Moral Universalism and Pluralism: NOMOS XLIX

8 International Law as Inter-Public Law

167 8 InternatIonaL LaW as Inter-PuBLIc LaW BenedIct KInGsBury I. Introduction In this essay, I seek to take some steps toward the development of a theory of international law that is an alternative—I hope a better alternative—to the standard account of international law simply as jus inter gentes, the law established between governments of states to regulate relations between states as juridical entities. I do not here present anything approximating a full alternative theory, but I try to indicate some features such an alternative theory could have. I argue that international law should be theorized as the law between public entities outside a single state, these public entities being subject to public law and to requirements of publicness. I focus in this paper on the entities whose practice counts in making international law, on the processes whereby these entities make international law, and some implications about the content of international law. My account incorporates most of the substance and institutions of the established jus inter gentes: much international law is indeed made by the agreements or the practices of national governments among themselves. But I offer a different view of the reasons for treating that as international law, a broader view of the entities responsible for making international law, and a more demanding view of what is needed to make international law. My project is concerned with the generation and modification of inter- 168 benedict kingsbury national law. I do not in this essay propose any different view to the prevailing one on the question of who is or could be regulated by international law: states, corporations, individuals, inter-state organizations , private standard-setting organizations, and so forth. A. Problems Calling for an Alternative Theory I begin by highlighting three features of the contemporary world which pose deep puzzles for the prevailing jus inter gentes model of international law. First, the concept of the state as a juridical unit, a central concept in the model of international law as jus inter gentes, does not adequately reflect the quality of states as public law entities, a quality that distinguishes them from mere “rational actors.” second, the jus inter gentes model of international law does not account adequately for the burgeoning activities of regulatory entities that are neither states nor simple delegates of states. third, efforts to get beyond the obvious limitations of the jus inter gentes model of international law (e.g., proposals to refer instead to transnational law, or global law) have had the quixotic effect of buttressing that model: this is because these alternative ideas are generally not framed conceptually, and so do not set meaningful conceptual limits to what they include, making them unconvincing catchalls. In the next few paragraphs, I will elaborate on each of these three puzzles, and argue that they impel the effort to develop a viable alternative theory of international law, of the sort this paper seeks to advance. 1. states and other Public Law entities traditional jus inter gentes theories of international law (of the type represented by Lassa oppenheim’s 1905–1906 treatise on international law) embrace a coarse but robust statism, which analyzes the state as a legal personality with a single directing mind.1 such theories, however, do not take account of the fact states are producers of national rules which are increasingly required to meet conditions for law which go beyond those of command backed by sanction: these national rules have a quality of publicness in their orientation. When states—as public law entities and committed to publicness in law—come together with each other in an international legal rule-making and decision-making normative International Law as Inter-Public Law 169 process, the results are not identical in form or meaning to what would result from a comparable process among unitary rational non-public actors. this idea makes more space to meet democratic demands by institutions and groups within the state to have greater influence on and roles in global regulation. It offers scope to encompass legal governance forms adopted in inter-societal relations (e.g., crossborder governance institutions of co-religionists), in transnational relations among elements of states (e.g., networks of government regulators, such as the Basel committee of central bankers), and in the jurisgenerative work of bodies that do not depend on states. rather than treat the entities that act in such legal contexts as if they were externalized hobbesian...