responsibility has also important consequences under Chapter V I I of the UN-Charter. In the past we have asked whether or not there is a violation of international law by a state in order to assume that the conditions that trigger action by the Security Council under Article 39 are fulfilled. I suggest that a violation of international law by any actor, including a sub-state or non-state actor, suffices to trigger intervention by the Security Council under Chapter V I I of the UN-Charter. Finally, we do not only experience a constitutionalization of international law, we also witness an increasing degree of constitutional law being internationalized. Hailbronner: I have one general observation on the role of NGOs and one comment on the theories of Professor Thürer. The observation on the NGOs refers to the distinction between non-governmental and governmental organizations, which sometimes seems to me quite difficult i f you look for instance at the role of Interpol. It has been in the origin certainly a non-governmental organization, but is has been entrusted to some extent, or at least tolerated, by states to perform some functions which were traditionally in the sphere of the public domain. I f we look around a little bit, I think we find a grey area in quite a number of other fields, like, for instance, in the area of international sports organizations. What, for instance, does the International Olympic Committee, clearly a non-governmental organization,

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do when it concludes a treaty with a state on the arrangement of the Olympic Games? There are provisions in these arrangements on the treatment of foreigners, which are certainly matters that are clearly in the public domain. So there is still a number of issues that have not been solved quite clearly. What kind of treaty or arrangement is this? Is this regulated by public international law? Are these treaties? What rules to apply? It seems to me that it would be inadequate to apply the national law for these treaties. On the other hand, it is very difficult with traditional notions of public international law to cope with this kind of arrangements. That leads me to one short comment on the role of NGOs. I find it sometimes, and that has some relation to what I have just said, quite intriguing that NGOs as well as their functionaries are gradually shifting in non-governmental functions. Like for instance in diplomacy, of course they do not have diplomatic immunity, but in fact they do. Frequently functionaries have diplomatic immunity, because they are issued with diplomatic passports. I do not know whether Professor Thürer travels with a diplomatic passport when he is in an official function for the International Red Cross, but it is quite clear that the International Red Cross is performing public functions. It is entrusted with public functions which cannot be easily attributed to the general traditional role of NGOs. They perform functions that states do perform, and that inevitably has some conclusions, results, or repercussions on the general distinction between governmental and NGOs. I have one short further comment, just a remark on the role of NGOs. Would it be possible or acceptable to extend the access of international NGOs to international jurisdiction, for instance? And what are the principles on access of NGOs to international advisory functions? I think that there is also a problem, which, I think, is regulated rather arbitrarily. What kind of organizations is admitted on the U N level or on the level of, for instance, the European Communities? There are some regulations, but it seems to me that this is also something which is not very satisfactorily solved. One comment to the constitutional approach to international law of Professor Thürer, which I found very intriguing and which appealed very much to me as a possible solution of many problems of public international law which we have today. The issue is: how can it be managed that the reach of international law, as he pointed out, should be extended? We all agree probably with that statement. But how could it be done that the reach of international law could be extended? We are still facing, and that seems to me difficult today, a very strong notion of sovereignty. So the only possibility I can see to overcome this is by trying to transfer some supranational powers, either by establishing an international organization

5 Hofmann, R.

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or by transferring some sovereign powers in the same way as it has been done to the European Union. That leads me to my final comment: I f you think a little bit about the European Union as a model in that respect, it might well be an idea that the European Union is not going the way we might think it will go, finally to a federal state, but there might also be a new technique of combining techniques of in some respects sovereign powers on the one hand, which would be reaching out to extending the scope of international regulatory powers to some part, and, on the other hand, maintaining the traditional structures in some respects. I do not think we will eventually end up in a world structure, but that might be something which could be an attractive model, particularly in context of enlargement of the European Union to the Eastern European states, where it seems to me quite clear that we cannot fully cope with traditional models of extending state structures. We will eventually have to find something new for this kind which will be much closer probably to public international law concepts than to traditional European concepts of a federal state. Delbrück: I sensed some reluctance to squarely face the question of the legal personality of NGOs. As a matter of methodology I find it somewhat intriguing that all speakers seem to agree that the phenomena that especially Daniel Thürer but also Professor Wedgwood have spread out before us, are there, indeed. Sure, NGOs wield a lot of power, and TNCs are there, of course. From an empirical point of view it appears to be clear that the actors in the international system have multiplied. But then, either it is indicated that it is not desirable to recognize these entities in international legal terms because that might interfere with the capability of states to control these entities, or the other approach is that it is not necessary yet to deal with the question whether they are legal entities under international law or not. My approach would be somewhat different. I would also accept the facts as they have been apparently consented by all, but then I would go a little further and look at what the specific functions and roles and rights and duties of these entities are under existing international law, and then try to figure out what the findings mean in international legal terms. For example: NGOs, by the hundreds, are recognized as partners, as observers, as participants in many international fora. In the Desertification Convention NGOs are, by the treaty terms, part of the implementation process of that Convention. Is this all just factual? Can we deny that these entities have gained a legal status under not only secondary but also primary international law rules? I just leave it at that in order to maybe stimulate the discussion somewhat more in this direction, and maybe even get it more acrimonious in parts. For,

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I cannot see that we as international legal scholars can say " well, all that is there, but maybe it is not politically so desirable to have these 'guys' rising to partners in law", "or it may be not yet the time to answer these questions". I f you subsume the facts to the rules that we are taught to use in establishing whether an entity is a subject to international law or not, this operation might lead us, in the end, to the conclusion that NGOs have not yet reached that stage . But I do not want to postpone that decision, because I think the process of transformation of the international system that is going on is a challenge to international law in terms of what Daniel Thürer has, I think, quite rightly spread out. Greenpeace, mentioned by Professor Stein, is a pertinent issue. Greenpeace is not only a powerful protagonist of wonderful environmental values. It is a very dangerous actor at times, because of its radical commitment to the cause and its often apparent lack of consideration with regard to the means that it applies. The Shell issue, the boycott, was really something that should have rung a bell with many quarters not only national but also international. Greenpeace - or some tiny subunit of this formidable multinational entity - calls for a boycott of Shell products. It turns out that the factual basis for calling the boycott was wrong. But the damage done by the boycott stays unsanctioned. I f our aim is - as think it ought to be - the establishment of what I like call "international civil society" or an "international community under the rule of law" such inaction vis-à-vis obvious wrong-doing is unacceptable. Once you accept that notion, then I think it is a little step to say that there is a definite need to establish an international, or global, or transnational legal order encompassing NGOs as well. In other words, the question is how can we put the fetters of law around these entities? Probably by integrating them into a larger non-exclusively inter-state order, i. e., a legal order of the international community. To believe in national means alone to control these entities, I think, is just as illusionary as to expect them to volunteer to become subjects of international law. Yet it is very clear to me that there cannot be "law-free" zones in the disguise of so-called global markets or whatever. We cannot afford this i f we want to establish an international civil society and the law. A last remark about terminology: do the effects of the changing structures of the international system amount to a decline of the state? It is evident that actors other than states or international governmental organizations have very powerfully come into the game, and some of these new actors, NGOs, appear to be more influential than some states. I f we look at the work of the Economic and Social Council, I would guess that the top ten or top thirty NGOs accredited there as observers and participants in the debates have more influence on the formulation of resolutions, reports, and so on, than probably many member states of the UN. These NGOs are taking over tasks that originally states were meant to do. Do you

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call such developments a process of strengthening the state's role, that states are becoming more powerful when they are relying on the help of private organizations to the extent they do today? I would say they get dependent. I f you ask people working in these international organs they freely admit: "We are in many instances left in the dark unless we have the support of NGOs because states are not able to provide the same kind and wealth of information that we need." In view of the increasing importance of NGOs I would like to suggest that we agree on the formula that the relative strength of the state is diminishing. In absolute terms they still keep their status? I agree, but it is comparatively getting less influential as these other actors are moving in. It is a transformation of the status of states that we are talking about. I would suggest that we try to agree on that in order to save time on the decline issue. The transformation has been agreed by all speakers so far. Ferrari

Bravo :

I came here to learn, as usual, when one comes to Kiel, and to explore this realm of non-state actors on which we are indulging so much this morning. But I find that there are slight differences, and I want to share with you some considerations about this difference between the referred entities. This morning, Professor Wedgwood started speaking of some population in the former Soviet Union, the Abkhasians, by saying that their homepage on the Internet is nice. But certainly this does not mean that they are international subjects because of the fact that they are on the Internet. I f we decide to consider as subjects all those who have pages on the Internet, I do not know how many we will have. In my humble opinion, these Abkhasian people were just insurgent, insurgent against the vacuum created in some part of the Soviet Union by the collapse of the whole empire and the not yet established new organization which takes time - time factor is very important in international law - , and this is the reason why we speak in general of insurgence. We speak of insurgence because we give note to the time factor. The time factor is constituted by war, and the war may last some years, and during the war, you do not know exactly which will be the winning party, which will be the losing party, which will be the situation after the war. So we open the parentheses and handle the way we can these situations which arise during the war. More or less the same happened in Bosnia-Herzegovina. In Bosnia-Herzegovina and I apologize for those who have certainly good reasons for fostering the cause of Bosnia-Herzegovina. I remain of the opinion that the recognition of the independence, of the statehood of Bosnia-Herzegovina was a mistake. It was a mistake also created by some professors who promulgated a

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so-called volunteer decision. Anyway, in Bosnia-Herzegovina you have two substates, the Republic first and the Federation, two quasi states. What we call the state of Bosnia-Herzegovina is not part of the remaining two parts of states. Again, they are completely different things. The same applies to non-governmental organizations. NGOs are less powerful or more powerful than states, it depends. Professor Delbrück has recently mentioned Greenpeace. Greenpeace is certainly a non-governmental organization. Is it more powerful than a state? Probably yes, to a certain respect. But still, it needs the arm of the state to go before the international jurisdiction. I f you want to bring Greenpeace to act before an international jurisdiction, you need a state, unless you make a complete reform of international jurisdiction which is not of course for today, or even for tomorrow. A l l this tells me that we are in the presence of an opening of international law, in the sense that new norms are being created in international law, new norms by which some situations will arise which are not covered by the law of a given state but not beyond. To arrive from this point to the recognition of new states actors is a long way. It is a long way because, i f we decide too quickly that we have a series of non-state actors, the result will be probably to increase the power of some states to the detriment of the rest. Take the situation today in the world where are the non-governmental organization created by people coming from the countries like Italy, the United States, United Kingdom . . . I think that to recognize to those non-state actors the quality of being subjects of international law would create a complete disequilibrium in the real world. I on my part remain linked to the past. Malanczuk: I would like to address three points: first, the concept of globalization; second, the new challenges arising for the traditional central role of the state in international law, and third, the topic of "subjects" of international law and non-state actors. As to the last issue, I would like to focus my remarks on multinational companies and their standing in international law. With regard to the term "globalization", as a starting point, I would like to state only briefly, that this economic buzz-word of the 1990s has no clear meaning, unless it is related to a specific context. Thus, a closer look at the relevant literature shows that there is no generally accepted definition in the social sciences. In economic terms, globalization refers to the increase in international trade (which has by far outmanoeuvred the volume of output and production), the increase of foreign direct investment, and the integration of gobal financial markets. Historically, however, globalization is not an entirely new phenomenon. There are economic indicators concerning the period before the First World War that in some

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respects are similar to the investment figures, trade figures, etc., which are nowadays associated with the term "globalization". Important new aspects of globalization today are a result of the revolution in communication and information technologies, decreasing transportation and communications costs, the world-wide extension of free market reform policies of liberalization, deregulation and privatization, and the enhanced role of multinational companies, which are considered to be the driving forces of the process of globalization. For assessing the relative power relationship between such transnational corporations and states, it is important to note that a large percentage of world trade is in fact intra-corporation trade, meaning that international trade takes place within the structure of multinational corporations and their subsidiaries and affiliates. Economic globalization has also embraced new regions in the world. However, the global economy is still far from being really integrated and distinctions must be made in this respect as to different economic sectors. Furthermore, globalization does not affect every region in the world in the same way and it often has unbalanced effects even within the same region or country. Many parts of sub-Saharan Africa, for example, have remained marginalized and have not become part of the globalization process. In addition, there are countervailing tendencies to globalization, such as the political fragmentation of states and economic regionalization. Regionalization refers to the many different existing and newly emerging forms of regional economic cooperation among states, such as the European Union/European Community, NAFTA, MERCOSUR, Andean Pact, ASEAN, APEC, ECOWAS, etc. The proliferation of such regional regimes raises the problem of conflicts among such regional groupings, on the one hand, and the compatibility of regionalization with the rules laid down for the global trade system by the World Trade Organization (WTO), on the other hand. In sum, there are variety of forces that need to be taken into account in discussing globalization and the effect it may have on the traditionally dominant role of the state in the international system. In this respect, it is required to make an important distinction. In concrete terms globalization may adversely affect the individual power position of states in different ways, depending on their particular economic, social, political and military circumstances. However, this does not necessarily lead to questioning the continuing role of the state as an institution. The state is certainly facing new challenges from the international activities of significant non- state actors, like NGOs and multinational companies. States need to take the views and functions of such other players more into account in their decision-making, even i f primarily for domestic political and economic reasons. But it is still the state as an institution which controls territory, has an army, a bureaucracy, and has the legislative and official foreign relations powers that non-state actors seek to be exercised in a

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manner to further their own interests and objectives. For people, the state is also likely to remain the focal point of national (or cultural) identity, which corporations or NGOs do not provide. There is one particular area of international economics that is apparently escaping control and effective intervention by states, their central banks and the international financial institutions: the operation of the global financial markets. "Virtual" money, often of a speculative nature, operating in derivatives and not backed up by actual production, appears in the form of enormous flows of capital through instantaneous transactions all over the globe. The need for reconsidering the mechanisms of the international financial system has once again become clear in the recent Asian currency crisis. It has raised questions concerning the activities of the IMF and other international institutions, supported by lending policies of individual states. But even in this area, where perhaps the role of the state has been challenged most significantly in practice, states remain in the position to regain control by cooperating with each other, by concluding agreements that strengthen the relevant international institutions (which are controlled by states), or by changing their rules and policies. Therefore, even here it may be said that the role of the state as an institution is not inevitably, or irreversibly, in decline. My next point concerns the term "subjects of international law". Oppenheim's assessment (in the 1912 edition of his famous textbook on international law) that only states are subjects of international law was not quite true even at his time. The Holy See was recognized as a subject of international law, so were, for example, insurgents and the forerunners of some international organizations. Moreover, as such, the term "subject of international law" is not very informative as to its legal consequences because it is an abstract concept. It is more fruitful to think in terms of legal personality, which is related (as Professor Delbrück has quite rightly pointed out) to specific rights and duties. It is necessary to inquire into the specific rights and duties which a particular actor has (or does not have) on the international in order to arrive at meaningful conclusions. In the case of states, it is clear that they may have all rights and duties under international law and thus they have full international legal personality. Other (non-state) actors may have only relative (or limited) legal personality, which is depending on, and circumscribed by, certain rights and duties granted to them under international law. There are various general aspects under which the legal significance of such non-state actors can be usefully examined to discover their true position, including their role in international law-making, their responsibility under international law and their legal standing in international dispute settlement procedures. I come to my third and last point concerning the peculiar role of large multinational companies, which are often conceived as rather powerful non-state actors. Leaving aside the

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problem of finding an appropriate definition of multinational (transnational) corporations for purposes of regulation, it may be stated that the international legal system hardly recognizes their existence. There are some sets of international "rules" on multinational corporations and their activities laid down, for example, in the ILO Tripartite Agreement, in OECD guidelines, or in the now dormant drafting efforts on codes of conduct by the UN. But these "rules" are merely of a legally non-binding nature and belong to the strange category of "soft law" (which does not necessarily mean that they are irrelevant). The OECD guidelines are considered to be somewhat different in that respect in view of the supervisory mechanism that they have established, including a procedure engaging transnational enterprises. In the second edition of his textbook on international economic law, Seidl-Hohenveldern, for example, takes the view that for this reason alone multinationals may be qualified as "subjects" of international law. Again, the use of the term "subject" in this connection indicates little more than the limited circumstance that multinationals may have some standing before a particular international organization, in this case the OECD. Another aspect which should be taken into consideration is the discussion that has arisen from the conclusion of so-called state contracts, contracts concluded between a foreign investor (mostly a multinational company) and a host state. Such contracts may contain references to general international law, for instance general principles of international law (sometimes in connection with general principles of municipal law) as the law governing the contract. They may also include an international arbitration clause in order to protect the investor from having disputes settled under the law and jurisdiction of the host state. "Stabilization clauses" of this type have led to the question whether such a contract should be considered as an international treaty. There are divergent views on this matter in the literature. Some authors even conclude that such "internationalized contracts" would elevate the foreign private party to a "subject" of international law, although with effect only vis-avis the host state which has entered into the contract. Be that as it may, at any rate, it is clear that action by a single state could hardly establish an erga omnes effect of such recognition for other states. With regard to the legal standing of multinational companies under international law, there are some interesting developments in certain multilateral treaties. For particular types of disputes, the NAFTA Agreement between the United States, Canada and Mexico provides for the right of private individuals and companies to submit governments to arbitration to adjudicate claims for compensation for the alleged breach of obligations under the agreement. There are now three such cases pending under the NAFTA agreement, including the large case filed by the US based Ethyl corporation against the Canadian government. Another relevant multilateral treaty that would be interesting to

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discuss in the connection is the Energy Charter. However, much more public attention has been drawn recently (due to the activities of NGOs and other interest groups which are dedicated to issues relating to the environment, labour standards and human rights and highly critical of the activities of multinational companies) to the negotiations on a Multilateral Agreement on Investment (MAI). The draft M A I text also provides for a dispute settlement mechanism including not only state-to-state arbitration, but also private investor-to-state arbitration. The M A I is intended to be a multilateral solution to the existence of more than 1200 bilateral investment protection treaties that have been concluded in the last decades to overcome the difficulties arising from the old dissent between industrialized and developing countries on the content of the relevant rules of customary international law. Originally, the M A I was supposed to be dealt with within the framework of the WTO with its now 132 members. However, the project found resistance from developing countries. The OECD was then chosen as an alternative forum in the hope that it would be easier to find a consensus among like-minded countries and then to be able to extend the agreement to other non-OECD members. As it seems at the moment, this strategy may not been successful because the OECD negotiations themselves have run into considerable difficulties. Whether the aforementioned examples to give legal standing to private entities in the dispute settlement procedures of trade and investment agreements mark a new trend remains to be seen. One could also point to the new rules of procedure adopted by the Permanent Court of Arbitration and other examples. On the other hand, attempts to provide private parties and companies with direct access to the dispute settlement mechanism of the WTO have failed in the Uruguay Round of GATT. Perhaps this needs reconsideration in the pending review of the new WTO dispute settlement system which has encountered more than 130 complaints, brought by governments against governments, in the short period since 1995. Hobe: I think that we are very fortunate to have heard two papers this morning which combined the discussion of problems of the existing legal order with problems with which the international legal order may be confronted in the future. Professor Wedgwood, on the one hand, has directed her comments more to existing legal problems, e. g., in terms of defining statehood, and thus pointed for example to new state practice with regard to the legal value of recognition in the framework of the entities on the territory of the former Yugoslavia. On the other hand, Professor Thürer asked the fundamental question of the actual meaning of statehood in public international law. And I fully share, for example, his observation of a growing federalistic trend in the upcoming international legal order

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and the importance of observing the rule of law. Most interestingly I found his remarks on the emergence of new transnational entities; here Mr. Thürer discussed the example of the non-governmental international organizations (NGOs). In that respect, I allow myself a remark and would like to ask a question to Mr. Thürer. As has already been mentioned previously, I think as well that we should first of all observe social realities. Here, in fact, we find a quite considerable number of actions of non-governmental international organizations on national and on international level, in national as well as in international fora. The crucial question would consequently be, and I am not sure whether I got your point correctly, Mr. Thürer, whether those social phenomena, indicating a factual importance of the NGOs, have already been translated into law. In other words, one should ask whether we find entitlements of NGOs in the existing international legal order. I think that we can find such entitlements in the form of a certain jus standi in international fora, a certain form of law implementation function of NGOs - an example being the Desertification Convention - an enforcement function, and even a, however limited, law-writing function which, however, actually is still mostly channelled through states. So we find a lot, and I would be very interested to learn from you, Mr. Thürer, whether you would share my opinion, that already by now we can speak of a partial subject quality of some of those NGOs, in so far as the international legal order provides for such entitlements in specific conventions. As to the future, I would respond to Professor Hailbronner, because of the maxim necessitas facit legem we can just not afford to allow NGOs to act in the international sphere without any international legal regulation of their behaviour. This will necessarily lead to further regulation, I am convinced. Now I would like to come back to problems of statehood and to some concerns expressed around this table as regards the future of the state. I am absolutely convinced that there will be an important role of the state in the future. But I think the much more crucial question is what exactly the future role of the state will be. O f course, we all have a certain concept of statehood in mind. It is the concept of the nation-state that with some exceptions does not entirely describe any longer social realities of the late 20th century. The social phenomena which Mr. Thürer described correctly, most importantly indicate that the interrelationship between national legal regulation and the international legal order becomes in a growing way closer. The process of constitutionalization of the international legal order is, of course, promoted by states that establish rules and preconditions for the exercise of the rule of law on the international level, or, to take another example, the emerging right to democratic governance Professor Franck has referred to in his famous article in the American Journal, and finally the respect for an international protection of human rights. In this perspective, I fully agree with Mr. Thürer's ob-

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servation that the state becomes more and more an intermediate entity, a pouvoir inter médiaire, like the late Peter Saladin has expressed it, which, as a trustee, decides in full sovereignty on the amount and the size of tasks to be performed on the national, the supranational, or on the international level. Byers: I feel a bit intimidated speaking in such prestigious company, but I actually want to start by challenging a few assumptions that have been made. Some of you will know my passion for the history of international law. When I think in a historical way, I find it difficult to agree with Professor Delbrück that there really has been a transformation because of the rise of non-state actors. I think of the influence of the great trading companies of the 16th, 17th, and 18th centuries, the Dutch East-Indian Company, the Hudson Bay Company, upon the development of international law. I also think it is appropriate in Germany to think of the German princedoms within the Holy Roman Empire. Were they states? Were they not states? They were certainly an important part of the international legal order. I think as well of the profound historical influence in international law of the Catholic church, a non-governmental organization with real power, which was granted international legal personality. That all said, I think it is interesting, even assuming that there has not been a transformation, to think about how non-state actors are using the state-centric international legal system, how they are penetrating that system, manipulating that system, exercising their power within it. I think of, for example, the World Trade Organization, where you have a dispute between Japan and the United States, but which is in reality a dispute which is officially between Kodak and Fuji, where everyone knows that the transnational corporations are using the state as a figurehead for interactions within the international legal system. I think of the Multilateral Agreement on Investment referred to by Professor Malanczuk, which is very much driven by the interests of transnational corporations and which, it seems, has been stopped, or at least postponed, by the incredible response of NGOs. I think about websites on the WWW; there are over 500 NGO websites concerning the Multilateral Agreement on Investment. The influence that these non-state actors seem to have is not as international legal persons as such, but upon the states which then act out the influence of the non-state actors upon them. What the state decides to do, and how it does it, is, I think, as important or, indeed, far more important than the role that the NGOs might play in the Commission on Human Rights or wherever. When the government of Germany or the government of the United Kingdom decides to take a position in an international organization or in other negotiations, they are going to be informed by and considering at all times their domestic constituents, including transnational

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corporations, NGOs, and domestic political parties funded by foreign interests. It is this interaction at the sub-state level which, I think, is most interesting. Another example of penetration concerns the whole area of arbitration. Arbitration is, in a sense, partly international law. Where non-state actors interact in a dispute settlement mechanism that is, in most instances, a framework created by states - 1 am thinking here of ICSID and the New York Convention - states have chosen to create the framework within which this interaction occurs. So, again, I do not think there has been a departure from the state-centric system of international law; it is merely a case of the non-state actors penetrating that system and pursuing their own interests within it. I think as well of how non-state actors use the traditional concept of diplomatic protection, how the question of where to flag a ship may depend on the state which is going to provide you with diplomatic protection. When Greenpeace decided to send a ship to challenge the French in respect of nuclear testing in the South Pacific, it was no accident that the ship was flagged in New Zealand. They knew that, i f the ship was going to be arrested, it had better be flagged by a state that was going to stand up and protect the interests of Greenpeace vis-à-vis the French in international diplomatic intercourse. I would also like to challenge the assumption that seems to have been made, at least to some degree, most strongly by Professor Thürer. This is that the state is somehow benign, that it somehow plays a role as a protector of human rights. I would like it to be so, I think we would all like it to be so, but I do not think that most states, or even a number of states, are really all that benign. I think of the Burmas, the Nigerias, and the Indonesias of the world. I wonder how much they actually fulfill a role in protecting the rights of individual citizens. I would like to challenge the assumption that international governmental organizations are necessarily statist. There is something called 'industry capture', a term which applies very well to the International Maritime Organization, or the Codex Alimantaire , the infusion of private interests into what appear from the outside to be intergovernmental organizations. And I would like to challenge the assumption that NGOs in general are either necessarily good or necessarily bad. Terrorist organizations and organized crime syndicates could be considered NGOs. At the same time I think of the extreme good that some NGOs have done. We would not have a Torture Convention without Amnesty International. So NGOs are sometimes bad and sometimes very good. The point of my intervention is merely to say that the situation, as we all realize, is considerably more complex than it might appear at a first glance.

