Inter-State Alliances as Participants in International Law Making

[Rohit Gupta is a Fellow at the Centre for International Law Research and Policy and the Case Matrix Network. He is currently pursuing the LL.M. (International Law) at the Geneva Graduate Institute. The author would like to thank Prof. Djacoba Liva Tehindrazanarivelo whose lectures on ‘Participants in International Legal Processes’ greatly benefitted this piece.]

1.       Introduction

Debate as to the state-centrism prevalent in the current structure of international law is relatively settled. ‘Subject-hood’, however, forms an entirely different legal enquiry, the necessity of which has been questioned by the likes of Roslyn Higgins. To recapitulate, the ‘subjects’ doctrine creates a dichotomy between the ‘subject’ – those who bear rights and responsibilities under international law – and the ‘objects’ – those who do not. Traditionally, only states, by virtue of their sovereignty, accrued the former title. International legal doctrine was thus only concerned with those who “appear on the stage of the law[-making]”, and not others who may participate in the background. Quickly, however, this distinction was realized as a façade; created for the consolidation of representative authority. Even Hans Kelsen, a dire positivist, admitted that sovereignty as a basis for subject-hood could only confer a “relative supreme authority”.

International law has thus begun a painstaking journey towards a focus on ‘participants’, rather than ‘subjects’, to adopt a more empirical vision of discourse actors in international law. A broadening of recognition also allows for the identification of patterns revealing the emergence of an international community working towards common values. Hiding in plain sight, one such vehicle of change has been inter-state alliances which may be viewed as a conglomerate of participants or a participant in and of itself. Although the ‘participants’ discourse and the visibility and relevance of inter-state alliances in international law have grown simultaneously, the two appear to be on parallel trajectories. No major treatise which expounds the ‘participants’ approach includes a discussion on inter-state alliances, separately from international organizations.

This comment discusses their emergence as such by first, laying down the theoretical foundations of dynamic subjectivism, and second, analyzing their structures and contributions to international law-making.

2.       Changing Contours of ‘Subject-hood’ in International Law

The traditional view of subject-hood is challenged in two ways, each flowing from the initial acknowledgement of the International Court of Justice that subjects may not be identical in their nature or extent of rights (Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), 174). Sir Hersch Lauterpacht argued that the inability of an individual to enforce rights under international law denotes limitations of the international legal structure, rather than the absence of rights in toto. The more modern approach further questions whether subjects need only be those upon whom rights are conferred. Karsten Nowrot, for instance, advances that ‘subject-hood’ be discarded completely in favour of ‘participant’ status, determined by the capacity an actor has to influence international legal discourse through direct or indirect participation. Richard Collins further argues that Article 38(1) of the Statute of the International Court of Justice – which is used to argue that only states formulate international law – was not meant to encapsulate the process of international law-making and the actors involved. This parallel development of scholarship, which viewed international law-making as a ‘process’, further allowed for the recognition of the influence exerted by actors operating “in the shadows of the State”.

An understanding of subject-hood is also informed by the changing character of international relations. According to the ‘Kantian’ view, the emergence of an ‘international community’ displaces the state as the ‘primary unit’ of international society. The community represents a “higher unity”, shedding off individual interests of states, and is represented by additional actors such as multinational corporations, non-governmental organizations, and civil society. Simma and Paulus dilute this view by advancing that the current state of affairs is akin to a neo-Grotian model (with a hint of Kantian), where an ‘organized state community’ functions to advance global common values held by states and mankind collectively. These ‘state communities’ fundamentally consist of non-state actors who permeate state boundaries to protect individual and group interests through international law.

I argue that inter-state alliances be identified as such an ‘organized state community’, as seen through their indulgence in informal international law-making.

3.       The Rise and Legitimacy of Inter-State Alliances as Informal Law-Makers

3.1.      The Structure and Functioning of Inter-State Alliances

While the proliferation of United Nations agencies and sanctions-powered international adjudicatory mechanisms (such as the International Criminal Court) took centre stage, international law saw the quiet development of sub-systems, formed either for stronger regional cooperation or consolidation of dissident voices. ‘G-level’ cooperations began in the 1970s with the ‘G5’, a group of national finance officials meeting in the backdrop of the Bretton Woods Institutions. Later ‘G-level’ meetings were not only restricted to ‘like-minded’ conglomerations but all those who could contribute to international economic cooperation. Writing in 2008, Diane Stone noted that global policy practice was witnessing a ‘double devolution’ – first, from a nation-state to global and regional domains, and second, from state authority to private networks and non-state actors.

Some of these inter-state alliances have been dubbed as ‘rising powers’ by those arguing for an increasingly multi-polar conceptualization of international politics. The BRICS (Brazil, Russia, India, China, and South Africa), as a unit, exerts great influence on international legal processes through coordinated voting. A pooling of the allegiances of each country also reveals an influence over a numerical majority of states. The negotiations establishing the Law of the Seas Convention and the Convention on the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction clearly exemplify the unitary influence exerted by the BRICS. It has also managed to garner a 15% voting share in the World Bank, a percentage bound to increase with the introduction of ‘BRICS+’.

