New York University Public Law and Legal Theory Working Papers

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"From Bilateralism to Publicness in International Law," in Essays in Honour of Bruno Simma (Oxford University Press, 2011) (with Megan Donaldson)


This chapter, written with much pleasure in Bruno Simma’s honour, seeks to explore the ideas embedded in Simma’s notion of a move toward ‘a true public international law’ or ‘a contemporary international legal order which is strongly influenced by ideas of public law’. We argue for two distinct but overlapping meanings of ‘public’ in this context. The first is an international law that is ‘inter-public’ law, being made by and for a set of entities (primarily States) that are not merely ‘actors’ (in the jargon of international relations), but public entities operating under public law. The second is a quality of publicness in law that is also becoming part of understandings of international law of the sort Bruno Simma has enunciated. Neither of these ideas—inter-public law and publicness—are commonplace or widely accepted in international law. We argue, however, that they represent important dimensions in current and future international law. We observe some tension between Bruno Simma’s idea of an ‘international community’ based on shared interests and the concepts underlying ‘inter- public law’, and we heretically suggest that the idea of ‘international community’ may become something of a by-way on the path to developing a theoretical basis for the dense and intrusive rules and institutions and governance processes serving multiple interests and constituencies that more and more characterise international law. We argue that it is fundamental for any publicly-oriented approach to international law to be built on an adequately-theorized account of the concept of law and the roles of law.

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