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Randelzhofer: I will confine myself to three short remarks. Professor Wedgwood this morning gave interesting reports concerning the situations in Abkhasia, in Bosnia, Rwanda, in Sierra Leone, but, with all respect, I doubt whether these peculiar and so-to-say pathological situations, which possibly are only transitional in their character, give rise to re-evaluate the structure of public international law. Professor Ferrari Bravo rightly emphasized the importance of the time factor in public international law. There are, in existing public international law, rules to cope with these situations. Professor Frowein alluded to a book written thirty years ago in a hidden language. I assume he had in mind 'Das de facto Regime im Völkerrecht' (The de facto Regime in Public International Law), no prize for guessing the author! Professor Herdegen additionally stressed the relevance of the existing rules of humanitarian law. I agree with both colleagues. My second remark: In my view, one cannot speak generally of the importance of international NGOs for public international law. Actually there exists about 4000 international NGOs, among them such important as, for example, the International Association of Law Libraries or, even more important, the International Association of Mushroom Scientists! I doubt whether those international NGOs really influence, to a high degree, public international law. So, it is not the phenomenon of international NGOs as such that influence public international law, but the political capacity of some of them to do so. That, in my view, points to the necessity to cope with this problem, not primarily from the legal point of view, but from the political point of view. My last remark: Notwithstanding that Jost Delbrück already had reduced a little bit the ambition of today's topic, I agree in substance with Professor Thürer. Besides the state we have today various other entities which play a role in public international law. In doing so, the states have undoubtadly lost some of their importance. But I think it would be an exaggeration to say that the state had suffered really a decline. Benedek: I belong to those who believe that actually a new international order is in the making, in particular, with the help or through NGOs. We have seen after the Second World War a historical influence of international organizations who took on more and more functions, and we are now seeing NGOs to take on more and more responsibilities. This is partly due to their capacity to mobilize public opinion which gives them power, but also to their capacity to mobilize funds. Should it not be seen as an expression of democratic opinion i f so many people around the world give their money to a particular NGO to act on their behalf, on their con-

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cerns, which are often global concerns? NGOs are filling the vacuum, the lacuna, as fighters against the deficiencies of the international system which they hope to improve and to develop. I am far from saying that NGOs are always a positive aspect of international relations. Because of the power they have nowadays there is also a need for control, quality control. In the last years, we have had intensive debates on this issue, both at state level and at international level. A year ago, Croatia introduced a new law, according to which all international NGOs have to re-register, a cumbersome procedure. So the state interferes or tries to control. At international level we have had the experience of the Working Group of ECOSOC on Reviewing the Consultative Status of NGOs, which also was an effort of a conceptualization, of getting a certain regime in place under these many NGOs, which are not always so positive or which are not always created for higher purposes. I f you look at the Third World, sometimes NGOs are formed by governmental officials, who are dissatisfied with the policy of the state, maybe disagree with some structural adjustment, and then they go into a private business or form NGOs, which allows them to have a nice car, maybe even with a diplomatic licence plate. Generally this needs a systemic response, and I think that is what we should talk about here. Regarding the issue of the subjects of international law, I agree with those who think that it would be good to talk about the recognition of internationl legal responsibility. This responsibility can be very flexibly recognized, because it is a functional responsibility, quite similar to international organizations by the way. Then we should see in which procedures, in what forms can, NGOs, but maybe also TNCs, transnational corporations, be more involved. I think of the example of the WTO, World Trade Organization, which has a provision (Art. V), which actually stems from the Havanna Charter, according to which consultative status can be given to NGOs. But they so far decided not to do it in the main bodies, but to organize consultations only by special bodies like the environmental committee. Accordingly, there is only a limited way of participation open for NGOs. The first one was on environmental issues and brought together a large number of international environmental NGOs with representatives of the organization and states, and just recently there has been another consultation on the issue of "trade facilitation", to which also representatives of international private enterprises were invited to participate and to give their opinion. But the WTO is very much afraid of the lobbying powers of these organizations, once they are admitted in a more formal capacity. In my view, one possibility could be to organize or to allow for councils of NGOs and of transnational corporations which would be used by international organizations in order to get their expertise and knowledge and also to make those organizations more responsible. Often they are only one-purpose or-

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ganizations and as such they do not have to share the overall responsibility of the organization which they criticize. There is an association of NGOs, explicitly formed to attack certain aspects of the work of the WTO. So either you have the NGOs against you or you give them a certain way of participation, which I would prefer. Finally, I liked very much the constitutional approach, as it was presented by Thürer, because I think it is very important also to have a value basis for this new system in the making. We do have such values, but they have to become generally applicable in order to develop a system in which those values can be applied and the participants can be made responsible. I think we have to follow such approach. Caron : I have three brief remarks. First, Professor Wedgwood referred to several "anomalies" in her presentation, namely that there exists cases in which the holders of power are not the traditional state. Simultaneously, Professor Frowein rightly reminds us that international law tends to find a way to deal with whatever entity possesses such power and thus in time will address at least some of the anomalies described. I would only add that a part of the confusion about whether the role of states is "declining" is that there is a related tendency for international law to become more aspirational rather than realist, that is, for international law to support those with relatively little power. Thus, some of the anomalies are explained by the support of a norm that is at present an aspiration, something that it is asserted should be but that does not possess its own means of realization. For example, consider the rule of non-aggression. Does not the aspirational character of this norm lead inevitably to some of the anomalies described? Situations where the formal structure representing the aspiration is in tension with other parallel de facto power holders? Indeed, does not the rule of non-aggression suggest that of course there exist today "states" that lack the real power of traditional states. I refer you to an article in "International Organization" entitled "Quasi-States in Africa" whose thesis was that there are certain states that would not exist but for the non-aggression rule. And that the situations with quasi states becomes even more complicated because international organizations need a "state" to deal with, and by designating an institution as the "state" in fact bolster its "stateness." My second remark relates to Professor Thürer's thought-provoking presentation and his suggestions as to the kinds of institutional changes that are advisable. He mentioned both a vertical constitutional basis and a horizontal expansion into the regulation of economic transactions. I entirely agree with his comment that there is a need to make operational a constitutional basis for international norms.

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Some of the values are there already. And i f one had an effective constitutional basis in operation, one incidentally would resolve many of the economic problems. Specifically, i f there were environmental and human rights limits on trade, what would remain to be addressed by Professor Thürer's suggestion for horizontal expansion? In this regard one fundamental challenge remains and it runs contrary to the remarks today about globalization. Globalization is occurring in many dimensions, but not in movement of people. I f one speaks of the declining role of the state-sovereignty has not declined one iota in border sanctity. As a practical matter, there may be many illegal immigrants, but no one is ceding control of the movement of people. That creates a situation where a peoples' fate is the boundaries of their existence, and in that circumstance they of course, as was mentioned, must dump taxes so as to encourage investment. My third remark relates to Professor Frowein's comment that the Security Council may be an example of the "strengthening" of the role of the state. In my view, the notion of "decline" and "strengthening" depends upon the substantive field one is examining. Security logically is the area one would expect the least decline, and thus the strongest role, for the state. The state would let that go last. In the economic area, the state needs let go of their role in some sense. What does it mean to let go of their role? What I find helpful here is the phrase, already mentioned, "captured by an organization." What I find helpful is to think of the state as either being in the role of principal or agent. Does the state view itself as in essence promoting the agenda of a constituency within the state, for example, jobs? Is it a civil rights agenda that it is promoting? Is it security overall of the country? In the area of security, the state acts as principal. But increasingly the difference between principal and agent or between states as sovereign and states as bureaucrat is the amount of discretion possessed. Discretion decreases as one becomes more and more an agent. And it is discretion to maneuver that we are seeing as the declining element. Discretion is the capacity to move contrary to expectations of others, to decide in a moment unfettered by institutional and normative constraints. To go back then to the Security Council example, the United States, I think, would say that the Security Council is an example of decreased discretion. Yes, the Council's recent activity is a sign of institutional strength. It also is evidence of a strong role for certain states in that institution, but an even stronger role is for the most powerful states to simply state "we will do it alone without the permission of the Security Council." At the same time, i f you look at recent votes of the Security Council, I think that we can see situations where states have conflicts between their responsibilities for security and their desire to improve their economic position. Thus states vote against certain security measures in the Council, it is asserted, so as to avoid negative implications to real or potential markets.

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In these instances we see the declining extent of discretion of the state as a practical matter even in the area of security. Koch: In the two excellent talks of this morning we have heard about two classes of entities, the first one states, the other transnational enterprises and NGOs. I would, for a moment, like to look at transnational and NGOs. I think there is one striking difference between transnational and NGOs. When we talk about transnationals we instinctively do so in negative terms - because a transnational is assumed to be an enterprise that becomes active in another than its home country because of some consideration of profit. I think we have to thank Professor Frowein for pointing out that this instinctive reaction is problematic. To freely choose the country from which to do business on the basis of the profit, is, of course, not illegal; moreso, a company that would not make such a comparitive assessment would not be doing its job properly. So where does this critical feeling come from? I think the origin of this feeling is the assumption that transnational threaten the very institution of the state. And indeed, there can be no doubt that the traditional nation state is loosing some of its ability to solve problems by creating a normative framework if, because of globalization, enterprises can escape this framework, or choose that legal framework which best suits it. NGOs on the other hand are viewed invariably in a very positive light. And this is true also when comparing them with states. The public today has learned to distrust states, including its own state. NGOs by contrast are often perceived to be in possession of higher wisdom and even of a higher class of legitimacy than the state. Let me look a little more closely at NGOs. I f you ask people that are involved in foreign relations as practitioners about NGOs, then I think most such people would say that NGOs are bad for their business. In the so-called golden age of diplomacy you would have a few gentlemen in striped suits sitting together with a glass of whisky deciding the fate of Europe. And whatever they decided would be accepted by the public as the superior wisdom of statesmanship. That is over. Today we have to deal with NGOs and they have this nasty habit of making of often obscure issues questions of life and death - they are almost invariably one-issue organizations. Now, diplomats and politicians are basically negotiators. They try to identify what the other chap is willing to give away and which one of one's own goals is less important and can serve as a bargaining counter that can be used to secure some advantage. In other words, they look at the whole, they attempt to transcend individual issues. And in the end of the day, you have an understanding, an agreement. But then you have people that tell you that to save the seals in Canada is a goal so important that it justifies just about anything short of war. 6 Hofmann, R.

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And when you point out, that perhaps there are other considerations that must govern how we shape our relationship with Canada, that Canada is an important partner in NATO, that there is a very active economic relationship, that there is a certain history behind this relationship - then you are told that you are a compromiser, a weakling. And in the end you have no deal because there is always somebody, some NGO specifically, that will tell you that you have given away something of utmost importance, of utmost importance to them, that is. And so it becomes very difficult to broker deals and for this NGOs, among other factors, are responsible. And still, I would think, that diplomats ought to see NGOs in a more positive light. We are entering a new kind of international order. One way of defining that what is new about this order is to say that the inside of states and the outside of states become more similar. In the old order of things, in the inside of states you had the rule of law, whereas on the outside, i. e., between states, you had very little law - there was basically anarchy. And now this "outside" is becoming subject to law at an ever increasing density and there is in a crude way a political environment in this "outside" that roughly begins to resemble what we have on the inside of states. The NGOs in this emerging system are the representatives of the public, of an international public, transcending individual states. Let me point out another aspect of this. Our Foreign Minister, Dr. Kinkel, often refers to "the new global issues", things like drugs, health, migration, human rights, the fight against international crime. These are the very issues that NGOs are interested in. And in contrast to this, there are almost no NGOs that deal with questions of classical foreign policy, even though here in Kiel we are bound to think of the Flottenverein which was an NGO, although a national one, prior to 1914 promoting the expansion of the German navy. So what we see is, that NGOs raise issues that were in the classical understanding domestic in nature; by doing so, foreign and domestic policy become indistinguishable - they are a continuum without any objective break between them. NGOs have been essential in helping this development, and I think it is a good development, which however does raise the question of what in future foreign services should be responsible for - but that is perhaps for another forum to debate. Skubiszewski: I think that we must make an effort in this discussion to avoid confusion with regard to certain points which are currently being debated. One should distinguish between subjects of law and "actors", as they are called, that are active in the same area as the subjects. It is my impression that Professor Wedgwood has used these two notions interchangeably; that, as I have said, might lead to some con-

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fusion. Professor Wedgwood also spoke of those, and I quote, "who participate^] in international conversation." This is again something else. Professor Wedgwood said that certain non-state actors have legal personality in some "real sense". What is that real sense? What is that reality? Is it contrasted with law? Maybe it is a return to the concept of the normative force of facts, die normative Kraft des Faktischen, a concept very well known in Germany. Professor Wedgwood drew our attention to the fact that non-state actors may play a role that is bigger than that of states. Again, I would say, that is something else than international personality. On the one hand, there is the capacity to be subject of international law, that is, to have international rights and duties, and, on the other hand, there is the capacity to act in international law so as to produce legal effects in that law. Let me add in connection with the remark made by Professor Malanczuk that lawmaking has nothing to do with the capacity to be subject of international law. Lawmaking is part of what Professor Thürer refers to as a constitutional basis of international law i f we indeed need a new expression or a new label. But labels are not explanations. I would also say that the matters we are discussing today are not so new as they might seem to some speakers around this table and also to some writers. In the area of state and government, and of actual power which may lead to statehood and to government, we have such old institutions as belligerency and insurgency; we also have the forgotten institution of recognition of nation. There was recourse to the latter in 1917 with regard to the relations of the Czech and Polish nations with Allied Powers. Today recognition of belligerents and insurgents is not being resorted to. The question might be asked, why? In the discussion there was some reference to the territorial creations in BosniaHerzegovina. Dr. Byers has referred to some examples of older times. I may limit myself to the 19th century and to the various creations of the Vienna Congress, for instance the small Kingdom of Poland ("small" by comparison to the Kingdom of Poland before its partitions in the 18th century). The head of state of the "Vienna Congress Kingdom" was the Russian Emperor. It was a kingdom in which there was a parliament, and the Tsar had to take into account what this parliament did, in particular, its legislation. There was no parliament at that time in Russia proper. Furthermore, in the said kingdom, there was a separate army. At the same time that kingdom had no powers with regard to foreign policy. But the question is how all this would develop had that kingdom survived its first crisis in 1830/31. Speaking still of the Congress of Vienna, there was the free city of Cracow, a separate entity, soon to be unlawfully liquidated by the Habsburgs. I f it existed, it would, I think, present similar problems of international status as those we now have among some of the new territorial entities in Bosnia-Herzegovina.

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Also, let us not forget those forms of colonial expansion which did not always result in the total liquidation of the separateness of the relevant territories. Take, for instance, India as part of the British Empire, especially the representation of India during the peace settlement after the First World War. And yet India then had no dominion status. These questions should be at the back of our minds when the novelty of problems discussed today is emphasized. I think that today there is more flexibility with regard to issues of recognition, especially where armed forces are used in domestic conflicts. There is Article 3 of the Geneva Conventions of 1949, there are certain rights and obligations which exist irrespective of recognition on the basis of the Additional Protocols to these Conventions. Today various groups and entities have the protection of law irrespective of recognition. Does this protection lead to their becoming subjects of law? I think it depends on the regulation. You may have protection without being a subject of law. Dr. Byers referred to the dispute between Kodak and Fuji. Protection of citizens abroad is a very old institution and embraces some of the issues which today some jurists discover as being quite new. I fully agree with what Professor Thürer said about the existing role of the state. I would go further. I think that in the 21st century we should probably have a growing volume of international relations that would be conducted between integrated groups of states. On the one hand, in the integrated groups (of which the European Union is the best example) we have the process of diminishing the competence and even the attributes of sovereignty of individual states. On the other hand, within an integrated group, each member gains new possibilities, new powers, and a new significance in international relations as part of that group. So the state is not doomed, that is obvious. Professor Delbrück spoke rightly about this problem. I agree with what Dr. Byers said about the NGOs. It is true that they bring some vitality to some values, but it is doubtful whether those values are always dependent on states. They certainly depend on democratic states; however, in our world, democratic states constitute a minority, and for the time being there is no chance that this minority will become a majority. Morrison: First I will give three preliminary remarks and then a couple of substantive remarks. The first preliminary observation is that international law is not static, but dynamic. We will not be able to judge the international action of 50 years from now by the standards of today, and we cannot judge the actions of today by what Oppenheim wrote in 1908. The rules are continuing to evolve. It may be evolu-

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tionary and not revolutionary development, but the international law of today is not the international law of the Congress of Vienna. My second preliminary remark is: what is international law? In my view it is predictions of what governments will do out of a sense of obligation? I steal that in a way from Oliver Wendell Holmes' definition of the common law, that law is what judges do in fact. But i f international law is a prediction of what governments will do in certain kinds of international situations out of a sense of obligation, then there are a number of obligations or expectations that have been expressed today that are not consonant within the traditional rules of international law as found in Oppenheim or other traditional texts. My third preliminary observation is that many of the things we have been talking about today are really legal fictions, designed to fit the present reality into the forms of the past. The legal arrangments for Cambodia, with the National Consultative Council, the two nearly independent Republics, the Federation and Srpska, in Bosnia, ICSID, the proposed OECD convention, and so on, are really legal fictions, legal fictions to fit the present reality to the past forms. Bosnia is in fact in present reality two nearly independent nation-states, but we have no way in traditional law of recognizing near-independence, so we create the umbrella BosniaHerzegovina to conform reality to our international law paradigms, but the UN and IFOR and foreign governments still have to deal on a daily basis with the two part-republics. ICSID, to take another example, is a nicely-drafted treaty to cover the fact arbitration between nation-states and private parties is not possible under traditional international law. But the treaty really does nothing except to provide a fig leaf to cover the fact that such arbitration is something which traditional international law said could not exist? One of the things one learns in the common law legal system is that when legal fictions begin to multiply, you are approaching a point at which the substance of law will change. I think we are seeing an increasing number of these legal fictions that are covering the peculiar status of non-state organizations. At some point soon, the substantive law will change formally to recognize that development. Now let me turn to my two substantive points. The first one is: are we talking really about a decline of the state, or are we talking about a decline of the Foreign Office? I say that seriously because I think one of the other things that we have not talked about today is the increasing role of what one might call "other ministries" in dealing with international problems. Fifty years ago the State Department (in the United States) and the Foreign Office (elsewhere) controlled the cable mechanisms, and thus controlled the flow of information from government to government. Today virtually every ministry knows the telephone number of the corresponding ministry in every other state; and the Foreign Offices no longer have

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control of the flow of information from government to government. They still have some role in coordination, but their control has disappeared. It would not be surprising to find that some of the NGOs in the environmental field have very good friends relatively high in various environment ministries. There are all kinds of interchanges going on there. You may be seeing a kind of cross-cutting authority arising that is fed by state or governmental organizations. For my other substantive point I want to go back to the discussions of recognition that we had this morning. It seems to me that we are bundling altogether too much into the concept of recognition. I seriously doubt that recognition itself is a meaningful word. What you need to talk about are functionalities. We may recognize that a certain group has effective control of a certain territory and deal with them about their exercise of that control, at the same time that we refuse to enter into polite diplomatic discourse with them. Take one example: the United States did not recognize the People's Republic of China for a period of about 25 years. Did that mean the People's Republic of China did not exist? Did that mean that we would stop boats carrying the flags in China and treat them as pirates? Obviously not! Or the contrary: most of the world does not have diplomatic relations with Taiwan now, but they are quite happy to receive Taiwanese deposits and sell Taiwanese products. I think we see that kind of functional division in all sorts of things including the issues of insurgency and belligerency that were raised today. The traditional international law had and has a series of formal rules for insurgency and belligerency, just like it had formal rules for the declaration of war. We have not had a formal declaration of war since 1941, although we have had a lot of armed conflicts. We have not had a formal insurgency or belligerency since then, at least one of which I am aware. Instead we have done many of the same things in a functional way, but we have not put the old label on it, but rather have come up with other ways of labelling the transaction. Finally, I want to pose a question that is intended to be provocative. I have no answer to it. When we discuss NGOs, where are the big multinational corporations? The transnational corporation is an economic entity. It tends to protect its interests - usually effectively. Transnational corporations have lobbyists in virtually every national capital. Why do they not form NGOs? Are they missing something - or are we missing something? Is there another non-governmental actor out there, the international business concern, that we have not discussed today? Aman: Let me first say what a great pleasure it is to be here, especially for someone who is a dean. It is so nice to be a guest at such a stimulating and well-run conference.

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I would like to articulate or at least ask some questions about what I think perhaps underlies both the concerns that have been expressed about the current system and the need for reform, particularly when it comes to NGOs. Professor Wedgwood began her remarks with a question: "Why are we talking about this now?" I would like to suggest that perhaps underlying our interest in NGOs at this point in history is a normative vision that we have of our legal system. One word could articulate what that normative vision is, it would be democracy.This vision of democracy is not unusual at this particular point in time because one aspect of globalization, however one defines it, is a growing sense of lack of control, a sense of loosing control of important issues affecting one's life, be they economic, health, social, or environmental issues. I f one has a normative vision based on democracy, then the question becomes: is the state-centric approach useful or adequate to meeting citizens' needs to have some input into the global wishes of the era we now live in? Or does the state-centric approach need to be broadened and made more inclusive? After all, what does the state do? One of the things it does is aggregate interests. In a democracy, everybody has a chance to have their interests heard and represented. You have Houses of Parliament, you have representatives. The state aggregates interests, and NGOs play in this game. They can have their chance to express their interests in the context of the current state structure, and either they propose something or they do not propose something, or they back something or the oppose it, or take a stand on some issue or do not bother with a particular issue. This state-centric kind of approach to democracy and the thinking about these kinds of issues though, I think, assumes very much that the demand for a new international order or any kind of international order can only come from the state - that this process of aggregation of interests actually can translate these disperate demands in a meaningful way. But I think that the kinds of global issues prevalent today create demands for law, for participation, for transparency that do not come from the states. In fact, they come from non-state actors because they often involve issues that states qua states are compromised or conflicted by. A state is not likely to pay, it is violating human rights, for example. Moreover, states are not unified entities. They are bundles of interests of individuals who have connections and networks that go well beyond states. The demands for new ways of thinking about things, the demands for law, are not coming just from the states but from other places. Supply is the problem, because the supply for so many of these demands does have to come from the state. There is a mismatch in a sense because the demands are coming from other places, from actors whom states are often not likely to hear, or i f they do, not necessarily follow. Some of this non-responsiveness may be a good thing when the interests ascerted are not public-regarding, but the more globally-oriented the public interests, aspects of

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these asserted interests become, the harder it is to assume that a state and the state alone can aggregate these interests appropriately by treating NGOs as just another interest group. So I think the challenge really is to think through what can be, what is possible, and to try to think beyond just the state-centric approach in recognizing the demand for global law and global structures. I do not think the EU can be our only model in solving this mismatch problem between creative demands for global law and traditional state-centric solutions. The European Union is very state-centric in its orientation, and the demand for a union comes from the individual states. It is set up that way. But I think that a lot of these other global issues that we are talking about arise because some NGOs are creating demands that states do not particularly care about or have not been able to recognize, or certainly have been able to aggregate interests in a way that produces effective solutions. So the way out is really to argue for a broadening of the system by providing greater recognition to NGOs and allowing their transnational demands help create a supply of transnational solutions. I think we need to encourage different combinations of power, and the incorporation of NGOs not so as to control them, but rather to allow them to have more leverage in advocating approaches to global problems. Perhaps, the different combinations of public and private power could yield a new kind of supply of law and meet demands that a pure state-centric system is simply not prepared even to recognize. Chinkin: I think inevitably, speaking after other participants, that the few points I wanted to make have already been made, so I will try and keep my comments brief. I want to start by mentioning two of the areas where it seems to me that the state-centric system has not in fact been challenged by NGOs and other non-state actors. The first is international judicial procedures. Professor Wedgwood mentioned that NGOs are becoming more active before the human rights courts, for example. This is true in the case of the International Criminal Tribunals, but with respect to the International Court of Justice that is still firmly not the case. The East-Timor case, as Judge Vereshchetin pointed out in his judgment, silenced the non-state actors whose claims were actually at issue - the people of East Timor. I think that it is a clear indication of the very strong control still maintained by states before the Court. It could be argued that the exclusion of non-state actors marginalizes and weakens the ICJ itself as it remains limited in the contribution it can make to these debates. The alternative view is that it enhances state authority by preserving the Court's contentious jurisdiction to states. The second is international lawmaking, which Professor Malanczuk has already referred to. NGOs do not at this stage have any direct role in formal lawmaking.

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An article was published a few years ago suggesting that NGO practice should be accorded the same weight as state practice in determining the existence of a rule of customary law, but I do not think that viewpoint has had any resonance among the international community. NGOs can of course adopt what are becoming known as soft law instruments. The creation of expectations thus engendered can be regarded as a form of lawmaking. But unless we have a real constitutional change in the international lawmaking process, inevitably what NGOs have to do is to use states as their mouthpieces through the treaty-making processes. This is precisely the strategy that they follow. Thus states still hold the upper hand. I would like to refer to the International Women's Movement, which is very frequently referred to as one of the most successful of the NGO campaigns over the last few years and to draw an interesting comparison between the Race Convention and the Women's Convention. The Race Convention was from the beginning associated with decolonization; the notion of discrimination on the grounds of race was seen as part and parcel of discriminating against the newly independent states. No state has ever championed the women's movement in this way. So inevitably the Women's Convention was largely a result of the pressure brought to bear by women's NGOs. What is the consequence? It is the most highly reserved treaty, certainly within the field of human rights, and I think in the entire area of international law. It is probably one of the treaties that is most widely disregarded and with remarkably little consequence to states that do so disregard it. This again illustrates the balance in that, on the one hand the NGOs achieved what they wanted, they got the Women's Convention, but states at the end of the day are still very much in the driving seat with respect to its implementation. This leads into a further problem that we have not really mentioned, the issue of conflicting interests between non-state actors. Where a convention is widely disregarded and does not have the genuine support of states, it is very easy for it to be manipulated in different ways by different NGOs. So we saw, for example, at Cairo and Beijing, the partnership formed between the Catholic church and Islamic movements against the demands of women's NGOs. This confrontation allowed states to choose between the different claims and thus again to control the outcome. I think this leads on to the question of determining which NGOs should be represented at particular international consultative, advisory, and expert bodies. We have said that there are thousands of NGOs in existence at the moment, and inevitably consultation does not take place with all of those NGOs. Therefore it is only a fairly limited number of selected ones that are consulted on any given issue. These will tend to be the best resourced, that best organized and the most sophisticated organizations. Where the representation or participation of NGOs is incor-

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porated into a treaty mechanism, I think again two things happen: first, those NGOs that acquire standing gain some wider legitimacy as speaking in some way for all international civil society on that particular issue. But, second, since NGOs are not homogenous and do not speak with a single voice this participation may well be silencing for other NGOs whose claims become lost through that particular selection process. Further, I think that it actually legitimizes state action, because states are then able to assert that they consulted with NGOs, or that NGOs were part of the process. And so in fact what we end up with is some sort of smoke-screen which does not in fact reflect necessarily either the real voice of international civil society - i f such a thing is possible - but at the same time there is this appearance that states are no longer so strongly in control of the process. Just a final point. I think that when we recognize the influence of NGOs we must question whose agenda we are actually examining. Professor Thürer this morning used the expression missionary zeal about the activities of NGOs. I think this is very clearly true and that it is in fact a northern missionary zeal, which is in many ways enlarging, widening and continuing the gap between the major concerns of the North and those of the South. Yet again this effect is given legitimacy through the inclusion of the voices of so-called international civil society. Thus while I am in favor of the inclusion of otherwise excluded actors within the international arena, I also have some concerns about the assumption of legitimacy that such increased participation entails. Thürer: First of all I would like to thank you for the many highly interesting contributions. Probably I would have added other elements to my paper i f I had written it after our discussion. In any case your comments were very helpful and so rich in content that it is just about impossible to refer to each of them separately and in detail. I therefore hope that you will be satisfied with the following, rather general remarks. Let me start by mentioning how much I was pleased by the fact that my first position found some support, namely, that in international law sovereign statehood is, in its final analysis, to be conceived as a depositary or trustee of values. I would like to give you an example to further explain my point of view. Recently I had the chance of participating in the Vienna Conference on the prohibition of antipersonal mines and blinding weapons. Government representatives, represent atives of the Ministries of Defense, the Ministries of Foreign Affairs and other official state delegations were seated in the first circle and at first many of them reacted in a rather defensive way. The success of this conference was, I think, ultimately due to the input and lobbying of the International Committee of the Red

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Cross (ICRC) and NGOs which also took part at the conference, although seated in the outer circle. In my opinion in the end of negotiations, when the states eventually agreed to the legal instruments, they in fact were placed in a far stronger position than before. O f course some Ministries of Defense had put forward the view that it was too expensive to destroy the mines and that these weapons were needed for strategic reasons and so on, but the citizens back at home, of which the states are composed, were - 1 believe - proud to hear that such great progress had been reached. It was a very successful day for the "value-laden" concept of state sovereignty. Let me add, as another example, the admission practice of the Council of Europe and the European Union according to which state candidates are only eligible as new members i f certain prerequisites concerning human rights, democracy and "rule of law" are fulfilled. The conception of the state as a trustee of values which is very well manifested in this practice has reached a special level of credibility in Europe and in the world of liberal democracies, but I think that this new theory of statehood is also gradually finding support within the international community at large. As far as the question of subjects of international law is concerned, we should approach this problem in an undogmatic way. We should use a functional approach according to the Roman proverb "ubi societas, ibi ius" and conclude what the law is from social forces. Of course, NGOs may have certain rights under international law or have standing in certain proceedings, but I think it would be inappropriate as yet to draw too sweeping conclusions and treat NGOs as such as a new category of subjects of international law. A case-to-case-approach needs to be adopted. Let me add one more point: The ICRC which is recognized as a subject of international law in its own right, and which has not so far been mentioned. The ICRC has been entrusted by the international community with the special mandate to develop international humanitarian law and to carry out humanitarian services in international and internal armed conflicts. In certain states, it also enjoys diplomatic privileges and immunity from civil and penal procedures. Like the Holy See, the ICRC has a limited personality under international law. This additional remark seems to be in place in order to "round up" the picture presented in my paper even though the ICRC is certainly not an NGO in a technical sense. The question was also raised concerning the civil liability of NGOs for wrongful acts. The case of "Greenpeace", "World Wide Fund of Nature", or certain human rights groups were mentioned. I am certainly aware of the very unsatisfactory situation that the activities of NGOs may sometimes cause enormous uncompensated damage to private property or public domains. However, it should also be acknowledged that NGOs also serve important functions in the overriding inter-

