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‘States are, at this moment in history, still at the heart of the international legal system.’ Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1993) 39.
With reference to one or more topics covered in Term 1 critically assess the validity of this view in 2020....

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Assessment Title: ‘States are, at this moment in history, still at the heart of the international legal system.’ Rosalyn Higgins, Problems and Process: International Law and How We Use It (OUP 1993) 39. With reference to one or more topics covered in Term 1 critically assess the validity of this view in 2020.

International legal system is a normative system.1 This means that ‘international law is the entire decision-making process, and not just the reference to the trend of past decisions which are termed ‘rules.’, based on the sufficient view of Higgins.2Whereas, Lowe stated that the purpose of the international law is to deliver an operational system which ‘consists of that body of rules that States have decided are binding and mandatory.’3 in order to secure values and needs that the international community desires through the embracement of bilateral and multilateral relationships. It has developed out of the tradition of the late medieval jus gentium.4 In the light of natural law, classical legal positivism took over the approach and fundamental principles governing universal law, in the 18th and 19th century.5 This draws connection to the traditional view of the international law which tends to follow a strict statebased order. However, following WWII, international law has evolved in response to variety of the events, including Nazi occupied Europe, the Universal Declaration of Human Rights, and the 1949 Geneva Convention. As the result individuals and organisations have gained a more prominent position due to the post WWII developments which offered a more prominent position to them in international legal system and hence challenged the executive position of the sates. The cohesiveness within the international legal system is essential as it establishes interdependent relationships not only between the member states, but also involving individuals, IGOs, NGOs and other supranational bodies into the process of effective application of the international laws and maximising the common good. Following further major changes within the international legal community and requirements of the 21st century society , a debate has arisen on the grounds who occupies the leading position at the heart of contemporary legal order. On one hand, some political and legal scholars argue that even with the liberalisation of international law , member states hold the primary position in the global legal system. Nevertheless, it cannot be denied, how individuals and other organisations appear to preserve a significant value in international law. 1 R Higgins, The Nature and Functions of International law, (1995) p1. 2Ibid,1. 3V. Lowe, International Law,(2007) p5-11. 4 J. Crawford, Brownlie’s Principles of Public international Law, (9th edn) 2019, chapter 1, p1. 5 Collins R, ‘Classical Legal Positivism in International Law Revisited, in d’Asperemont J, Kammerhofer J (eds), International Legal Positivism in a Post-Modern World (Cambridge: CUP 2014 forthcoming) p.13.

This essay will show a clear shift regarding the central position within the international legal system. In order to establish both sides of the argument, it will examine first the traditional theories with regards to classical positivism and ‘Austinian’ principles which will contend how international law ‘emanates from the State will’.6 This point will then be further challenged by Edith Browns’ view of international law in a kaleidoscopic world, discussing how globalisation, decentralisation and bottom-up empowerment affect the hegemonic position of states. The sufficiently increased number of IGOs and NGOs, in addition to nonstate actors will be also analysed. To reach the sufficient conclusion this essay will present an argument that following the Westphalian principle, the developed states retain a hegemonic position within the international legal order which sometimes leads to discrimination and underrepresentation of the developing states, using the contemporary examples from the case law, such as Syria. Putting all the facts together, it will be argued that the states still maintain a significant position, however, individuals and organisations become the central points as well.

While states continue to possess central position in the international legal system, there are now many other actors and important systematic developments which become subjects of the international legal system. A subject of international law is an entity possessing international rights and regulations and having the capacity to firstly maintain its rights by bringing international claims7, following by responsibility for its breaches of obligation by being subjected to such claims.8However, legal personality plays a vital role here, meaning it provides entities with immunities and capacities which later determine their position within the international law system. In the light of this argument, the capacity for international organisations to claim under international law was established in Reparation for Injuries.9 It can be argued that it is customary for the states to endow organisations with capacities and immunities to reflect a more accurate picture of the international law , including the contrasting policies and fairer representation of all aspects of the international community.10 For instance, the case of International Tin Council v Amalgamet Inc11 has demonstrated that 6 Paulus A, Simma B, ‘The responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, AJIL, 93 (1999), page 302-316. 7 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949 p 174, 179. 8 For the ILC’s rejection of the concept of ‘delictual capacity’ in the context of state responsibility: ILC Ybk 1998/I, 1, 31, 196. 9 Reparation for Injuries, ICJ Reports 1949 p 174. 10 R. Higgins , supra note 10, (1994) 91. 11 International Tin Council v. Amalgamet Inc. 524 NYS 2d 971.

