Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law PDF
Preview Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law
Participants in the International Legal System The international legal system has weathered sweeping changes over the last decade as new participants have emerged. International law-making and law- enforcement processes have become increasingly multi-layered with unprecedented numbers of non-state actors, including individuals, insurgents, on multinational corporations, being involved. This growth in the importance of non-state actors at the law-making and law-enforcement levels has generated a lot of new scholarly studies on the topic. However, while it remains uncontested that non-state actors are now playing an important role on the international plane, albeit in very different ways, international legal scholarship has remained riddled by controversy regarding the status of these new actors in international law. This collection features contributions by renowned scholars, each of whom focuses on a particular theory or tradition of international law, a region, an institutional regime or a particular subject-matter, and considers how that perspective impacts on our understanding of the role and status of non-state actors. The book takes a critical approach as it seeks to gauge the extent to which each conception and understanding of international law is instrumental in the perception of non-state actors. In doing so the volume provides a wide panorama of all the contemporary legal issues arising in connection with the role and status of non-state actors in international law-making and international law- enforcement processes. Jean d'Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Centre for International Law at the University of Amsterdam (UvA), the Netherlands. Routledge Research in International Law Available: International Law and the Third World Reshaping Justice Richard Falk, Balakrishnan Rajagopal and Jacqueline Stevens (eds) International Legal Theory Essays and Engagements, 1966–2006 Nicholas Onuf The Problem of Enforcement in International Law Countermeasures, the Non-injured State and the Idea of International Community Elena Katselli Proukaki International Economic Actors and Human Rights Adam McBeth The Law of Consular Access A Documentary Guide John Quigley, William J. Aceves and Adele Shank State Accountability under International Law Holding States Accountable for a Breach of Jus Cogens Norms Lisa Yarwood International Organisations and the Idea of Autonomy Institutional Independence in the International Legal Order Richard Collins and Nigel D. White (eds) Self-Determination in the Post-9/11 Era Elizabeth Chadwick Participants in the International Legal System Multiple Perspectives on Non-state Actors in International Law Jean d'Aspremont Sovereignty, Jurisdiction, and Exploitation of the Seas, Polar Regions, Airspace and Outer Space Legal Criteria for Spatial Delimitation Gbenga Oduntan Forthcoming titles in this series include: The Law on the Use of Force A Feminist Analysis Gina Heathcote International Law in a Multipolar World Matthew Happold (ed.) International Law, Regulation and Resistance Critical Spaces Zoe Pearson The ICJ and the Development of International Law The Lasting Impact of the Corfu Channel Case Karine Bannelier, Théodore Christakis and Sarah Heathcote (eds) Asian Approaches to International Law and the Legacy of Colonialism and Imperialism The Law of the Sea, Territorial Disputes and International Dispute Settlement Jin-Hyun Paik, Seok-Woo Lee, Kevin Y. L. Tan (eds) The Right to Self-determination Under International Law “Selfistans”, Secession, and the Great Powers’ Rule Milena Sterio The Cuban Embargo Under International Law El Bloqueo Nigel D. White Threats of Force International Law and Strategy Francis Grimal Participants in the International Legal System Multiple perspectives on non-state actors in international law Edited by Jean d'Aspremont Foreword by W. Michael Reisman Presentation by Math Noortmann First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2011 Selection and editorial matter, Jean d'Aspremont; individual chapters, the contributors The right of Jean d'Aspremont to be identified as editor of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Participants in the international legal system: multiple perspectives on non-state actors in international law/edited by Jean d'Aspremont. p. cm. 1. Non-state actors (International relations) 2. Non-governmental organizations. 