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Public International Law/Actors in International Law/Women in International Law

Author: Juliana Santos de Carvalho, Verena Kahl "Required knowledge: Feminism & Queer Theory, Individuals, Human Rights Law, International Criminal Law." "Learning objectives: to understand how women have been included as subjects of international law; how they have contributed to the development of the international legal practice; and to take stock of (some) persisting challenges to gender equality in the field."

A. Introduction
Despite the well documented (white) masculine dominance in international law, women have long been a part of the international legal practice and discipline both as subjects of international legal instruments and as agents within the profession. This chapter aims to briefly cover how women are addressed in international law, as well as their contributions to the field. For that, it first introduces an overview of international legal instruments that recognise and advance women's rights internationally. It subsequently addresses the persisting widespread invisibility of women as active designers and interpreters of international law and casts a spotlight on selected women as key actors and active agents of and within public international law.

B. Women as Subjects of International Law
Women have long been the subject of different international legal instruments, either as a central group category for the norm in question or as a specially protected group within a larger framework of rights and protections. International law’s attention to women is mainly indebted to the continuous activism from international and transnational coalitions of different women’s movements and civil society, and, as will be demonstrated below, has encompassed a great variety of sub-fields in the international legal order.

Perhaps one of the most emblematic inclusions of women as subjects of international law is contained in the UN Charter. In its preamble, the Charter introduces among the UN's objectives the equal rights of men and women. Additionally, in article 8, the Charter makes explicit that the UN’s principal and subsidiary organs are to follow the equality between men and women in their functioning.

Similarly, the Universal Declaration of Human Rights (UDHR)'s preamble reaffirms the UN Charter’s recognition of the equal rights of men and women and, in its article 2, reiterates the right of all individuals, without distinction as to their sex, to fully enjoy the human rights set out in the Declaration. Further, article 16 of the UDHR recognises the right of men and women of full age to marry and found a family.

Another important international legal instrument, the International Covenant on Civil and Political Rights (ICCPR), establishes that State parties are to respect all individuals' civil and political rights irrespective of their sex. Article 3 indicates explicitly that State Parties need to ensure that men and women will enjoy the rights enshrined in the document equally. Similarly, articles 4(1), 23(2), 24, 25, and 26 contain provisions protecting individuals from discrimination on the basis of their sex. Mirroring these provisions, articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights also establish equality provisions for men and women in relation to the rights established therein. Additionally, article 7(a)(i) requires State to ensure equal pay for equal work, something that is also ensured by the International Labour Organisation (ILO) Convention 100 (Equal Remuneration Convention) of 1951.

Going beyond equality clauses, international legal instruments also add special protective provisions for women. In this regard, for instance, article 6(3) of the ICCPR prohibits the execution of capital punishment on pregnant women. Additionally, several ILO conventions establish specific protective measures for women, such as the Maternity Convention (first established in 1919, with the latest revised variant in 2000), night work, plantation work, among others.

However, perhaps one of the most comprehensive legal regimes of special rights and protection accorded to women have been those elaborated by the Commission on the Status of Women (CSW). Established by the UN Economic and Social Council in 1946, the CSW was fundamental for the drafting and adoption of several international conventions on women's rights, including the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW provisions encompass a variety of issues, including, but not limited to, equality before the law and within cultural practices, access to education, political rights, equal representation in national governments and international bodies, specific rights for rural women, economic and social benefits, among others. Nevertheless, it bears noting that the CEDAW is one of the universal human rights instruments with the most significant number of State reservations.

The CEDAW also has an Optional Protocol with 115 States parties. This document establishes a monitoring Committee, competent to receive and consider communications concerning alleged Convention violations. Moreover, article 8 enables the Committee to conduct an inquiry procedure when it receives 'reliable information indicating grave or systematic violations by a State Party'.

Aside from international human rights, women have been particularly included in international criminal law. Most notably, the Rome Statute of the International Criminal Court (ICC) includes gender as a protected category for the crime of persecution, recognises women as a specific vulnerable group to specific international crimes, and indicates that gender equality and expertise should count in the selection of judges for the ICC.

Despite its contested legal status, the Women, Peace and Security (WPS) agenda of the UN Security Council is also considered an influential set of documents that reinforce existing legal obligations of parties to armed conflicts concerning the rights and specific needs of women and girls. Initiated by the unanimously adopted Resolution 1325(2000), and comprising nine different sister resolutions under the same rubric, the WPS agenda encompasses several issues relating to women and girls during and after conflict settings, such as prevention and protection against conflict-related sexual violence (CRSV), increased participation of women in peace processes, and specific measures to ensure the specific needs of women and girls in humanitarian relief.

C. Women as Agents of International Law
As stated beforehand, the corpus iuris of international law as well as the corresponding policy and law-making processes have to a large extent been construed and dominated by (white) men. Public international law has therefore been built on and permeated by the male norm, thereby constantly overseeing, neglecting and outcasting all of its deviations. This systematic and structural discrimination and marginalisation of women in all their diversity has, for the most part, been addressed through the above-mentioned specialized international and regional (human rights) treaties and protection regimes, focussing on women as right holders and victims of rights' violations.

However, besides the already mentioned one-sided focus on victimhood, systematic and structural discrimination and marginalisation of women in all their diversity has had and still has another effect in the context of international law, which requires further reflection: The invisibility and non-recognition of women as active agents of and within public international law. Overlooked contributions by women to the (further) development of public international law may, besides various factors, such as a lack of representation and resources, also be the result of an overly dominant victim narrative. In the following, the current contribution takes therefore a closer look at the persistent invisibility of women as active contributors to the international legal order in theory and practice, presents scholarly projects that seek to remedy this situation and finally casts a spotlight on - necessarily - selected women actors of and within public international law.

I. Invisibility and Non-Recognition of Women as Actors of and within International Law: An Attempt at Explanation
Due to systematic and structural discrimination, women have faced significant hurdles to shape and further develop public international law, a scenario to which various factors, such as the public-private divide, behavioural stereotypical gender roles, power imbalances and corresponding lack of or aggravated access to financial resources, land and property as well as educational institutions and offices, See, inter alia, Caroline O. N. Moser, who described the triple role of women in the Global South and their limited access to (and control over) financial resources, land ownership, education, high income positions and political power. See Caroline O. N. Moser, 'Planning in the Third World: Meeting Practical and Strategic Gender Needs' (1989) 17 (11) World Development 1799, 1801, 1803,1812-1813. Furthermore, Maxine Molyneux considered as strategic gender interests to overcome women's subordination, inter alia, 'the abolition of the sexual division of labor, the alleviation of the burden of domestic labor and childcare, the removal of institutionalized forms of discrimination, the attainment of political equality, the establishment of freedom of choice over childbearing, and the adoption of adequate measures against male violence and control over women.' Maxine Molyneux, 'Mobilization without emancipation? Women’s interests, state and revolution in Nicargua.' (1985) 11 (2) Feminist Studies 227, 232-233. See also V. Spike Peterson and Anne Sisson Runyan,  Global Gender Issues  (Avalon Publishing 1993) 62, 77, as well as the narration of Virginia Woolf on the restriction of women's (creative) development through lack of (financial) resources, own premises and access to education, leading to 'the safety and prosperity of the one sex and of the poverty and insecurity of the other and of the effect of tradition and of the lack of tradition upon the writer.' Virginia Woolf, A room of one's own (Hogarth Press 1929) 19-21, 72-74, 90. See also Catherine Kessedjian, 'Gender Equality in the Judiciary – with an Emphasis on International Judiciary' in Elisa Fornalé (ed), Gender Equality in the Mirror: Reflecting on Power, Participation and Global Justice (Brill 2022) 195, 202-205. may very well have contributed.