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ests of the international community. In the present state of the international system they represent one of the few countervailing forces which are capable, even i f only to a modest degree, of criticizing, checking and curbing the actions of responsible holders of private and public power. They seem to me "faute de mieux", i. e., considering the lack of other effective international public institutions in our still anarchic world, to be on the whole an indispensible, legitimate form of "check and balance" within the overall international system. Let me now add a point concerning future developments. In this context, I think that the European Union (EU) provides a very interesting phenomenon, even though Switzerland has decided not to become a member. From the point of view of world global order the EU seems to me to represent the most promising way of creating some structure capable of checking the abuse of economic and social power, and of directing social activities towards overriding common ends. The EU seems to be making the most successful effort so far to cope with the problematic effects of globalization and, perhaps it offers a model for new legal institutions to be created on a world-wide basis. The OECD Code of Conduct for Multinational Enterprises and the newly debated OECD Multilateral Agreement on Investment should also be mentioned in this context as partially promising efforts to strengthen the „rule of law" within the given state of global economic relations. Although the remarks in my paper concerning the emergence and strengthening of centres of economic power were rather critical, we should, however, realize that there are many enlightened leaders active in the world economy. For instance, the ICRC has succeeded in getting together representatives of banks and insurance companies in order to demonstrate to them that it is in their own economic interests that all possible efforts are undertaken to avoid and to curb civil strife and international war. I think that leading circles in the private economy have realised that it should be part of a sound long-term strategy of transnational enterprises to contribute to building up a stronger international order. I would just like to mention here a Swiss entrepreneur who succeeded in founding an international business council for sustainable economy and has taken highly valuable initiatives in the field of education and scientific research. There are many more examples which could be mentioned. Let me conclude with just a word concerning the "constitutional approach" which I have tried to explain in my paper. I attempted to demonstrate that law is not only an instrument of action but also incorporates a social vision. To see international law embedded in a constitutional framework would help citizens, politicians and the business community alike, to find a basic normative order in international life and to direct their activities correspondingly. At least, this is what I try to teach my students: that the law is not just an instrument for legal engineering

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but that above all it embraces a broad set of principles. A principled, „constitutional" approach renders international law more accessible in our teaching and, in the end, more credible for the community at large. The subject matter of our symposium also demonstrates, in a spectacular way, how much more plausible a legal analysis of the salient phenomena of international life may become i f we consider them from a constitutional perspective. Wedgwood: An old trial lawyer likes to make rebuttals. So let me say a few things. First, in general, it is not clear that analytic purity about the nature of a "subject" of international law will serve much point in describing the real evolution of the international system. The terms subject, and actor, and noisemaker, and conversationalist all have play in describing the robust role of non-state actors in the international system. Certainly, when it comes to the kind of interventions that the Security Council has made, forcing agreements between two domestic factions, there is a party with a duty, and in that sense, a correlative party with a right. This, at least, was the teaching of an early 20th century Yale professor, Wesley Newcomb Hohfeld. Whether or not the right has to be enforced through another agent, one does have rights-holders and duty-bearers, and in that sense an actor who begins to approach a traditional subject of international law. It is very hard to confine the effects of innovation in one area of the public international law system from another. The Security Council is regarded by many developing countries as overly intrusive, in concerning itself with the domestic structure of strife-torn countries. Among the reasons there is resentment against the political role of the Council is that the Council's membership is limited and therefore provides indirect representation of the 185 members of the United Nations, but also that the Council is intervening in countries that have recently emerged from colonialism and do not want northern attention and prescriptions. Where insurgencies, belligerencies, indigenous peoples, and dissatisfied minorities are given cognizance by the Council, it risks cognitive dissonance i f one attempts narrowly to define who is a "subject" of international law. The Council's attention makes it harder for other organs of the U N system to deny an audience to those same groups. I think Professor Delbrück properly challenged us to think about slow but practical innovations that might well flow from this. These are incremental, but as they proceed they may become a trend. Take, for example, Articles 31 and 50 of the U.N. Charter. Under those articles, the Council can consult with any state that is adversely affected by the Council's action. In practice, the Council has chosen to broaden its consultations to include non-state actors, including NGOs, in so-called "Arrias" consultations.

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Similarly in the ICJ, some of the judges are considering the idea of perhaps allowing amicus curiae briefs. Those might be submitted not just by traditional NGOs, but by dissatisfied internal groups that take a different position from their representative country, organizing themselves, say, as the Association of Timorese People. Similarly one might extend consultative status from ECOSOC to include consultation with the U N General Assembly and with the IFIs, the international financial institutions. Instead of having all international aid flow through a national government, even where the intended beneficiary is ultimately a subunit of the state, there is nothing conceptually incoherent about having a direct loan, or grant, from the international financial institutions to a sub-state actor on a commercial basis. The same elements of creditworthiness will often be at stake, and the formal signature of the titular state, whether it is the national government of Bosnia and Herzegovina or the Federal Republic of Yugoslavia, does not make much of a difference. So, there may be small changes pressing forward, from the simple fact that other organs of the U N are already giving cognizance to non-state actors. There are also interesting examples from the 18th and 19th centuries, in a privatization of international law, in the time when countries grew out of companies, such as the British East India Company. But the dominant 19th century model was the nation state. It was created with too much difficulty to easily give way to the more pluralistic model that now seems nascent. Can one deal with this through the old vocabulary? One can adapt it with enough epicycles and footnotes, heliocentric or not. There were anomalous categories in the old days, to be sure, insurgency, belligerency, but the cognizance that the international community took of these was rather limited. There was a right of neutrality between belligerents, for example, but it did not extend to the kind of constitutional surgery, constitutional intrusion upon the domestic structure of the parent state that one now sees in Security Council intervention, where there is almost a constitutional version of international law. The international community is beginning to have a highly prescriptive view of what is a sufficient degree of autonomy for a national minority or constituent people. Belligerency and insurgency were limited doctrines and did not give full compass to the kind of internal prescriptive power that the international community now sees itself as having. Let me just say a word on Professor Thürer's constitutional version of international law. It is extremely attractive. I am ready to sign up and become a European any moment. But the open embrace of a duty of democracy is continentally limited, however desirable it might be that all continents should agree. In fact, there is still astonishing resistance on the part of some countries that see the Santiago Declaration, the Copenhagen Document, and Paris Charter as culturally specific regional norms. It may well be that the recent economic debacle in Asia will

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change the balance of power in that debate. But a great many Asian and African states would say that the only acceptable account of statehood and recognition is positivist, not one that requires signing up to the democratic desiderata of the Council of Europe. There is a wonderful English legal historian named Stroud Francis Charles Milsom, who liked to account for the growth of common law courts as a matter of jurisdictional competition - when Kings Bench discovered the Admiralty Courts were doing innovative things that threatened to take away business, the common lawyers adapted and incorporated a lot of good maritime and admiralty law into their own law. So too here, i f NGOs act as competitors in international fora with the nation state itself, it will create a healthy pressure upon states to recapture their claim as trustee of values, in order to marginalize the competition. In fact, there may be a healthy ecology in which the willingness to hear and give formal roles and standing to actors other than the state, could end up strengthening Professor Thürer's very attractive vision of a constitutional order for international law.

Individuals and Groups of Individuals as Subjects of International Law Thomas M . Franck*

I . The Vattelian System The Second World War featured several states' massive betrayal of the lives and liberties of persons, including even their own citizens. Since then, a tectonic shift has occurred in the law of nations. In the words of Professor Louis B. Sohn: Just as the French Revolution ended the divine right of kings, the human rights revolution that began at the 1945 San Francisco Conference of the United Nations has deprived the sovereign states of the lordly privilege of being the sole possessors of rights under international law. States have had to concede to ordinary human beings the status of subjects of international law, to concede that individuals are no longer mere objects, mere pawns in the hands of states.1 The traditional law of nations had been built on the prevalent feudal assumption that each person "belonged" to a sovereign liege-lord, rather the way slaves had belonged to masters and women to their husbands. From this subordination followed several consequences, each limiting the "subject's" personal autonomy. In particular, each person injured by his or her sovereign was entitled by national law only to whatever remedy the sovereign grudgingly chose to allow. In most jurisdictions, at least until quite recently, this meant, in practice, that there could be no realistic expectation of redress. For example, the maxim "The King can do no wrong" 2

* Professor of Law and Director of the Center for International Studies, New York University. 1 Louis B. Sohn, "The New International Law: Protection of the Rights of Individuals Rather Than States", Am.U.L. Rev., vol. 32 (1982), 1. 2 See Edwin M. Borchard, Government Liability in Tort, Yale L.J., vol. 34 (1924), 1, 2; and Note, Rethinking Sovereign Immunity After Bivens, 57 N.Y.U.L. Rev. 597, 604-607 (1982). N.Y.U.L. Rev., vol. 57 (1982), 597, 604-607. 7 Hofmann, R.

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largely immunized British rulers from litigation initiated by a citizen seeking a remedy for an alleged wrong. In international law, the consequences were equally dire. Each subject injured while in a foreign state and denied redress by its laws could do no more than petition his or her ruler to confront the offending foreign authorities through diplomatic channels, or - most unlikely - by state-to-state litigation or armed reprisal. The offended person could also petition the authorities to issue "letters of marque and reprisal" authorizing a victim personally to seize vessels or cargoes belonging to the victimizer. 3 For most persons, these were no more than very limited or even illusory remedies. The state rarely had an interest in its subject's private cause, especially i f it thereby risked antagonizing a fellow-sovereign with whom it had mutually beneficial relations. Even i f a "letter of marque and reprisal" could be obtained, the cost of initiating such a private act usually exceeded the victim's purse. 4 These remedies, although in occasional use until quite recently, 5 seem entirely obsolete when viewed in retrospect from the end of the 20th century. In most instances, they provided the individual with too little recourse. In a few others, they provided excessive recourse, making an individual's private claim a cause célèbre that was disproportionate to the wrong inflicted or alleged. There were exceptions, of course. A few bilateral treaties dated before 1914 established claims, or capitulatory regimes purporting to grant recourse or protection to the citizens of one party in the territory of the other. None of these, however, empowered the individual to initiate actions at law without the sovereign's consent. Thus, "a person's protection depended on the conduct of his state, and stateless persons were entitled to no protection whatsoever." 6 Moreover, "a state's own citizens were almost completely at its mercy, and international law had little to say about mistreatment of persons by their own government." 7 Just as in domestic law a 3

E. Colbert , Retaliation in International Law, 1948, 9-50. For an example of litigation between states based on a private claim of wrong see Interhandel case (Switz. v. U.S.), ICJ Rep., 1959, 6, 27 (Prelim. Obj. Judgment, Mar. 21, 1959). 4 Sohn (note 1), 2. 5 As late as 1858, however, the U.S. government still threatened to issue letters of reprisal to Boston merchants ejected by Venezuela from the disputed Aves Islands. Id. 3. The dispute was settled by Venezuela's agreeing to pay $ 130.000 in compensation. Id. , and cites therein. In 1902, Germany, Great Britain, and Italy still effectively blockaded the Venezuelan coast to compel its government to accept arbitration of disputes involving their citizens. See Venezuelan Preferential Claims Case (Germany, Great Britain, Italy v. Venezuela), Hague Ct. Rep. (Scott) 55 (Perm. Ct. Arb. 1904). 6 7

Sohn, id., 9. Id.

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woman had been, at least until late into the 19th century afemme convert , incapable of acquiring rights in her own name, so all persons in international law remained, essentially, persons converts under the Vattelian system that recognized the rights only of sovereign states. The first significant exception was the setting up of the International Labour Organization (ILO) in Geneva in 1919.8 Intended as a global forum for negotiating agreed labor standards, the ILO created many of the building blocks of the modern human rights system. It introduced nongovernmental parties (labor and management) to the international treaty-making process.9 Once standards were agreed, it monitored compliance through a Committee of Experts and examined complaints before a Commission of Inquiry. It developed a fledgling institutional capacity for fact-finding, conciliation, and even for collective decisions against defaulters taken by its Governing Body and Conference. 10 The inter-war period was not marked, however, by the growth of personal - that is to say, individual - rights, certainly not in the way these had developed in the domestic law of the revolutionary republics of France and the United States after the late 18th century. In international law, where the curtain of sovereignty traditionally separated all persons from the legal system, the first opening occurred not at the behest of individuals but at the instance of groups of persons. The new ILO rights regime addressed groups of unionized employees and associations of employers, and the legal regime that followed the First World War empowered persons associated in "nations." Some nations got a right to self-determination, others got the protection of international protective regimes. This shift from state to nation reflected the change that had begun to occur in the perception of human identity: from the Lockeian and Kantian emphasis on personal rights that had informed the founding of the new citizen-republics of the 1870s to 8

See Victor-Yves Ghebaldi , The International Labour Organisation: A Case Study on the Evolution of U.N. Specialised Agencies, 1989, 1-17; and Walter Galenson, The International Labor Organization: An American View, 1981, 4-5. 9 See Handbook of procedures relating to international labour Conventions and Recommendations, International Labour Standards Department, International Labour Office, Parts VI and XI, 1995. 10 These procedures are not here discussed in detail. They are outlined in Handbook of procedures relating to international labour Conventions and Recommendations, id. This also contains the titles of the many standard-setting Conventions adopted by the ILO from 1919-1995. For a summary of action taken on Representations and Complaints see, e. g., Report of the Committee of Experts on the Application of Conventions and Recommendations, General report and observations concerning particular countries, Report III (Part 4A), International Labour Conference, 83rd Sess. 1996, and International Labour Conventions and Recommendations, 1919-1991, vol. I, ILO.

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the romantic nationalisms of Rousseau and Hegel that emphasized personal identity as a product of affiliation with "natural" genetic or ethno-cultural groups. Professor Adeno Addis has pointed out that, under the aegis of the League of Nations and the watchful eye of the Permanent Court of International Justice, there emerged "a system of treaties and other arrangements to protect minorities as minority groups rather than as individuals . . . " n Although this period was by no means the first flourishing of demands for group rights, it was a time when those rights were enthusiastically embraced as legitimate both by national and transnational legal systems, which set about their implementation through new norms and processes.

I I . The League Regime of Group Rights "From one widely held perspective" Professor Nathaniel Berman has written, the regime of new nation-states created after World War I could be explained in terms of "the replacement of the Central European empires with 'national' states, such as Poland and Czechoslovakia. This implementation of the principle of nationalities or 'objective' self-determination was foreshadowed in [the Allies'] . . . promise to create a Polish state out of those regions with 'indisputably Polish' populations. In certain frontier regions, such as Schleswig, the 'objective' principle of nationalities gave way to the 'subjective' plebiscite principle." 12 In this way, group rights were accommodated by secessions. This redrawing of the political map of Europe along national-ethnic lines may have given self-determination to some populations, but only at the price of denying it to others. New nations equipped themselves with constitutions stressing their "national" character in terms of the dominant ethnic group or culture. 13 In so doing, these new political units immediately became the objects of new group-rights claims of minorities stranded in their midst. These claims could not be ignored in any principled way, but neither could they be fully satisfied by an infinite regression to a system of group-exclusive nations that satisfied every possible groupclaimant. "Accordingly," Berman notes, "as an accompaniment to the implementation of self-determination in its various guises, the new or greatly enlarged states 11

Adeno Addis, "Individualism, Communitarianism, and the Rights of Ethnic Minorities", 67 Notre Dame L. Rev., vol. 67 (1992), 615, 636 and cites therein. 12 Nathaniel Berman , 'But the Alternative is Despair': European Nationalism and the Modernist Renewal of International Law," Harv. L. Rev., vol. 106 (1993), 1792, 1822. 13 See Berman , id., and C.A. Macartney, Nation States and National Minorities 1934, 208-210 citing the constitutions of Austria, Czechoslovakia, Estonia, Poland, and Romania.

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of Central Europe were compelled either to sign minority protection treaties or to make declarations guaranteeing various rights to their minority groups." 14 In some instances group-secessionism was allowed; where it was denied, group-rights regimes were imposed in lieu of a group's right to secede. Thus, Austria, Hungary, Bulgaria, and Turkey undertook to protect minorities in their respective peace treaties. Poland, Czechoslovakia, Yugoslavia, Romania, and Greece signed minorities protection treaties with the principal allied and associated powers. Albania, Lithuania, Latvia, Estonia, and Iraq made minority protection declarations as conditions for entry into the League ofNations. 15 These treaties and declarations contained formal guarantees of equality of rights between the majority and minority. But they also contained provisions guaranteeing collective group autonomy rights. For example, the Polish Minorities Protection Treaty, in Article 8, granted minorities the right to "establish, manage and control at their own expense charitable, religious and social institutions . . . and . . . educational establishments," while article 9 guaranteed primary instruction in a minority's own language in parts of Poland "in which a considerable proportion of Polish nationals of other than Polish speech are residents," with an "equitable share" of public funds being allocated to such educational, religious, or charitable purposes. 16 This international legal turn to group rights is illustrated and illumined by a series of cases decided in the inter-war period by the Permanent Court of International Justice (PCIJ). These cases demonstrate the extent to which some of the most important self-identifying claims of individuals against the state were recognized only after being arbitrarily bundled up into collective rights of identifiable groups or categories of persons. An example of such bundling is the Polish Minorities Protection Treaty, which, by article 4(1), 17 automatically extended Polish citizenship to persons of German, Austrian, Hungarian, and Russian nationality born in territory ceded to Poland. Claimants had to demonstrate that their parents had habitually resided in what was now Poland. The scope of this provision was interpreted by the World Court, which had been given jurisdiction by the treaty to resolve disputes arising out of it. 18 In carrying out this function, the Court imple14

15

Berman , id.

Inis L. Claude , Jr., National Minorities, 1955,16. See, e. g., The Minorities Treaty Between the Principal Allied and Associated Powers and Poland, June 28, Consol. T.S., vol. 225 (1919), 412. 16 Polish Minorities Protection Treaty, id. Art. 9, 418. 17 Polish Minorities Protection Treaty, (note 16), Art. 4. 18 Advisory Opinion No. 7, Acquisition of Polish Nationality, 1923 P.C.I.J. (ser. B) No. 7, at 13-16. See also Advisory Opinion No. 6, German Settlers, 1923 P.C.I.J. (ser. B) No. 6, at 37.

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mented an international regime that accorded differential rights to individuals in accordance with their connection to a group, rather than on the basis of individuality and equality. It recognized that, while the Minorities Treaty provided all citizens of Poland basic rights to life and liberty without distinction of birth, nationality, language, race, and religion, other treaty provisions accorded special rights to persons because they qualified as members of a designated group: ressortissants polonais} 9 The Court used several other occasions to exercise its jurisdiction as the guardian of such group rights. In 1928, in a suit filed by Germany, the Court 20 had occasion to interpret provisions of the German-Polish Convention relating to Upper Silesia21 and again in the 1930 advisory opinion of the PCI J regarding The GrecoBulgarian " Communities " 22 which interpreted a 1919 Convention Between Greece and Bulgaria Respecting Reciprocal Emigration. 23 Perhaps the most interesting example is the 193 5 advisory opinion on Minority Schools in Albania, 24 wherein the PCI J was asked to review a 1933 Albanian law which made primary education in state schools free and compulsory for all nationals and ordered the closing of all private schools.25 This was challenged by religious minorities as violative of the obligations which Albania had assumed in a Declaration of 2 October 1921, as a condition of membership in the League of Nations. In it, Albania had pledged legal equality for all Albanian nationals and their enjoyment of full civil and political rights, without distinction as to race, language, or religion. 26 It had also promised that "Albanian nationals who belong to racial, linguistic, or religious minorities, will enjoy the same treatment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to maintain and control . . . schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein." 27

19

Advisory Opinion No. 7, id. 23-25 (observations by Lord Finlay). Judgment No. 12, Rights of Minorities in Upper Silesia, 1928 P.C.I.J. (ser. A) No. 15. 21 German-Polish Convention relating to Upper Silesia, of May 15, 1922, 16 Martens Nouveau Recueil (Ille Série) 645. 22 Advisory Opinion No. 17, Interpretation of the Convention Between Greece and Bulgaria Respecting Reciprocal Emigration, 1930 P.C.I.J. (ser. B) No. 17. 23 LNTS, vol. 1 (1919), 67. 24 Advisory Opinion No. 64, Minority Schools in Albania, 1935, P.C.I.J. (ser. A./B.), Fascicule No. 64. 25 Quoted in Advisory Opinion No. 64, 13. 26 Id. 17-18. 27 Id. 18-19. 20

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The Albanian Government argued that, since all schools had been nationalized, the equality principle had not been violated. The Court rejected this, pointing out that Albania had promised equality of treatment in law and in fact™ "Equality in law," the opinion states, "precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations." 29 Institutions such as separate schools "are indispensable to enable the minority to enjoy the same treatment as the majority, not only in law but also in fact. The abolition of these institutions, which alone can satisfy the special requirements of the minority groups, and their replacement by government institutions, would destroy this equality of treatment, for its effect would be to deprive the minority of the institutions appropriate to its needs, whereas the majority would continue to have them supplied in the institutions created by the state."30

I I I . The United Nations System With the end of the Second World War, there came a profound revulsion against the nationalist ethos that had prevailed in Berlin, Moscow, Rome, Bucharest, Madrid, Tokyo, and Vichy. This could not but affect the global regime. International law turned back to the values of the American and French Revolutions: from emphasis on the purely associational nature of personal rights to a human rights regime that defined the individual in terms of personal, political, and civil rights enforceable as law against the state, whether his or her own or another. The Second World War created better understanding of the inextricable connection between international protection of human rights and the maintaining of world peace. Strong personalities like Eleanor Roosevelt ,first to chair the newly-established U N Human Rights Commission, determined to reconfigure the entire relationship in law between the power of governments and the freedoms of the individual. The ensuing canon of human rights laws has only partially fulfilled the aspirations of those heady post-war years. 31 Nevertheless, its coverage is extensive both in terms of the rights defined and the number of states that have voluntarily 28

Id. 19.

29

Id.

30

Id. 19-20. For a critique of its shortcomings see Anne Bayefsky, Enforcing International Human Rights Law: The Treaty System in the 21st Century, Papers for a Conference, 1997. 31

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agreed to be bound by the new rules 32 . It includes the Convention on Civil and Political Rights (CCPR), 33 and some fifty other instruments covering such subjects as the rights of women and children, prohibitions on racial discrimination, on torture, and on religious intolerance. 34 It consists primarily of binding treaties supplemented by a nimbus of nonbinding declarations. 35 The latter, usually adopted by a consensus of states at the U.N. General Assembly, depend for credibility on their principles being incorporated into state law and applied in state conduct. When that happens, the principles, over time, evolve into binding international customary law. 36 While less than triumphant, the new international system of human rights norms, in its first fifty years, has embarked on making all states accountable for many wrongs against most persons. Especially significant is the extent to which these new rules open the way for the previously excluded individuals to participate in monitoring compliance. Persons are not only the holders of legal entitlements but also, in some instances, the authorized initiators of legal and political actions against violating states and governments. The treaty instruments vary as to how, and how much, they may be invoked by individuals against their oppressors. Many envisage a system of complaints to an expert body: the process pioneered by the ILO and adapted in 1966 by the new 32

For texts of these documents, see United Nations, Human Rights: A Compilation of International Instruments, UN Doc. ST/HR/1 Rev.4 (1993). 33 Convention on Civil and Political Rights, entered into force March 23,1976. G.A. Res. 2200 A, 21 GAOR Supp. (No. 16) 52, UN Doc. A/6316 (1966), ILM, vol. 6 (1967), 368, hereafter, CCPR. 34 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, UN GAOR, 39th Sess., Supp. No. 51, UN Doc. E/CN.4/1984/72 (1984), ILM, vol. 23 (1984), 1027, as modified ILM, vol. 24 (1985), 535. The relevant dates are: adopted by GA 10 December 1984, entered into force 26 June 1987, for U.S. 20 November 1994, Sen. Treaty Doc. No. 100-120. 35 For example, Mrs. Eleanor Roosevelt , although a principal author of the Universal Declaration of Human Rights, was instructed, in her capacity as U.S. delegate to the U.N., to say on the occasion of its adoption by the General Assembly that it "was not a treaty or international agreement and did not impose legal obligations." 3 UN GAOR (pt. 1,3d Cttee) 32(1948). 36 All international legal rules depend for their credibility upon sure and swift enforcement against transgressors. To the extent violators are not identified, sought out, subject to a hearing and the guilty punished, the law is brought into disrepute. In this, international law is not very different from domestic legal systems, which also off-times suffer valid criticism for being slow and uncertain in enforcement against the powerful, while acting with speed and a certain callousness against the poor. The recent record of revived death sentencing in some U.S. states is one example of inconsistent and unequal implementation of laws.

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Human Rights Committee established under the CCPR. In other instances, human rights violations are taken up by a representative political body, notably the U N Human Rights Commission, established by the U N Economic and Social Council in 1946, and its subsidiaries. 37 In addition to the universal declarations, conventions, and covenants that make up the global human rights canon, there are the regional instruments. Notable among these is the 1950 European Convention on Human Rights 38 which, while originally a modest compact among the traditional democracies of Western Europe, more recently has been embraced by most of the former communist nations of Eastern Europe, including Russia and some other European parts of the former Soviet Union. 39 This Convention has pioneered in creating instruments, including a court, through which claims can be adjudicated and remedies decreed; and, also, in establishing a route by which such claims can be pursued against states by individuals. 40 So well-established is this remarkable new process for protecting personal rights that the European Court of Human Rights has become the world's broadest jurisdiction, covering a larger number of persons in a larger geographic area than any national tribunal. It is, as one might expect, one of the world's busiest tribunals, its chambers often engaged in several cases concurrently. 41 The European example has echoes elsewhere. In the Americas, the American Convention on Human Rights 42 entered into force in 1978, and in Africa the Charter on Human and Peoples' Rights was approved in 1981.43 The Inter-American system, topped by its Court, in many ways resembles its European counterpart. The 37

ECOSOC, res. 5(1), 16 February 1949 and 9(11), 21 June 1946. UN Yearbook, 1946—47, 524. See Howard Tolley , Jr., The U.N. Commission on Human Rights 1987, 101-186, 205-220. 38 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, UNTS, vol. 213,222. 39 The European Convention on Human Rights has been ratified by Russia on 5 May 1998. The total is now 40 member states, see EuGRZ 1998, 308. 40 Id. art. 25(1). The "right of individual petition is applicable to any person whofiles a complaint against a state party to the Convention which has declared that it recognizes the competence of the European Court of Human Rights (formerly the Commission) to receive such individual petitions." 41 The caseload of the ECHR has grown from 2 references and 1 decision in 1960, and 8 references and 7 decisions in 1980, to 165 references and 126 decisions in 1996. See YB Euro. Conv. Hum. Rts., vol. 39 (1996), 180. 42 American Convention on Human Rights, OEA/Ser.K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1, OAS Treaty Ser., No. 36 (1970). 43 Charter on Human and Peoples' Rights, ILM (1982), 58; OAU Doc. CAB/LEG./67/3/ Rev. 51.

