Excerpt
Table of Contents
I. Introduction: Globalization – Now and Then
II. Heritage: The status of the individual during the Iberian phase of Globalization and the contribution of the School of Salamanca
III. Today: Almost beyond Westphalia?
1. The principle: Mediation of the individual through the state
2. Human Rights Law: A step forward – but not enough
3. Rights: Spillover effects from self-contained human rights regimes into general PIL and other regimes
4. Rights – but no Standing: The Right to Contact a Consular Official under the Vienna Convention on Consular Relations
5. Conclusions
IV. Future: One World
V. Concluding remarks
Sources
I. Introduction: Globalization – Now and Then
Globalization has many dimensions – what I would like to look at today is not so much the economic aspect but rather at a communicative aspect of globalization as it pertains to the participation in legal processes.
Globalization is not a new phenomenon. Already before, there have been times of increased economic, cultural and political interaction, but also competition, for example during the 17th century when the English and Dutch East India companies heralded a phase of dominance for Northwestern Europe or in the 15th and 16th centuries, when Spain and Portugal colonized what is today Latin America. What is new today is the degree to which globalization affects the everyday lives of people around the world. One can compare today’s era of globalization with the years immediately after the re-discovery of the Americas in 1492 as well as with other phases of increased globalization. While some challenges differ, some are essentially still the same. The key question raised by globalization is how to treat the other. This is the question which is behind all other questions, for example whether precedence should be given to the protection of the environment or free enterprise or the question which role NGOs can play in the legal process. In other words: what is the position of the individual in the international legal process? I propose that the answer to this question has already been given centuries ago in the work of Francisco de Vitoria , a Dominican friar who was “ prima professor of theology at [the University of] Salamanca”[1] [2] at a time when the lines between moral theology and law already existed but allowed for more permeability than in later times.
II. Heritage: The status of the individual during the Iberian phase of Globalization and the contribution of the School of Salamanca
Faced with the question of how to treat the native population of the newly “discovered” lands across the Atlantic, Vitoria described the global community as a whole, an “ Orb ”,[3] for him, “the different political communities of the Orb constitute a single entity: Totus Orbis[, describing] an order of communities as subjects who relate to each other horizontally, not on the basis of hierarchy”[4] between one entity and an other.[5] Vitoria ’s ideas were not realized directly but provided the basis for the development of international law in the following centuries. Today we are close to actually realizing his vision in a global community which is ordered by law.
Francisco de Vitoria argued not only for a global community which consists of states and men[6] but also draw practical consequences, for example freedom of religion,[7] free speech,[8] including the right to proselytize,[9] free trade[10] and even free travel,[11] including a right to reside and work abroad,[12] all of which on a global basis, i.e., applying to everyone everywhere.[13] In so far, Vitoria deduced from the natural state of the global community of mankind more rights than are currently codified in international law.
The representatives of the School of Salamanca, in particular, Vitoria , Su á rez and las Casas ,[14] the latter a particularly outspoken advocate for the rights of the native peoples of the Americas,[15] all of “who[m] preceded Grotius , were a major influence on the developing [international] law.”[16] The School of Salamanca mattered also due to the role of the context in which it stood, Spain’s siglo del oro (the century of gold),[17] like Grotius,[18] who wrote during the golden eeuw (the golden century) of the Netherlands, indicating that a high level of participation of a country in globalization facilitates the local contribution to the development of Public International Law, which is easily explained given that the interest in globalization will increase with the importance of globalization for the local economy.
They faced opposition against their views[19] as they limited the power of the Spanish state in the New World, although Pope Paul III issued the bull Sublimis Deus in 1537,[20] five years after Vitoria gave his landmark lecture de indis[21] in which Vitoria had argued that the native Americans enjoyed equal rights.[22] Half a millenium later, the ideas spelled out then can now become law because the community envisaged by Vitoria on the basis of our common human nature is now a community of individuals who have the chance to actually interact with each other on a global scale as the “orb” Vitoria describes reflects humankind as such.[23]
For Vitoria , all humans “were free under the law of nature”[24] and hence equal in rights. Accordingly, also the states in the orb – all states – are equal.[25] From his perspective, “[t]he international community [...] possesses the inherent right to impose its will–in the form of law applicable to the individual State–and to punish its violation, not because of a treaty, of a pact or a covenance, but because of an international need.”[26] Such an international community can engage in the legal process without further consent on the part of the states. Individuals have a place in this community.