On the next level, the structural discrimination, which manifests itself differently depending on the intersectional situation of the specific woman, continues in the direct or indirect denial of or difficult access to and participation in international institutions, key positions and corresponding law- and decision-making processes, ultimately building on a lack of rights, resources and representation mentioned above. It is also worth mentioning that the struggles caused by and the fight against patriarchal structures also ties up important resources, such as money, time and energy, that could otherwise be invested differently. Invisibility therefore refers to all those women of diverse backgrounds that could not participate in the "game" of international law in the first place. This absence of women in the international sphere is also reflected in their continuous underrepresentation in important and influential international legal institutions, such as the International Law Commission or international courts and tribunals. See the description of female representation in international courts with further sources of Catherine Kessedjian in 2022: 'Concerning the ICJ despite a complete renewal of the judges between 1945 and 1969, no woman was elected until 1995 (Dame Rosalyn Higgins). In 2021, three women out of a total of 15 are on the bench: (by order of election) Joan E. Donoghue (2010), [...] Xue Hanqin (2010), and Julia Sebutinde (2012). There are almost no women ad hoc judges at the ICJ. The Tribunal for the Law of the Sea (Hamburg) is composed of 21 judges, five of whom are women. At the International Criminal Court, the situation has worsened: at the initiation of the court there was an equal number of women and men. However, in 2019 women accounted for only one-third of the bench. A decrease has also been seen at the European Court of Human Rights despite the policy announced by the Council that it would not be acceptable for Member States to propose a list that does not include at least one woman. The World Trade Organization (WTO) panel members did not include a woman until 2003.' Catherine Kessedjian, 'Gender Equality in the Judiciary – with an Emphasis on International Judiciary' in Elisa Fornalé (ed), Gender Equality in the Mirror: Reflecting on Power, Participation and Global Justice (Brill 2022) 195, 201. See also, by mode of example, Nienke Grossman, 'Sex on the Bench: Do Women Judges Matter to the Legitimacy of International Courts?' (2012) Chi. J. Int'l L. 647; Nienke Grossman, 'Shattering the Glass Ceiling in International Adjudication' (2016) 56 Va. J. Int'l L. 1; Leigh Swigart and Daniel Terris, “Who are International Judges?” in Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (eds), The Oxford Handbook of International Adjudication (Oxford University Press 2014) 619. No woman has been nominated UN Secretary-General so far.

Nonetheless, international law has also fostered patterns of overseeing, ignoring, and denying adequate recognition to those women that have actually been active designers of the international legal order and made significant contributions to the continuous development of international law, often precisely despite the very difficult conditions faced by these women. Invisibility and non-recognition of women agents in the realm of international law is also owed to a patriarchal system that operates in invisibility itself. Still, the mechanism that fuels invisibility of these active women agents of and within international law can particularly be observed where international law is taught, described, analyzed and criticised: within academic institutions. Trailblazing women as active designers of international law and their contributions are largely absent in universities' classrooms in comparison to their men colleagues. The often taught and scholarly discussed 'classics of international law' seldom include contributions of women. These 'classics' go beyond the eponymous series edited by James Scott, as they refer to pre-selected works, which are considered contributions of such significance that they are regularly and repetitively addressed in seminars, lectures as well as articles, books and other forms of academic publications. The resulting invisibility and non-recognition of women agents of international law - besides losing valuable, substantive contributions to the development of the international legal order themselves - also leads to a presumption of their nonexistence and a lack of role models for young students, legal scholars and practitioners, which is why we need continuous research with corresponding data compilation to visualise, analyse and explain the absence of women as active agents of international law.

Yet, some important scholarly projects have tried to break the glass ceiling in favour of the visibility and recognition of women as active agents and designers of international law, such as the recent works of Rebecca Adami and Dan Plesch and Immi Talgreen.

II. Trailblazing: Women as Active Designers of International Law
Despite the aforementioned hurdles, women have made important contributions to the development of international law in different roles, such as diplomats, judges, scholars, lawyers and active members of civil society. Nevertheless, it is important to highlight that white, Western women have notably gained more recognition than their racialised and Global South counterparts. In this section, we aim at modestly correcting this bias by foregrounding the diverse set of women who have contributed to substantial landmarks of contemporary international law.

In this sense, while Eleanor Roosevelt has become much more visible in her efforts to encourage the adoption of the Universal Declaration of Human Rights, Dominican Minerva Bernardino was crucial in her promotion of the rights of women in the document. Bernardino, along with other Latin American diplomats, such as the Brazilian Bertha Lutz and Mexican Amalia González Caballero de Castillo Ledón, have also had an important role in the inclusion of women's rights during the negotiations of another landmark international legal document: the UN Charter. Both Bernardino and Lutz were active in the drafting process of the Charter, especially in their work of including crucial wording on the equality of men and women. An equally outstanding international figure of that time is Hansa Mehta from India, the only woman delegate to the UN Commission on Human Rights besides Eleanor Roosevelt in 1947. The change in the wording of Art. 1 of the Universal Declaration from 'All men are born free and equal' to 'All human beings are born free and equal' is to her merit.

Even before the birth of the UN System, as early as 1889, Bertha von Suttner formulated her - at that time - very progressive thoughts on peace and the international legal order in her bestselling anti-war novel 'Die Waffen nieder!'. She envisaged an international legal order with international institutions, international jurisdiction and peaceful cooperation among States. Suttner was the first women to participate as an observer at the First Hague Peace Conference in 1899 and the first women to be awarded the Nobel Peace Prize in 1912. Nearly a century before the publication of 'Die Waffen nieder!' another trailblazing woman, a feminist, abolitionist playwright fought against discrimination of women and publicly opposed slavery in the context of the French revolution: Olympe de Gouges. As a response to the 1789 Declaration of the Rights of Man and of the Citizen, she published a 'Declaration of the Rights of Women and of the Female Citizen', advocating for equal rights and challenging male authority and male oppression of women.

Nowadays, outstanding women from the Global South and their important contributions to international law are gaining more and more attention, such as Navanethem Pillay, Hauwa Ibrahim, Xue Hanqin, Unity Dow or Taghreed Hikmat and Cecilia Medina Quiroga, besides many others.

This has only been a very limited selection and therefore much incomplete list of many trailblazing women and their important contributions to international law across different times and cultures. (Re)discovering the contributions of women to international law is still the subject of ongoing scholarly research and discussion.

Conclusion
This chapter has demonstrated that, despite the structural gender bias and barriers in the international legal field, women have been a significant part of international law—both as subjects of international legal instruments and as agents contributing to the development of the international legal order. However, there is still a long way to go to achieve full gender equality and meaningful inclusion in the international legal order. Women—especially those positioned within an intersectional background of discrimination and oppression—still face structural marginalisation in the international legal field, despite their continued relevance for the profession. As such, striving for gender equality and the recognition of women’s contribution to international law is still an important and much needed endeavour.