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African Banjul Charter establishes a Commission of Experts, elected by the parties, which may receive complaints by one state against another and by Article 55 such "communications other than those of states parties to the [Banjul] Charter" as a simple majority of its members decides to examine. I f the Commission determines "after deliberations - that one or more communications apparently relate to special cases which reveal the existence of a series of serious or massive violations of human and peoples' rights, the Commission shall draw the attention of the Assembly of Heads of State and Government to these special cases."44 On being notified, the Assembly may then decide to request the Commission to make a factual report and submit findings and recommendations to it. 45 Time does not permit a recital of the work of these global and regional regimes in implementing the new system of personal or individual rights. Suffice it to conclude that the new regimes have begun to erode the monopoly of rights once enjoyed by the state. It has also affected the priority accorded to group rights during the inter-war period. Inevitably, this has led to some reaction. As personal rights have achieved priority, the older communitarian values - both the statist and the group-based ones have felt challenged and eroded by the new emphasis on individual autonomy.46 The progress made by the new human rights regimes is sometimes seen as being respectively, at the expense of the primacy of the state and as undermining the rights, claims, and entitlements of various ethnic, cultural, and religious communities, rights only recently recognized after World War I. Such a conflict between claims of state, group, and individual is not inevitable, but it is probable. While the newly-emancipated, rights-holding individual might still opt to belong to a traditional community to which he or she willingly surrenders much of the newly-acquired personal autonomy in return for a packaged identity composed of status-based rights and duties, many others are unlikely to do so. And because a regime of personal rights inevitably includes the right to exit from any group, the fabric of the group is threatened by the legal empowerment of the members' free will.

44

Id. Art. 58(1). Id. Art. 58(2). 46 SQQÄmitai Etzioni , The New Golden Rule: Community and Morality in a Free Society, 1997. Professor Etzioni is founder and director of the Communitarian Network. 45

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I V . Individual Rights versus Group Rights The new human rights canon conspicuously avoids statements of group rights. The UN-Charter, although promising in Article 1(3) "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion" makes no mention whatever of minority or group rights. Similarly, the Universal Declaration of Human Rights does not deal with community and statusbased entitlements. This leads Addis to conclude that they are "examples of methodological individualism given legal and textual expression." 47 Moreover, a close reading of Article 27 of the CCPR, which seems to protect "ethnic, religious or linguistic minorities," reveals "that what is protected is the right of the individual to choose with whom to associate and under what conditions, rather than the rights of the groups . . . " 4 8 In other words, to whatever extent group rights are still the focus of entitlement regimes, it is primarily open-ended groups, rather than traditional exclusivist, autonomously self-defined, groups that have been the beneficiaries. Moreover, it is individuals in groups rather than the groups themselves that are protected. One exception would seem to be Article 27 of the CCPR. Not so, Addis thinks, because that article "does not create, as it appears with a first reading, a space for group rights . . . but it reaffirms an important dimension of the individualist project: the individual right to freedom of association . . . The explicit concern with ethnic minorities as a group here is in fact regarded as a first step towards making group affiliation irrelevant in the treatment of individuals." 49 That observation reflects groups' fear of what they perceive as the assimilationist spirit in which the group-protective regimes were instituted in the inter-war period of what they see as today's outright preference for the rights of the autonomous individual. 50 Are individual rights, with their emphasis on personal self-determination, really antagonistic to group survival? Individual rights, the critics claim, seek to give un47

Addis (note 11), 637. Id. 638. This was confirmed by the refusal of the Human Rights Committee to consider a complaint against Canada purporting to be made as an assertion of a collective group right, as opposed to an individual assertion of a right under article 27. See Lubikon Lake Band v. Canada , Comm. No. 167/1984, UN Doc. A/45/40, vol. II, 1. 48

49

50 An example is the narrow interpretation of the educational rights provision (art. 2 of the First Protocol to the European Convention on Human Rights) given by the European Court of Human Rights in its opinion in the Belgian Linguistics Case of 1968. Eur. Ct. H. Rts. Ser. A, No. 6 (1968). For a discussion see Ian Brownlie, "The Rights of Peoples in Modern International Law," in: James Crawford (ed.), The Rights of Peoples, 1988, 1, 3-4.

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differentiated equality to all persons; but its "ideal of impartiality serves ideological functions. It masks the ways in which the particular perspective of dominant groups claim universality and helps justify hierarchical decision-making structures." 51 Besides, personal freedom is an illusion. In Professor Will Kymlicka's terms, "freedom . . . to be pursued for its own sake [is] empty . . . there has to be some project that is worth pursuing, some task that is worth fulfilling . . . [A] valuable life, for most of us, will be a life filled with commitments and relationships." 52 Indeed, he argues that all cosmopolitan notions of individuation, personal selfdetermination, and autonomous construction of one's identity are illusory because for "meaningful individual choice to be possible, individuals need not only access to information, the capacity to reflectively evaluate it, and freedom of expression and association. They also need access to a societal culture." 53 To this Adeno Addis adds: "One cannot have a right as an abstract individual. Rather, one has a right as a member of a particular group and tradition, and within a given context." 54 Moreover, a regime that emphasizes individual rights encourages, in the views of some, a "concept of self that is normatively undesirable" 55 because, in Professor Michael Walzer' s words it "generates a radical individualism and then a radical competition among self-seeking individuals." 56 Addis adds that such a regime "breeds social dislocation and social pathology among members of [minority] groups." 57 Will Kymlicka has tried to show that while individualism is an illusion, group identity is both authentic and ineradicable. He points to "the tenacity with which ethno-national groups have fought to maintain their distinct identity, institutions and desire for self-government" and calls this "a striking fact of twentieth century history: there are few examples this century of national minorities - that is, national groups who share a state with a larger national group - voluntarily assimilating into the larger society." 58

51

Iris M. Young , Justice and the Politics of Difference, 1990, 97. Will Kymlicka, Liberalism, Community and Culture, 1989, 48-49. 53 Reading from "Human Rights and Ethnocultural Justice", forthcoming in Review of Constitutional Studies, draft, September, 1997, 9. 54 Addis (note 11), 642. 52

55

Id.

56

Michael Walzer, Radical Principles: Reflections of an Unreconstructed Democrat, 1980,

98. 57

Addis (note 11), 645. Will Kymlicka, Reading from "Human Rights and Ethnocultural Justice", forthcoming in Review of Constitutional Studies, draft, September, 1997, 3. 58

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Evidently, what many persons welcome as freedom of choice and emancipation from imposed loyalties is abhorred by others as the destruction of "the framework within which choices can be made" and as imposed assimilation, which "is nothing but one form of totalizing, in that it is out to destroy the possibility of counternarratives and, hence, the possibility of challenge and change." 59 What, from one perspective, is an invitation to every person to constitute a chosen self-definition in multilayered affinities with an infinite variety of "others" can also be heard by persons in a minority group as a siren call to abandon their historically, ethnically, and culturally validated identity and surrender to the omnivorous mass culture of an undifferentiated, homogenized majority.

V . The Zeitgeist and the New T r i a d Whatever one makes of these radically different perspectives, it is important to locate their origins in the recent Zeitgeist. After 1919, the world's conscience was pricked by "nationalities" that, for geopolitical or demographic practical reasons, had been denied the promised land of self-determination. The former minorities that emerged into nation-statehood at Versailles, on becoming masters in their own independent entities, were morally and legally required to grant group-autonomy to those who now found themselves a minority in a new land not of their kinfolk: Germans in Poland, Hungarians in Czecho-Slovakia and Romania, Albanians and Slovenes in Yugoslavia. For them and others, the conscientious answer seemed to be a place-specific regime of group rights, preferably one internationally contrived, guaranteed, and monitored. Thereafter came the rise and fall of Nazi, Fascist, and Communist totalitarianisms, bringing in their wake internationally guaranteed and monitored rules and institutions to assure the inviolability of personal freedom and individual choice. By 1945, moreover, the work of the paranoid nationalisms of Germany, Italy, and Japan had cast a dark cloud of suspicion on all claims to group rights. Nazi racial theories had become the epitome of ethnically, tribally, and genetically-based claims made on behalf of consanguinity. It was the individual who needed protection from this madness. Fifty years later, even as protection of the person was being realized (however imperfectly), a new generation of claims and a new context of rights-discourse is coming to the fore in a new Zeitgeist. 60 59

60

Addis, ( note 11), 645.

See, e. g., Larry Catá Backer , "Harmonization, Subsidiarity and Cultural Difference: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems", U. Tulsa J. Comp, and Int'l L., vol. 4 (1997), 185.

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These new claims once again have reintroduced the concept of group rights, but this time, perhaps, without the previously mandatory xenophobia and paranoia although recent events in the former Yugoslavia and elsewhere temper such optimistic prognosis. What most group-rights advocates claim today is a permanent defense against loss of separateness.61 They are not satisfied with the inter-war regimes' emphasis on the right of individuals to belong to groups nor with Article 27 of the CCPR, which is its modern analog. What they want is, at least, home rule that empowers not the members but the group and that preserves not a personal but a group-based right of individual identity, one that values the group as refiner and definer of persons. 62 This version of group-rights challenges not only the supremacy of the state but also the previous emphasis on individuality. In place of personal liberty, it imagines a non-liberal constitutionalism that allocates rights not to individuals as such, but to individuals in accordance with the group's allocations of duties and status.63 What thus has happened at the very end of the 20th century is that two previous dyads - claims of state sovereignty versus group rights and claims of state sovereignty versus personal liberties - have been merged into a single claims-triad. We are thus compelled to hear three kinds of competing rights claimants simultaneously. Moreover, we need to keep revising our notions of each claimant's identity. For example, claims of state sovereignty may now also be advanced by transnational authorities such as the European Union's Commission, while group claims may now be advanced not only by revived tribes or religious groups but also what Professor Iris Young characterizes as "the claims of new group-based social movements associated with left-politics - such movements as feminism, Black liberation . . . and gay and lesbian liberation." 64 International law is only just now beginning to think about the appropriate balance between the claims of the state, the individual, and the revived traditional and new groups. What sort of future world do we want, what sort of governance, and what are to be its empowered constituents: International institutions? States? Groups? Individuals? Or a mixture of some or all of these? I f a matrix of all or

61

The subject is extensively canvassed in: Ian Shapiro/Will Kymlicka (eds.), Ethnicity and Group Rights, 1997. 62 Graham Walker , "The Idea of Nonliberal Constitutionalism", in: Shapiro/Kymlicka, id. , 154, esp. 162-165. 63

Walker , id. 169.

64

Iris Marion Young, Justice and the Politics of Difference, 1990, 3.

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some, then how, and in accordance with the discursive processes of what sort of polis, are the various claims to rights and benefits to be apportioned and reconciled? We have not yet even begun to examine the definitional problems posed by the new triad. How are the values of the state, the group, and the individual to be configured? We are - may I suggest? - at the cusp of a global triage that will fix our identities for the new millennium.

V I . Rebalancing the T r i a d To acknowledge the need for balance and accommodation among the triad of rights holders - the state, the individual, and the group - is to recognize existential political reality. It is not, however, to recognize the three parts of the triad as equivalent. This becomes important when a socially and discursively determined compromise between the triadial claimants proves impossible to achieve. In that case, whose claim should be recognized as having superior "weight"? Absent definitive adjectival law, one must turn to moral reasoning which, nowadays, is likely to be informed by functional and structural analysis, rather than by claims to divine inspiration. Of the three, only the rights of individuals can be said to be a natural , rather than a social or historic construct. The right to be a person - to have recognized one's status as a sentient individual - alone is not derived from any higher principle. 65 1 agree with Leslie Mulholland , who concludes that the "status of a person is a right that cannot be derived from any higher moral principle, and is at least presupposed in any enumeration of rights." 66 In this structural sense, individual human rights are different in kind and prior to the rights-based claims of groups and of states. Both groups and states are non-inherent historico-social constructs. They are validated only by persons' identification with them, and by the recognition of their peers. The person, unlike the nation or an ethnic group, is a unique category of rights-holder whose capacity to have rights is implicit and inherent in the undeconstructible fact of personal being. 67 Let us try another way of putting this. There are acquired rights and unacquired or inherent rights. States or societies, groups, and individuals each may be holders

65

Leslie A. Mulholland , "The Innate Right to be a Person", in: Guy LaFrance , Ethics and Basic Rights 131, 1989. 66 Id. 131. 67 For a discussion of personhood as the basis for moral entitlements see Bernard Williams , Problems of the Self, esp. 1973, 230-249.

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of acquired rights, but only persons can have unacquired rights. 68 To quote Mulholland again: " A n acquired right is a right that is transferable because the object o f the right is transferrable. A n unacquired right is not transferable and pertains to the bearer unconditionally, i. e., without some external condition (such as transference) having to be met." 6 9 The right to a retirement pension is an example of the former, but the right to life is an example of the latter. In simpler terms, the distinction between a community - whether it be a state or an historic group - and an individual person is that the former is a construct, while the latter is not. A person, in this sense, is "die Sache in sich selbst." The person, in Kantian terms, is an "end in itself." 70 A community can be disassembled, scattered, and its component persons w i l l survive, as did the biblical Jews, the Armenians and, for that matter, divided Germans. A person, disassembled, cannot remain a person. Another way to put this is that a person's moral claim to rights derives from original, autonomous personhood and not from the sorts of contingent external events that shape the rights claims o f such entities as the state, society, or the tribe. 71 The rights of individuals in this sense may be said to have a natural or moral priority over the rights of a group or a nation, which is also to say that personal rights, in structural terms, have an irreducible (that is, irrefutable) functional utility and, in moral terms, claim an absolute value. O f course, persons tend to develop and to realize their desires in association and community. In that secondary, or derivative, sense the various forms of human society - the nation, the tribe, or ethnie, etc. - are also "natural" manifestations of individuals' irrepressible associational drive. But, lexically, it is the individual who constitutes society. The group, nation, and state do not constitute the individual, except, perhaps in the romantic mythology of discredited nationalisms and tribal lore. This makes slavery a violation o f a basic natural or moral right, whereas anarchy or tax-evasion is merely a failure of associational virtue. Or, to take another example, while the state's taking o f a person's life may be legal, it nevertheless is a primary moral wrong against the natural order, while a person's rebellion against

Mulholland ( note 65), 131. 69

Id.

70

1. Kant , Foundations of the Metaphysics of Morals, in Critique of Practical Reason and other writings in moral philosophy, L. W. Beck (trans, and ed.), 1949. 71 On the historic and circumstantial forces that shape a community or nation see Otto Bauer , "Die Nationalitätenfrage und die Sozialdemokratie," in: M. Ackermann et al (eds.), Werksausgabe 1975, 71, 73, 89, 172, 174.

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government - as Thomas Jefferson understood 72 - may be legally wrong but is not a violation of the moral or natural order of things. The distinction between the moral priority of rights-based claims and their legal priority is important. In local, statal, and international rights regimes, the law itself usually establishes priorities that determine the outcome of any particular dispute between rival rights-claimants. Closure, however, is never given in legal discourse, especially not when rival sets of claims collide. The conflict of claims in actual disputes is often not resolvable solely by reference to a normative text. The canon may have internal contradictions, or more than one rights regime may be thought to be applicable to the same dispute. Or the legal texts may not have envisaged, and so do not cover, the particulars of a dispute. It is primarily when the law is silent or speaks confusion that a natural or moral order tends to emerge in reasoned discourse, whether in councils of governance or of adjudication. Such moral discourse favors the individual as rights claimant. Of course, there is much in black-letter law and, for that matter, in social convention that tends to favor, instead, the claims of the state and of the group. I f claims of individuals always trumped those of the state or the group we might revert to a law of the jungle, or the wild West. It is the genius of a well-conceived and successful demos to keep the three parts of the triad, like a well-constructed Alexander Calder mobile, connected in continuous interaction within the constraints of equilibrium. Equilibrium may be achieved by balance or by tension. It is in the sense of equilibrium through tension that Professor Corwin has called the American constitution "an invitation to struggle." In international law, too, the system seeks to "develop institutional structures that will enable . . . dialogue" 73 between the parts of the international law claimants' Great Triad. Where balance cannot be achieved through reasoned discourse it may sometimes be achieved through tension. Either way, the overriding purpose of the systemic architecture is to promote not some absolute, automatic preeminence for personal rights but to promote the struggle and discourse that ensure perpetual - not peace - but equilibrium.

72

See letter from Thomas Jefferson

to James Madison of 30 January 1787, in: Julian P.

Boyd (ed.), 11 papers of Thomas Jefferson , 1955, 92-94; Letter from Thomas Jefferson Abigail Adams of 22 February 1787, in: Boyd , id., 174/175. 73

Addis (note 11), 649-650.

8 Hofmann, R.

to

Individuals and Groups as Global Actors: The Denationalization of International Transactions Stephan Hobe* I . Introduction The international system is currently subject to profound changes. The end of the East-West confrontation during the Cold War, as well as new technological breakthroughs and a globalization of the world economy require an adaptation of the international system and of the actors within this system. Global challenges confronting humankind such as overpopulation and underdevelopment, the danger of climate change and ozone-layer depletion, may stimulate and force a strengthening of the sense of togetherness, all mankind belonging to one "spaceship earth". Is this, therefore, what can be designated generally as globalization characterized by a new and legally fixed "common consciousness to belong together"? The title of this symposium and of my paper do, however, initially point to the necessity to observe and to describe how traditional actors react to global challenges. Such analysis has a lot to do with a changing notion of statehood at the end of the 20th and the beginning of the 21st century. 1 Obviously, and the impressive observations of my distinguished predecessor have indicated that very clearly, it is not sufficient to merely describe changes of the international system in terms of the changing concept of statehood. Rather the question must be asked, and shall tentatively be answered in the following as to what further consequences must be derived from the global challenges stated above in terms of new actors in the international system. Thereby it is my task to focus on individuals and groups and thus try to link two current trends. The first trend being the tendency of a growing quality of individuals and groups as legal subjects, that was just outlined by Professor Franck , and, the second being the * Professor of Law, University of Cologne, Germany. 1 For an account of the diverse changes of statehood at the end of the 20th century see Stephan Hobe, Der offene Verfassungsstaat zwischen Souveränität und Interdependenz, 1998.

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current trend of denationalization, or, in other words the trend of globalization. These trends must be described with regard to current changes in the international system and against possible attempts of international law itself to adapt to global challenges. Such analysis has to be developed in several steps. Initially, a brief outline of current trends of globalization that shall help to highlight the importance of global challenges to the international system and to international law w i l l be given. Secondly, a brief description of the different steps of the development of the individual, and of groups, from a mere object of international law to its subject w i l l be given which shall make transparent the main reasons behind such developments. And in the final and analytical part, I shall try to combine global developments and the changing legal status of the individual in order to indicate the importance and the repercussions of these trends for the further development of international law. This shall finally allow for an assessment as to the quality o f international law in accommodating the challenges o f globalization and the demonstration of some tentative conclusions as to its future development and direction.

I I . T h e C u r r e n t T r e n d Towards Globalization In order to get a concise understanding of the overall framework of our considerations a rough description of the notion of globalization is required. Here, one must confess that no firm notion of the term globalization has yet been established. 2 Roughly speaking one could characterize globalization as the development o f the world as one economic marketplace Obased on telecommunication and information systems that are easily accessible for everybody. By pursuing an inductive approach we w i l l describe certain trends which actually characterize the international system3 as the factual framework and as the real basis for the different international actors which are already involved with creating international law and are themselves bound by that law. But obviously some current developments make it rather questionable as to whether this safe conclusion can still be drawn with respect to the future. To start with the economic sector, we observe an ongoing and ever growing trend of by2 See, however, the attempts to define the term after its description by Jost Delbrück , Globalization of Law, Politics and Markets - Implications for Domestic Law: A European Perspective, IJGLS, vol. 1 (1993), 9, 10-11; Ulrich Beck , Was ist Globalisierung?, 1997, 26 et seq. 3 See for a description of the international system Georg Dahm/Jost Delbrück/Rüdiger Wolfrum , Völkerrecht I/l, 2nd ed. 1989, 3 et seq.

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passing the state. Multinational enterprises just use their transnational structure in order to circumvent national controls or at least to look for the most economically convenient place to do business. International stock exchanges are linked worldwide and can heavily influence international currencies and thus economies by way o f instantly buying and selling tremendous amounts of shares. Such developments are legal, and indeed, do occur with very little possibility of being influenced by states. The stock markets operate by way of new technological means which enable them to transfer stocks and money in very short periods of time around the entire globe. In addition, the growing permeability of state borders increasingly leads to entrepreneurial decisions regarding transfer o f production to the relatively cheapest place. The technological revolution has armed mankind with the useful weapon of world wide communication. For a long time television has heavily influenced our consciousness in the sense that it enables man to get immediate information from all parts of the world. The transmission o f information by satellite even across state boundaries was first realized more than three decades ago. It still required, however, international - state based - regulation when it came to the question of the permissibility of transboundary broadcasting. 4 The new technical revolution, symbolized by the Internet, now enables everybody to get information from everywhere and from everybody and to send information everywhere and to everybody without any possibility of being effectively controlled by states.5 As has already been extensively discussed yesterday 6, the growing importance of non-governmental international organizations indicates that the state may loose or has already effectively lost its role as the sole entity representing individual interests. 7 Those interests are increasingly formed apart from the state; and their public articulation may even be directed against the state. Moreover, the structure of some of the most current problems of the international community does transcend state boundaries by their very nature. Problems like global warming or the depletion of the ozone layer do not merely demonstrate 4

See on this problem Jost Delbrück, Direkter Satellitenrundfiink und nationaler Regelungsvorbehalt, 1982; Rüdiger Wolfrum, Telekomunikation, in: Karl-Heinz Böckstiegel (ed.), Handbuch des Weltraumrechts, 1991, 367 et seq.; Stephan Hobe, Die rechtlichen Rahmenbedingungen der wirtschaftlichen Nutzung des Weltraums, 1992, 184 et seq. 5 See on the influence of the Internet Alexander Roßnagel, Globale Datennnetze: Ohnmacht des Staates - Selbstschutz der Bürger, ZRP 1997, 26. 6 See the papers of Ruth Wedgwood and Daniel Thürer , as well as the discussion supra. 7 See moreover Stephan Hobe, Der Rechtsstatus von Nichtregierungsorganisationen nach geltendem Völkerrecht, forthcoming in 1999 and id ., Global Challenges to statehood: the Increasing Importance of Nongovernmental Organizations, IJGLS, vol. 5 (1998), 191.

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that any approach to environmental protection must necessarily transcend state boundaries but also that the interest at stake is no longer genuinely a national one. It is the global interest of all humankind in its own survival. This brings us to the concluding observation that globalization must be designated as a new paradigm of international relations as much as this could be said for international institutionalized cooperation in the past, especially after 1945. Whereas the latter, however, as described, is still very much based on the nation state needed as its foundation and which has not been completely replaced by the new paradigm of globalization, this new paradigm just indicates that the role of the state is increasingly diminished. The latter is not only irrelevant but is virtually by-passed by global transactions. Obviously thereby its role in the international system must change. It cannot any longer remain the overall dominating actor. Other actors may step in and become increasingly important. In this regard it is interesting to observe which role individuals and groups actually play and could play in the future.

I I I . The Development of the Legal Status of Individuals and Groups in International L a w 1. Classical International Law Before 1945 Traditional classical international law was predominantly based on the modern sovereign state. This is by no means surprising but rather consequent as it was the rise of the modern sovereign state and its eventual recognition in the Peace of Westphalia of 1648s which brought into existence the modern international system 9 and thus created the need for the formation of legal rules among those new entities. For almost 300 years the development of the international system was founded on the theoretical basis that apart from states which could also form associations in order to pursue common aims in so-called intergovernmental organizations, no other entity would have any direct entitlement under international law. Although the Permanent Court of International Justice in its Advisory Opinion of 1928 on the Status of the Railway Workers in the Free City of Danzig 10 implicitly 8

See on the importance of the Peace of Westphalia for the modern international system

Wilhelm

G. Grewe , Epochen der Völkerrechtsgeschichte, 1985, 323 et seq; Karl-Heinz

Ziegler, Völkerrechtsgeschichte, 1994, 176 et seq. 9 See Dahm/Del brück/ Wolfrum (note 3), 7 et seq. 10 PCIJ, Ser. B, N° 15, 1928.

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recognized for the first time that individuals could derive benefits from international agreements between states, it was still the clear understanding that such benefits should not be understood in the sense of a direct entitlement of the individual by international law. 11 Yet, the Covenant of the League of Nations contained provisions on the protection of minorities as a consequence of the collapse of the Ottoman, German, Russian and Austro-Hungarian Empires after the First World War and the rise of some newly independent nation-states in Eastern Europe. The aim of such provisions was the protection of ethnic, linguistic or religious minorities, to whom sovereignty could not be granted, but granting them the same treatment and the same civil and political rights as other nationals of the state in question.12 But even those provisions were meant rather in the sense of obligations imposed upon states than as entitlements of the individual. In other words, before the post World War Two period international law did not grant any entitlement to individuals or to groups. This can be said despite some doctrinal attempts by Krabbe™ Duguit 14 and Poliiis 15 to focus the entire international system on the individual and thus regard individuals as the sole subjects of international law.

2. The Period After 1945 a) The Position of the Individual With a view to the incredible atrocities committed before, during and after the Second World War the Preamble of the new UN-Charter indicates a change of paradigm with regard to the status of the individual. This change may arguably lead

11 The Court said inter alia: "It cannot be disputed that the very object of an international agreement, according to the intention of the Contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts.", id ., 17 et seq. 12 In fact there was a number of treaties: five special minority treaties binding Poland, the Serbo-Croat-Slovene state, Romania, Greece and Czechoslovakia, special minoritiy clauses in the peace accords with Austria, Bulgaria, Hungary and Turkey, treaties relating to Danzig, Upper Silesia and Memel, declarations made on admission to the League by Albania, Lithuania, Latvia, Estonia and Iraq and a special declaration of Finland regarding the Aaland Islands, see generally Patrick Thornberry, The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism, in: Christian Tomuschat (ed.), Modern Law of Self-Determination, 1993, 101, 106 et seq. 13 Heinrich Krabbe, Die Lehre von der Rechtssouveränität, 1906. 14 Leon Duguit, Traité du droit constitutionnel, 2nd ed. 1921. 15 Nicolas E. Politis, Les nouvelles tendences du droit international, 1927.

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to the conclusion to consider the individual as a partial subject of international law. Thereby, a subject of international law is any actor in the international system upon which specific rights and obligations under international law are conferred. 16 As at least some states had proven that they were not capable of taking suffient care of the protection of human rights - a task with which since the French revolution and the declaration of independence of the American states the nationstates had been entrusted - it was decided in 1945 that the protection of the human dignity should become an international concern. This can clearly be seen in the UN-Charter which in its Preamble 17 and Article 1 explicitly mentioning the protection of human rights as a new task of the UN. As it is well known, the UNCharter itself did not realize, however, a distinct protection system which was planned to be established soon after its coming into force. The 1948 Universal Declaration of Human Rights as a first step, albeit as a U N General Assembly resolution still not legally binding, and the 1966 Covenants on different dimensions of the protection of human rights must be understood as the realization of this pledge of 1945. These new codifications themselves would, however, not justify to speak of a changing paradigm in international law. The decisive test of the effectiveness of an international protection of human rights is always whether it can effectively meet and react to the challenge of state sovereignty. In this regard the respective law provides for an implementation machinery by providing specific means which next to different reporting obligations may enable states as well as individuals under certain conditions to bring their case to the attention of the international community. 18 Until very recently the implementation part of the human rights protection has been somewhat fragmented. It worked more or less indirectly through the respective pressure as a reaction to human rights violations that became evident during the implementation process. 16

See for definitions the Advisory Opinion of the ICJ on "Reparations for Injuries Suffered in the Service of the United Nations", ICJ Reports 1949, 174, 180 and Kay Hailbronner , in: Wolfgang Graf Vitzthum (ed.), Völkerrecht, 1997, 188 et seq; Otto Kimminich,

Einführung in das Völkerrecht, 6th ed. 1997, 102 et seq; ; Chris N. Okeke, Controversial Subjects of Contemporary International Law, 1974; Malcolm N. Shaw, International Law, 4th ed. 1997, Section 5. 17 See on the aspirations of the preamble with regard to the protection of human rights Klaus Dicke, Wir, die Völker der Vereinten Nationen - fest entschlossen, unseren Glauben an die Grundrechte des Menschen, an Würde und Wert der menschlichen Persönlichkeit, in: Stephan Hobe (ed.), Die Präambel der UN-Charta im Lichte der aktuellen Völkerrechtsentwicklung, 1997, 47. 18 See for a concise description of this machinery Andreas Khol, Zwischen Staat und Weltstaat, 1969.

