Global Constitutionalism and the International Legal Personality of the Individual

Abstract

It is a widespread notion, perhaps even a truism, among international legal scholars that international law went from a pre-World War II ‘States-only’ framework to the recognition of the international legal personality of individuals during the second half of the 20th century. This changed role of the individual and other non-State actors in the international legal system is a common starting point for discussions among scholars engaging with global constitutionalism. International law, so the popular narrative goes, has developed from ‘the law between States’ to ‘the law within States’, and with this development follows a constitutionalization of the international legal system. The present article challenges the basic premise of this account. It argues that the ‘States-only’ conception of international legal personality is mistakenly treated as though it provides an accurate depiction of the historical role played by individuals in positive international law, when in fact it was never more than a scholarly invention of 19th century orthodox positivists. Rather, the question of individual rights and duties under international law has always been empirical in the sense that it depends exclusively on the content of international legal norms. The article illustrates how this disconnect between theory and practice leads international constitutionalist scholars to exaggerate the impact of the increased number of international legal norms governing individuals on the overall structure of the international legal system as well as on its relationship with national legal systems.