This chapter sought to introduce these themes only briefly. Interested students, researchers, and teachers can further explore the topics, challenges, and contributions of women to international law by using the further readings listed below.

Summary

 * Women have been subjects of international law across a variety of international legal instruments ranging from, among others, human rights, international labour law, international criminal law and international security resolutions.
 * Systematic and structural discrimination has led to the persisting and widespread invisibility and non-recognition of women as active agents of international law owed to, inter alia, the public-private divide, behavioural stereotypical gender roles, power imbalances and corresponding lack of or difficulty in access to financial resources, land, property, and institutional positions.
 * Despite longstanding marginalisation, women have been active designers of the international legal order—and whose recognition is a still relevant endeavour.

Further Readings

 * Rebecca Adami and Dan Plesch, Women and the UN: A New History of Women's International Human Rights (Routledge 2022).
 * Rebecca Adami, Women and the Universal Declaration of Human Rights (Routledge 2019).
 * Hilary Charlesworth and Christine Chinkin, The boundaries of international law: A feminist analysis, with a new introduction (Manchester University Press 2022).
 * Immi Tallgren (ed.), Portraits of Women in International Law: New Names and Forgotten Faces? (Oxford University Press 2023).

Further Resources

 * Calendar on Outstanding Women of International, European and Constitutional Law .
 * Women and War: A Feminist Podcast .
 * 'Women in justice: three trailblazing judges send a powerful message', Interview with Xue Hanqin, Hilary Charlesworth, and Dame Rosalyn Higgins (UNRIC, 9 March 2023) .


text:
Public International Law/Actors in International Law/Non-governmental Organization

Author: Jane Doe "Required knowledge: Link" "Learning objectives: Understanding XY."

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I. Definition
As the name indicates, Nongovernmental Organizations (NGOS) “are groups of persons or of societies, freely created by private initiative, that pursue an interest in matters that cross or transcend national borders and are not profit seeking.” However, understanding the nature, organization, and function of NGOs is complex. Their numbers are uncertain, as it only takes minimal resources to establish one. Prominent NGOs include Amnesty International, Save the Children, Doctors without Borders/Médecins Sans Frontières (MSF), Transparency International.

However, what is the NGO? Firstly, an NGO is an organization made by individuals. It gathers people in one group, no matter what kind of organizational structure it adopts. Internally, its management structure can be hierarchical or flat. Secondly, an NGO is independent of the government. This is one of the most salient features. However, as will be discussed later, this feature is blurred as more and more Government Non-Governmental Organizations (GONGOs) emerge in recent years. ]This phenomenon has dramatically impacted the NGO terrain. Even we cannot avoid GONGOs, theoretically speaking, an NGO is at least at first glance an organization that does not belong to a government branch and does not exercise any official governance function. Thirdly, an NGO is an organization which is not-for-profit. To ensure its existence, an NGO needs financial resources to support itself, and basically, it relies on voluntary contribution from external parties. It can be petty cash donations or a big cheque from a rich source, a billionaire, or a conglomerate. Its operation does not aim to generate more money or get some tangible reward but to create intangible results. It is challenging to have a complete compilation of all the purposes of NGOs. The most likely NGOs would be environmental protection, charity, organizations for hobbies or interest groups, human rights, and legal or economic communities.

II. A Brief Conceptual History: From Civil Society to NGO
One can always spot that in common usage, the term NGO and Civil Society are used interchangeably. Some people would prefer to use the phrase civil society to convey a connotation beyond the technical and unimaginative expression “NGO.” To understand the correlation and difference of the two usages, we need to briefly consult the history and theory to get some clues to gain a fuller picture of the evolution of the concept of civil society and NGO.

Civil society is a word that bears more controversies than NGO. At the Aristotelian conception, civil society denotes an equal and autonomous society instead of the authoritarian and barbarian autocratic monarchy. It is a civilized society that bolsters the rule of law and the dignity of the individual. In the enlightenment era, enlightenment thinkers utilized civil society to depict the form of human organization which has escaped from the natural state that Thomas Hobbes elaborated in his masterpiece Leviathan. Hegel revolutionized the concept by imposing the political connotation into it. In his view, civil society is the society that is opposed to the political state. It is an autonomous sphere that is materially and socially independent from the interference from the state and is the place which freedom and egalitarianism are generated. Hegel’s theory profoundly influenced the Marxist tradition in its elaboration on the state-society relationship. What’s worth mentioning is the Italian theorist Antonio Gramsci, who criticized the political nature of civil society as its collusion with the hegemony of the bourgeois class made it a significant hindrance to the emancipation of the working class. This insight is helpful for a critical apprasial of civil society in today.

Jürgen Habermas has written extensively on civil society and shaped the current dominant understanding of civil society. As the leading figure of the Frankfurt School, Habermas divided civil society into two distinct parts: civil society in the private domain and civil society in the public domain. By doing so, Habermas carved out a civil society that is simultaneously political and unpolitical, autonomous and dependent. Civil society in the public domain is political and plays an essential role in making democratic governance happen. It is in the civil society in the public domain that Non-governmental organizations stepped in. In an ideal liberal society, NGO is a necessary element to supplement the gap left by the government and ensure accountability of the power holders. What’s more, in Habermas’s understanding, the civil society he envisages is not limited by territorial boundary but spans the globe. Thus, there exists a global civil society. This theory provides sound moral basis for INGOs.

III. From domestic to international: NGO in the global domain
We are living in a globalized era. Nevertheless, globalization is only a recent phenomenon. For a long time, the movement of people, goods, and ideas was confined to a limited range. Since people tend to focus on the things that happen around them, civil society is local-oriented. The earliest form of NGO that spanned continents was religious groups and secret societies by today's standard. During the 1760s and the 1860s, this one-fold form was superseded by the modern form of INGOs which works on a broad range of activities. It is commonly held that the earliest modern INGO was the British and Foreign Anti-Slavery Society, which was established in London in 1839.

The 19th century had seen a boom in the development of INGOs, both in the amount and scope of their work. The Union of International Associations, the first international organization (interestingly, itself is also an INGO) that aims to have a complete record of the INGOs, made the 19th century the starting point of “globalization” INGOs. As some observers have noted, the narrative of the spread of NGOs from Europe to other parts of the world cannot escape the “Eurocentrism,” which has drawn much academic criticism in contemporary critical scholarship. As Michael Barnett puts it, the mainstream narrative of transnational humanitarianism “is rooted in Western history and globalized in ways that were largely responsive to interests and ideas emanating from the West.” It is no wonder that some authors from third-world countries have accused INGOs as the vanguard of colonialism and imperialism in the colonial age. This topic will be picked up again in the later passage.

The development of NGOs on the international stage is not a linear process. Instead, according to Thomas Davies, a cyclical pattern can be spotted. There have been three waves in the globalization of INGOs: before 1914, 1914-1939, and 1939 to the present day. An easily neglected fact is that the most prominent international petition in the 1930s was the international disarmament movement organized by women's groups. The above three waves have witnessed the up and down of the INGOs. The scope of the first two waves, albeit in a relatively technologically disadvantaged phase, is no less influential in breadth and scale. Currently, we are in the third wave that has been profoundly shaped by the international environment brought out by the end of the cold war, technological advancement, and globalization. Furthermore, the intermingling of NGOs and Civil Society constitutes a non-negligible feature of the current global civil movement.