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But more recently there have been at least three developments which have contributed to the status of the individual as a legal subject thus justifying the perspective of a changed or at least changing paradigm. With a view to the more recent U N Security Council practice there is, first of all, the recognition of grave human rights violations as a justification for U N action on the basis of Chapter V I I of the UN-Charter. Secondly, parallel to this new and rather crucial enforcement method, other more conventional means of enforcing human rights have been strengthened. And thirdly, there is a growing trend of a common recognition of an individual's criminal responsibility as became evident in the establishment of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda.

aa) Grave Human Rights Violations as Threats to International Peace (Art. 39 UN-Charter) Although most recently one can observe a greater reluctance the Security Council, in the early 1990s, pursued a practice which effectively strengthened the position of the individual. Following a policy which was initiated in the 1960s and 70s with regard to the apartheid régimes in South Africa and Southern Rhodesia19 the Security Council by way of an extensive interpretation of threats to international peace (Article 39) 20 declared in several instances a most critical human rights situation within certain countries as being of concern to the international community. 21 Consequently, the Security Council based its resolutions which authorized so-called "humanitarian interventions" on Chapter V I I of the U N Charter. The philosophy behind such action is clearly to make the UN what was termed "world police for human rights". 22 In our context this practice has important consequences. The strengthening of the enforcement mechanisms in cases of grave violations of human rights gives the whole area of human rights protection a new and progressive direction. Through the extension of the notion of peace as implying the elimination of grave and massive violations of human rights the po19

See UN SC res. 217 of 20 November 1965 and UN SC res. 221 of 9 April 1966. See Jost Delbrück, Staatliche Souveränität und die neue Rolle des Sicherheitsrats, VRÜ, vol. 26(1993), 6 et seq. 21 See UN SC res. 794 of 3 December 1992 (Somalia) and 929 of 22 June 1994 (Rwanda); the same concept served as the basis for UN SC res. 940 of 30 July 1994 (Haiti); UN SC res. 713 of 25 September 1991 (Former Yugoslavia) was still based on the transboundary effect of the respective massive violations of human rights. 22 Josef Isensee, Weltpolizei fur Menschenrechte?, JZ 1995, 421. 20

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wer of state sovereignty is considerably reduced. This is absolutely in line with the spirit of the UN-Charter because any international protection of human rights would necessarily provoke some tension with state sovereignty. 25 The abovestated practice indicates that the international community is not prepared to accept grave violations of human rights even on the states own territory and thus uses the strongest enforcement mechanisms available - the means of Chapter V I I of the UN-Charter - in order to restore international peace in the sense of a more satisfactory human rights situation. But the real basis lies in the very fact that the human person and its dignity him- or herself is the center of concern i f it comes to a characterization of peace. It is the individual itself regardless of its belonging to a particular state. The individual born in dignity can therefore claim protection against any unjustified infringement of this dignity be it on the state or on the international level. Thus the concept of an internationalization of human rights protection, reinforced in the U N Security Council practice, is in line with the general development of the individuals emancipation from his or her home state protection. The strengthening of the enforcement mechanism just shown is but a further proof for the individual's growing subject quality in international law.

bb) Strengthening of the "Traditional" Enforcement Procedures of Human Rights Protection It becomes evident from the previous considerations that the U N Security Council action under Chapter V I I is still the exception rather than the rule in the field of human rights protection. But even in the more conventional fields of human rights protection one can observe a further strengthening of the enforcement mechanisms in cases of presumed human rights violations. One must, therefore, first and foremost state that the Statute of the International Court of Justice (Article 34 para. 1) still restricts the number of possible claimants solely to states. Yet, viewed in this perspective the enforcement mechanisms in the field of human rights protection - mandatory state reports, as well as the state and the individual complaint - still indicate a considerable progress in the sense of more satisfactory enforcement mechanisms. Most importantly, they indicate that the state has become transparent in terms of the fulfillment of its duty to sufficiently protect human rights.

25

See Jost Delbrück, Menschenrechte im Schnittpunkt zwischen universalem Schutzanspruch und staatlicher Souveränität, GYIL, vol. 22 (1979), 384.

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The most spectacular breakthrough in this respect was certainly the entitlement in the 9th protocol additional to the European Convention on Human Rights enabling the individual to sue his or her home state directly. 26 After the institutional changes of the 11th protocol additional to the ECHR the way is so paved for direct access of the individual to an international tribunal without the intermediate position of the state. This contributes to the above-stated trend of a further emancipation of the individual vis-à-vis his or her home state: the claim to individual protection provided for by international law is now accompanied by the possibility of its implementation directly through the individual and no longer via the home state.27 And this seems to be more than just accidental. In the context of the International Convention Against the Discrimination of Women of 197928 a very serious discussion actually takes place with the aim to grant a direct right to sue to the respective women. 29 And in the area of international maritime law, Annex V I Article 20 para. 2 of the 1982 Convention on the Law of the Sea 3 0 confers upon maritime enterprises, i. e., private juridical persons, a jus standi before the International Maritime Tribunal. It should moreover be mentioned that the trust aspect of the common heritage concept in international maritime law 31 and the concept of intergenerational equity as contained in modern international environmental law 32 do not refer to states as trustees. Instead, they refer to mankind and thus to an entity distinct from the state. Until now, however, this development has not yet 26 See on the most recent developments with the adoption of the 11th Additional Protocol Jens Meyer-Ladewig , Ein neuer Gerichtshof fur Menschenrechte, NJW 1995, 2381; Henry Schermers, Adaptation of the 11th Protocol to the European Convention on Human Rights, ILR, vol. 20 (1995), 559. 27 SZQ Jochen A. Frowein/Wolfgang Peukert, EMRK-Kommentar, Art. 25, para. 1. 28 UN Doc. A/34/830 (1979), reprinted in ILM, vol. 19 (1980), 33. 29 See on this discussion in the context of the 4th World Conference on Women, Valerie A. Dormady , Women's Rights in International Law: A Prediction Concerning the Legal Impact of the United Nations Fourth World Conference on Women, Van. J. Transn. L., vol. 30(1997), 97, 119 et seq. 30 In BGBl. 1994 II, 1799. 31 See only Rüdiger Wolfrum , The Principle of the Common Heritage of Mankind, ZaöRV, vol. 43 (1983), 312; Hobe (note 6), 113 et seq. 32 See Edith Brown-Weiss , In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, 1989; id ., Our Rights and Obligations to Future Generations for the Environment, AJIL, vol. 84 (1990), 198; see in this respect also the decision of the Philippine Supreme Court in re Oposa v. Secretary of the Department of Environment and Natural Resources of 30 July 1993, reprinted in ILM 1994, 173 et seq., where a claim against environmental devastation on behalf of the future generation was explicitly declared admissible.

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evolved into an individual jus standi on behalf of the maritime or environmental heritage. From a European perspective it should finally be mentioned that European Community/Union law provides for specific opportunities of individuals to file individual complaints to the Court of the European Communities (ECJ) against acts of the Community. Although according to the leading doctrine and the jurisprudence of the European Communities Court, community law has not the quality of international law 33 it is still the primary and secondary law of international organizations and in this respect is indicative for individual possibilities of judicial protection beyond the state. Besides so called decisions of European organs which by definition are directed to individuals or enterprises particularly in the field of anti-trust law, the jurisprudence of the ECJ is a good example of direct entitlements of individuals by community law of primary and secondary character. In the leading case Costa v. E.N.E.L. 34 it was made clear by the ECJ that European community law was directly applicable; most prominent recent cases comprise the case of a soccer player, Mr. Bosman from Belgium who felt he had his freedom to choose a job in any Member state infringed upon by the system of transfer sums to be paid as an indemnification for the transferring soccer club i f soccer players leave the club. 35 Furthermore, the case of a complaint against gender discrimination through an administrative organ against Mr. Kalanke is worth mentioning. 36 And even so-called directives which according to Article 189 para. 3 of the ECTreaty are directed to the Member states to be implemented by national law are under specific conditions considered to entitle the individual to state indemnification i f the individual has suffered from damage because the respective directive had not been implemented in time. 37 Thus, with regard to individual protection by and access to the ECJ, European Community law reflects some of the aspiration of the European citizenship as contained in Article 8a et seq. of the EU-Treaty. This Union citizenship which explicitly does not replace the respective national

33 See only Michael Schweitzer /Waldemar Hummer, Europarecht, 4th ed. 1993,207 and Christian Koenig/Andreas Haratsch , Einführung in das Europarecht, 1996, 24 with further references. 34 Of 15 July 1964, ECJ Reports 1964, 1251. 35 ECJ, C-415/93, reprinted in: NJW 1996, 505. 36 ECJ, C-450/93, reprinted in: NJW 1995, 3109. 37 See the famous Francovich Case, C-6/90 and C-9/90, ECJ Reports 1991, 5357 and the Case Brasserie du Pêcheur , C-46/93, reprinted in: EuZW 1996, 205.

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citizenship is still indicative of the growing importance of the individual as one of the actors in Europe besides the Union, the nation-states and the regions. 38

cc) Individual Criminal Responsibility Another recent development, very much in line with the growing central enforcement by way of sanctions against grave human rights violations which we discussed above, is an obvious revitalization of the concept of individual criminal responsibility. O f course, with the Nuremberg and Tokyo Tribunals in 1945/46 39 there were certain precedents in the more recent practice of international law. However, it became obvious that despite the diligent work o f the International Law Commission in this respect, 40 it was, for a long time, at least difficult to reach a consensus in the international community on the establishment of certain international crimes and their punishment. There were, of course, examples of a decentralized law enforcement by national Courts, the Eichmann Case being one of the most prominent ones. 41 But the establishment of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda on the basis of Security Council resolutions 808 and 955 of 1993 and 1994 42 are a renewed and explicit example of the international community's w i l l to prosecute acts of individuals on the basis of international law. This is made evident, for example, in Article 6 of the Statute of the Rwanda Tribunal and Article 7 of the Tribunal for the Former Yugoslavia. E.g., according to Article 6 para. 1 of the Statute of the Rwanda Tribunal any person, regardless in what position he or she participated in an international crime "shall be individually responsible for the crime." Moreover the efforts for the establishment of a Permanent International Criminal Court, which shall judge on a list of codified international crimes such as genocide, crimes against humanity and war crimes are gathering momentum in the UN, further proof o f the inter-

38

On the legal position granted by the European citizenship see Stephan Hobe, Die Unionsbürgerschaft nach dem Vertrag von Maastricht - Auf dem Weg in den europäischen Bundesstaat?, Der Staat 1993, 245. 39 See the London Agreement of 8 August 1945, assured by UN GA res. 95 (I), UN Yearbook 1946/47, 254. 40 See ILC draft of 1994, reprinted in: NILR 1995, 207 et seq. 41 See District Court of Jerusalem, Judgment of 12 December 1961, ILR 36 (1968), 18. 42 See UN SC res. 808 (1993) of 22 February 1993; the Tribunal was actually established by SC res. 827 (1993) of 25 May 1993, reprinted in: ILM 1993,1203 and UN SC res. 955 of 8 November 1994, reprinted in: ILM, 1994, 1602.

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national community's conviction that individual responsibility can be imposed directly under international law. 43

b) The Status of Groups Because of their actual importance the focus of our considerations with regard to the status o f groups w i l l be on minorities. As such, even the term "minority" is indicative of a state-centered international system and international law. Attempts at definitions stress the necessity o f two criteria: an objective one that indicates the numerically non-dominating position as to ethnicity, religious or linguistic criteria, coupled with a subjective "sense of belonging together". 44 Thereby it becomes apparent that this definition is already indicative of a state-centered perspective on the international system and to international law because the framework against which the minority position is actually measured is that of the nation-state. The above mentioned treaty system o f international law after the First World War included provisions providing for a petition procedure for minorities to the League of Nations, but those minorities had no ius standi before the international tribunals. 45 And, after the Second World War, as shown in the previous section, the focus shifted to the protection o f universal individual human rights. It was only Article 27 of the International Covenant on Civil and Political Rights of 1966 that brought the question of a protection of minorities back on the agenda of international law. Under the Covenant, the U N Human Rights Committee had several opportunities to consider the legal value of the rights of minorities under Article 27,

43

See generally on these developments M. Cherif Bassiouni, The United Nations Ad Hoc Tribunal for the Former Yugoslavia: Commentaries on Statutes and Rules, 1995; Theodor Meron , War Crimes in Yugoslavia and the Development of International Law, AJIL, vol. 88 (1994), 78 et seq; Christian Tomuschat , Ein internationaler Strafgerichtshof als Element einer Weltfriedensordnung, EA 1994, 61 et seq. 44 Capotorti Report on the Rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities, Doc. E/CN.4/Sub.2/384/Rev. 1 of 1979, 96. 45 As Shaw (note 18), 219 indicates, there were in the early 1930s several hun- dred petitions received; this figure dropped to virtually nil in 1939. See, moreover, the Advisory Opinion of the P.C.I.J. of 6 April 1935 on Minority Schools in Albania, PCI J Series A/B, N. 64, 17 demanding states to ensure some special rights and institutions to minorities.

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including such famous cases as the Lovelace case,46 the Kitok case,47 and the Lubicon Lake Band case.48 In its General Comment on Article 27 of 1994 the Committee pointed out that the rights under Article 27 did not prejudice the sovereignty and territorial integrity of states although certain minority rights, those pertaining to indigenous communities in particular, might consist of a way of life closely associated with territory and the use of its resources, such as fishing, hunting and the right to live in reserves protected by law. Moreover, in Article 1 of the U N General Assembly Declaration on the Rights of Persons Belonging to National, Ethnic and Linguistic Minorities of December 199249 states are called upon to "protect the national, ethnic, religious and linguistic identity of minorities within their respective territories." Besides the forum of the U N Sub-Commission on Prevention of Discrimination and Protection of Minorities, there is some protection in the framework of the Council of Europe and of the OSCE on a regional basis. Finally, apart from the 1989 ILO Convention N° 169 on Indigenous and Tribal Peoples in Independent Countries, the 1994 Draft Declaration of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities and the Rights of Indigenous Peoples is worth mentioning. 50 This Draft Declaration states that indigenous peoples have the right to self-determination (Article 3) and the right to maintain and strengthen their distinctive political, economic, social and cultural characteristics, as well as their legal systems, while retaining the right to participate in the life of the state (Article 4). Moreover, indigenous peoples are deemed to have the collective right to live in freedom and security as distinct peoples (Article 6) and the collective and individual rights to protection from ethnocide and cultural genocide (Article 7). Their collective and individual rights to maintain and develop their distinct identities are particularly emphasized in Article 8 and certain other rights like the right to practice cultural traditions, to education, access to the media and health practices are also mentioned.51 46

Selected Cases of the Human Rights Committee, 1985, 83; 68 ILR, 17. A/43/40, 221; 96 ILR, 637. 48 A/45/40, vol. II, 1; 96 ILR, 667. 49 UNGA Res. 47/135. 50 Res. 1994/45, E/CN.4/Sub.2/1994/56, 103; see R. T. Coulter , The Draft UN Declaration on the Rights of Indigenous Peoples: What is it? What Does It Mean?, Netherlands Quarterly of Human Rights, vol. 13 (1995), 51. 51 See on these problems the study by Johannes Niewerth , Der kollektive und der positive Schutz von Minderheiten und ihre Durchsetzung im Völkerrecht, 1996, passim. For a natural law concept of fundamental rights and duties of ethnic groups within a state see Vladimir-Duro Began, Fundamental Rights and Duties of Ethnic Groups within a state, JRMP, vol. 1-2 (1996), 139. Degan mentions as such fundamental rights of minorities: the right to existance, to equality, to proportionate sharing in the decision-making, to the free use of national languages and of institutions. 47

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An overall evaluation of the actual status of minorities as the most important groups is relatively difficult. As questions of so-called new minorities, i. e., such persons who as the result of migration form a minority group 52 , will be on the agenda of international law in the course of current and future world wide migratory processes, a clarification of the legal status of this "group" is urgently required. At the moment one can clearly see that the concept of minority as a group were likely to collide with the concept of the nation state which still seems to be the dominating concept in international law. But all the above-mentioned drafts are an expression of the attempt of international law, to reconcile this conflict by obliging the nation state to accommodate the needs of minorities through the granting of a catalogue of basic rights. 53 The establishment of a High Commissioner on National Minorities in the framework of the OSCE indicates a growing recognition of the need to protect the interests of minorities as well. The actual and future world wide migratory processes as well as new, multiethnically composed states like Bosnia-Herzegovina, will probably deepen the problems of accommodating the needs of minorities. This may even go so far as to strengthen their position and to make them a limited subject of international law, a position which they arguably do not yet possess54, despite certain rights granted by international law but still predominantly channeled through the states.

c) Summary Viewed from the perspective of the development of international law one can thus observe that under the classical international "law of coordination" 55 individuals and groups were rather marginalized; besides the modern sovereign state no further entity was entitled to play an active role in international relations and in international law. Starting in the early 20th century and more fully developed after

52

Rüdiger Wolfrum , The Emergence of "New Minorities" as a result of Migration, in:

Catherine Brôlmann/René Lefeber/Margoleine

Zieck (eds.), Peoples and Minorities in

International Law, 1993, 153. 53 See the recent European Framework Convention on the Protection of National Minorities of 1 February 1995, reprinted in: EuGRZ 1995, 272. See as well Opinion N° 1 of the Badinter Commission of 11 January 1992, 2: " . . . the now peremptory norms of international law require states to ensure respect for the rights of minorities . . . ILM 1992, 1598. 54 See the discussion by Shaw (note 18), section 5 (self-determination). 55 See for a theoretical account of the distinction between "law of coordination" and "law of cooperation" Wolfgang Friedmann, The Changing Structure of International Law, 1964, 60 et seq.

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Second World War, the new "law of cooperation" paved the way for an understanding of the international society as a legal community. 56 The state was still the core actor of international relations and the most important and only fully recognized subject o f international law. But international institutionalized cooperation became a necessary corollary for states which started to accept their own limited capacity to solve problems of international concern. This first change of paradigm aimed at a limitation of state sovereignty and thus paved the way for an acceptance of further actors of international relations as subjects o f international law. The new international law eradicated the ius ad bellum , made the preservation of peace an international concern, provided at least a nucleus for central enforcement mechanisms and linked both concepts by offering international human rights protection with a workable enforcement mechanism. This first change o f paradigm in international law, characterized by a shrinking of the importance of statehood and the settlement of mechanisms of institutionalized inter-state cooperation was reflected by the growing recognition of the partial subject quality of the individual and a visible rise of the importance of groups under international law. 5 7 Viewed in this perspective we may now enter into a description of the effects of the new era o f globalization with regard to the role of individuals and groups.

I V . T h e Effect of Globalization on the Status of Individuals and Groups In the previous section we have examined the changes o f the status of individuals and groups according to the actual stage of development of international law. It became obvious that individuals have acquired at least a status as a partial subject of international law and that groups are under way to acquire such status, currently being legal subjects in statu nascendi. In the following we shall try to confront this actual status just described with most recent developments in the era of globalization in order to examine whether this development strengthens the previ-

56

See for the development of this approach Hermann Mosler , The International Society as a Legal Community, 1980, and id ., Völkerrecht als Rechtsordnung, ZaöRV, vol. 36 (1976), 6 et seq. 57 See, however, the still rather restrictive view as to the legal subject quality of the individual e. g., by Kimminich (note 18), 198; more favourable as to individuals Michael Akehurst/Peter Malanczuk, Modern Introduction to International Law, 7th ed. 1997,100 et seq; Alfred Verdross/Bruno Simma , Universelles Völkerrecht, 2nd. ed. 1981, 222; as to minorities legais subject status the restrictive view is still absolutely dominant, see only Akehurst/Malanczuk , 105, 108. 9 Hofmann, R.

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ously described doctrinal changes even more. It is clear, of course, that even with regard to individuals one cannot go further than attributing to them a partial subject quality. Individuals are not acting like states in the international sphere, since the legislative power as one important requirement is not yet developed to the stage which would allow their recognition as a state's equal.58 And with regard to groups it is even more questionable whether they possess such partial subject status already. 59 What has, however, become evident is, first of all, that the importance of states is shrinking considerably in the era of globalization. States used to be the overall dominating actors since the inception of the modern international system and consequently the foremost and leading subjects of international law. In the era of globalization many transactions of transboundary character are designed to bypass the state. This is evident in the economic field and in the field of telecommunications. Other areas of global concern like the preservation of the environment, do indeed exceed the capacity of the single state as well. This is indicated by the fact that some international conventions like the Convention on the Protection of the Ozone Layer already pay specific tribute to community interests. 60 Methodologically seen, those interests find their expression in erga omnes obligations.61 These are such obligations which due to their belonging to the concern of humankind as a whole, no longer solely focus on the sovereign nation state. Alternatively, they are obligations vis à vis the international community as a whole which are imposed upon every state and any other subject of international law just because their legal basis is the international community as a whole. 62 Apart from states any other actor in the international system may theoretically be legitimized to act on behalf of the community interest. 63 Here, the increasing importance of non-governmental international organizations which has already been discussed yesterday is most indicative for the growing involvement of the international civil society in international transactions. NGOs are in an increasing way involved in identifying individual interests that 58

See again the requirements of a subject status under international law (note 18), with further references as to the doctrinal discussion. 59

60

See supra, III.

See e. g., Article 2 of the Ozone Layer Convention and passim in the Montreal Protocol of 1987; see as well Article 218 of the LOS-Convention of 1982. 61 Barcelona Traction Case, ICJ Reports 1970, 3, 4. 62 See e. g., Jochen A. Fr owein, Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung, Festschrift für Hermann Mos ler 1983, 241. 63 See on this problem Jost Delbrück, A More Effective International or a New "World Internal Law"?, Indiana Law Journal 1993, 705.

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are considered not to be adequately represented by states or governmental international organizations. The actual discussion in the U N which aims at a greater participation of NGOs and their active involvement in the Global Conferences of the UN, e. g., on Environment and Development in Rio 1992 or on Human Rights in Vienna in 1993 are but impressive examples of this new role of NGOs. By the same token, individuals find new avenues to the international discourse through NGOs. Among the many NGOs perhaps Amnesty International and Greenpeace symbolize most impressively this concept. Amnesty International's official involvement with different human rights protection committees of the U N finds its expression in several conventions entitling the organization to a ius standi before international tribunals. Furthermore the important and often crucial role of the organization in the fact finding process of cases of presumed human rights violations, makes its expertise widely recognized by international human rights bodies. Besides this, international law goes even so far as to entrust NGOs with the task of implementing the Desertification Convention. In other words: existing international law grants specific entitlements to specific NGOs. Those organizations represent the non-state sector and thus express, at least where they are entitled to act under international law, in a rather more organized way (a bundle of) individual interests. Their increasing activities are indicative of a growing need to articulate non-state interests in certain fields pari passu with state interests. And this individual or collective expression of non-state interests become more important i f basic transactions are now undertaken by nonstate actors and thus consequently by-pass states.64 Just to give an example which still seems to be futuristic but which may soon become reality. The global communications networks, an example being the Internet, may require the establishment of certain basic legal rules, which most probably w i l l become an international rather than a national lex informática. Besides states as traditional actors the interests of individuals as consumers and bearers of human rights (e. g., the right to privacy) are at stake. Here it seems to be crucial that these interests are safeguarded and protected adequately. Because the scope of the Internet physically and, of course, legally transcends state jurisdiction, NGOs may step in in order to safeguard interests of the individual in an organized way. Similarly it does not seem unthinkable that, e. g., interests of minorities, and particularly those of so-called new minorities in the developed world, which are definitely not state interests but may often reach beyond the state's boundaries be represented by NGOs. These few examples show that even by now and with a 64

See as well Hobe, Global Challenges (note 9), 199 and 207 et seq.

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growing tendency international law takes note of the role of NGOs and that these organizations as representatives o f the interests of civil society seem suited to even enhance that role in the future. This can be taken as an important indication o f a further denationalization of international transactions. And one should not forget that any strengthening of the importance - and legal recognition - o f the role of NGOs are as well indicative for a further, albeit indirect, influence of the individual and of groups. With regard to an assessment of the future of the international system the decisive question w i l l therefore be whether these developments which occur even faster in the era o f globalization could lead to fundamental structural changes of the international system and consequently of international law as well? A t the moment I see at least two problem areas which may be crucial for the further evaluation of the status of individuals and groups. The first area o f interest w i l l be the question as to whether the international community w i l l eventually accept own legislative rights of individuals or at least admit their organized representation in the world legislative process. This would probably require the explicit recognition of, e. g., NGOs for the representation of individual or even group interests. Here we observe a strong tendency, e. g., in the areas of environmental (Desertification Convention; Rio Conference) and human rights (Convention on the Rights o f the Child) protection in this direction which by now may, again, arguably already qualify some NGOs for a partial subject status under international law. 65 On the other hand, on the "passive" side so to speak, the second crucial question would be as to what extent international law w i l l be reshaped so as to lay the basis for the general legal responsibility of individuals and groups and not merely a specific criminal one. Such a development would be a logical step in order to assure that individuals and groups take international law seriously. 66 The admittedly slow development with regard to the implementation of international rules regulating the behavior of multinational enterprises, e. g., in the OECD Code of Conduct 67 , indicates, that an establishment of such secondary rules of international 65

See Hobe, Global Challenges (note 9), 207 with further references. A most recent example is provided by European Community law. Here the new "model" of state liability in cases of a failed or flawed implementation of directives of the Community which was more or less "created" by the ECJ is indicative of the Court's intention to strengthen the possibility of enforcement of Community decisions in view of the relatively weak means provided for in Art. 171 of the EC-Treaty; see the Francovichdecision and the decision Brasserie du Pêcheur (note 34). 67 See for a description of the legal difficulties of codes of conduct Norbert Horn , Codes of Conduct for MNEs and Transnational Lex Mercatoria: An International Process of 66

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law on responsibility is not entirely unrealistic. In actual fact we are witness to a discussion on the establishment of legal rules for the conduct in the Internet. 68 And this actual discussion demonstrates very obviously that any piece of national legislation is not sufficient, but that at very least a worldwide code of conduct with regard to the Internet is required. The same is also foreseeable for the conduct of non-governmental international organizations: the more they become integrated in the U N framework, and there is, as we have seen, a certain tendency towards this, the more the rules of public international law will become applicable to them. I f one, therefore, accepts the growing shift towards an emancipation of individuals and groups as individual actors in the international system it seems to be a more or less logical necessity, that international legal rules may increasingly direct and determine their behavior. A further consequence must logically be the balancing of the possibility to breach primary international legal obligations and bear responsibility under international law. 69 We must therefore conclude that the perspective of globalization may enhance the current trend towards strengthening of the legal status of individuals and groups. It seems therefore to be likely that both may eventually generally be accepted as - partial - subjects of international law.

