Community Interest and the International Public Legal Order

Netherlands International Law Review https://doi.org/10.1007/s40802-021-00186-7 ARTICLE Community Interest and the International Public Legal Order Sarah Thin1 Accepted: 1 April 2021 © The Author(s) 2021 Abstract Traditional ideas about the private nature of the international legal order are increasingly being forced to contend with the development of public legal elements at the international level. The notion of the international community interest is key to understanding these developments and, as such, has transformed our understanding of international law. There are many different approaches to the public/private distinction in law, broadly categorised into relational, public authority, and interestbased approaches. These can be reduced to four key elements of publicness: the existence of a community or public; the universality of the public regime in question with its own boundaries; normative and institutional hierarchies; the objectivity of obligation and responsibility. The development of the community interest and related norms of international law can be seen to have introduced and strengthened all of these elements of publicness within the international legal system. It is thus on its way to becoming an international public legal order. This has important implications for our understanding of international law and the future development of the international legal order. Keywords Community interest · International public law · International public interest · International community · Public authority · International legal system 1 Introduction The notion of the international community interest has transformed our understanding of international law. Where once international law was understood to concern itself exclusively with the protection of individual state interests through mirrorimage bilateral relationships, now there are rules protecting ‘global public goods’,1 1 See Bodansky (2012). * Sarah Thin 1 PhD Candidate, Maastricht University, Maastricht, The Netherlands 123Vol.:(0123456789) S. Thin such as the global environment, and ‘universal values’,2 including that of human dignity. There are even public-law style limitations on the contractual freedom of states to make international agreements,3 and a form of public-interest litigation through the invocation of responsibility for the breach of erga omnes obligations.4 International law has traditionally been likened to private law,5 but these community-interest-oriented developments seem to suggest a shift from this private-law type system towards a more public legal order. The shift towards a public-law narrative can be seen as an attempt to explain and theorise these changes. From global constitutionalists,6 through global governance,7 and global administrative law,8 the literature is strewn with attempts to recast (aspects of) public international law as a form of ‘international public law’.9 Despite the wealth of scholarship discussing and analysing this shift, relatively little has been written on the role of community interest per se within this evolution. Despite Simma’s comment that the incorporation of the community interest has meant that international law ‘begins to display more and more features which do not fit into the “civilist”, bilateralist structure of the traditional law […] it is on its way to being a true public international law’,10 the impact of community interest on a conceptual level remains underexplored. This article puts community interest at the centre of this analysis and argues that it is key to understanding the shift towards publicness in international law. Furthermore, this contribution develops a new approach for analysing the notion of publicness in international law. Existing understandings of the divide between public and private have thus far hindered a fuller understanding of this dynamic at the international level. Formalist approaches to this distinction that are developed at the domestic level do not account for the myriad essential differences between a national and international legal order. In response to this problem, this article analyses a variety of different approaches to the public/private distinction in order to draw out the key elements that transcend the difficulties inherent with comparing such different legal orders. This provides the basis for analysis of the impact of the community interest on the nature of the international legal order. The article begins by examining and categorising a wide variety of approaches to the public/private divide in domestic legal theory, drawing out four key elements of publicness that are common to all sets of approaches (Sect. 2). The following section 2 Dupuy (2005). In the form of jus cogens norms: Vienna Convention on the Law of Treaties (1969), 1155 UNTS 332, Art. 53. 4 See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, p. 3, paras. 33–34 and International Law Commission (ILC), Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), ILC Yearbook 2001, vol. II, Part Two, and UN Doc. A/56/10, Art. 48. 5 Schwӧbel (2012), pp. 1111–1112. 6 E.g. De Wet (2006); Peters (2006). 7 E.g. Donaldson and Kingsbury (2013); Goldmann (2016); Krisch (2012). 8 Kingsbury and Donaldson (2011b). 9 Von Bogdandy et al. (2016), p. 1. 10 Simma (2009), p. 268. 3 123 Community Interest and the International Public Legal Order (Sect. 3) applies these elements to the international legal order. It demonstrates the ways in which the legal notion of community interest has had a foundational role in the development of fledgling structures of an international public law. Section 4 reflects on the implications of this categorisation of the international legal order as ‘public’. It argues that, far from being a purely descriptive or abstract academic exercise, the determination of the public nature of the international legal system has important consequences for its functioning and future development. The final section will offer some concluding remarks. 2 Elements of Publicness The distinction between public and private has a long pedigree. From Roman law concepts of jus publicum and jus privatum,11 it has evolved to form an important part of the structure of modern domestic legal systems.12 When it comes to the international sphere, however, the picture is more complicated. Many of the traditional structures and machinery of state, including forms of the separation of power and the existence of the three branches of government (legislative, executive, judicial) are largely absent at the international level. This section sets out to determine the key elements that illustrate a turn towards publicness in a legal system so as to be able to apply them to the international level. It begins by considering the range of different theoretical approaches that have been applied to the public/private divide in the domestic law context, (...truncated)