3. Persons (International law) 4. International law. I. Aspremont, Jean d’. KZ3925.P37 2011 341.2--dc22 2010051270 ISBN: 978-0-415–56514-1 (hbk) ISBN: 978-0-203–81683-7 (ebk) Typeset in Baskerville by Wearset Ltd, Boldon, Tyne and Wear Contents Cases and statutes Notes on contributors Foreword: Veritas vos liberabit W. MICHAEL REISMAN Acknowledgments Presentation MATH NOORTMANN Introduction: non-state actors in international law: oscillating between concepts and dynamics JEAN D'ASPREMONT PART I Theoretical perspectives 1 Non-state actors from the perspective of legal positivism: the communitarian semantics for the secondary rules of international law JEAN D'ASPREMONT 2 Non-state actors from an international constitutionalist perspective: participation matters! THOMAS KLEINLEIN 3 Non-state actors from the perspective of the Pure Theory of Law JÖRG KAMMERHOFER 4 Non-state actors from the perspective of the policy-oriented school: power, law, actors and the view from New Haven ANTHONY D'AMATO 5 Towards an interdisciplinary approach to non-state participation in the formation of global law and order MATH NOORTMANN PART II The regional perspectives 6 Non-state actors in French legal scholarship: international legal personality in question NICOLAS LEROUX 7 Non-state actors in North American legal scholarship: four lessons for the progressive and critical international lawyer RÉMI BACHAND 8 Non-state actors in Southeast Asia: how does civil society contribute towards norm-building in a state-centric environment? TAN HSIEN-LI 9 Contemporary Russian perspectives on non-state actors: fear of the loss of state sovereignty LAURI MÄLKSOO PART III Institutional perspectives 10 Non-state actors from the perspective of the International Court of Justice GLEIDER I. HERNÁNDEZ 11 Non-state actors from the perspective of the International Law Commission GENTIAN ZYBERI 12 Non-state actors from the perspective of the Institut de Droit international FRANÇOIS RIGAUX 13 Non-state actors from the perspective of international criminal tribunals GUIDO ACQUAVIVA 14 Non-state actors from the perspective of the International Committee of the Red Cross RAPHAËL VAN STEENBERGHE 15 The International Law Association and non-state actors: professional network, public interest group or epistemic community? MATH NOORTMANN 16 NGOs’ perspectives on non-state actors GAËLLE BRETON-LE GOFF PART IV Subject-matter based perspectives 17 Non-state actors and human rights: corporate responsibility and the attempts to formalize the role of corporations as participants in the international legal system ERIC DE BRABANDERE 18 Non-state actors in international humanitarian law CEDRIC RYNGAERT 19 Non-state actors in international criminal law CASSANDRA STEER 20 Non-state actors in international institutional law: non-state, inter-state or supra-state? The peculiar identity of the intergovernmental organization RICHARD COLLINS 21 Non-state actors in international peace and security: non-state actors and the use of force NICHOLAS TSAGOURIAS 22 Non-state actors in international dispute settlement: pragmatism in international law ERIC DE BRABANDERE 23 Non-state actors in international investment law: the legal personality of corporations and NGOs in the context of investor–state arbitration PATRICK DUMBERRY AND ÉRIK LABELLE-EASTAUGH 24 Non-state actors in international environmental law: a Rousseauist perspective MAKANE MOÏSE MBENGUE 25 Non-state actors in refugee law: l’état, c'est moi. Refugee law as a response to non-state action PENELOPE MATHEW 26 Non-state actors in European Law: enhanced participation of non-state actors in EU law-making and law-enforcement processes – a quest for legitimacy DAMIEN GERARD 27 Conclusion: inclusive law-making and law-enforcement processes for an exclusive international legal system JEAN D’ ASPREMONT Index Cases and statutes TABLE OF STATUTORY MATERIALS This table includes Agreements; Charters; Covenants; Declarations; Directives; General documentation; Reports; Resolutions; Rules, Regulations and Statutes; and Treaties and Conventions. The International section includes European Union material. INTERNATIONAL Agreements Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA) 2009 ............................................................................................................................................. 121 Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between ASEAN and the People's Republic of China, 2009 ............................................................................................................................................. 121 Agreement on the Privileges and Immunities of the Association of Southeast Asian Nations, 2009 Art 2(1) .................................................................................................................................. 122 Art 2(2) .................................................................................................................................. 122 ASEAN Comprehensive Investment Agreement 2009 .................................................................... 121 ASEAN Trade in Goods Agreement 2009 ....................................................................................... 121 Cotonou Agreement (Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States, on the one part, and the European Community and its Member States, on the other part, signed in Cotonou on 23 June 2000) ...................................................................... 63 Art 4 ............................................................................................................................... 413, 423 Art 6(1)
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