V . Towards a New Global International L a w This leads us to the final point of these considerations. We have seen that the era of globalization, viewed in a mid term perspective, is very likely to bring about profound structural changes of the international system. These changes may be roughly described as a multiplication of actors which may find their new roles in a changing international and global framework. What do these changes mean for international law? First of all, and this was the core subject matter of my paper, the growing number of actors will find itself reflected in a growing number of subjects of international law. Individuals, groups, NGOs and multinational enterprises are most likely to acquire the legal capacity to act relatively independently which leads again to a certain marginalization of Learning and Law Making, in: id. (ed.), Legal Problems of Codes of Conduct for Multinational Enterprises, 1980, 55 et seq. 68 See e. g., Roßnagel , (note 7), 27 et seq.; see as well W. H. van Boom/J. H.M. van Erp, Electronic Highways: On the Road to Liability, in: V. Bekkers et al. (eds.), Emerging Electronic Highways: New Challenges for Politics and Law, 1996, 153 et seq. 69 See for a description of the law on state responsibility Kimminich (note 18), 490 et seq. with further references.

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the state that once was the overwhelming entity of the international system and of international law. 70 Additionally, this new composition of the international system with new subjects of international law, all of which may possess the limited legal capacity to create new norms of international law, will most likely change the law making process. Probably, the importance of conventional law will rise and the way of creating customary international law will change in order to accommodate the recent changes of the international system.71 Moreover, the stronger impact of private entities may increase the importance of the third source of international law mentioned in Article 38 para. 1 lit. c of the Statute of the International Court of Justice due to the fact that more of the specific legal principles as contained in the diverse families of law throughout the world must be taken into consideration in order to determine the existing body of international law. 72 Overall the importance of international law will probably increase as this seems to be the only body of law which may actually be designed to meet the challenges of the era of globalization. Most likely the structure of international law will also be changed. In the era of globalization this international law must necessarily be designed to meet the global challenges of the 21st century. It must therefore be a law which is capable of articulating and accommodating the very diverse interests of a much more variable international system. Consequently it must be equipped to accommodate the much more variable law making process and the basic global interests. This will require the capacity to articulate and to formulate community interests of global concern as rules of an erga omnes character and to strengthen the means of a central law enforcement even further in order to prevent a fragmentation of the international system and of international law. In this new framework the post Second World War concept of international organization still seems to be relatively best equipped to play a promoting role. The U N which has already been proven to be playing an important role in the determination of the public interest, seems to be prepared and to be equipped to accept the number of non-state actors in the international system and to accommodate them within its organizational framework. The organization will consequently be composed of an increased number of law creating entities. The U N has already

70 See for a description of a move towards an enlargement of the subjects of international law as early as 1962 Hermann Mosler , Die Erweiterung des Kreises der Völkerrechtssubjekte, ZaöRV, vol. 22 (1962), 1. 71 See for some actual observations of such changes Jonathan Charney , Universal International Law, 87 AJIL, vol. 87 (1993), 529. 72 See on the actual importance of the legal principles Charney (note 71), 535 et seq.

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made the attempt to promote the understanding of public interest norms as being of erga omnes or jus cogens character. 73 It is therefore most likely that the UN will be the organizational frame in which international law could eventually change its structure into a "world internal law". 7 4 The U N may get a real chance to prove its capacity to accommodate the culturally diverse interests of an even more diversified spectrum of actors with which we are confronted in today's world in order to seek and secure a consensus on the most important values of the international community. This task has already been hard enough when the state was still the dominant actor. Only time will tell whether the enlargement of actors and the consequent diminuation of state sovereignty brings about a more promising result in the next millenium. In the middle ages, i. e., the era previous to the rise of the modern sovereign state, the idea of Christendom was the one unifying idea of humankind. The prevailing concept at that time was jus gentium which was directly concerned with peoples and individuals. Now we observe a post sovereign state period of international law again.75 Consequently, it will be crucial for international law to be flexible enough to incorporate all the basic values, embraced by states as well as by non-state entities, that are capable of unifying humankind. Crucial insofar, as with regard to the contemporary challenges, the very survival of humankind is at stake. Therefore, the era of globalization as an era of states as well as of non-state actors is condemned to look for and find a consensus about the essential components of the community rather than state interest and look for the incorporation of such consensus into international law. And the result of such consensus will most probably not remain the "pure" type of international law made by public entities but a transnational type of law representing the interests of public as well as the ones of the private sector. This would then be the most tangible result of the denationalization of international transactions.

73

See Delbrück (note 4), 292 et seq. Delbrück (note 62), 293. 75 See for a thorough description of the changes at the threshold of the 16th century and later on Ulrich Scheuner , Die großen Friedensschlüsse als Grundlage der europäischen Staatenordnung zwischen 1648 und 1815, Festschrift für Max Braubach , 1964, 220 et seq. 74

Discussion Vereshchetin: First of all, I would like to thank the organizers for their invitation to this most interesting Symposium. Yesterday, before hearing Judge Skubiszewski, I was about to make the same observations he made at the very beginning of his intervention. Like Judge Skubiszewski, I had the impression that in our discussion yesterday we did not draw a proper distinction between non-state actors in the international arena on the one hand and new subjects of international law, i f any there are, on the other. These notions may coincide and sometimes, as was clearly shown yesterday in our discussion, the distinction between the two is blurred. However, these two notions cannot always be used interchangeably. This is not to suggest that I think that the notion of "subject of international law" is or should be immune from change. This is not my view. It is simply to say that we should be very cautious in assessing this change. We should not be too hasty in admitting the existence of new subjects of international law. I will try to demonstrate this by introducing into our discussion new non-state actors, previously not discussed, although some were already mentioned, especially in the very interesting report presented by Professor Hobe this morning. What I have in mind are peoples - as distinct from states - and mankind as a whole. I feel that here I am entering very dangerous territory. My intention to introduce these actors into our discussion reminds me of the words of a character in one of the fairy tales by the famous 19th century Russian satirical writer, Saltykov-Shchedrin. The motto of the hero of one of his short pieces called " A Brave Hare" was: "Go ahead boldly, but from time to time, stop and glance back to ascertain whether you are not moving too fast." Now I feel myself in the role of this brave hare, because I am going to speak about non-classical - to say the least - actors in the international arena. I have a feeling, mistakenly perhaps, that the old subjects of international law are, figuratively speaking, under siege. They are under siege, at one extreme, from individuals, relatively new actors in international law, and at the other from mankind as a whole, which also tries to manifest itself in the international arena as an actor, as one entity. This phenomenon was rightly mentioned by Professor Hobe in his report. There are many other new actors in between these two categories as well.

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One important long-term trend in the development of modem international law is a gradual departure from the pure "étatique " nature of international law. Having begun to comprehend itself as a single whole, human kind, the human race, is trying to become the master of its own fate. In this sense we can speak of a gradual, barely emerging movement of international law from purely inter-state law to a common law o f mankind. As long ago as 1958, C. W. Jenks insisted that international law "must be regarded as the common law of mankind at an early stage of its development" 1 . A t a very early stage, I would add. It is clear that, as of now, mankind as such, peoples and individuals do not create legal norms. These are "made" by states and inter-state entities as before, but the law-creating process is now subject to a colossal and ever-growing influence of the public, which often acts as an organized global public opinion. Its influence is felt both at the stage of law-making and at the stage of law-application. In the former case, the organized community quite often formulates what is dubbed in literature "pre-standards for the rules of behavior", "pre-law rules", which are turned into legal norms by the states, for example, in the fields of disarmament, ecology, and human rights. In the latter case, at the level of law-application, the public organizations and movements monitor the observance of international norms in the international arena and within individual states. States have begun officially to recognize the right of their own and foreign citizens to exercise such monitoring. Thus, the documents of the Conference on Security and Co-operation in Europe (CSCE) oblige all states to respect the right of their citizens to contribute actively to the development and protection of human rights and fundamental freedoms and the right of individuals to observe the implementation and promotion of the provisions of the CSCE documents. I fully concur with Richard Falk when he observes that: " I am convinced that all the important progress relating to human rights and the efforts to curtail war have been the consequence of social movements undertaken within civil society." 2 The same is true as far as environmental law is concerned. A number of international instruments dealing with environmental problems were born as a result of public movements. In the field of disarmament, a telling example is the recent convention on landmines. A n interesting topic which deserves further study is the influence of these new developments in international law on the activities of international tribunals. This topic was mentioned yesterday by Professor Chinkin. Apart from the international 1

C. W. Jenks , The Common Law of Mankind 1958, XI. R. Falk in "Proceedings, Eightieth Annual Meeting", The American Society of International Law, 1986, 66. 2

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criminal courts or the human rights courts, which came into being through these developments, even the oldest international court - the International Court of Justice - in many ways experiences and sometimes influences the above-mentioned trends. Incidentally, the popular name given to the ICJ - the World Court - suggests that it is in a better position to serve as an instrument of a common law of mankind rather than as an instrument of inter-State law. The same is true of the composition of the Bench where the judges work in their personal capacity and do not represent states. A number of concepts originated in the ICJ contribute to the movement towards a common law of mankind, a particularly noteworthy one being the concept of erga omnes obligations. Recently, very prominent cases, with broad repercussions, were brought before the Court under the influence of popular movements and organizations, notable examples of which were: the Nuclear Weapons requests for advisory opinions, the Gabãkovo-Nagymaros case, which dealt with environmental issues, and the East Timor case, which concerned the problem of self-determination. At the same time, however, one cannot be overly optimistic in this respect. The ICJ was created as and remains the principal judicial organ of the inter-State organization. Under its statute and rules of procedure, non-state actors, except interState organizations, have no direct role to play in the proceedings of the Court. By its very nature and through its statute, the Court is expected to take a state-oriented stand on international law. This is also evinced by the judgments and opinions rendered by the Court. A departure from the purely "étatique " structure of international law is also manifest in the fact that its norms are often aimed not only at states and intergovernmental organizations but directly at legal persons such as transnational corporations, international non-governmental organizations and at citizens, i.e., natural physical persons. I f the interests of the individual and human rights are genuinely to play a central role in world politics, rather than in words alone, the individual must be granted certain qualities of the international legal personality. The very interesting reports presented at this Symposium have shown that this process has clear potential for further development. The gradual evolution of international law towards a common law of mankind is also connected with the legal affirmation of such concepts as "the common heritage of mankind", "the province of all mankind" and the like, as applied to the areas beyond the territorial sovereignty of states. These areas are granted a régime which provides for their use and exploitation with due regard to the interests of all people, rather than the interests of one state or of groups of states.

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The changes in the international community and in international law, whose concrete manifestations in different sectors of life and different institutions vary, sometimes cause us to question whether we can speak in this connection of a sea change in the very essence of international law as the law governing relations among states. Evidently, such a conclusion would be over-hasty and premature. To use the words of Eric Stein, "despite the pervasive mutation in the international system, the state is not about to 'wither away"' (AJIL , V. 88, N. 3, 1994, 450). International law as a regulator of relations mainly among sovereign social entities - i.e., states - has far from exhausted its potential and will perform its important social function for a long time to come. However, it would be equally erroneous to ignore changes, which have already taken place and begun to manifest themselves in some fundamentals of international law. Hosková: I would like first to thank both the lecturers of this morning for their excellent papers which brought about a great number of questions for our discussion. I would like to concentrate myself on two short points. One is mankind as a subject of international law, and the second relates to the position of individuals in international law. To my first point: Mankind, as Professor Vereshchetin already said, is a special subject of international law which was inserted, to my knowledge, to the Outer Space Treaty of 1967 on the wish of some developing countries. Mankind has, under this treaty, even some property rights to the natural resources on the space bodies. As you know, that subject still remains to be precisely defined, so, for example, it is not clear who should represent mankind, how should be created the will of mankind, how should such resources be divided among mankind. Nevertheless, I draw from this fact one conclusion, namely that we can expect in the framework of international law very interesting developments as to new subjects of law. In this context, I would point to the conclusion of the „Certain Expenses" decision of the International Court of Justice of 1949 in which it said that there was no closed catalogue of subjects of international law and that the international community could add such a subject when it deemed it necessary. My second point relates to the position of individuals in international law. As you perhaps know, most of the Eastern European countries adopted after 1990 in their constitutions a rule transforming international law into the internal state order. This means, in particular, that individuals must have direct access to the various international bodies acting in these fields, in particular human rights, that they must be able to bring their claims before international fora. In these internal legal regulations, there is, however, one open question, that concerns the internal reac-

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tion - implementation or execution - to the decisions of these international bodies. As to my knowledge, in the Czech constitution there is a provision which regulates the procedural implementation of such decisions of - some - international bodies in the internal legal order. What is the conclusion of that statement? I do not think that the lack of such provisions diminishes the role of the individual as subject of international law. I just think that it would be interesting to analyze these rules, which in practice regulate the implementation of those decisions of international bodies, and, therefore, have an impact on the actual scope of the personality of individuals under international law. Hernández- Truyol: I want to echo and reiterate the sentiments that have already been widely expressed with respect to the conference. This is my first time in Kiel, and it has been a wonderful experience. Thus, I first want to thank the organizers very much! This has been an inspirational and transformative event. The first observation I make with respect to both, yesterday's and today's conversations, is that they seem focused on dichotomies, an either/or approach. I personally try to stay away from such dichotomies because they tend to create oppositional and adversarial stances rather than cooperative and relational ones. I would much rather work with than work against. Therefore, my tendency is to analyze the notions about which we are talking, such as sovereignty, the role of the state, and of non-state actors, in a holistic manner. Only such approach facilitates finding the coherence, connections, and interdependence of these concepts and permits a cohesive review of the development, expansion, and transformation of law based, in large part, upon changes in real life. In essence it permits an analysis of the difference between the action of law and the law in action so clearly depicted in the three stages of development that Professor Franck addressed this morning. Both presentations earlier today showed that the notion of state sovereignty has changed as the field of human rights has developed, because human rights are supra-national. In this regard the state itself cannot violate the human rights of persons either its own citizens 'or other foreign subjects' rights. From this perspective, the bridge concept that Professor Thürer suggested yesterday is very useful in moving thinking and analysis beyond dichotomies. For example, I am concerned, indeed troubled, about using the notion of the state as a stronger or weaker entity than it used to be. To be sure, the state is a different entity than it used to be. It has different functions than it used to have, and it has different rights and responsibilities vis-a-vis the other actors in international law, whether it be the new

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actors that have emerged in recent times or those that will emanate in the future about which we have no concept or idea. I also question the intransigence of a public/private dichotomy. For instance, the recent initiatives condemning violence against women incorporated into declarations and conventions bridge the public/private divide. Similarly, recently articulated rights and duties to protect and educate children bridge the gap between the public sphere and the private sphere. I think that we will see more bridges crossing the fissure, particularly with the development of transnational entities. One such possibility lies in the recent trends to regulate labor standards which are being led by international corporations Finally, in the dichotomy aspect, I am ambivalent about and very uncomfortable with the notion of a clear state versus individual, state versus group, or individual versus group dichotomization of the problems or even as discreetly identifiable categories. For instance, a group can be a group, but it can also be a collection of individuals who have had similar individual experiences. With rigid boundaries we might simply then use to lump an amalgam of individuals into a group, although the event was experienced as an individual. So, whether we are dealing with a group per se or a group of individuals who have had a common experience, though not as a group, we elide the notion of natural and positive legal rights that Professor Franck described this morning. Perhaps then, in that sense, we should not look at rights as either individual or communitarian or view these as opposite forces but, rather, seek the promise of both. In all these contexts we have to recognize and deal with issues of power, domination, and subordination. I think we need to accept and understand, whether or not we may dislike it, that in many places there exists a Third World within a First World - a south within the north, an east within the west. We need to recognize the existence of those subaltern groups that often exist at the margins of the core as they exist at the margin of the margins. Such recognition will allow us to build from the outside in with respect to the dignity of the spirit of the human person that we all believe ought to be at the center of our concerns. The identification of subalternity allows us to rethink the notion of globalization. We all agree that there is not any one controlling definition of globalization. Yet the trend is to use the term globalization in a purely economic market concept, as a uni-directional phenomenon. I, for one, challenge that vision as I see globalization very differently. I think more broadly and thus consider it an imperative that the globalization discourse includes conversations about the transfer of people, the movement of people, and the related movement of culture and language that accompanies the movement of people. In that perspective, globalization has dual effects of localizing globalisms as well as globalizing localisms, as the

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McDonalds' - just like the Citibank - down the street shows! These flows inevitably will affect not only the economy but also identity. In talking about globalization, it is important to keep all of the actors that create such powerful movements in mind. One of the dangers of a market-oriented definition of globalization is evident in an area that I personally feel is quite dangerous, although it appears to be a common trend: the defining of the right to democracy or of a democratic state as one that, regardless of internal strives and stresses - whether they be racial or ethnic or class based - is willing to adapt to and adopt a market economy. We seem prepared to call any such market-driven entity a democracy regardless how undemocratic it is. Such approach creates real dangers and problems with respect to the human rights norms and the responsibilities of states. Finishing where I started and urging a holistic approach, I agree wholeheartedly that we need to protect above all the dignity of the human spirit. In order to succeed in this quest we need to pierce the myriad dichotomous veils that shield our comfortable thinking and change the vision from a disjunctive to a conjunctive sense of rights and responsibilities of all the different actors. Hofmann: I was a bit hesitant to put my name on the list of speakers. As host, I was not quite sure whether I should say something. Therefore I will be very brief. As everybody else in the room, I was very impressed, very happy with the presentations we heard this morning. As to Tom Franck's paper, I should just like to highlight and emphasize the notion of equilibrium. I was fascinated by your picture of the Calder mobile, the perfect equilibrium, and I think this is the idea to strive for. Obviously this does not mean that we are already there, and I am not quite sure yet how to get there, either, so this is a topic to debate upon, to think upon in the future, namely which mechanisms we have to establish in order to find an equilibrium, I think this comes in some connection with what has just been said by Professor Hernández-Truyol, that we have to get away from these dichotomies. In one of my fields of research, minority rights, one is always confronted with what I think is a false dichotomy, namely that there is a dichotomy between group rights and individual rights. I think it is perfectly conceivable to have these two rights living in harmony with each other, and I think this would be in line with this "equilibrium approach". That brings me to the next point: why do we need group rights? I think, as regards individual rights, probably most of us would agree that the individual needs rights simply because of his or her being a human being. Being a human being implies that one has to have rights and this implies holder ship of rights, so, I subscribe to Tom Franck's definition of subjectivity as being holder and bearer of

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rights. The situation is somewhat different, I think, as regards minorities. I think it is correct to say that a minority as a group is obviously composed of individuals, but the reason why there are specific rights for these groups is that a person belonging to such a group needs that specific rights protection because of being a member of that particular group. So I think that it is not enough to have this "collective exercise approach" of rights, but there have to be particular rights and those, I think, have to be given to the group as such in order to be effectively protected against possible violations. So, in the end, when I now turn to Stephan Hobe's paper, I fully agree that we have reached the point that one could speak of a partial subjectivity of individuals. As regards groups, I would be very careful, as the bold rabbit about which we have heard so much this afternoon and as you, Stephan Hobe, have been yourself, when - I hope I wrote that down correctly - you called them subjects in statu nascendi. I think that is something on which we all can agree: groups might become partial subjects of international law, and that, again, depends on the future role of states. In all our discussions, now and yesterday, when addressing the position of groups or the question of the legal subjectivity of NGOs, and the declining or not declining role of states, we must remind ourselves and not forget that it is obviously still states that decide who is to be considered a subject of public international law. Professor Chinkin, quoting Eric Stein, said the role of the state is not withering, the state will still be there, and I should like to add that it will be states that decide whom they accept as additional subjects of international law. They have been doing that all the time, for example when international organizations were accepted by states not only as non-state actors but as subjects of public international law or when the ICRC has been accepted by states and entrusted with tasks and, with that, subjectivity under international law. I think individuals have been given this status of partial subjectivity by states, and we have heard several interesting examples where states are apparently most willing to accord that status to NGOs. The chairman of this afternoon reminded us yesterday of the fact that international law is a dynamic process and not a static one. I think we are watching a development that is characterized by the fact that states react to the current development of having more non-state actors in the international arena by giving these non-state actors an increasing amount of partial subjectivity or holder ship of rights. Now my last point: this development, I think, leads to a different role of the state. In this context, I think, it is not futile to discuss whether it is a declining role or only a new, a changed role. I think the very fact is that states voluntarily have lost their previous position of being the sole actors and subjects of public international law. Therefore, they have acquired a different role. Maybe it is a de-

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cisión of personal preferences or how to measure that development, but I would say they chose their role as a declining one, notwithstanding that they are still by far the most important actors and subjects. Anyway, what I think we can agree upon is that their role has been profoundly changed because they themselves wanted it to be changed. That is something that we should not overlook, it is still states that decide. The same thought applies, I think, to the European Union in which it is still the member states who hold the final word. As long as states, as the major subjects of public international law, decide that they will accord subjectivity to other actors, we should accept that. The next question is, and that relates also to the European Union processes: are states under present public international law still in the position to withdraw that status of subjectivity again, or, more precisely, could they choose to withdraw the partial subjectivity accorded by them to individuals at any given time? But that might be a question to be discussed at a later stage. Stein: Before coming to the point I wanted to make let me briefly address the discussion about individual rights and group rights. I do support what both previous speakers have said, namely that we cannot avoid identifying a group or groups in certain situations. I f one takes, as an example, the right to education in a language different from the language of the great majority of the population, saying that such a right would be an individual right being given to a group could not be the solution. I f Turks in Germany, with or without German nationality, claim education in their Turkish language, they might have a right to it. But i f that is an individual right, somebody might come and say, I am Turkish, but my grandmother, who raised me, was Russian, so can I please have education in Russian. Another example would be election rights. One could lower the 5 % threshold only for minority groups, not for individuals. The main point I wanted to make concerns Stephan Hobe's remark this morning that we witness a growing tendency of by-passing states and that, in view of the new technological possibilities, states have little means to retain influence and counter that tendency. I myself believe that there are means; the problem is not that new, only the international dimension. Individuals as well as corporations at all times tried to by-pass or avoid state-imposed limitations with a fair amount of imaginativeness. As long as this was done within one state, that state could - and did - react alone. I f those efforts to by-pass state control in the era of globalization pass borders or use the world wide web, one state alone could not regain control, but has to cooperate with others, cooperate by using the traditional ways and means, inter alia treaty-making. One might, of course, say that globalization is not

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a threat, but rather a big chance, so do not interfere, as some had said earlier: market economy is the only chance, leave it to the market, the best results will come out of free competition. We all know that this radical free market theory is not the reality. Globalization might pose new challenges for states, but the means to cope with those new challenges are still the traditional ones. One might now ask „Why should other states be prepared to cooperate, i f they think that they would lose an advantage in doing so?" Again, this is not that new. When the big item in international law was maintenance of peace, states who believed they would win any war, were reluctant to accept or live up to the prohibition of war. But after the two catastrophes of two world wars they were prepared to accept the prohibition of the use of force. We might have to go through a phase during which a number of states see advantages which prevents them from participating in combined efforts to control the adverse effects of the new technologies and globalization. But the time will come at which they realize that they all are vulnerable and that cooperation is the only way to retain the necessary control. Byers: I want to use the next couple of minutes to do two things: first to agree with something that Thomas Franck said this morning; and then to abuse my friendship with Stephan Hobe to disagree with the main thrust of his argument. I found Professor Franck's attempt to distinguish individual rights from group or state rights fascinating, his idea that group rights and state rights are socially constructed and that individual rights are not. I think the reason for his wanting to make that distinction is to address the argument that comes from the non-Western, non-developed world: that there is no such thing as an individual right, that there are only group rights. I could not help but think of a quotation I read from a speech given by Kofi Annan a few weeks ago about human rights in Africa. He addressed this problem of cultural relativity by saying that, i f you have two women, one in Western Europe and one in sub-Saharan Africa, and both of them have sons who are taken by the police, tortured, and killed, the pain those two women feel is the same. That, I think, has to be the basis of human rights, that individual human beings feel the same things, the same emotions, the same sense of justice. I do not know i f this is something that I would want to build a legal argument upon, but I think it is at the root of what Thomas Franck was saying. To turn to Stephan Hobe's argument: I think it is agreed by everyone that there is now a very highly developed system of substantive human rights, that we today know the contents of human rights, and accept that those rights exist, either as customary international law or as treaty law. This is the result of the work of people like Eleanor Roosevelt, René Cassin, and John Humphrey in the late 10 Hofmann, R.

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1940's. I think that what Stephan Hobe is now saying is that we need to think about the enforcement of these substantive rights, that this is the next step. Like those pioneers of the late 1940's, he is an optimist. He looks at a glass and says "well, it is half full, and i f I can convince states that it is half full, then maybe I can make them fill it a little bit more." I think that argument works and worked very well in respect of the substantive content of human rights, because there was nothing in the glass beforehand, and you needed to at least create the illusion of content in order to force the content to appear. But there is no absence of substantive content today. The question is: "How do we actually convince states that something in the glass actually needs to be given out to the various people who are thirsty?" I think that, in terms of enforcement, the procedural aspect of human rights, that it is not such a good thing to be optimistic, that we need to use what Humphrey called the "marshaling of shame" to actually get states to realize that the situation, when it comes to the enforcement of human rights, is actually quite appalling. I agree with Stephan Hobe that there are indications of development, but in respect of non-consenting states, in respect of the states that are the worst violators of human rights in the world, there is very little that actually can effectively be done. There are regional instruments which apply in Europe, for instance, which actually do work vis-à-vis consenting states. There are procedures like the Resolution 1503 and 1235 procedures, and there are special rapporteurs. But when it actually comes to the Burmas, Nigerias, or Indonesias of the world, it is very difficult to actually get inside and change the situation, to get those states to respect human rights. I think the example of Chapter V I I action, although a good one in some contexts, is also highly selective. It has not been used in respect of Chechnya, for instance, or East Timor, or Tibet, or Nigeria. So I do not think it is a really good example of effective enforcement. I think there is an argument at least, when we talked about the enforcement of human rights, about the procedural aspects of human rights, about implementation, to actually say to states: "Look, you have failed completely, the glass is half empty!" Only then can academics like us push the system forward. We have actually achieved the substantive content. Let us now look for more, rather than telling ourselves and states that everything is okay, that everything is going in the right direction, that they are doing fine! That is not the way we should to proceed. Caron : I would like to continue on the "dichotomy" point. But first I want to mention a recent history of this century. "The Age of Extremes" by Eric Hobsbawm. As is implicit in the title, this book notes this century has seen both an unbelievable in-

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crease in wealth, and more suffering than in any previous century. The image I take away from that is one of volatility and I find that very disturbing. In this sense, I commend the topic of this Conference. This is a time of change when we need to look ahead and think of where the "extreme" failure will to be - i f one has the hubris to think that we could possibly see what that problem is going to be. But I do think that the forces at play are so powerful that there is a need to not just let the global market develop with close monitoring and analysis. On the point of dichotomy, and speaking in defense of Tom Franck's use of that term. I agree that the idea of going beyond a dichotomy makes a great deal of sense i f the objective is policy prescription so as to achieve the most good for the most people. In that instance, one would say: "Let us get beyond this and look for the way in which groups and individual rights can most complement each other." But the triad is powerful i f one instead uses it for explanatory power, particularly in a historical sense. And what I would emphasize in Tom Franck's presentation, because I think it is there, is that the demands of those three groups are always present. They may not be manifest in international law doctrine (although I agree with your statements as to when they became most manifest, there is a historical moment when the doctrine changes), but the demands are still present. For example, we can look at the anti-slavery movement all through the 1800s and its focus on the slave trade, at the inter-war period which is more complicated than often thought addressing the trafficking of women, disease control, and the stateless persons. There were many movements that had a strong humanitarian character prior to the doctrinal shift that occurs after World War II. The explanatory power, I find, is, i f you think of this triads in the sense that the elements are separate in which constituency holds the view the strongest. Some groups, or some leaders of a group, have a very strong view that the group must be preserved even at the expense of an individual to some extent. Individuals have a very strong cosmopolitan view of protecting human rights. The state has a very strong view of protecting the nation. For these people in situational positions, i f you view them as being governed to some extent by the dynamics of their group, there is an explanatory power. So as Professor Franck asks, why does human rights arise after World War II? Professor Franck mentioned Eleanor Roosevelt pointing out to nations "It is in your long-term security interests." In other words the state's interests came into conjunction with the individual cosmopolitan view. In terms of the triad, two of the elements came to take the same position, and if two come to take the same position, it is more likely that there will be action at that point. When do the groups come together as part of a Calder mobile? When do they move into equilibrium? I f they are in equilibrium or some are complementing one another, then one has the possibility of a doctrinal shift, a window of opportunity for a shift.