These ideas are not restricted to his cultural or religious context: the idea that there is an “underlying unity of all mankind, [is one which] the Confucian tradition has also maintained.”[27] In fact respect for the legal position of the individual was a prerequisite for peace,[28] testifies to the universal appeal of this proposition. “It was Vitoria [...] who set in motion the “revolution of human rights,” which has crystallized in modern democracies and contemporary international organizations.”[29] The notion that Vitoria ’s ideas “became the common view”[30] is an overstatement, although it is correct to assume that Vitoria has not only inspired the creation of the League of Nations[31] and the United Nations[32] but has been a founding father of international law.[33] This development may not have been linear[34] or causal[35] but Vitoria provided the seed for today’s international law. He was ahead of his times[36] - and continued to be so for a long time,[37] until our time. Under today’s conditions of globalization, Vitoria ’s ideas might form the basis for an integrated understanding of the global society in which each individual is a part of. While this global community of mankind based on the shared human nature of man is hardly new, it is now entering public consciousness, even though many millions are still unable to actively benefit from globalization due to conditions of poverty and inequality.
III. Today: Almost beyond Westphalia?
1. The principle: Mediation of the individual through the state
“[I]nternational law addresses itself to states and, for the most part, not to individuals or other entities such as governments”.[38] In classic, Westphalian, international law, the individual only has rights under international law if and in so far they are given by states or. A claim by an individual against an other state has to be brought by that individual’s home state. The mediatisation of the individual through the state continues in principle,[39] but this principle is rapidly eroding, most notably in the field of human rights law but also in other contexts, such as environmental law and consular protection. Individuals are considered to be only partial subjects of international law,[40] although the scope of their legal personality beyond specific human rights law and their dogmatic basis are subject to debate.[41] One might assume that legal personality requires the ability to enforce international law.[42] Based on this understanding, legal personality would be restricted to international human rights law. An increased role for individuals could be achieved by expanding of the participation of individuals in the legal process, be it through the judicial[43] or legislative[44] or even the enforcement[45] dimension, or by changing the fundamental perspective on international law in general: if one assumes that international law serves the individual, individuals are subjects of the law,[46] regardless of their factual possibilities, such as the ability to enforce their rights on the international level. Vitoria ’s approach offers one way to do so but in modern times there have been attempts to disconnect rights from enforceability.[47] At least – and this brings us back to Vitoria ’s universal approach and shows that modern ideas still build on old ones – in cases in which universally recognized rights are at stake,[48] such as those which result in obligationes erga omnes[49] or which are considered jus cogens .[50]
2. Human Rights Law: A step forward – but not enough
International human rights law has contributed to formalizing the protection which is afforded to individuals under international law. But human rights law alone is insufficient to understand the structure of international law and the role of the individual as the fundamental building block of human society. Giving non-state actors such as individuals more rights under international law is not enough to give them an adequate place on the international plane,[51] that is why an international legal system which is truly reflective (law reflects the society which it governs[52] ) of the global society which we see emerging in the current era of globalization will need to be more inclusive in terms of a more active participation – not only through international personal responsibility[53] or by allowing the active participation of individuals in the creation of new rules of international law, which is already happening (think of human rights,[54] the Rome Statute and the Ottawa Treaty[55] ) but also – in order to be more effective – by a democratization of the decision making process in the central subject of the Westphalian legal system, i.e. the State.
[...]
[1] Examined dosentti candidate in Fundamental and Human rights and University Lecturer for Fundamental and Human Rights, with special focus on indigenous rights, University of Lapland, Rovaniemi, Finland; Senior Researcher and Doctor in Social Sciences (Law), Vytautas Magnus University, Kaunas, Lithuania; Member of the Bar, Frankfurt am Main, Germany; Co-Chair, Rights of Indigenous Peoples Interest Group, American Society of International Law, Washington D.C. (2012-2015).
