PROGRESS IN INTERNATIONAL LAW, p. 381, Russell Miller and Rebecca Bratspies eds., Martinus Nijhoff, June 2008
27 Pages Posted: 2 Feb 2012
Date Written: 2008
“A subject of the law,” according to Brownlie, “is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. This definition, though conventional, is unfortunately circular since the indicia referred to depend on the existence of a legal person.” This looping definition has almost exclusively referred to states. Using the state-template for personality, the International Court of Justice (ICJ) recognized that some international organizations also may be subjects of international law. The state-centric model no longer matches our international reality. The state’s emboldened rivals include “the apparent authority exercised by global market forces, by private market institutions engaged in setting of international standards, by human rights and environmental non-governmental organizations, by transnational religious movements, and even by mafias and mercenary armies in some instances.
While international law has been slow to adapt to the emerging multiplicity of actors in an increasingly privatized global order, this hesitance has been neither uniform nor unyielding. Particularly in the field of human rights, international law has begun to flirt with, if not fully embrace, discrete non-state actors as subjects or quasi-subjects of international law. Paradoxically, a parallel development in the field has been to seek to bring international human rights norms to bear on the actions of TNCs as objects of international human rights law, while denying them the status of independent subjects or quasi-subjects enjoyed in some degree by NGOs.
The Norms are the most recent manifestation of a decades-long effort by states, international organizations and NGOs to regulate the power of TNCs. This effort grows from a concern that TNCs wield vast power, and often do so in a fashion that violates international human rights standards. Where the involvement of NGOs in the formation of the Norms was substantial but informal, the Norms formation integrated NGOs in the process of enforcement.
International humanitarians typically justify their preference of NGOs over TNCs, and consequently the different status these non-state actors are accorded in international law, by arguing that TNCs are capable of violating human rights and, at the same time, unaccountable for the exercise of their power. If TNCs are as powerful as is feared by international humanitarians, then the continued efficacy and relevance of international law depends on the exposure and correction of the paradox I have identified. Habermas’s discursive democracy typically characterizes the conditions for just relations between individuals; leading the creation of governing institutions and the norms those institutions apply. But, with some adaption that embraces the social identity theory, it may be possible to extend Habermas’s theory of discursive to interactions between collectives like TNCs, NGOs and states.
Keywords: International law, comparative law, transnational law
JEL Classification: K10, K33
Suggested Citation: Suggested Citation
Miller, Russell, Paradoxes of Personality: Transnational Corporations, Non-Governmental Organizations and Human Rights in International Law (2008). PROGRESS IN INTERNATIONAL LAW, p. 381, Russell Miller and Rebecca Bratspies eds., Martinus Nijhoff, June 2008; Washington & Lee Legal Studies Paper No. 2012-2. Available at SSRN: https://ssrn.com/abstract=1996716