I.      The Continual Debate
The legal status of Non-governmental Organizations, along with other Non-state Actors, has been the subject of continual debate among international lawyers. The focus of the discussion centers on the term “legal personality.” Is legal personality an outdated word, or still bear contemporary relevance? As Professor Cedric Ryngaert has pointed out, States have still dominated the imagination of international lawyers in international law. For non-state actors, acquiring the status akin to statehood can be deemed the “ultimate prize.”

Notwithstanding the non-state actors are occupying an “inferior” position compared to States, one cannot neglect that the roles played by these NSAs are becoming more and more significant. Some authors are proposing a new theory to eliminate the rigid and state-centered concept “legal personality” and adopt a more dynamic and inclusive perspective towards the actors or participants of international law. However, not all the authors share this view. As professor Thirway opposed in the retort to professor Cedric Ryngaert, the paramount status acquired by the state in international can be primarily attributed to its role as the protector of the constituency, and the NSAs cannot replace this role. It is firmly state-centered and deeply ingrained in the positivism school that has dominated international legal thinking.

The above debate concerning the legal personality is closely related to the legal status of Non-governmental Organizations in international law. The theoretical underpinnings of the discussion are how to conceive international law in a changing world. Is the traditional international law since the Westphalia still taking hold in the contemporary world where individuals, non-governmental organizations, transnational corporations, and even terrorist groups are infecting every part of our life? There is no definite answer to this question. According to the research done by Portmann, there are at least five different theories to interpret legal personalities, and each view presents its unique understanding of the subjects of international law. These variances are closely related to the further understanding of the nature of international law in changing circumstances. No matter what theoretical inclination one take, it is safe to say that NGOs has become important actor, participant, or player in the international legal arena.

II. The Normative Description: NGOs in Major International Legal Documents
Many international legal documents have mentioned NGOs, and each is trying to give its peculiar normative description of NGOs. A brief sketch of these documents can provide us with a glimpse of the legal status of NGOs in positive international law.

(1) The UN System
The UN Charter is the most authoritative document that stipulates the legal status of NGOs. It is through Article 71 that the nomenclature Nongovernmental Organization officially enters international legal usage. This article dictates :

''The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.''

For many, this article signified a great leap forward of democracy on the international stage and initiated an exciting institutional linkage between States and NGOs. It is the first time that NGOs can occupy a place and make their voices heard in an international organization that States dominate. All the NGOs that participate in the work of the UN Economic and Social Council, based on the working field and competence, are classified into three types: General consultative status, Special consultative status, and Roster status. According to the official explanation from the UN website:
 * General consultative status is reserved for large international NGOs whose area of work cover most of the issues on the agenda of ECOSOC and its subsidiary bodies. These tend to be significant, established international NGOs with a broad geographical reach

With the consultative states, NGOs can participate in the conferences convened by the United Nations, and that is no limit to the conferences convened by the ECOSOC, they can also participate in the conferences to its many subsidiary bodies, to the various human rights mechanisms of the United Nations, ad-hoc processes on small arms. By doing so, NGOs can voice their concerns on various vital issues such as environmental protection, human rights, arms control, etc. It can also provide expertise and necessary information to the UN. What is more, exerting civil power can be a driving force to concrete steps that should be taken to tackle the issues facing humankind.
 * Special consultative status is granted to NGOs with unique competence and is explicitly concerned with only a few of the fields of activity covered by the ECOSOC. These NGOs tend to be smaller and more recently established.
 * Organizations that apply for consultative status but do not fit in any of the other categories are usually included in the Roster. These NGOs tend to have a relatively narrow and technical focus. NGOs that have formal status with other UN bodies or specialized agencies (FAO, ILO, UNCTAD, UNESCO, UNIDO, WHO, and others) can be included on the ECOSOC Roster. The Roster lists NGOs that ECOSOC or the UN Secretary-General considers can make "occasional and useful contributions to the work of the Council or its subsidiary bodies."

By evading the question of legal personality, the UN is making significant strikes to cooperate with NGOs. In the Panel of Eminent Persons on United Nations-Civil Society Relations report, a participatory relationship is proposed to more actively integrate NGOs in the day-to-day working of the UN system, and that moved beyond the consultative status as stipulated in Article 71. The reasons underlying the welcome attitude of the UN towards the NGOs are open to discussions. As Peter Willets pungently illustrated, it might be because by working with NGOs, the UN and NGOs can achieve a kind of "mutual legitimacy" that can concertize each other's role in the state-centric international society.

(2) The Council of Europe
Following the United Nations, the Council of Europe also established formal working relationships with Non-governmental organizations as early as 1951. It distinguished between international and domestic NGOs and gave the former participatory status and the later partnership status. Compared to the United Nations, the Council of Europe made one bold move towards recognizing the legal personality of international non-governmental organizations. However, the "legal personality" here is not the same that have been discussed. Under this Convention, it facilitates the recognition of legal personality in the domestic sphere across countries. By this Convention, the legal status of an international NGO registered in one state party is automatically acquired if it works in another state party. Currently, there are 13 state parties to this Convention. Although it did not solve the legal personality of NGOs on the international stage, at least, it has shown the state's willingness to recognize and appreciate INGOs' work in promoting democracy, cultivating civil participation, and acting as experts in the international field.

As the pioneering place towards civil freedom, NGOs have a fertile place to grow and expand in Europe. Major NGOs today almost all firstly originated in Europe and expanded their work to other locations. NGOs all engaged extensively in their daily work in other regional mechanisms in Europe, such as the CJEU and ECtHR.

(3) Other Regional Bodies
Other regional bodies also have set up relevant mechanisms to facilitate the participation of NGOs in their work. For example, the Organization of American States in its Charter in 1948 laid out several provisions concerning NGOs. One notable point in the OAS system is that in 1999, the general assembly of the OAS established a commission civil society participation in the OAS activities within the permanent council, and afterward, a guideline for civil society participation was promulgated. One salient feature of the NGO participation in the OAS system is its term used. "Civil society" rather than NGO is used frequently, and it symbolizes an optimistic attitude towards the NGOs and attaches a progressive narrative towards the role of NGO in the international arena. This mentality can be summarized as treating NGOs as "a force for good."

The African Union is unique in its relationship with civil society organizations (CSOs). Few NGOs have been granted observer status, but no explicit legal basis was provided to entitle NGOs to work with the AU at the general level. By Article 22 of the Constitutive Act on the African Union, an Economic, Social, and Cultural Council (ECOSOCC) was established. The ECOSOCC is an advisory body comprised of different social and professional groups from memberships. Although the aim and purpose of the ECOSOCC are expansive, what comes with this expansiveness is the vagueness. it is not easy to evaluate the exact role and actual position of NGOs in the AU. In the meantime, Africa has also been a significant place that some western NGOs work with. The political repercussions of the work of western NGOs on the continent have aroused much debate.

(4) Beyond Legal Personality
A brief survey on the role of NGOs in international documents can provide us with some general information on the legal status of NGOs in international law. Firstly, legal personality is considered a problem that should be put aside. What matters is how NGOs should be incorporated into an international legal system that is still state-centric. As we can see, NGOs may have consultative status or play a participatory role on the above occasions. Secondly, the conception of NGOs has witnessed changes since, more often, the term civil society is frequently used. Some optimists even envisaged the emergence of a Global Civil Society in which the sovereign states may give up to a more cosmopolitan world. Thirdly, underlying the optimistic mood of treating the coming of civil society as progressive, we cannot keep blind eyes to the dark sides to this phenomenon. Recently, the world has witnessed backlash towards NGOs. Many scholars are moving from normative inquiries to a critical lens to view the substantive function of NGOs and their essential role as an indispensable agent of neoliberalism. We will turn from normative to descriptive to examine the role NGOs that has played in international law.