This article is part of a series of articles on the impact of globalization on the subjects of international law. See also by the same author The Subjects of Public International Law in a Globalized World , in: 2 Baltic Journal of Law and Politics (2009), pp. 83 et seq. ; Effective Law-Making in Times of Global Crisis – A Role for International Organizations , in: 2 Göttingen Journal of International Law (2010), pp. 267 et seq. and Transnationale Unternehmen als Objekte und Subjekte des Völkerrechts - Zwischen Verantwortung und Teilhabe , in: Dominik Steiger (ed.), Akteure in Krieg und Frieden, 1st ed., Mohr Siebeck, Tübingen (2010), pp. 219 et seq . The author thanks the participants of the 2013 conference at the University of Cambridge where this research was first presented. All opinions expressed in this text are only attributable to the author.
[2] J. Brown Scott, The Spanish Origin of International Law – Francisco de Vitoria and His Law of Nations , 1st ed., Clarendon Press, Oxford and Humphrey Milford, London (1934), reprint, The Lawbook Exchange, Ltd., Union (2000), 4th printing (2008), p. 68. The term prima referring to the fact that he was elected by the students to lecture at 6 a.m., which was considered the greatest possible honor to be bestowed on a professor at the time, ibid. , p. 73.
[3] P. Zapatero, Legal Imagination in Vitoria. The Power of Ideas , in: 11 Journal of the History of International Law (2009), pp. 221 et seq. , at p. 226.
[4] Ibid ., at p. 226.
[5] Ibid .
[6] F. Griffith Dawson, Contributions of Lesser Developed Nations to International Law: The Latin American Experience , in: 13 Case Western Reserve Journal of International Law (1981), pp. 37 et seq. , at p. 41.
[7] Ibid .
[8] Ibid .
[9] Ibid .; Zapatero ( supra , note 3), at p. 234.
[10] Griffith Dawson ( supra , note 6), at p. 41; Zapatero ( supra , note 3), at p. 234.
[11] Griffith Dawson ( supra , note 6), at p. 41.
[12] Zapatero ( supra , note 3), at p. 233.
[13] Griffith Dawson ( supra , note 6), at p. 41.
[14] On the connection between Vitoria, las Casas and Suárez see J. Joblin, The Papal Encyclical “Pacem in Terris” , in: 88 International Labour Review (1963), pp. 1 et seq. , at pp. 2 et seq.
[15] J. Malbon, Natural and Positive Law Influences on the Law affecting Australia’s Indigenous People , in: 3 Australian Journal of Legal History (1997), pp. 1 et seq. , at p. 15. See also A. Eyffinger, Christianity and International Humanitarian Law , in: 15 Sri Lanka Journal of International Law (2003), pp. 29 et seq. , at p. 34 and J. M. de Torre, The Roots of International Law and the Teachings of Francisco de Vitoria as a Foundation for transcendent Human Rights and Global Peace , in: 2 Ave Maria Law Review (2004), pp. 123 et seq. , at pp. 138 et seq. ; P. G. Carozza, From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of Human Rights , in: 25 Human Rights Quarterly (2003), pp. 281 et seq. , at pp. 289 et seq. ; G. Marks, Sovereign States vs Peoples: Indigenous Rights and the Origins of International Law , in: 5 Australian Indigenous Law Reports (2000), Issue 2, pp. 1 et seq. , at p. 7; R. P. Boast, The “Spanish” Origins of International Human Rights Law: A Historiographical Review , in: 41 Victoria University of Wellington Law Review (2010), pp. 235 et seq. , at p. 240.
[16] Malbon ( supra , note 15), at p. 14, italics added.
[17] Zapatero ( supra , note 3), at pp. 221 et seq.
[18] Grotius actually based his masterpiece Mare liberum on the works of Vitoria, ( ibid. , at p. 223).
[19] Malbon ( supra , note 15), at pp. 14 et seq.
[20] Zapatero ( supra , note 3), at p. 247.
[21] For an English translation see Brown Scott ( supra , note 2), pp. i et seq.
