International Law by Prof.

Pierre dArgent
Week 2: Setting the International Law stage

SETTING THE STAGE

Following the peace of Westphalia, and for about three hundred years, States remained the only
actors of international relations and also the only subjects of international law and this enduring
reality is reflected in the adjective "international" which is used to characterise the relations and the
law existing outside the internal and domestic context of every State.
States were the founders and the masters of international law.
They created that legal order for themselves, its norms and rules were created by them.
And those norms and rules were applicable among them, and among them only.
And legal doctrine affirmed for a long time that, by nature or by essence if you prefer, that by nature
international law was necessarily confined to the relations among States and was only applicable to
them.
It was said that it was impossible for international law to apply to any other entities than States.
Reality proved that this dogmatic view was wrong.
Indeed, as the need for more enduring cooperation among States grew, States began to establish
among themselves entities that were legally distinct from them; entities that were designed to serve
certain specific purposes, like managing a river between two riparian States or organizing the
exchange of mail post over borders.
States established international organizations and it was soon, although not that easily, it was
conceded that those organizations could also have a legal personality under international law.
Furthermore, after the terrible crimes and persecutions that took place during the Second World
War, it was felt necessary to limit through treaties the way States could exercise their sovereign
powers over individuals and groups by protecting fundamental rights and freedoms.
International human rights were born, making clear that individuals could also be the bearers of
rights under international law.
And through the development of the Nuremberg and Tokyo tribunals, international law was also
used to prosecute and convict individuals.
This proved that not only could international law confer rights to individuals, but that it could also
impose obligations on them.

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There is therefore no inherent impossibility to use instruments governed by international law to
create rights and obligations for other subjects than States.
And in the last 30 or 40 years now, corporations were afforded substantial and procedural rights
under bilateral investment treaties, proving again that international law was not inherently limited to
the realm of States.
And of course, in addition to all those developments, the respect for international law, its
development and improvement is a growing concern for what is called the "international civil
society", which is made of hundreds of non-governmental organizations (NGO's) having all sorts of
concerns, from the protection of the environment to women's rights.
So, it is clear that today States are not anymore the only entities concerned with international law
and that international law is no longer "their" thing.
However, it is important at this point to make a few conceptual distinctions.
And let us see that in the next video.