C. The Role of NGOs in International Law
NGOs have played various roles in international law. Despite the participation mentioned above in major international institutions' work, they also may have standing before the international judicial and quasi-judicial bodies or work as non-party participation before judicial and quasi-judicial bodies. They may also participate in international conferences, whether as an official participant via appropriate legal arrangements or as the civil groups that protest outside the venues where international conferences occur. In some cases, especially where humanitarian assistance is needed, NGOs may become contractors that some International Organizations enlist to carry out certain humanitarian functions such as distribution of disaster relief, provision of medical and psychological service, or information collection. On other occasions, such as in the World Bank, World Health Organization, FAO, NGOs are also worked as a contractor to help project design and implementation. The current roles of NGOs in international law can be summarized as follows.

(1) International Law-Making
NGOs have been exerting more and more influence in international law-making. As the democracy deficit has been mounting concern in international law, NGOs or Global Civil Society have deemed a benchmark to counter this deficit. There are several ways for NGOs to engage in state-dominated international making.

The first way is through agenda-setting. NGOs have played the role of “epistemic community” and can influence agenda-setting in international affairs. For example, in the drafting process of the Convention on Biological Diversity, the World Conservation Union intensely participated in the discussion and wording of several important articles and successfully integrated its agenda into the Convention. Secondly, some NGOs can even go further to join in the drafting process directly. They may work as independent experts to aid the formulation of draft articles. In negotiating the Ottawa Treaty of the Prohibition of Anti-Personnel Mines, the International Campaign to Ban Landmines followed through the whole process. It wielded a considerable influence on the content of the treaty clause. On some occasions, NGOs may directly join the government delegation as counsels or delegates. This case happened in the negotiation of the Rome Statute of the International Criminal Court. [4]Finally, another role NGOs play in international law-making is advocacy. NGOs as pressure groups, even excluded from the negotiation process, can still influence or even distort the whole process. As we can see, the defeat of the Multilateral Investment Agreement in 2001 is a salient case.

(2) Administration of International Affairs
Apart from international law-making, NGOs also participate in global governance to engage with the daily routines of international affairs. Again, as expertise, NGOs are enlisted by many IOs to provide professional opinions on the issues or discuss policies and documents. In the UN system, this is realized through various working groups that generally work side by side with relevant NGOs. A notable example is the UN Global Compact Initiative. NGOs have been the pioneer in utilizing the voluntary code of conduct to induce good behavior of transnational corporations in human rights and the environment. Some exciting examples may include the World Commission on Dames, as it forged an extensive collaboration with NGOs and openly welcomes NGO participation in its daily running. Also, in the International Labor Organization, the tripartite structure of decision-making gives NGOs critical outlets to participate in global labor rights management. As an NGO specializing in standards-making, International Standardization Organization (ISO) provided a case in point on NGOs' role in the administration of international affairs.

When talking about NGOs, some of them are particularly worth mentioning. These are the International Committee of Red Cross, the International Union for Conservation of Nature (IUCN), the Global Fund to Fight AIDS, Tuberculosis, and Malaria; Gavi, the Vaccine Alliance (Gavi), and the World Anti-Doping Agency (WADA). The particularity of these NGOs is that they have a hybridity character, and they all share a mission of international interest. To a certain extent, especially in the case of ICRC, they are deemed as having legal personality and enjoy the privilege of immunity. The reasons behind this are closely connected to the functions these institutions played in the administration of international affairs. Whether more NGOs would enjoy a similar kind of privilege is a question that remains to be developed.

(3) International Law Enforcement
Enforcement of international law has long been dubbed as the “vanishing point of international law.” With the veil of sovereignty, it is hard to envisage an enforcement mechanism backed by a superior organ as in the domestic scenario. However, this defect of problematic enforcement can be remedied by the“soft” enforcement which NGOs led. As some authors have observed, modern information technology has dramatically accelerated the flow of information. By this, NGOs worldwide can cause a “boomerang effect” that can equip NGOs with the necessary civil power-public opinion- to compel or even coerce States into the issues of global concern. One can observe these trends in human rights and environmental protection in particular.

In the Montreal Protocol on Substances that Deplete the Ozone Layer, NGOs are implicitly tasked to monitor the compliance behavior of the state party. If they found any treaty breach, they could notify the secretariat of the situation, thus ensuring a quick sanction process. In the human rights field, the role of NGOs is particularly eye-catching. By issuing shadow reports and adopting the “naming and shaming” strategy, human rights NGOs can pressure States to comply with relevant human rights norms. In the meantime, we can observe that some judicial or quasi-judicial mechanisms have opened the door to NGOs. For example, in the WTO dispute settlement mechanism, NGOs may submit amicus curiae opinion to assist the resolution of trade disputes. Another method that NGOs might contribute to the enforcement of inthrough domestic litigation. By doing so, it may press the States to conform to relevant international standards.

D.   A Critical Appraisal of NGOs in International Law
NGOs, as some scholars praised, are the vanguard of global democracy. Acting individually, NGOs have provided ordinary people the outlet to make their voices heard worldwide, which once was the exclusive domain of the sovereign states. NGOs are leading a “global association revolution”. Suppose we pay attention to what is happening in the world. In that case, we may encounter many organizations such as Green Peace, Amnesty International, Human Rights Watch, and the recent Nobel Peace Prize winner ICAN or the International Campaign to Abolish Nuclear Weapons; they are fighting at the forefront for world peace, sustainable environment, and human rights. What is more, NGOs are not powerless actors protesting in the corner. Constituting the main body of Global Civil Society (GSC), NGOs gained legitimacy and potency to occupy streets, block unfavorable bills and criticize governments.

However we should spare some time for a second thought on the all bright image of NGOs. NGOs, or Global Civil Society, are not without ambiguities. Here, this introduction will make three submissions and elaborate on them later. Firstly, GSC is not a bounded “non-governmental” space but a means of making global politics governable in particular ways. In this regard, NGOs, states, and markets are closely intertwined and mutually constituting; Secondly, NGOs with the prefix of “non” assume “autonomy” or “voluntary.”However, on occasion, this introduction submits that NGOs represent the interests of certain social groups, especially the powerful groups. Thirdly, against the progressive and empowering image of NGOs, this introduction proposes that NGOs also engage in the power struggle and cannot escape tensions and contradictions as they try to transform the politics. This introduction will turn to another concept, “NGOization,” closely related to the above three characterizations of NGOs.

The term “NGOization” is commonly used among many social movements, activist networks, and academics to refer to the institutionalization, professionalization, depoliticization, and demobilization of movements for social and environmental change. As many scholars have pointed out, NGOization is a relatively new phenomenon that concurred with the outgrowth of neoliberalism or, put it another way, NGOization is a “symptom” desired by the neoliberal ideology. As some scholars put very directly, “the greater the devastation caused by neoliberalism, the greater the outbreak of NGOs”. Only by NGOization, NGOs gain the organizing imperative and internal momentum to participate in the world struggle under the disguise of non-government, impartiality, and independence.