by gaining legal personality after the final decision in the Reparation case, international organisations began to challenge the hegemonic position of states as legal personality distances organisations from states’ control. Furthermore, globalisation is one of the elements which shapes the evolution of international law today.12 According to the Yearbook, the rapid growth of international institutions approaches approximately 30,000 international organisations.13These numbers emphasise that globalisation which is usually presented in the face of international organisations has integrated in the international community. This suggests that despite the classical positive outlook of the international law, it starts to operate as a more multi-layered system due to the fact that states cannot escape being closely connected not just with other states, but with international organisations too. Intergovernmental organisations seem to be a perfect platform for nation states to co-operate in order to achieve mutually beneficial outcomes for international legal system, for instance the UN. It “provides a very clear, very concentrated focal point for state practice”, highlighting that with the development of international organisations, the votes and outlooks of states have gained legal significance as evidence of customary law.14 Hence, these developments challenge the primacy of the national states as the main organs of decision making, but at the same time it provides opportunities to strengthen and expand the foundations of international law. However, since states are central actors in creation of organisations, it cannot be dismissed that such an institutional setup gives states another opportunity to assert their powers by retaining control of its direction.15

Despite the delegation of some powers to non-states actors which has resulted in a more equal footing between states and non-states, the interests and views of member states still win the noteworthy position within the system of international law, subverting the liberalized system. Based on the critical thinking of Guzman, ‘the state is and should remain the key political unit’16 in the international law community. Firstly, this highlights that states act as the representatives of the individuals when governing and applying international law. In order to promote cooperation and stability in international society, it is necessary for international law to put equity as a fundamental mechanism that underpins all its further principles and it needs to provide process for decision-making and dispute resolution that all people regard as 12 E. Brown, ‘International Law in a Kaleidoscopic World’ (2011), page 21-22. 13 Union of International Associations, Yearbook of International Organizations 2008-2009, vol.3 (Munich: KG Saur Verlag, 2008) at 1618. 14 Higgins (1963) 2. Further: Higgins (1994) 23; Higgins-Oppenheim (2017) ch 12. 15 A. Guzman, ‘Against Consent’, Virginia Journal of International Law, 52(4), page 783. 16 Ibid,790.

equitable.17 The perfect solution for this is for states to remain the key decision-making actors as this would ensure that that individuals’ views and prerequisites are heard at the international legal platform. Moreover, drawing a sufficient debate from this point, it can be suggested that state’s consent is one of the principle which strengthens the links which exist between states and international law, meaning the principle of consent offers them a sufficient protection from rules to which they might have not explicitly agreed.18 This emphasises that by having such powers in the creation of international law and the responsibilities drawn to it, states demonstrate the strength of their powers regarding the international law which other non-states actors lack. For instance, UNSC gained functions and powers which enable it to make binding legal decisions, however, the fact that only five permanent member states are capable of veto powers , hugely undermines its ability to modify a proper legal order for international community.19 This is likely to be criticised by Fitzmaurice which followed the principle of ICJ in 1966, according to which ‘Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its disciple’.20 This means that international organisations, such as UNSC are not as powerful in their decisionmaking process, especially with the use of soft law, to ensure the proper discipline that is highly essential for the legal order of international law. Whereas, states on the other hand, as the main leading actors with the ability to apply hard law , retain a powerful position which is unlikely to be achieved by organisations with guidelines, declarations and other suggestions which lack the authority that could oblige sovereign states to follow rules.21This can be perfectly summarised by the Austinian principle according to which ‘international law is an unfiled system of rights…that emanate from state will’ , thus the legal order within it is maintained by hard law.22 This emphasises the principles laid down in the Lotus case23, even though it places limitations on the sovereign states regarding the exercise of jurisdiction outside their territories , states are still granted with a wide measure of discretion. In the light of this case, states may exercise their jurisdiction, in any matter, even if international law lacks a specific rule which permits the states to do so.24 This reinforces states’ hegemonic 17 E. Brown Weiss, ‘International Law in a Kaleidoscopic World’ (2011), page 25. 18 Barcelona Traction, Light and Power Company ,Limited (Belgium v. Spain); 2 nd Phase, International Court of Justice, 5 February 1970. 19 Guzman, ‘Against Consent’, Virginia Journal of International Law, 52(4), page 779. 20 South West African Cases, ICJ Reports (1966) 6 paragraph 49. 21 Guzman, ‘Against Consent’, Virginia Journal of International Law, 52(4), page 784. 22 A Paulus, Simma B, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’, AJIL, 93 (1999), 302-316. 23 S.S.Lotus (France v Turkey), 1927 PCIJ (ser.A) No.10 (Sept.7) 24 Ibid.

position within the international legal order, limiting the influence that international organisations or individuals can exercise on legal processes.

Furthermore, international law had developed as a response to the thirty years of war and as a result it was mainly based on the Westphalian legal order and principles. This raises a question whether all states are at the heart of the international legal system, or is it simply in the hands of the European and developed countries. These states seem to be the masters of preserving their own interests and using the central power given to them through the international legal system to decide their own fate despite the interests of the developing countries or non-states’ interests. According to the people who achieved independence from colonialism, they reach the conclusion that international legal system is European in its origin as they didn’t participate in its formation2526. Hence it creates the gap within the system itself as it does not fully reflect cultures and traditions across the world while developed states do not emerge to fulfil this gap. For instance, critics of humanitarian intervention argue that the selective nature of intervention indicates Western hypocrisy, emphasising that a number of humanitarian crises have been ignored just because it is not in the interests of the West to intervene. One of the most recent examples was illustrated by Syria where Western powers have been unwilling to intervene in case to provoke a wider conflict.27 These evidence demonstrate that the leading actors who assert the power within the international legal system are states, however, it should be underlined that this position is usually exercised by developed and more powerful states.

