The Legal Standing of the Natural Person in International Trade and Investment Law: How to Empower the North American Citizen

Abstract

The end of the Cold War and the latest wave of globalisation (perhaps already post-globalisation), has hurled the legal profession into an incessantly, rapidly, and inevitably discordant transforming new environment. A striking corollary of this wave of change is that domestic lawyers can no longer rely on their local legal expertise. They are increasingly being challenged with problems requiring knowledge in the conflict of law and the much broader field of international law. Yet, international law is grounded in a different “philosophy”, particular to the international community it serves, and acquires authority and legitimacy from special sources within that community. These law making sources consist, in a descending order of authority, of custom, treaties, judicial decisions, juristic writings, and decisions of international institutions and output of international conferences. And just as it would be impossible to discuss in a short paper the law making role of “legal institutions” in domestic law, is impossible here to do justice to the complex subject of “sources of international law”. Suffice it to say, that the sources fulfill a “constitutional” role by determining the legal relations among the actors who are ruled by the sources.

This paper will address a specific constitutional area in international law - the issue of subject of international law, which very simplistically, can be paralleled with citizenship in domestic law. It is a burning issue in international law because the status of “subject”, which informs of the legal rights and obligations of the actors operating in the international community, has been changing dramatically.

In particular, this paper will focus on the current “puzzle” arising from developments pertaining to the status in international law of the individual and certain groups of individuals and underscore the relevance of the notion of equality. The purpose of the paper is to alert the lawyer to the “pigeon-holing” options available by identifying the main relevant legal questions.

Keywords: international trade, investment law, North America, citizen, lawyer