[22] Zapatero ( supra , note 3), at p. 244; on the human rights dimension of the work of the School of Salamanca see also, Marks ( supra , note 15), at pp. 6 et seq. ; F. B. Higgins, Las naciones Indias de America y el Derecho Internacional, anterior a los Estados Unidos , in: 30 Revista Juridica de la Universidad de Puerto Rico (1961), pp. 77 et seq. , at pp. 78 et seq. ; A. Parise, The Valladolid Controversy Revisited: Looking Back at the Sixteenth-Century Debate on Native Americans While Facing the Current Status of Human Embryos , in: 1 Journal of Civil Law Studies (2008), pp. 107 et seq. , at pp. 120 et seq. ; Boast ( supra , note 15), at pp. 238 et seq.
[23] J. Soder, Die Idee der Völkergemeinschaft – Francisco de Vitoria und die philosophischen Grundlagen des Völkerrechts, 1st ed., Alfred Metzner Verlag, Frankfurt am Main / Berlin (1955), p. 53.
[24] C. C. Joyner, International Law in the 21st century – Rules for Global Governance, 1st ed., Rowman & Littlefield Publishers, Inc., Lanham (2005), p. 16.
[25] Brown Scott ( supra , note 21), p. 281.
[26] Ibid ., p. 283.
[27] de Torre ( supra , note 15), at p. 136.
[28] Ibid ., at p. 133.
[29] Ibid ., at p. 140, see also the references ibid ., at pp. 140 et seq. , there footnote 78, italics added.
[30] J. P. Doyle, Francisco Suárez: On Preaching the Gospel to People Like the American Indians , in: 15 Fordham International Law Journal (1991-1992), pp. 879 et seq. , at p. 880.
[31] de Torre ( supra , note 15), at p. 133.
[32] Ibid ., at p. 142.
[33] Ibid ., at pp. 142 et seq.
[34] Boast ( supra , note 15), at, at p. 248.
[35] G. C. Marks, Indigenous Peoples in International Law: the Significance of Francisco de Vitoria and Bartolome de las Casas , in: 13 Australian Yearbook of International Law (1990-1991), pp. 1 et seq. , at p. 14.
[36] Brown Scott ( supra , note 21), p. 275.
[37] Ibid .
[38] J. L. Goldsmith / E. A. Posner, The Limits of International Law, 2nd ed., Oxford University Press, Oxford and other locations (2007), p. 5.
[39] V. Epping, § 7. Das Individuum als Völkerrechtssubjekt , in: Knut Ipsen, Völkerrecht, 5th ed., C. H. Beck, Munich (2004), pp. 95 et seq. , at p. 96.
[40] T. Stein / C. von Buttlar, Völkerrecht, 12th ed., Carl Heymanns Verlag, Cologne / Munich (2009), p. 168.
[41] Ibid ., p. 169.
[42] Cf. ibid.
[43] Through increased access to courts, e.g. the WTO DSB.
[44] See the impact of NGOs on the ICC Statute or the Ottawa Treaty.
[45] One example would be the work of NGOs which aim to increase awareness of human rights or environmental concerns.
[46] Stein / von Buttlar ( supra , note 40), p. 169.
[47] Cf. ibid. , pp. 172 et seq.
[48] Ibid. , p. 172.
[49] Cf. ibid. , p. 172 – but note that the authors add the disclaimer that the states in drafting the legal rule in question must have intended to convey upon individuals certain rights ( ibid ., p. 173).
[50] Ibid ., p. 174.
[51] J. Klabbers, (I Can’t Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors , in: Jarna Petman / Jan Klabbers (eds.), Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, 1st ed., Martinus Nijhoff, Leiden, Boston (2003), pp. 351 et seq. , at p. 368.
[52] M. N. Shaw, International Law, 4th ed., Cambridge University Press, Cambridge and other locations (1997), p. 36.
[53] See W. A. Schabas, Punishment of Non-State Actors in Non-International Armed Conflict , in: 26 Fordham International Law Journal (2002-2003), pp. 907 et seq.
[54] See A. Bianchi, Globalization of Human Rights: The Role of Non-State actors , in: G. Teubner (ed.), Global Law without a State, 1st ed., Dartmouth, Aldershot (1997), pp. 179 et seq. , at pp. 191 et seq.
[55] On the Ottawa Convention see K. Anderson, The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society , in: 11 European Journal of International Law (2000), pp. 91 et seq.