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For Stephan Hobe's talk, I found the sweeping overview very helpful. I do have a basic question with one of the theses. Professor Hobe said that transnational enterprises avoid states, they search for what is convenient. He concluded by saying that it is important that we address this phenomenon, that we can do it through the UN, and that international law must adapt in order to address this area of international activity. Mr. Schmidt yesterday noted that our conversation might be quite different i f there were other disciplines here. Let me just give two reactions to Professor Hobe's thesis which, I think, a business person would offer i f present. First, the process of an enterprise searching for what is convenient is actually a quite complicated process. I think we should avoid concluding too quickly that the search for convenience only means labor cost. I think a business man would say: "Yes, for some industries in some circumstances, I will go where the labor costs are lowest. In other cases I will move where a state has maintained what sociologists call 'social capital', where there is infrastructure, an educated populace, stability." Thus i f you look at labor costs plus this multifaceted social capital, we see corporate relocation to Asia, not to Africa, nor to some parts of Asia. So it is more complicated. But that is just a footnote. The basic point I have is that a business person would say: "They do not need the UN." This recognition is very important, recall that the title of this conference is 'moving from interstate order to a global community law' In this sense, it is not a mistake to seek to jam all of this global community activity into the UN, which as presently constituted is basically an interstate organization. In some ways, business has a much more developed effective transnational legal order than the interstate order. In the last fifty years, it has constructed an arbitration system that has 140 state parties, requires the courts of these countries to send the parties to arbitration, and then, when the arbitration is over, to enforce that which was a result of the arbitration with very few limits other than the policy. It is a very powerful system. So I very much doubt that this system will move into the UN. Such an effort would be a repeat of the 70s. I think how one could get a handle on the question of transnational economic order is a tremendous and real challenge. I agree with the challenge, but not the idea that of employing the UN. I f this business can avoid states, they most certainly can avoid the UN. Skubiszewski: I would like to say a few words about the protection of minorities, a subject which has been addressed at some length, especially by Professor Franck. I take the liberty of supplementing his illuminating analysis by pointing to one feature of one of the systems he discussed, and that is the system of the inter-war period. What I wish to emphasize is the selectiveness of that system and its inherent ab-

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sence of equality and reciprocity. Some states had to accept obligations with regard to the protection of minorities, but the majority of states had no such obligations. Some minorities were protected, some were not. For instance, the German minority in Poland had full protection under that system but not the Polish minority in Germany, with the exception of 15 years in the Upper Silesia region where the Geneva Convention of 15 May 1922 was in force. The pre-war pattern is not of much value for the present time. One can very well understand why the author of the new theoretical approach to the matter, namely Hersch Lauterpacht, suggested a different model, the model of human rights. I am referring to his book published immediately after the last war (1945) and also to his Hague lectures of 1947. In the context of individual rights leading to minority protection I would like to draw your attention to the German-Polish Treaty of Good Neighborhood and Friendly Cooperation of 17 June 1991, which was the first treaty containing detailed provisions on the protection of minorities after the breakthrough of 1989.1 think it created a certain model which was useful in other negotiations on similar bilateral treaties, some of them also concluded by Germany, like the GermanCzechoslovak Treaty. I would agree with Professor Hofmann that there is no necessary conflict between individual rights and group rights, but I think that individual rights are a safer and better starting point for regulating the protection of minorities. Under the Polish-German Treaty there is also some room for collective rights. For instance, Poland agreed to cancel the threshold of 5 % with regard to the general election, so as to enable the German minority to have a representation in the Polish parliament; otherwise the representatives of the German minority would not be elected. But I think that the point of departure of the two delegations when the Treaty was drafted, was the protection of individual rights. We in Warsaw had devoted a lot of attention to the process of drafting, and indeed the final decision on certain points was taken by the Federal Foreign Minister Genscher and myself. I vividly remember our meeting at which we resolved certain non agreed points. I think the effort of the two states and the good result of that effort should be mentioned in this discussion. Also reference should be made to the Framework Convention of the Council of Europe on the Protection of Minorities. My final point is that the existence of a minority, be it national, linguistic, religious, or other, is an objective fact, but membership in that minority is subjective, and this was also taken into account in the Polish-German Treaty. This is the first modern treaty which gives a definition of the minority. In other words, a person can decide whether he or she belongs to a minority or not, but such a right should be distinguished from the situation of a group. There is a certain limit to a group

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right. Individuals cannot just call themselves a nation (in contradistinction to a minority) and get all the rights inherent in the concept of a nation. My point is not theoretical. Recently a group of persons in Poland, namely in Silesia, founded an association of the "Silesian nation", and they obtained the consent of a court of lower instance to be registered in that capacity. Suddenly, through that registration, a new nation seems to have arisen in Europe, the "Silesian" nation. The Governor (Wojewoda ) of that part of Silesia disagreed and went to the Court of Appeal, and the Court of Appeal quashed the decision of the court of lower instance; the members of the new Silesian Nation went then to the Supreme Court; they lost - a few days ago the Supreme Court upheld the decision of the Court of Appeal. So we shall not have another new nation in Europe, at any rate not in Silesia. I think that recently we have had enough of nation making in the Balkans and elsewhere. Herdegen: I think Professor Franck's crystal-clear, somehow merciless view and Professor Hobe's softer, more velvet-like vision complement each other very nicely. Professor Franck's presentation offered us a most elegant mixture of an 18th century discourse with a modern 20th century approach. It emphasizes a strictly personalist, individual-orientated vision, enlightenment stage, and adds a very strong warning against group-orientated perspectives, a kind of Philippika for the nonliberal, sectarian, tribal implications. I must confess I find this vision very attractive, and I essentially side with this perspective. However, it prompts one question to me in the light of the new role which Stephan Hobe would like to attribute to NGOs. Professor Franck, I wonder whether you would include in your warning at least some of the NGOs, given their single-issue orientation, given their doubtful credentials as to democratic structures and abilities? Are they really the caring cuddly, furry animals, as Stephan Hobe likes to describe them. Or are not at least some of them really dangerous beasts, even more dangerous than most of the transnational enterprises in the sociological garden of the international community? I want to go into your dichotomy of pre-existing natural personal rights on the one hand and acquired rights on the other. Looking at most of us in this circle, i f we have any fundamental preoccupations, they refer to acquired rights, given the sector of the globe which we represent. Would you say: "Well, that just indicates a division of labor between public international law and constitutional law. Let constitutional law take care of the more subtle aspects of acquired rights, their limitation and balancing of acquired rights, whilst public international law should confine itself to taking care of the more fundamental preconceived personal rights!"?

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Stephan Hobe has made a very forceful point of the impact of the NGOs' newly increased role on the parameters of state action. On the other hand, I think it is important for us to realize how often NGOs and other non-state and sub-state actors join forces, how they bring about an enhanced role of the state, for example in certain commercial economic disputes. Suffice it to refer to the famous tunafish dispute within GATT and the WTO. I f we save the dolphins from the Mexican drift-nets, we do not only make an important contribution to the environment saving a species, we also render important services to the US American fishermen, saving them from Mexican or Norwegian competition. I think talking about the role of the state vis-à-vis non-state, sub-state, actors also requires to consider extraterritorial legislation and the possibility, at least, of some states to unilaterally enforce decisions on a world-wide scale. Stephan Hobe has provided us with a quite optimistic forecast as to the legislative role of the individual. Personally I would confine my own prognosis to the regional level. I think, be it on the regional, be it on the national level, the implications of such a new legislative role are really quite dramatic, because it seems to me inevitable that they will erode the equality of states, because, i f you take serious what you call the new legislative role of the individual, you can do so only in terms of proportional representation. Applying this concept to the European scenario, I think the enlargement of the European Union will just about demonstrate this evolution. I f we are going, to establish a new legislative role for the individual, we will have it with a new balance in terms of stronger proportional, quasi-proportional representation in the Council and in Parliament with a dramatic, or at least a considerable, shift of the balance of power in favor of the four or five major member states. Thus, to sum up, I think it is premature to initiate a swan song for states as the decisive factors in the international community. Franck: That certainly sets me up for widespread disapproval, but despite that threat, my friend Matthias Herdegen has provoked me into a small intervention, which he will be surprised after our vigorous and delightful teaching last semester, is actually in the form of an agreement, and one which I would have voiced yesterday, even before he spoke, i f it were not for my feeling that my speaking today would more than compensate for self-imposed silence yesterday. I quite strongly feel that the discourse on the role of NGOs is a blind alley. I think there are very useful NGOs, I think there are pernicious NGOs, there are broad-based NGOs, there are narrowly-based NGOs, there are NGOs that are really just substitutes for one or two people, often people with a lot of money, but NGOs in no way solve the problem of the legitimacy deficit of the growing international power of international

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institutions. The legitimacy deficit of the growing power of international institutions is reasonably well understood in Europe, but not clearly understood in the rest of the world. It grows from the fact that, even i f you assume - which of course you cannot in the international sphere - that all states are basically democratic, an international institution is a coming-together, sometimes in an agreement- and lawmaking function, in which the oppositions within the democratic process of each member state are totally ignored. That is, the people who normally in their parliament would ask the questions, press the government, create divisions, and so on, are simply ignored at the ministerial level and as long as decisions in international institutions are mainly ministerial decisions, large parts, often majorities of public opinion in states have no role in the making of those decisions. I am glad that there are ministerial institutions and that we have some international law, because that happens to be what I do, but, on the other hand, I also fully accept the fact that, from a longer term perspective, that kind of decisionmaking will cause its own collapse. I f you continue indefinitely to transfer authority over really important issues that affect people's interests to institutions that do not even have a pretense of representativeness, you will have the seeds of self-destruction. Not only do NGOs not address that problem because they are in no sense a substitute for some direct form of representation of people in the process which normally one thinks of as parliamentary representation and which even in Europe is taken into account, however inadequately, by the existence of a European Parliament, there is nothing like that thought about internationally, and part of the reason it is not thought about is because, when you get a very distinguished group of people together to discuss the legitimacy deficit, they tend to discuss NGOs. NGOs are irrelevant, they do not in any sense legitimate the decisionmaking process. They may make it better, sometimes they may make it worse, but the legitimacy deficit is not addressed by them, so in that sense, Matthias, I not only do not disagree with you, but I think that, for reasons that are no fault of their own, NGOs are not structured to addressing the problem of the legitimacy deficit in the international system. Delbrück: I have a number of minor remarks. It is the advantage of being late on the list that you can react to something that was said before. But also, I have one major point that I would like to address. The first remark is with regard to the remarks of Mr. Byers. I agree with you with regard to the sobering results one gets watching the human rights enforcement scenery. That is certainly not satisfactory, there is no doubt about that. But I do not think that Mr. Hobe was over-optimistic in his observations, because he did not mean the present state of affairs. To my under-

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standing, what he was talking about is the trend, the development, corroborated by factual instances, that we are moving forward in the refinement but also the efficacy of the monitoring mechanisms that are already available. The international legal discourse that is initiated by these various monitoring systems has brought us quite a way forward. So the glass may be seen as half full, or whatever. So I think Mr. Hobe's was not a statement in the sense "well, it is all wonderful", but that we should be aware of a trend towards a growing consciousness about the necessity to get to more compliance. I like to refer to a recent book by Abram and Antonia Chayes on compliance with regulatory agreements, entitled "The New Sovereignty." They describe the process and the means of enhancing compliance vividly and based on a lot of data, going through some 200 treaties, including many human rights treaties, and the practice thereunder. The up-shot of the authors' analysis is that there is a lot of discourse on and actual work for improving and fostering the dynamics of compliance. Looking at the results of this very thorough research one may very well be a little more optimistic. But the main point is the time factor: I appreciate your historical interest, and so let us look at the historical development of international human rights protection! It is just 50 years that we have some major human rights law on the books. It took centuries to provide for effective human rights protection within the states - and the process has not become complete so far. On the international plane we already have an impressive body of codified human rights law. Yet one has to admit that much of the substantive meaning of the written law is still controversial. But despite of this we have come to a point within 50 years where international human rights monitoring systems have established a veritable record of practical human rights enforcement. I f human rights enforcement bodies - like the Committee on Recommendation established by UNESCO and charged with human rights monitoring tasks - could bring about the release of more than one hundred people from Soviet prisons within a three years period that is something that truly counts. Thus, considering the results of the practical human rights protection carried out under international human rights law in the historical perspective this is an achievement we should not forget. Secondly, I like to address your observations, Mr. Stein. As they are, I tend to agree with your account that there still is a strong role for the state. But is it really true to say déjà vul Given the challenges to the state in view of the existence of not only 4,000 as mentioned yesterday, but something like 15.000 NGOs working in the United Nations' orbit with their tremendous capability of publicity, of grassroots movement pressure, can we really interpret their most influential inputs into the international decision-making processes as a factor strengthening the state? I do not think so. A state acting under the pressures and surveillance of these numerous vociferous NGOs is not the same state as it used to be. I think the

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formula we have agreed upon is: the state's role and status are different, I think this is the more adequate or the more acceptable formula. Even as I could accept that there is no formal change in the legal status of the state, it's status has relatively declined. Third, the question of the definition of globalization: I agree with Mrs. Hernández-Truyol that the definition of globalization needs to be broader than just covering the realm of economics. Globalization is a much broader process, it reaches far beyond the sheer market economics. I f you look at globalization from the point of de-nationalization, then many other phenomena come to your mind: environment is certainly of a global concern, over-population, migration, etc., these are sometimes related to how the international or rather global market works. Some of these other issues are, however, not adequately addressed by the globalizing markets, but they are of a dimension that I think they would have to be dealt with under a global perspective, that means, not in terms of traditional territorial jurisdictions. My last and main point is taking up some important observations by Tom Franck: I was very much impressed by your treatment of the hot issue of how we can accommodate individual rights claims and group rights and state rights. This is really something that has also intrigued me over years now. It is very close to the basic questions, where from are we deriving the erga omnes and the ius cogens effect of human rights norms, where is the basis, where is the legitimacy for this? Why could some states, or even a large number of states, declare these treaty or customary law principles or rights to be binding upon all, to declare them to have a higher status in international law, how do we get there? I was so much impressed with your approach to the similar basic question of which rights can take priority over others, because it indicates that, although we cannot claim, I think, that there is a natural law, an objective concept telling us the answer. In that sense, I think, you were not in the 18th century, but very much in the 20th century. It is international discourse around basic principles that enables us to inter-subjectively communicate values as Arnold Brecht has phrased it once. 'Intersubjektiv transmissibel' he called it in a "very high German" version. It is the on-going international discourse that can lead us to reasonable conclusions about the ultimate basis of the higher ranking or priority of rights and principles. This is, I think, what you are driving at when you are talking about establishing the priority of rights. I also agree with you: at one point we cannot dispense with dichotomy. It is either this or the other set of rights that takes priority. You have made your choice with regard to individual rights, and I agree with you. That does not preclude us to try to get to an equilibrium with regard to the implementation of competing rights

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and claims, but the starting point is that there is one priority and one that can be reasonably argued. Malanczuk: I would like to address a point, which has not yet arisen in our discussion today or yesterday. It concerns the need for a stronger interaction between public international law, private international law and domestic laws as a consequence of globalization. I have made some general remarks on the ambiguous concept of globalization yesterday and would now only like to clarify that I am referring to economic globalization in the following. The process of globalization is based upon the advance of neo-liberal free-market positions, but in order to be sustained, it requires rules of the game are established by states or through the cooperation of states. In other words, globalization requires a framework of legal certainty for non-state economic actors in their international transactions and a minimum amount of effective regulation on both the international and national level. International regulation can be achieved through various organizations that are competent for the matter, such as the World Trade Organization. Indeed, the WTO agenda is being confronted with new issues, such as the difficult area of competition policy and anti-trust regulation. Another issue involves labor standards, which, due to opposition from developing countries concerned about their exports, was moved from the WTO to the International Labor Organisation. On the other hand, the WTO has taken up the question of the relationship between trade and the environment. Whether the results are satisfactory in substance may be questioned from a single-interest point of view, but there is at least a procedure of rule-making for the framework of a liberal economy on the international level. However, for achieving the legal certainty and stability needed for the further advance of international trade and investment more is required, namely the harmonization of those divergent rules on the national level which are impediments to business and prevent the calculation of risks in a manner which makes investment sustainable. Perhaps this explains that there is now some stronger interest even by China in the Hague private international law codification conferences. On the other hand, it is likely that globalization will lead to more emphasis on the need for harmonizing those rules which are in the common (or public) interest of the international community affected by economic globalization. This framework, which non-state actors are incapable of providing, must be based upon cooperation of states and it also needs to be translated into domestic legal systems. The interaction between public and private international law and domestic legal systems will therefore become more important in the future.

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In a way, this is reflected in the discussion of the concept of international economic law, a neglected new branch of international law. The discussion itself is not new and goes back to the dispute between Schwarzenberger and Erler on whether international economic law is only a part of public international law or also includes relevant domestic law and private international law. Following the latter integrated approach of Erler, Matthias Herdegen has quite rightly observed in his book on "Internationales Wirtschaftsrecht" that in the legal practice of international business transactions, it is impossible to take only public international law rules into consideration. There is another matter which I would like deal with in follow up to what I what have suggested yesterday. In determining the status of non-state actors under international law it is more useful to examine which specific rights and duties which such non-state actors have under international law, than to discuss in the abstract whether or not they are "subjects" or "partial" subjects of international law. In this respect it is also necessary to make a distinction between their existing status de lege lata and their possible future status de lege ferenda. In my view, there are three different levels of analysis that are relevant in this regard. The first level, which we have discussed yesterday, concerns the law-making capacity of non-state actors. Concerning the main sources of international law, treaties and custom, we have found little that appears relevant, except for the limited participatory and advisory role that granted is to certain NGOs in multilateral treaty-making. Perhaps one could argue that de lege ferenda the definition of the sources of international law might need reconsideration in this respect. After all, the list of the sources of international law laid down in Article 38 of the Statute of the ICJ is not considered to be enumerative. Is it conceivable to think of a distinct category of sources of international law that is related to the law-making activities of non-state actors? De lege lata , however, at least as far as treaties and custom are concerned, the situation is clear: treaties are formally concluded by states and custom arises from the practice of states and a corresponding opinio iuris of states. The second level of analysis concerns the nature and degree of legal standing of non-state actors before international courts and tribunals and in other mechanisms of international dispute settlement dealing with international law disputes. In the old debate on whether individuals are subjects of international law, an important criterion is to establish what kind of legal standing individuals have to make international claims and on which grounds. I would like to leave the special area of human rights aside and just make one more general observation. With all respect to the presence today of Judge Vereshchetin, it is clear that the ICJ, for example, is in a difficult position to deal with important aspects of international

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law because in contentious cases its jurisdiction is limited to disputes brought by states. In advisory proceedings certain U N organs and international organizations have standing to request an opinion of the Court. Individuals, companies or NGOs, however, have no direct access to the ICJ and must secure the support of governments in contentious cases or of competent organs and organizations with standing in advisory proceedings. Should non-state actors be given legal standing before the ICJ? This does not seem to be very realistic because a reform would probably require a formal amendment of the U N Charter, of which the Statute of the Court is an integral part. Similar difficulties arise with regard to the proposal to introduce a reference procedure corresponding to the one laid down in Article 177 of the EEC Treaty by which non-state actors could have cases referred to the ICJ through national courts. Nevertheless, it is interesting to note that the Permanent Court of Arbitration (which is not really a court) has adopted new rules of procedure making its facilities available also to individuals, corporations, NGOs and international organizations. I have mentioned other interesting examples in the field of international economic disputes yesterday. The third level of analysis concerns the question of liability and responsibility of non-actors under international law. One could argue that i f non-state actors have rights under international law, they must also have duties. Professor Stein has raised this issue yesterday in a different context with regard to NGOs and Professor Delbrück has quite rightly pointed out that there are practical obstacles of actually obtaining compensation from, for example, Greenpeace or small NGOs for damage caused. Leaving such problems of enforcement aside, it is nevertheless useful to consider what kind of legal principles and rules would generally apply as regards liability and responsibility for harmful acts of non-state actors. Instead of thinking in terms of direct responsibility of non-state actors under international law de lege ferenda , it may be prudent to consider whether the responsibility of the home state (or states), where non-state actors are based, or operating from, may not be a better solution by applying (or expanding) the principles and rules of international law de lege lata. Customary international law, as reflected in draft article 11 of the codification work of the International Law Commission concerning state responsibility for internationally wrongful acts clarifies that, in principle, there is no state responsibility for (private) persons or a group of persons not acting on behalf of the state. However, there may be nevertheless responsibility of a state for failing to prevent harmful activities of private individuals under the "due diligence" rule (omission to act). The question is to which extent this rule can be made fruitful concerning certain harmful acts committed by

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the various types of non-state actors under discussion. It must be admitted, however, that in the case of multinational companies additional problems may arise from the difficulty in clearly identifying the nationality of such companies. Finally, I would only like to point out that there are some interesting liability cases that have been brought against multinational corporations in the United States under the Aliens Tort Claims Act for the alleged violation of the "law of nations" in the conduct of their business in other countries (i.e., Shell in Nigeria) that merit further investigation. Fidler: Both Professor Franck and Professor Hobe gave us comprehensive historical perspectives as well as visions for the future. Their papers got me thinking about one of the great historical tensions in international law, and that is the tension between power and moral norms. Another way that I often think about that tension is captured by Stanley Hoffmann's observation that what we often see in a context of international law and relations is a permanent dialogue between Rousseau and Kant. I think that we have to remember that international law has long been in a sort of paradoxical position in having to reflect power and power structures in international relations as well as being the mechanism for the pursuit of equity, the pursuit of moral principles and concepts of justice. How do we place this discourse about non-state actors in contemporary international legal dynamics into this larger historical tension in international law? What I have heard from the conversation in the last two days is there may be two major shifts taking place in international relations. The first is a power shift, a shifting of power from the state to transnational corporations. The other shift that may be taking place is a shift in norms. The source of norms comes not so much anymore from states and intergovernmental organizations as from NGOs. I just want to make a few comments about these two shifts and how they relate to our thinking about international law. Let me first talk about the power shift. Most of the concerns, i f not all of the concerns that have been expressed about the decline of the role of the state, connect with the growing power of transnational corporations. The idea here is that these global corporations have rendered states somehow less powerful, making states different today than they used to be in the past. I think that it is important to make note of that shifting in power from state to non-state actors. But I think it is also very important to notice that there is an important theoretical shift going on. The shift that is taking place is a shift from traditional notions of power in terms of Realpolitik, traditional notions of state power being manifested in conceptions of realism, or military power. The power that we see shifting

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is power from that state-centric point of view to a profit-seeking power that is manifested in private organizations. Although we have talked about transnational corporations and their power being perceived as sort of a bad thing or as a negative development in international relations, as opposed to the warm and fluffy NGOs, historically, perhaps, we should see this shift in the type of power being actually very, very progressive for international relations. This shift in power types has lessened, I believe, the danger of traditional forms of state power in international relations by diffusing power in the international system to non-state actors to an extent which, I think, is historically unprecedented. This shift in power and the type of powers that are being shifted, I think, in fact echo the normative teachings of liberal political theory in reducing the power of government and increasing the power in the hands of individuals and private entities. Instead of celebrating this shift, both liberals of classical as well of radical persuasions seem to wring their hands in great worry about this, instead of analyzing the ways in which transnational corporations in the processes of economic interdependence have actually been very, very beneficial for international relations as a whole. Perhaps we have not given enough attention to transnational corporations as positive forces in international relations as opposed to NGOs. We can see this sort of hand wringing, this worrying, going on in the shifting of norm development from states and international organizations to NGOs. From a historical point of view, we can see a prior shift in law-making from the state to intergovernmental organizations in the way in which IGOs, such as the United Nations, became crucibles for making and fostering international norms and international values. But, as it has been said, IGOs are creatures of states, and they have thus been vulnerable to traditional forms of state power. The most recent NGO movement, I think we have to remember, began around thirty years ago, long before globalization became a popular trendy buzzword. The NGO movement really became forceful because of the perceived failures of intergovernmental organizations. Globalization has accentuated those perceived failures or those actual failures and has fostered the increasing activity and energy of NGOs. Norm expression today is very, very powerful, as we have been exploring in the NGO realm, and that has led us to an important shift in the role of norms in international relations. Again, this norm shift echoes the teaching of liberal political theory. Private freedom of expression and private voicing of opinions about the way we want to see life organized is part of the liberal democratic theory. Let us bring these two shifts together in terms of international law. As we see, evidenced by the protest of NGOs against transnational corporations, the power shift and the norm shift are in fundamental tension. I do not think that this is anything new. I think history is repeating itself here, but there are some new twists that, I think, we have to keep

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in mind. These tensions are playing themselves out in terms of how we are looking at international law. We have been discussing whether non-state actors should be more important in international legal dynamics. I think we have to ask why we want to change international law into something that we might call world law, or cosmopolitan law. Is our major purpose here to constrain power or is our major purpose here to improve norm-making? I f we learn anything from history, it has to be a combination of both of those. But at the heart of this tension is the suspicion that domestic law and traditional concepts of international law favor these classical forms of state power and the traditional notions of sovereignty and also favor the power of transnational corporations at the expense of norms like human rights, environmental standards, labor standards, etc. Will recognizing NGOs as subjects of international law really rebalance norms and power in international relations in the era of globalization? That question remains open for consideration. I am afraid that we might be making the mistake that was made in the early parts of this century: projecting liberal models of domestic law onto international relations. We did that with the notion that we need a international quasi legislature, international courts, and an international executive in the earlier parts of this century. We see this projection also in how the League of Nations and the U N were organized. We might be doing the same thing here with these concepts of world law. And this type of projection, historically, has not been very successful because international relations is a radically different political environment from anything that we see in domestic politics. Although this power shift has occurred, the structure of norm-making in international relations remains the same. The dynamics might be different, but the structure of the making of norms, I think, remains the same. It remains dominated by states, either themselves or through IGOs. NGOs lobby states, and they lobby IGOs. I do not think that giving NGOs subject status under international law is going to change that dynamic at all. We have to be wary of giving NGOs elevated international legal status for the reasons that Professor Franck talked about in terms of needing some legitimating filters for the participation of these NGOs in the making of norms in international relations today. Those filters are going to be states and IGOs of the existing structure. What may be new here is the NGOs going directly after transnational corporations, which may be a new twist in the dynamic. The power shift and the norm shift are altering the political dynamics of international relations, but they are not restructuring in any way the current structure of international relations nor the structure of international law. And I am wary of the suggestion that we ought to be playing with those structures. I think that has happened in earlier eras of international relations. What we need to be doing is

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getting better at politics rather than building international legal castles in the air. O f the two strands of non-state actors at which we have been looking, the impact of transnational corporations is probably the one that is going to have the most beneficial aspect for improving our politics rather than the NGO strand. Randelzhofer: Thomas Franck took us this morning to the heights of theory and philosophy of law. Perhaps some of us might have been astonished, being accustomed to the fact that scholars from across the Atlantic in most cases are proud of being more down-to-earth than the Europeans. My remarks will be more down-to-earth. I think Professor Franck stated rightly that, as far as the legal position of the individual in public international law is concerned, the decisive question is whether and to what extent the individual is bearer of rights. Thus he rejected implicitly the idea shared by many scholars that the individual, to be a subject of public international law, must have standing before an international tribunal or another international institution to defend its rights. And indeed, already in 1933 the Permanent Court of International Justice in the Peter Pazmany case said it is scarcely necessary to point out that the capacity to possess rights does not necessarily imply the capacity to exercise these rights. I think Thomas Franck and the Permanent Court of Justice are right. M y only question: you stressed the necessity of being bearer of rights. I presume you did not want to exclude the possibility of being a subject in public international law as a consequence of being bearer of duties under public international law. I allude to the problem, or to the question, whether in the realm of humanitarian law where it is discussed whether those duties on soldiers are immediately derived from public international law or only via municipal law. In the first case that would mean they would be bearer of duties under public international law and, as a consequence, be subjects of public international law. My second remark refers to Professor Hobe. I am not totally sure whether I have understood him correctly when he stated that before 1945 there were no rights under public international law of the individual. That means that only after 1945, when the comprehensive concept of humanitarian law was implanted into public international law, we deal with the possibility of rights of the individual in public international law. I see this a little bit differently. Looking to the period before 1945 you find certain treaties which give rights to the individual. So, in my view, the very first steps towards the rights of individuals in public international law were not developed on the basis of a comprehensive theoretical concept, for example, the human rights, but were developed in the eclectic manner reacting to practical demands of specific situations. To give only a few examples: the very first treaty giving individuals standing before an international court and the rele11 Hofmann, R.