The principles of the international legal system promote a representative democracy which tends to act in the interests of individuals to achieve the most sufficient representation and protection. Hence, it can be argued that despite the fact that individuals are not the main actors like states, one of the main purposes of international law strives to achieve the best outcome for individuals. According to Orakhelashvili, the evolution and progressive development of international legal system in the 21st century, ‘has caused a considerable increase in the importance and necessity of humanitarian values in the process of creation legal rules.’28 The charter of UN states that ‘the respect for human rights and fundamental 25 R.P.ANAND, New States and International Law, 2nd ed. (Delphi: Hope India Publications, 2008). 26 E. Brown Weiss, ‘International Law in a Kaleidoscopic World’ (2011), page 25. 27 Global Centre For The Responsibility To Protect, ‘Syria’, 15 January 2021. 28 A. Orakhelashvili, ‘The Position of the Individual in International Law’, California Western International Law Journal, 31 , (Spring issue 2001), 241.

freedoms for all without distinction as to race, sex, language or religion’29 is one of its organizational objectives.30 This emphasises that member states are required to take those principles in consideration every time they make the legitimate changes within the international legal system. Consequently, the following alignment of events demonstrates that the empowerment of communities and individuals enables them to hold authorities accountable for their actions. This was demonstrated in the case of Belgium v Spain 1970, which has asserted that there is no longer any doubts that the fundamental rights of the individuals also exist outside the domestic jurisdiction of member states, and more importantly these rights can be seen as one of the primary principles for the international community.31 32

Simultaneously with growing integration and fragmentation, the international legal system is witnessing bottom-up empowerment.33 This leads to information technologies facilitating the increase in power of communities, associations and more importantly individuals. It should be noted that many advocacy campaigns now take place online via Facebook, Instagram, or Twitter, enabling individuals to collaborate all around the world and make changes within the international law. For instance, the ‘Black Lives Matter’34 campaign has took its primary place on Internet and had a huge impact all over the world, with millions of peoples protecting for justice against discrimination in almost every country of the world. This underpins that generally there is not barrier for an individual to create a blog which can be read all over the world. Based on the fact how important technologies are in the 21st century, it can be argued that with bottom up empowerment individuals have achieved one of the leading positions within the international legal system. However, on the other hand, individuals lack legal personality which would empower them to make treaties or be subjected to international claims.35 In response to the ‘Black Lives Matter’ campaign, the sculpture of Jen Reid was erected by Bristol City Council. This demonstrates that unlike sates which assert their power worldwide, individuals’ actions raise awareness, but it usually only 29 U.N Charter art.1, paragraph 3. 30 A. Orakhelashvili, ‘The Position of the Individual in International Law’, California Western International Law Journal, 31 , (Spring issue 2001), 241. 31 Ibid,242. 32 Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), 1970 ICJ 3, February 5. 33 E. Brown Weiss, ‘International Law in a Kaleidoscopic World’ (2011), page 23.

34 BBC News, “Black Lives Matter ‘not just a fleeting moment’”, 24 July 2020. 35 J.Crawford, Brownlie’s Principles of Public international Law, (9th edn) 2019, chapter 4, p9.

leads to the local changes that do not really impact international law.36 Hence, it is fair to conclude that the principles of the kaleidoscopic world have provided individuals with significant power within the international legal system, however, while individuals are more concerned about equity and human dignity, states’ powers cover all the aspects of the international law which also includes equity, fair representation of the individuals , peace, security and stability in the international system.

In conclusion, this essay has demonstrated how the positions and status of the individuals, international organisations under international law has significantly increased in the 21st century due to the number of factors which include developments, globalisation, bottom up empowerment. As a result, it has challenged the classical positive outlook of the international legal system based on the states’ power, highlighting that while states continue to be central actors within the international legal system , the role of other actors and important systematic developments are also key for the international community. States will continue to be at the heart of the international legal system in the 21st century as their powers enable them to ensure fair representation and protection for the individuals, as well as govern further the key principles of the international law. Unlike states, individuals would not be able to achieve those goals due to the unrealistic idea of the direct democracy and the lack of legal personality. In order to reach the sufficient conclusion, this essay has explored the debate amongst a number of thinkers and scholars, emphasising that states have not been replaced completely by non-states actors as since states are central actors in creation of organisations, this gives them an opportunity to assert their powers further by retaining control of its direction. Considering all the arguments of the debate it is fair to conclude, that the developments of the 21st century has delegated some powers from the states and it has certainty raised the influence of the non-states actors on the states decision-making process. But the nature and legal personality of the states still accomplish the leading position for them within the international legal system.

36 M.Nagrecha , ‘Why no EU progress on Black Lives Matter?’, euobserver.
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