Sabine Lang provided a more precise depiction of the NGOization phenomenon in her monograph NGOs, Civil Society and the Public Sphere. Here this introduction will summarize the three indicators of NGOization proposed by her: professionalization, institutionalization, bureaucratization.

 * Professionalization: compared to the self-motivated and random occurrence of social movements, NGOs are more and more professionalized in the contemporary world, which incorporates a modern organizational logic like the for-profit organizations. The staff and leadership became the expert that as the veteran in the NGO industry complex. NGOs must adapt to key performance indicators (KPI) to win donors' trust to ensure that they spend the money well. On the one hand, professionalization can enhance efficiency and mobilization; on the other hand, it pushes NGOs to acquire a routinized and habitual frame when engaging with social problems. In the end, NGOs lost the unique character of being creative, innovative, and romantic.
 * Institutionalization: like professionalization, institutionalization is required to meet the highly competitive donor-securing environment. NGOs need to adopt specific structures and follow certain decision-making procedures to prove that they are reliable partners. NGOs need to consider the strategy adopted in the process, for they cannot afford to irritate other stakeholders, especially the powerful ones. What is more, according to Lang, by being institutionalized, NGOs tend to change their operating logic from an outsider of the government to an insider of governance, thus creating opportunities for NGOs employees to take advantage of the revolving door to pursue job opportunities in the government sector. [8]As a result, NGOs develop into just another mundane game player of the social movement division of labor rather than being the vanguard of social change.
 * Bureaucratization: likewise, to win the contracts, NGOs have to behave more bureaucratized, for they have to fill the forms and eye on indicators desired by the donors. This leads to the "bureaucratization of social discontent," which means social ruptures felt by poor and marginalized people became encapsulated and insulated in individualized caseworker files and administered through the bureaucratized NGOs. NGOs are pulled to instill predictability, functional hierarchies, and monitoring in the operations, and they are encouraged to carry out "upward" rather than "downward" accountability.

Based upon the above analysis of NGOization, we can conclude that this phenomenon seriously hampered NGOs' autonomy, neutrality, and "progressiveness." To understand NGO properly, one needs to see the larger picture, put it against the current political and social situation, and inquire about how NGO discourse is mainstreamed in contemporary international law. This will provide us with an illuminating case to see how the expertise is utilized to pursue specific political agendas under the disguise of innocence.

E. NGOs, International Law, and International Politics
The proliferation of NGOs does not happen by one night. However, international lawyers have long been notorious for neglecting the power dissemination underlying the normative rules. Major publications about NGOs in international law mainly possess an optimistic tone of these new actors. NGOs are hailed as “new global potentate”or “global superpower,”which can break the iron curtain imposed by states. In a "borderless" world, NGOs can traverse the boundary of states to provide citizens the possibility to validate their rights. Under this world view, some positivist international lawyers have started to envisage a future international law to accommodate better NGOs' participation in the making, adjudication, and enforcement of international norms. Some scholars even began to discuss the possibility of incorporating NGOs as international legal persons.

There is an apparent rupture between the two images of NGOs and the “mainstream international lawyers” to use Martti Koskenniemi's words, ignore the fracture and continue to "believe" in the bright side of NGOs. Here we arrived at the critical moment to expose the NGO's innocence of international law and think about the "politics of international law" by drawing a larger picture. It is vital to remember that any international rule, which is covered with neutrality and formalism in its first appearance, entails power distribution in a more profound sense. This case is what David Kennedy has told us in the third chapter of A World of Struggle. In the following part, this chapter will briefly introduce how the discourse of NGOs sneaked into international law and what implications it has for the shape of international law we have today.

As mentioned before, NGOs entered the ambit of international law at a relatively late time. John Boli used the words “suddenly”to describe the so-called rediscovery of "civil society" in the global arena. NGOs acquired the charisma lost by the states to become the bearer of hope for an equal world. Nevertheless, what comes with the bright sides are the dark sides. The relationship between states and NGOs is not what we thought of as an opposite or contesting pair. As Sangeeta Kamat pointed out, NGOs are the white gloves of states, especially the dominant western states, to discharge their responsibility to provide public goods under the neoliberal ideology. Kamat argues that most NGO analysts reify state and civil society as “totemic motifs”and obfuscate how NGOs are being integrated into global capitalist relations. He continues to argue that "the NGO phenomena must be theorized concerning the global economic and political process that involves an overall restructuring of public good and private interest. At stake is not the struggle between state and civil society, but a revaluation of private interest and the public good. The NGO representation of public good is an illusion for the dominant neoliberalism logic has made NGOs invisible to the states and International Organizations to advance their political and economic agendas.

The NGOization phenomenon can be apprehended more clearly. One impetus of NGOs to be professionalized, institutionalized, and bureaucratized is to win donors' trust, primarily Western states, and international organizations. Furthermore, under ostensible autonomy, these NGOized NGOs cannot help but follow the dictations of the donors and accept the following audit and accountability mechanism. Two severe adverse implications come with NGOization under neoliberalism. Firstly, NGOs are pulled to engage in public relations rather than public engagement, which means NGOization tends to increase strategic dimensions at the expense of substantive dimensions in the relationship between organizations and their public, and a successful NGO behaves more like a public relation (or “PR”) company, counting the projects finished, forms filled, and questionnaire received. Secondly, NGOs turned from activism to advocacy. Advocacy conjures images of experts who assess specific spheres of influence and target specific goals and institutions. Activism, by contrast, might make specific demands; often, however, activists raise their voices without direct instrumental implications. This turning means NGOs are no longer at the forefront of social movement but are shrewd actors in the competitive social society market to weigh losses and gains to determine whether to do so.

Drawing David Kennedy's description of expertise in A World of Struggle, we can say that the reification of NGOs is such expertise that merits caution. By exposing itself to such innocence and enthusiastically embracing NGOs, international law participates in the collusion of distribution process created by the expertise about NGOs. This expertise has deep ideological connotations and is artificial engineering through knowledge production and discourse dressing.

F. Conclusion: International law as a struggle in the case of NGOs
The case of NGOs has provided us with a vivid example to observe the perils of international law. By embracing NGOs or the more intriguing Global Civil Society without a second thought, international lawyers celebrate the advent of a more democratic, inclusive, and cosmopolitan international law, which can bring hope for a murky world dominated by greedy, aggressive, and violent states. However, suppose we dig into the impetus of the explosion of NGOs and the popularity of civil society on the global stage. In that case, we cannot deny that the natural face of NGOs is challenging to ascertain. NGOs are the vanguard of social activism to counter injustice, brutality, and discrimination; what is more, NGOs can also be the fire brigade to put off the fire lit by the neoliberal states. NGOs are caring agents for the sake of humanity, but they can also be shrewd groups with the sheer aim to attract donors and fulfill the formal obligations, which are far from the real needs of the weakness. International law is participating in a real struggle by building an alliance with NGOs, and in this struggle, as international lawyers, we have to take note of the losses and gains that ensued.