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vant rights to be defended there was, or better to say should have been, the Convention on the International Prize Court in 1907. There it was foreseen that the individuals could bring their case concerning their property taken before this Prize Court. As we know, that never developed into existing law because this treaty was not ratified. But only two months later, in December 1907, several Latin American states established by a treaty the Central America Court of Justice, and the relevant treaty foresaw that even individuals could bring their case before this international court. The Court acted until 1918, it decided upon nine comprising cases of individuals. Third example: Article 296 of the Peace Treaty of Versailles foresaw that individuals were entitled to bring their claims before mixed arbitral tribunals, and Professor Skubiszewski already referred to the Convention of 1922 between Germany and Poland, as far as the protection of minorities is concerned. There was established an arbitral tribunal which had to decide on cases dealing with nationality, rights of residence, and all sorts of vested rights, and individuals were entitled to bring their cases against their own state and against a foreign state before this court. I am not sure whether we could not find other examples in the period before 1945. So I think we cannot say that no sooner than 1945 there was a development to rights of individuals under public international law. To make a final remark: I agree totally that we have today tendencies to privatization in public international law. There are developments on the way. But in my view developments and tendencies not yet are results. Perhaps one day they will become results, and then is the time to give a new definition of public international law. There is very commonly cited a famous phrase from a famous person "Who comes late will be punished by life." But perhaps the opposite is right too. "Who comes too early will be punished, too." I think we should keep in mind what Prof. Vereshchetin told us about the bold rabbit. Benedek: I would like to say that we could put ourselves a question in a different way and approach the issue from a different angle. This would be i f you are explaining to your students in class how international law functions these days, then, I am sure, you will give adequate attention to the role of NGOs, for example in thinking about international law, although you would also address the issue that transnational corporations being very powerful, very important, still are not regulated properly under international law. So there are new phenomena which cannot be properly explained without addressing those issues, the sociology of international law, i f you want to call it that way, and which cannot be explained by just referring to states, international organizations, individuals, peoples when it comes to self-determination, and so on. So we need this overall approach and i f we look at

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the constitution of international law, as was referred to yesterday, then we can see that the various constitutional functions or tasks are very much influenced, i f not to some extent implemented, with the help of NGOs. I just want to give two examples which might be of interest: one is in the Dayton Peace Agreement. In Annex 6 on human rights, you find a clause where the parties shall allow full and effective access to NGOs for the purposes of investigating and monitoring human rights conditions in Bosnia and Herzegovina. I think it is quite interesting to find such a far-reaching clause, although in practice one could discuss its outcome. Or i f we look, for example, to the role of NGOs in implementing human rights, in the European system NGOs can practically only intervene or can bring a case i f they are affected themselves, i f they are a victim of a violation. But in the African system you have a provision according to which NGOs can bring cases before the African Commission on Human and People's Rights regardless of whether they themselves are victims of a violation or not. As a matter of fact, the majority of cases, it seems, are being brought nowadays by NGOs, even not those who have consultative status, even that is not required; and what is more interesting is that many of those cases are being brought by international or non-African NGOs. So this system is very open, and the purpose of this resource is to protect victims of human rights violations in Africa who find it difficult to litigate before the regional body against their state. Here are legally interesting developments, and there is a need for international law to take this into account, even to regulate to some extent. It was said with regard to transnational corporations and the WTO that there is a long-term project of regulation in the terms of competition law, and maybe I should emphasize in this context that the WTO will be the first international organization of importance in the economic field which has opted out of the U N system, because they decided to maintain the relationship which GATT had, which was a simple agreement with the United Nations, it was not a specialized organization, but the idea is that this might make it even stronger. We are aware that NGOs are sometimes very limited in their purposes. They might also be limited to the people assenting them. There is not only the one-purpose NGO but also the one-person NGO. This means that we have here very different animals in front of us, I would say the "whole soup" which exists in this field and which however needs to be not really regulated, but where there is a need for a certain legal structuring. With regards to the TNCs I am quite sure that these are the elephants of the international system and that they need actually regulation. When we talk about the law of the global community and new actors, it is obvious that these new actors need to be given proper attention. Just one more remark to the development process: I think of the European Union which is implementing decentralized development cooperation with the help

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of NGOs and sometimes against governments in the various states in order to achieve a certain purpose, development, humanitarian assistance, and so on. One last point regarding the human rights and group rights issue: I wonder what your opinion is on the constitution of Bosnia and Herzegovina where obviously with the help of international eminent jurists group rights were put at the basis of certain human rights. So i f you do not belong to a specific group, Serb, Croat, Bosnian, you might not have certain human rights; and at the same time this constitution was endowed with an annex of some, I think fifteen, international conventions incorporating in a sweeping way all the human rights into it. So how a judge at the constitutional court of Bosnia and Herzegovina will have to react i f a case comes in the foreseeable future? Ferrari

Bravo :

I wonder whether I should speak at this late hour, but just a few words to remind the impact of some concepts used during these two very stimulating days. I refer to minorities. Do we have a clear concept of the minority? I wonder whether we do not, because i f I look at my country, Italy: do we have a minority in Italy? Of course, you would say, "Yes, you have a big German minority." But this big German minority exists and is sustained by the Italian government without any special international rule, because of some modest regulations which were always denied by the Italian government to be international. The minority is so powerful that in fact in this region it is a majority: The Italians who immigrated there are now considered a minority. But we do not have the same situation in north-eastern Italy and i f we look at southern Italy, we certainly have minorities from Albania. We talk about rights but the Albanians are certainly not protected in favor of a majority like the Germans are. Do we have minorities in France? Probably the answer is "no". But still we have a Biscayan minority which is very vocal, so to say, involved in Spain in terrorism but which has its center in France. In France, however, does not exist a minority. We certainly have minorities in Eastern Europe. We have old minorities like the Hungarians residing in Transylvania and you certainly know the history about this region, and the intervention of Germany and Italy trying to solve this problem. We have new minorities in Latvia, Lithuania. When they were members of the Soviet Union, the Latvian people were minorities, but now that they are independent, it is the Russians who are a minority, the Russians who forcibly immigrated into this country. Do we have minorities in the United States? Certainly not because the prevailing spirit is the spirit of the melting pot. They do not want to belong to a minority. They want to belong to the United States; they want to be Americans, even i f they have Italian names or i f they keep some allegiance to Italy, but they do not want to be considered Italians.

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I could continue but I do not want to bother you. But the problem is that when we use these examples during this colloquium, please remember to keep it in its real historical proportion, because otherwise we run the risk of creating a big structure and big theories on something which can be solved, which is difficult to solve, but can be solved on that particular basis on which the problems were created. Hailbronner: I have just one illustration: about some 50,000 German pensioners in Mallorca may claim minority rights, the right to use German as a speech in tribunals and in public administration. That is the first step, and second is having German as a language of instruction in Spanish schools in Mallorca; and the third step is taking over on the right of autonomy. The fourth step is claiming separation from the Spanish state based on the United Nations principle of self-determination. Wedgwood: A few responsive points, just to provoke my dear friend Tom Franck, for whom I have the deepest regard. My worry about a claim of naturalism for individual human rights is the difference between ontology and epistemology. Even i f we believe the claim is ontologically correct (that the nature of being is such that humans have a natural endowment of dignity and claim to resources and regard), it is not epistemically self-evident to a lot of folk. I f you had a natural epistemology to which all members of all regimes in all regions would subscribe, it would be easier to believe in the progress of world spirit to a stage where individuals would be enthroned as rights-holders. But this is not conceded by many. In the late 18th century, Scottish common-sense philosophers claimed that there was a natural faculty which provided all necessary moral knowledge. But the 20th century has become more skeptical about the epistemology that underlies moral claims. My other small point on NGOs, in response to Tom Franck: NGOs certainly are a mixed lot, to be scrutinized carefully. But so long as some states exclude minorities or other legitimate elements of society from contributing to the state's international voice, NGOs can provide a corrective. They do not have an inherent legitimacy. But as a balance to the exclusive vocality of undemocratic states, perhaps they are useful. I would still argue for a subsidiarity of theory. There are many different organs that function in international politics and in international law. The International Court of Justice, although it is the premier legal organ of the U N system, now has rivals, and the limits on standing before ICJ will not necessarily carry the day in front of other organs that contribute to public opinion and to soft law or that make law directly. One example from American practice: in the early 19th century U.S.

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Supreme Court Justice Joseph Story's view was that when an American court sat in admiralty jurisdiction to hear prize cases, it operated as a "court of the law of nations" and should reach the same conclusion as a Dutch court or a Spanish court. In that sense, when national court systems allow standing to individuals or NGOs, they may be making international law, just as an international court would do. Of course, there are relatively few ways to enforce claims abroad, and as a monopolist of the legitimate use of force, the state will retain great power in the advancement of international claims. But NGOs do prove to be efficacious in mobilizing public opinion. Often one country can influence the internal political balance of another, appealing directly to its populace, and this is a very different medium or channel for enforcement. When military force was the only easy way to give real bite to claims, it was fair to say that states were the only channel for making international claims. Where the domestic structure of states is now democratic, there will be back-channel trans-national relationships between populations, even apart from their governments. Hobe: I can be relatively brief in my summary. In conclusion I can say that, because I felt like Judge Vereshchetin's brave rabbit looking behind, and to possible dangers when writing the paper, the main message of this paper of a visibly growing subject quality of the individual in international law in the era of globalization does not need major corrections. Therefore, I want to confine my final comments to answering only to some of the remarks made during our discussion. Admittedly, Professor Randelzhofer, there were some earlier indications of a recognition of human rights, but certainly the main movement of an international recognition came along only after 1945 with the Universal Declaration in 1948 and the two Covenants in 1966. I think the papers have shown very clearly that in fact, like has been expressed on this table with regard to the state, there is no déjà vu. We have a quite different environment in the era of globalization with new actors and new roles of these actors. So the international system must necessarily come to a new equilibrium. And the normative rules valid for the relations of the old and new actors in this international system must consequently be renegotiated among those actors. I think it is very important to understand that especially the technological development has very much contributed to a radical change of the actor's roles in the international system. It is fundamentally different, Mr. Stein, whether you have, like 25 years ago, problems of transboundary broadcasting which can and could

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basically be met by an insisting on state protection by way of exercising sovereignty, or, i f you have the Internet, that through its technological difference produces uncontrollable transboundary - global - effects of communication. And I think that one should draw legal conclusions from these technological differences. With regard to Michael Byers' concerns, admittedly, the successes in the area of human rights are by far not fully convincing. But, as has been said before, looking into the history of international protection of human rights, one can obviously observe some very considerable progress which may justify to regard the glass half-full rather than half-empty. There has been some concern as to the role of NGOs. Myself, I share these concerns, but this all the more obliges to seriously consider the drafting of some international legislation, because those "beasts," as they were called by Mr. Herdegen, need to be tamed. We have discussed the case of the Brent Spar, for example, and the case of Shell's investments in Nigeria. So I think there is a necessity for international legal regulation. But as an important factor the factual and legal role of NGOs as well as of transnational corporations (TNCs) that nobody on this table has doubted has already to be taken into consideration for any further effort of international lawmaking. And then, as Mr. Caron has correctly mentioned, all boils down to the important question of "Who is going to deal with this legal role of NGOs and TNCs and with the legal regulation of their role in the international system?" Where is the appropriate forum to deal with these questions? The U N as such a forum is only an idea because this organization, as I have tried to demonstrate in my paper, has proven in the past a certain capability of formulating community interests which even transcend state interests. But here is perhaps the only point were I would consider the choice of that forum as not exclusive. Perhaps also the G8 could be such a forum, but then, of course, you would have again the problem of representation. My overall conclusion is that I saw a great deal of agreement around this table that the new developments in the era of globalization challenge traditional international law, whereby I totally agree with Professor Hernández-Truyol that the notion of globalization, whilst having a technological and economic basis, cannot be confined to the economic sector. As Professor Malanczuk and other speakers have said, there will be a new mix of private and public international law. There may come a new kind of dichotomy, but this dichotomy will not be one between domestic and international law. Rather, the borderline between both areas will increasingly diminish because new actors coming from the area of society rather than from the public domain will become more important. Therefore, my final conclusion is the very modest and cautious forecast that the structure of international law will change to some extent in the future. Taking into account the in

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creasing importance of non-public entities including the individual in the future it may not be entirely mistaken to regard this new type of international law as "transnational" law. Franck: I am not going to attempt to address all of the points with which I have covered several pages of paper and which are all very helpful to me. My remarks were gleaned from various chapters of a book that I am working on, on individual rights and their place in the what I referred to as a triad of rights-holders. Many things that have been said here will find their way into the final draft of those pages, and I am very grateful for that. Let me just very briefly, more as a matter of politeness than anything else, refer to a couple of points. Rainer Hofmann pointed out that group rights can be reconciled with individual rights. Of course, I agree with that in as much of the time that it is possible to accommodate in a way adverse interests are accommodated in a discursive open political system. Even that raises questions of what shape that discursive system should take, in view of the fact that many of the interests that have to participate in the discursive process are not represented in international organizations, and may not be represented in national organizations either. But of course that is the hope that they will be accommodated. But for us as international lawyers, I think, the interesting cases that are of more making potential are the hard cases. Those are the ones that are likely to concern lawyers, courts, and so on that will have to deal with the disputes as they arise, and I was trying to think of what some of those will be. Professor Benedek pointed to one example of that kind of conflict where under the Dayton Agreement the Bosnian federal government is required to implement a system that divides people by status into groups on a mandatory basis and that is to a large extent been implemented even in the school systems and therefore leaves out in the cold. First of all, not every Serb wants to go to a Serb school, and not every Muslim wants to go to a Muslim school. When I was most recently there, there were protests in the streets of Sarajevo against that kind of allocation, and many people in the Bosnian government themselves think that it is a denial of Bosnia's strongest point, that it is an interracial, an inter-ethnic community and not, like its adversaries, an ethnic one, and so people were out collecting signatures opposing the creation of separate schools with separate religious contents, it is not, of course, a language question. Bosnia, of course, accepts the fact that it is bound by those fifteen conventions that we have been talking about. It is possible that the constitutional court will have to address the conflict between the notions of separate but equal, that are set up in

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the Dayton Accord and the obligations of the conventions to which Bosnia is a part. That is one example. Another one is the one that Judge Skubiszewski pointed out to us, that is the right of exit. He took it that the membership in a group is subjective, but, of course, many groups, not so much certainly in this part of Europe that is Western Europe, but many groups do not accept the fact that membership in the group is a subjective fact. They take it that membership of a group is an objective and inescapable fact. I f you take it far enough, in some Islamic societies, certainly not all, exit from the group means death. It is very easy to join, but extremely difficult to leave. The Lovelace case before the Human Rights Committee is an example not of death but of denial of property rights to a woman who marries out - a denial that violates in effect three sets of human rights, one pertaining to the right of exit, one pertaining to the right to property, and the third one pertaining to the right of equality, because men do not suffer the same penalty for marrying out of the tribe and leaving the tribe. I agree fully it is a subjective matter, a matter of personal preference, with Professor Skubiszewski's point that individual rights are a sacred starting point for the protection of group rights. But I think we have to acknowledge, i f we are going to address the issue, that out there, as a matter of reality, there are a lot of groups that do not accept that - that do not accept the proposition that the place to start in the protecting of group rights is to protect the rights of the individual. For some groups that is not what they have in mind at all. They have in mind the right to have control on freedom of conscience of their members, control over the rights and privileges of women, control over the form of government in a non-democratic, in the sense that we use the word, system of administration, the ownership of property in common by the government of the group, and control over freedom of expression which is not by everybody valued, particularly not by all governments and all groups, as being a value that should be protected. So in a sense, the group rights issue presents many of the same kinds of conflicts that some governments also envy in relation to these rights. The government of Singapore, for example, with its insatiable . . . engages in the question of whether these rights are not really Western rights being imposed on non-Western systems or which we are trying to impose on non-Western systems. But they present that problem in a particularly poignant way because most of these groups do not in fact want us to secede. They want to remain part of the country in which they find themselves. But with a totally non-liberal system coexisting within a liberal constitutional system, that is a very difficult proposition and reflects the difficulty that Professor Benedek pointed out about the coexistence of different sets of treaty obligations within a single system, where you have actually not different sets of treaty obligations but a conflict between obligations under the Dayton Accord, obliga-

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tions under a treaty, and the various human rights instruments that the Constitutional Court of Bosnia will have to deal with. Very quickly, Professor Randelzhofer: Yes, indeed I do believe that individuals are emerging as bearers of rights and duties. The reason that I did not address duties is because that is not usually where the conflicts arise. There is no rush to duties, and so it is a very seldom situation where you have an actual conflict between people who are asserting conflicting duties. But I do fully agree with the proposition, and various people, I think, are right to stress that the two go hand in hand. What we have been talking about for the last two days in a highly stimulating fashion is really this what Michael Byers has referred to as the half empty versus half full glass, but is also the question whether the glass is getting emptier or getting fuller. So the question is not only how full is the glass but which way is the tendency, which way is the trend. Let me try to conclude by joining the 'manegerial' discourse of the last two hours. Judge Vereshchetin introduced to us the brave rabbit, Matthias Herdegen the floppy NGO animal, Professor Benedek not only produced a zoo but opens the need of regulation, and so I will bring into the play two more animals. This is the story about two professors of my university who were great friends, and they would meet at Washington Square around which the university is located, and they would allow their dogs to play in the square while they discussed the politics, of course, particularly the faculty politics of the day. One had a huge black Doberman, and the other one had a tiny little Chihuahua, a little Mexican hairless Chihuahua. You do not see that much in Europe but they are no bigger than . . . , they have a big snout, big ears, and very tiny bodies. Those dogs were very fond of each other, and they would play together every day, while the professors spoke. One day it started to rain, and the professor with the Doberman said to the professor with the Chihuahua, "Why don't we continue this conversation in that pub over there?" The one with the Chihuahua said, "Don't be silly! We can't go in there with these dogs." Americans are not socialized to tolerate dogs in establishments of consumption as some European countries are. And the chap with the Doberman said, "Well, I thought of that." And he reached into his pocket, pulled out two sets of dark glasses, and said, "You put one of those on, and they will assume that we are visually handicapped and these are our guide dogs." So they tried. They went with their Doberman and Chihuahua through the swinging doors of the pub. As might be expected, the pub keeper said, "Wait a minute! You can't come in here with these dogs." The chap with the Doberman said, "Oh yes, we can! Under the American Disabilities Act we are entitled to be served with our guide dogs here." So the pub keeper looked at the Doberman and looked at the Chihuahua, and he said to them both, "Well okay, you with the Doberman, that is

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just barely credible, but you with the Chihuahua, out!" So the chap with the Chihuahua was terribly sad, and he sort of picked up, well, he was led out by his Chihuahua. Just before he got to the door, he turned around and said, "You mean they gave me a Chihuahua?" Actually that seems to me to be the wrong strategic approach. I think the right strategic approach for him would have been to say: "That's not a Chihuahua, that's a very young Doberman." And that seems the essence of what we have been doing during these last two days, trying to decide what we are looking at: is it a Chihuahua or a very young Doberman? I prefer to believe that it is a very young Doberman. Delbrück: I tend to be allergic, in particular against dog hairs or cat hairs. So I refrain from engaging in any additions to our animal collection. But I enjoyed that story very much. Now, however, I have to come back to the hard "stuff' of our colloquium. I do not want to draw major conclusions from the data and observations that have been laid before us by the reports and the active participation of the members of this colloquium. I think statistically speaking this was the most vocal group that we ever have had in this round. Thus, it is very hard to summarize. But I still want to make a few observations about my impressions that have emerged from the reports and discussions. First, I think, there is practically no dissent about the empirical data about new actors in the international system. I have not heard anyone saying that there are actually no NGOs, it is all fiction. But then we have come to the legal aspect and there the picture is different. There is certainly consensus, I heard no voices to the contrary, that NGOs do not have legal personality under international law per se. That is not the issue. The issue is whether or not NGOs, some NGOs, very specific ones, have entitlements under international law, i.e., primary or secondary rules of international law, and therefore possess legal personality in international law according to the canons of international law. I think we also agree that, i f one comes to that conclusion, it is with the proviso that we have established that these NGOs are ones with nice little cosy furs or at least are not grim wolves that might disturb civil society. In other words, I think all agree that NGOs in order to qualify as derivative, partial or functional subjects of international law must be those that - like under the terms of ECOSOC - conform with the principles and rules of the United Nations. Any NGO that engages in drug traffic or arms traffic or similar criminal activities is not qualified, in the first place. Thus, it is clear that we are not talking about accepting NGOs as subjects of international law per se but only about recognizing such status for those rather few that act within the

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bounds of international - and domestic, for that matter - law and possess express entitlements under primary and/or secondary rules of international law. As to individuals and groups, there is, I think, more consensus around, because these issues have either developed to a point where it is hard to refute the fact that individuals have partial international legal status and, on the other hand, that groups are still pretty much away from reaching that status. There are differences of opinion in the real world, and in the world of this colloquium as to the availability and the possibility or legality of according rights under international law to groups, particularly to minorities. And I think we agree that we have to be very, very careful in asserting such legal status which might have repercussions that we cannot take control o f . . . When I wrote my chapter on group rights and minorities rights for the 'Dahm-Treatise', I was very surprised at the end, when I drew my conclusions, how little has been achieved in respect of group rights so far. Whether that is a good or bad thing is a matter of policy, not the subject of our dealing. The third question which we have been addressing all over these two days is: what impact does this development towards new actors and possibly new legal entities in international law have on states as the one time so dominant sovereign actors and subjects of international law. I think we have reached, after various exchanges on terminology, agreement that the role and the status of the sovereign state today is different from the one that states had prior to World War I I or even prior to the early 1960s, before the human rights movement, for instance, set in. Whether this difference has resulted in a decline, or a relative decline, or just simply in change is, I think, of secondary importance. In summing up our discussion, I think it is fair to say: "We all agree that there is a change or a difference in the role of the state." I want to leave it at that. From my first impression, looking back over those two days, I think the publication of the proceedings of this symposium, which will come out next year, is going to produce a number of dissertations. This has happened with previous proceedings that have been published. This indicates that the proceedings tend to be a pretty rich goldmine for further research and this one seems to be no exception. I f I may become very personal: I feel enriched by these two days of intensive discussion, and I feel also encouraged that we continue with the format of these meetings. The other niceties to be exchanged are just ahead. I personally thank the rapporteurs and all the participants for a wonderful and stimulating discussion. Thank you very much for coming!

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Morrison: I want to express our thanks to both of the conference organizers, Professors Hofmann and Delbrück, for the fine work they have done in preparing this great intellectual feast for us. We also should again thank our four speakers for the excellent presentations they gave us. In addition, I want to draw particular attention to the help that has been provided by the members of the staff and the student members of the Institute in preparing for us, taking us everywhere we needed to go, delivering us papers and so on. Especially, I would like to thank Nils Geissler and Carmen Thies, who bore a special responsibility for the management of the administrative matters related to the conference. Thank you all. Hofmann: Thank you, Mr. Morrison. Although you have taken away from me the task of thanking many people, I still want to emphasize that I am most grateful to the staff of the Institute, in particular Carmen Thies and Nils Geissler, for their help in organizing this conference. It was very good to see that working hours were not counted anymore throughout the preparation of this conference. Then I want to thank again those who have made this conference possible, in particular the Volkswagen Foundation for its most substantial contribution, the Deutsche Forschungsgemeinschaft, which provided funds for travel expenses, the government of the Land Schleswig-Holstein for inviting us to the reception at the Government's guesthouse, and then two institutions which have not been mentioned before, namely the companies Süverkrüp GmbH and Schmidt & Hoffmann in Kiel who provided us with cars that made transport so much easier and comfortable. I also want to thank the four rapporteurs and all the participants for the very stimulating discussion, that Professor Delbrück has already summed up. I just want to react on a comment made by Professor Randelzhofer this afternoon concerning tendencies to privatization in public international law. Here, I should like to ask to what extent globalization will force us to think about the question as to whether the dichotomy, i f it really is a dichotomy, between public and private international law can and will be upheld in the future or to what extent we shall move towards what has been labelled as transnational law. This problem could be a topic for another conference, either here or anywhere else. At this point, however, I say most cordially: "Goodbye, have a safe journey home, it was good to have you here, thank you very much!"

List of Participants Prof. Dr. Gudmundur Alfreásson , Lund University, Sweden Dean Fred Aman, Indiana University, Bloomington, USA Prof. Dr. Wolfgang Benedek , Universität Graz, Austria Dr. Michael Byers, Jesus College, Oxford, United Kingdom Prof. David D. Caron , University of Berkeley, San Francisco, California, USA Prof. Christine Chinkin, London School of Economics and Political Science, United Kingdom Prof. Dr. Jost Delbrück , Universität Kiel, Germany; Indiana University, Bloomington, Indiana, USA Prof. Dr. Klaus Dicke , Universität Jena, Germany Prof. Dr. Luigi Ferrari

Bravo , Università di Roma, Italy

Prof. David Fidler , Indiana University, Bloomington, Indiana, USA Prof. Dr. Thomas M. Franck , New York University, New York, USA Prof. Dr. Jochen Ahr. Frowein , Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg, Germany Prof. Dr. Kay Hailbronner, Universität Konstanz, Germany Prof. Dr. Matthias Herdegen, Universität Bonn, Germany Prof. Berta Esperanza Hernández- Truyol, St. John's University, New York, USA Prof. Dr. Stephan Hobe, Universität Köln, Germany Prof. Dr. Dr. Rainer Hofmann, Universität Kiel, Germany

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Dr. Mahulena Hosková , Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg, Germany Dr. Michael Koch, Auswärtiges Amt, Bonn, Germany Prof. Dr. Peter Malanczuk, Erasmus University Rotterdam, Netherlands Prof. Dr. Fred Morrison, University of Minnesota, Minneapolis, USA Prof. Dr. Albrecht Randelzhofer,

Freie Universität Berlin, Germany

Prof. Lars Rehof] University of Copenhagen, Denmark Dr. Alfred Schmidt , Volkswagen-Stiftung, Hannover, Germany Prof. Dr. Krzysztof Skubiszewski, President, Iran-US Claims Tribunal, The Hague, Netherlands Prof. Dr. Torsten Stein , Universität des Saarlandes, Saarbrücken, Germany Prof. Dr. Daniel Thürer, Universität Zürich, Switzerland Judge Prof. Dr. Vladlen Vereshchetin , International Court of Justice, The Hague, Netherlands Prof. Ruth Wedgwood , Yale Law School, New Haven, Connecticut, USA