The Individual and Structural Change in the Int'l Legal System - Parlett.pdf - DOI 10.7574\/cjicl.01.03.60 Cambridge Journal of International and

The Individual and Structural Change in the Int'l Legal System - Parlett.pdf

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DOI: 10.7574/cjicl.01.03.60 Cambridge Journal of International and Comparative Law (1) 3: 60–80 (2012) The Individual and Structural Change in the International Legal System Kate Parlett * 1 Introduction The international law of today arguably bears little relation to the international law of the 19 th century. At that time, international law was generally conceived as a body of rules and forms of conduct applicable to states in their relations with each other. 1 During the 20 th century, a more multifaceted and cosmopoli- tan view of legal relations in international law emerged. There is now little controversy surrounding the notion that international law is not exclusively concerned with inter–state relations, nor the proposition that individuals have a certain status in international law as the beneficiaries of rights and the bearers of obligations—indeed, that they are `subjects' of international law as the notion of `subjects' has been defined. There has thus been a significant shift in attitudes towards the individual and individual rights over the period since Vattel. 2 Nevertheless, there are two aspects of the debate concerning individuals in the international legal system that remain controversial. The first is the question of the motivating force for this structural change in international law. Can it be explained on pragmatic grounds, or is it a product * BA/LLB (Hons), University of Queensland; LLM (Hons), PhD (Cantab); Associate, Fresh- fields Bruckhaus Deringer LLP, Paris, France; <[email protected]>. This paper draws upon research published in The Individual in the International Legal System: Continuity and Change in International Law (CUP, 2011) and presented at the CJICL's inaugural confer- ence in Cambridge in May 2012. 1 Cf H. Grotius, The Rights of War and Peace (1625, R. Tuck (ed)) (Liberty Fund, 2005), Book I, Chapter I, XIV, at 162. 2 E. de Vattel, The Law of Nations or, Principles of the Law of Nature Applied to the Conduct and Affairs and Nations and Sovereigns (1758, B. Kapossy and R. Whatmore (eds)) (Liberty Fund, 2008), Introduction, §3, at 67. Copyright © the Author(s). This work is licensed under a Creative Commons Attribution–NonCommercial–NoDerivs 3.0 License.
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The Individual and Structural Change in the International Legal System 61 of theoretical discourse championing individualism over the construct of the state? The second is whether, normatively, the move towards individualism in international law is to be welcomed in all its forms, or whether some of the aspects of the more traditional, 19 th century conception of international law, still serve a useful purpose, and should be conserved rather than condemned. There is a third controversy to which these structural changes have given rise, concerning the way in which engagement in the international legal system is measured. Traditionally, engagement in international law has been measured by international legal personality, or the doctrine of `subjects'. In the international legal system of the 19 th century, this was basically a categorization
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