Further Readings

 * Aziz Choudry and Dip Kapor (eds.), NGOization: Complicity, Contradiction and Prospects (Zed Books, 2013).
 * Anna-Karin Lindblom, Non-governmental Organizations in International Law (Cambridge University Press, 2005).
 * Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World(Berkeley CA: University of California Press, 2002).
 * Alison Van Rooy, The Global Legitimacy Game: Civil Society, Globalization, and Protest, Palgrave Texts in International Political Economy (Palgrave Macmillan, 2004).
 * Barbara K. Woodward, Global Civil Society in International Lawmaking and Global Governance: Theory and Practice Queen Mary Studies in International Law, Vol.2 (Martinus Nijhoff Publishers, 2010).
 * Bob Reinalda, Math Noortmann and Bas Arts (eds.), Non-state Actors in International Relations (Ashgate, 2001).
 * Chiang Pei-heng, Non-Governmental Organizations at the United Nations: Identity, Role, and Function (New York: Praeger, 1981).
 * David Rieff, A Bed for the Night: Humanitarianism in the Crisis (Simon &Schuster, 2002).
 * Daniela Tepe, The Myth about Global Civil Society; Domestic Politics to Ban Landmines (London: Palgrave Macmillan, 2012).
 * David Chandler, Constructing Global Civil Society: Morality and Power in International Politics (Palgrave Macmillan, 2004).
 * Gideon Baker and David Chandler (eds.), Global Civil Society: Contested Futures (London and New York: Routledge, 2005).
 * Heidi Nichols Haddad, The Hidden Hand of Justice: NGOs, Human Rights, and International Courts (Cambridge University Press, 2018).
 * INCITE! Women of Color against Violence (ed.), The Revolution Will Not be Funded: Beyond the Non-Profit Industrial Complex (South End Press, 2007).
 * Ingrid Rossi, Legal Status of Non-Governmental Organizations in International Law (Intersenia, 2010).
 * John Keane, Global Civil Society? (Cambridge University Press, 2003).
 * Jem Bendell, Debating NGO Accountability (United Nations Non-Governmental Liaison Service, 2006).
 * Jens Steffek and Kristina Hahn (eds.), Evaluating Transnational NGOs: Legitimacy, Accountability, Representation(New York: Palgrave Macmillan, 2010).
 * Janne E. Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (The Hague: T.M.C Asser Press, 2004).
 * Jan Aart Scholte (ed.), Building Global Democracy: Civil Society and Accountable Global Governance (Cambridge University Press, 2011).
 * Kristen Martens, NGOs and the United Nations: Institutionalization, Professionalization and Adaptation (Palgrave Macmillan, 2005).
 * Lester M. Salamon et al., Global Civil Society Dimensions of the Nonprofit Sector, Vol.1 (The Johns Hopkins Comparative Nonprofit Sector Project 1999).
 * Lyman C. White, International Non-governmental Organizations: Their Purposes, Methods, and Accomplishments(New York: Greenwood Press, 1968).
 * Molly Ruhlman, Who Participates in Global Governance? States, Bureaucracies, and NGOs in the United Nations. Global Institutions (Taylor and Francis, 2014).
 * Margaret E. Keck, Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 1998).
 * Mary Kaldor, Global Civil Society: An Answer to War? (Polity Press, 2003).
 * Peter Willetts, The Conscience of the World: The Influence of Non-Governmental Organizations in the UN System(London: C. Hurst & Co. Publishers, 1996).
 * Raphael Harel Ben-Ari, The Normative Position of International Non-Governmental Organizations under International Law (Martinus Nijhoff Publishers, 2012).
 * Sabine Lang, NGOs, Civil Society, and the Public Sphere (Cambridge University Press, 2013).
 * Thomas Davies, NGOs: A New History of Transnational Civil Society (Oxford University Press, 2014).
 * Volker Heins, Non-governmental Organizations in International Society: Struggle for Recognition (Palgrave Macmillan, 2008).
 * William Korey, NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (New York: St. Martin's Press, 1998).

Conclusion

 * Summary I
 * Summary II

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Public International Law/Actors in International Law/Corporations

Author: Sué González Hauck "Required knowledge: Link" "Learning objectives: Understanding XY."

A. Introduction
Corporations are entities endowed with legal personality separate from their owners. The ICJ has recognized the separate legal personality of corporations in the cases of Barcelona Traction and Ahmadou Sadio Diallo. Being endowed with separate legal personality allows the corporation to own assets, to enter into contracts and to acquire rights as well as be subject to obligations under its own name. Under international law, corporations enjoy a number of rights, most importantly the right to own property, freedom of establishment and movement, and access to markets. A whole branch of international law, namely international investment law, is devoted to securing the rights of corporations. In contrast, international law imposes only minimal obligations on corporations.

One of the key tenets of mainstream international law doctrine is that the State is the sole 'natural' subject of international law and that granting rights to or, especially, imposing obligations on other actors requires specific rules. In the case of corporations, this means that the commonly held position is that corporations can only be held accountable under national jurisdictions, notably the jurisdiction of their incorporation and of their center of administration (siège social). A corollary of this mainstream doctrinal approach is that international legal accountability for corporations requires special rules. A glance at the history of modern international law at its inception, i.e. starting from the 17th century, shows that this narrative of the State as the only 'natural' subject of international law is, at best, incomplete.

B. History of International Law and the Corporation
The emergence of international law as a body of law covering global encounters is inextricably linked to chartered companies, which are precursors of the modern corporations. This section provides an overview of the central role of chartered companies in the colonial encounter and their resulting prominent place as creators and original subjects of international law. Subsequently, it sketched the development from chartered companies to corporations and to the multinational or transnational corporations, which have been particularly influential in the new 'globalization' spurred by formal decolonisation in the 1960s and 1970s and by the end of the Cold War in the 1990s.

I. Chartered Companies as Creators and Subjects of International Law
At the beginning of the 17th century, two particularly influential colonial empires, the Dutch and the British, founded the Dutch East India Company (Vereenigde Oost-Indische Compagnie, VOC) and the British East India Company, respectively. Both companies exhibited features that became typical characteristics of modern corporations: They were endowed with permanent capital and legal personhood, and tradable shares, and its governance structures allowed for separation between ownership and management and for limited liability for shareholders and for directors.

Hugo Grotius wrote a set of memoranda for the VOC in 1608 and 1609, which would later be published under the title of De jure praedae, and which exerted a decisive influence on the development of international law, not only regarding international trade law and the international law of the sea but also the very cornerstones of the international legal order, including the notions of sovereignty and subjects of international law. The assignment that the VOC directors gave to Grotius was to justify the violent seizure of the Portuguese vessel Santa Catarina, which was sailing off the coast of Sumatra in February 1603. The Amsterdam Admiralty Board decided to seize the vessel before Grotius could finish his writing assignment.

Transposing theories of individual property as a means of self-subsistence, Grotius argued that the principle of self-preservation entailed a right of a State, which, like the Dutch Republic, relied on trade for its own subsistence, to intervene against anyone who would injure the right to trade and use of the commons, including the High Seas. To justify the seizure of the vessel Santa Catarina and the subsequent practice of the VOC and the Dutch West Indian Company seizing numerous vessels, it was not enough to claim the right of a State to use violence to assure its self-subsistence through trade. Grotius also had to divorce the right to engage in just war from the exclusive link to the sovereign or the Crown, which had been at the centre of previously influential just war theories put forward by Augustine, Aquinas, and Vitoria. Grotius' attempt at legitimating the right of an ostensibly private entity like the VOC to wage just war invests this private entity with public sovereign powers. This argumentative move comes with significant consequences regarding the notions of sovereignty and international legal subjectivity. The structure of international law that Grotius puts forward, therefore, is not the structure international legal scholars and practitioners have come to identify as the 'Westphalian' structure, in which the State occupies a central place and is the exclusive holder of sovereignty. Rather, the structure of international law put forward by Grotius is one in which the corporation is a central actor, subject, and sovereign.