Internally, inter-state alliances also consist of a complex ecosystem of non-state networks, functioning as a ‘hub’ for the construction of governance systems. Besides the leaders’ summit, ‘G-level’ meetings consist of ministerial groupings, technical and consultation meetings held by ‘sherpas’, and meetings with business and civil society – Business 20, Youth 20, Labour 20, and Civil 20. Participants in these meetings include internationalized public sector officials (diplomats, public officials, and regulators), international civil servants, and transnational policy professionals (consultants, scientific experts, think tank pundits), often working without firm connections to authority and across governments. The G20’s High-Level Panel for Infrastructure Investment is specifically composed of experts from multilateral development banks, private investment houses, and academia to assist in future meetings.

3.2.      Inter-State Alliances as ‘Organized State Communities’

Joseph Weiler aptly characterizes current global governance structures with the emergence of a ‘geological layer’, sitting atop a ‘regulatory layer’ (of institutional regimes) and a ‘communitarian layer’ (resulting from a departure from the Vattelian or ‘statist’ models). A ‘collective intentionality’ of states to create an ‘international public power’ is revealed where the public forum is opened to a larger set of discourse actors to ensure policy innovation. Michel Virally argues that these structures arise out of states’ ‘functional necessity’ to cooperate institutionally to achieve goals which are common to other states but cannot be achieved individually. One may thus concede to Antonio Cassese’s metaphor that modern, multi-actor law-making is created and legitimated by – and over – the skeleton of Westphalian international law without discounting the function of non-state structures within these institutions. Thus, I argue that, regardless of its state-centric origins, the decisiveness of the influence of trans-governmental networks on government leaders during informal summits cannot be ignored.

Inter-state alliances such as the G20 act as ‘participants’ in and of themselves and visualize the participants who act within it. In this qualification, these alliances need not form ‘international organizations’ (whose subject-hood is otherwise uncontroversial), since the ‘process’ and ‘participants’ view of international law-making does not presuppose that law, practice, or policy must flow from any one marked contenders of subject-hood.

The result of such recognition may spur a deeper inquiry into G20 or BRICS practice, revealing novel perspectives on international law. For instance, the BRICS project a collective position on agendas for the 2024 Conference on Disarmament in Geneva, including on the prevention of an arms race in outer space (‘PAROS’). Gabriel Webber Ziero also points to the BRICS’ position that all human rights, including the right to development, must be treated “on the same footing and with the same emphasis” and that the “indivisible” nature of the United Nations Security Council’s mandate of maintaining international peace and security must be recognized so as not to exclude matters such as economic interference and terrorism. Practice in economic relations, such as the BRICS’ policy of conditioning foreign investment upon technology transfer and export performance may be analysed further.

3.3.      Inter-State Alliances and Informal International Law-Making

The invisibility of inter-state alliances as ‘participants’ may be explained by their engagement in ‘informal international law-making’, which is characterized by process, output, and actor informalities. Informal international law-making emerges through the major participation of transnational networks or knowledge societies. These networks or societies supplement, assist, correct, and challenge states, even as the latter retains control. The result is often flexible norms or guidelines which are grounded in practical experience and technical expertise. The G20, for instance, involves cross-border cooperation between non-traditional public authorities (domestic regulators, agencies, etc.), with the participation of private actors, in a forum other than traditional international organizations, and which results in outputs other than formal treaties. The BRICS, too, extensively relies on memoranda of understanding, for instance, with governmental agencies or state-owned banks for its operations.

An acute example of process informality is coordinated international engagement. Marina Larionova and Andrey Shelepov report that both the BRICS and the G20 engage heavily with international institutions direction setting, collective decision-making, and collective compliance. This is exemplified by the G20’s catalyzing of the 2013 World Trade Organizations’ Trade Facilitation Agreement in Bali and the timely completion of the Doha Development Agenda negotiations. The BRICS’ health ministers have also cooperated since 2011 in engaging with the World Health Organization (‘WHO’). In doing so, the BRICS has coordinated commitments to action plans and regulations, endorsed WHO assembly decisions and advanced the WHO’s role as central to the global health agenda.

Thus, I argue that the distinct significance of inter-state alliances as ‘participants’ must be recognized. Peter Holcombe Henley and Niels M. Blokker argue that these alliances are a return to intergovernmental and State-centric governance of international affairs influenced by the ‘subjects’ doctrine. But their criticism ignores the “distinctive contribution” made by such inter-state alliances due to the informality of actors, processes, and outputs involved. In fact, China’s agreement to advance South Africa, India, and Brazil’s “legitimate aspirations” for a permanent seat at the Security Council, in exchange for the latter’s approval to expand the BRICS, evidences how distinctly states poise inter-state alliances in international governance.

4.       Conclusion

‘Postnational rule-making’ has come to accept that an actor’s ability to influence behaviour or international legal processes is a factor of the “semantic authority” of their acts and decisions as opposed to the formal characterization of the actor as a ‘subject’ of international law. Perhaps then it is time to end the superimposition of ‘political science language’ to accommodate ‘participants’ within subject-hood discussions by discarding the latter classification entirely.

William Burke-White, for instance, argues that the ‘multi-hub structure of international law’, prompted by the emergence of pluralistic inter-state alliances, produces a downward pressure which seeks international law-making through regional and economic sub-systems. This desire, he contends, is expressed as “rising powers’ preferences for sovereignty, legitimacy, and economic development”, which reassert the role and significance of the state. However, this invisibilizes the inter-state alliances’ collective contributions to and perspectives on international law. The proposed broadening discourse within the ‘participants’ approach can refine Burke-White’s frame of reference, breaking the false dichotomy of inter-state ad-hocism of the nineteenth century and the emergence of international organizations thereafter.