Chartered companies exercised public, sovereign powers. They entered into treaties with local authorities and established titles over territory. The contracts that the VOC, for example, concluded with Asian rulers granted the VOC trade privileges protected the territory gains against third parties. The argument put forward to justify the transformation of the common mare liberum into an exclusive domain of the VOC was that mare liberum did not extend to the sphere within which rights had been contractually agreed upon in a legal relationship between equals. In reality, the contractual relationships between the VOC and Asian authorities were far from equal and consensual in any meaningful sense, given that the VOC exerted significant pressure and often outright forced local authorities to renew contracts against their will. Incrementally, the VOC used the contracts to claim trade monopolies and the right to punish violations of these claimed monopoly rights, including by conquest. These claims and the resulting forcible actions resulted in ultimately hollowing out the sovereign rights of local authorities and turning the VOC into a de facto State.

II. From Chartered Companies to Private Corporations
In the second half of the nineteenth century, starting with the British New Company Law of 1844, many States, including France, the United States, Germany, and Japan established laws which allowed for the free incorporation of private companies. This turn from chartered companies to private corporations entailed a shift in how business enterprises were perceived: from vehicles of State power to entities operating separately and distinctly from the State. However, the development from chartered companies to corporations as freely incorporated private entities was not linear. The last two decades of the nineteenth century saw a 'revival' of the chartered company. British chartered companies that were newly founded in this period include the North Borneo Company (1881), The Imperial British Est Africa Company (1888-1896), and the British South Africa Company (1889-1923).

C. The Corporation and the Public-Private Divide
Studying the place of corporations in international law necessarily involves engaging with the familiar distinction between public and private law. The 'publicness' of international law stems from the fact that it is mainly concerned with sovereignty and with legal relations between sovereign States. Business corporations, on the other hand, are supposed to be private actors governed by private law.

Corporations create international regulation, they shape the content of existing legal rules, and they exert decisive influence on the efficacy or enforcement of legal regimes. They do so not only by leveraging their economic power to pressure governments, but also in ways that can be seen as expressions of autonomous regulatory force or governance. Corporate actors create transnational rules and regulation through business practices, contractual arrangements, or private dispute resolution mechanisms. They can shape the content of existing legal rules by interpretation, especially in contexts in which no official judicial or other public interpretatory pronouncement exists - as it is often the case in international law. Additionally, corporate acquiescence plays a significant role in determining the efficacy of legal rules, given that both international and domestic rules are only enforced by public bodies like the police in exceptional cases and rule compliance is overwhelmingly determined on a voluntary basis. Through all of these forms of corporate regulatory authority, corporations produce social welfare effects in a way that is almost indistinguishable from public, governmental, rule-making and enforcement.

The public-private divide is blurred further by the present-day prevalence of public-private partnerships (PPPs). PPPs are joint ventures between public State authorities and private, often foreign, investors. They shift functions like the provision of utility services to private entities.

I. Rights Derived from the Corporations' Nationality
The links between a corporation and a State through the act of incorporation or through the center of administration lead to the attribution of corporate nationality. As nationals of Contracting States Parties, corporations have the rights granted to the nationals of the parties under Treaties of Friendship, Commerce Navigation or under Bilateral Investment Treaties (BITs).

The traditional way of enforcing corporations' rights on the international plane is through diplomatic protection. Establishing the link of nationality between the corporation and the State willing to exercise diplomatic protection on its behalf can be difficult, especially in the case of transnational corporations, which operate and have shareholders and subsidiaries across a variety of countries. The two leading cases regarding the exercise of diplomatic protection in favour of corporations are the ""Barcelona Traction Case"", and the ""Diallo Case"".

1. Barcelona Traction Case
The Barcelona Traction, Light and Power Company, Limited ('Barcelona Traction') had its head office in Toronto, Canada, where it was also incorporated in 1911. It held a number of subsidiaries, some some incorporated and with registered head offices in Canada, others with head offices in Spain and incorporated under Spanish law. A large percentage of the shares were held by Belgian nationals.

Barcelona Traction had issued a number of bonds, some in the Spanish currency pesetas but most in pound sterling. The bonds were supposed to be serviced through the Spanish subsidiaries. In 1936, at the start of the Spanish Civil War, Barcelona Traction suspended the payment of interest on the bonds. After the Civil War, payment of interest resumed on the pesetas bonds but not on the sterling bonds. In 1948, a Spanish court declared the company bankrupt due to its failure to pay interests on the bonds. Barcelona Traction and other interested parties unsuccessfully instituted proceedings before Spanish courts to challenge the bankruptcy judgment and the ensuing decisions made by the commissioner in bankruptcy. The British, Canadian, US, and Belgian governments made representations to the Spanish government, intervening on behalf of their nationals who had interests in Barcelona Traction and, in the case of Canada, on behalf of Barcelona Traction itself. Belgium was the only State that did not discontinue its actions of diplomatic protection. After Spain had rejected a Belgian proposal to submit to arbitration in 1951, and after Spain was admitted to the United Nations in 1955, Belgium filed an application instituting proceedings before the ICJ in 1958.

The ICJ held the Belgian claims on behalf of the Belgian shareholders to be inadmissible. First, the ICJ rejected Belgium's arguments based on analogies to domestic company law, according to which the rights of shareholders could be subsumed under the company's rights where the latter had been infringed upon. The Court held that Stats could only bring forward claims in the name of shareholders holding their nationality if the corporation had seized to exist or if the company's State lacked the capacity to take action on its behalf. Barcelona Traction, however, was still deemed by the Court to be in existence so that only Canada as the State of incorporation could enforce Barcelona Traction's claims.

The Court considered the possibility of 'lifting the corporate veil', i.e. the possibility of the law bypassing or disregarding the corporation as a legal entity and directly addressing the people behind it. The ICJ stated that 'the law has recognized that the independent existence of the legal entity cannot be treated as an absolute'. The ICJ remarked that, in municipal law, this 'lifting of the veil' occurred more frequently as a way of people dealing with the corporation to bring their claims directly against the shareholders, e.g., in cases of fraud or malfaesance. In principle, lifting the corporate veil must also be possible unter international law, albeit under exceptional circumstances.

Second, the ICJ confirmed that corporations are allocated to States by virtue of where they are incorporated and where they have their registered office. It refused to apply a genuine link test to determine the corporation's nationality, similar to the standard it had set for individuals with multiple nationalities in the Nottebohm case.

Three main points regarding the legal status of companies under international law can be derived from the Barcelona Traction judgment: First, the ICJ recognized corporations as a legal entity whose status is determined by domestic law and reaffirmed the rights of States to exercise diplomatic protection on behalf of corporations. Second, the 'corporate veil' can only be lifted in exceptional circumstances. Third, corporations are treated as nationals of the State in which they are incorporated and where they have their registered office.

Further Readings

 * Source I
 * Dan Danielsen, 'Corporate power and global order' in: Anne Orford (ed.), International Law and its Others (Cambridge University Press 2006) 85-99.

Conclusion

 * Summary I
 * Summary II