– 1 –

THE PRINCIPLE OF PARTICIPATION AS A GENERAL PRINCIPLE OF LAW: WHY

CIVIL SOCIETY CAN DERIVE A RIGHT TO TAKE PART IN INTERNATIONAL LAW-

MAKING FROM ARTICLE 38.1.C OF THE ICJ STATUTE

Nahuel Maisley1

Most international legal scholars consider that the direct participation of civil society in

international law-making (i.e., beyond the representation of citizens by states) is a good

thing2. However, only a few authors acknowledge the existence of a right of the citizenry to

have a significant role in this process3. Among those who do, most do not deal explicitly with

the legal source from which this conclusion may be derived4, while others argue that the right

can be found either in treaty provisions5 or in customary rules6.

1 Universidad de Buenos Aires, Consejo Nacional de Investigaciones Científicas y Tecnológicas (CONICET),

nmaisley@derecho.uba.ar. This paper was written in the course of two research stays, one at the Universitat

Pompeu Fabra, in Barcelona, and the other at the Max Planck Institute for Comparative Public Law and

International Law, in Heidelberg. I thank Professors José Luis Martí (UPF) and Anne Peters (MPIL) for these

extraordinary opportunities. 2 See, e.g. Anne Peters, Dual Democracy, in THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW 263–341

(Jan Klabbers, Anne Peters, & Geir Ulfstein eds., 2009); Anne Peters, Membership in the Global Constitutional

Community, in THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW 153–262 (Jan Klabbers, Anne Peters,

& Geir Ulfstein eds., 2009); Cedric Ryngaert, Imposing international duties on Non-State actors and the

legitimacy of international law, in NON-STATE ACTOR DYNAMICS IN INTERNATIONAL LAW: FROM LAW TAKING

TO LAW MAKING? 69–90, 85 (Math Noortmann & Cedric Ryngaert eds., 2010). 3 See, e.g. ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW 57 (2007); STEPHEN

TULLY, CORPORATIONS AND INTERNATIONAL LAWMAKING 329 (2007); DINH NGUYEN QUOC, PATRICK

DAILLIER & ALAIN PELLET, DROIT INTERNATIONAL PUBLIC 653 (2002); PETER MALANCZUK, AKEHURST’S

MODERN INTRODUCTION TO INTERNATIONAL LAW 97, 100 (1997); Steve Charnovitz, Nongovernmental

organizations and international law, 100 AM. J. INT. LAW 348–372 (2006); REPHAEL HAREL BEN-ARI, THE

NORMATIVE POSITION OF INTERNATIONAL NON-GOVERNMENTAL ORGANIZATIONS UNDER INTERNATIONAL

LAW (2012); REPHAEL HAREL BEN-ARI, THE LEGAL STATUS OF INTERNATIONAL NON-GOVERNMENTAL

ORGANIZATIONS. ANALYSIS OF PAST AND PRESENT INITIATIVES (1912–2012) 93 (2013); BARBARA

WOODWARD, GLOBAL CIVIL SOCIETY IN INTERNATIONAL LAWMAKING AND GLOBAL GOVERNANCE: THEORY

AND PRACTICE 40 (2010); Arnold Pronto, Some Thoughts on the Making of International Law, 19 EUR. J. INT.

LAW 601–616, 605 (2008); Ryngaert, supra note at 81. For a full review, see Nahuel Maisley, The International

Right of Rights? Article 25(a) of the ICCPR as a Human Right to Take Part in International Law-Making

(Unpublished Manuscript), (2016). 4 Janne Elisabeth Nijman, for example, speaks of a “natural right to such participation”. According to her, where

“the voices of certain minorities, or of a whole people, or of the entire female population, are silenced and

suppressed, the international community has a duty to invite and accommodate these groups on stage and to be

an audience to their representatives, like NGOs, or to make their voices heard through other channels” (JANNE

ELISABETH NIJMAN, THE CONCEPT OF INTERNATIONAL LEGAL PERSONALITY. AN INQUIRY INTO THE HISTORY

AND THEORY OF INTERNATIONAL LAW 469 (2004).) 5 See Maisley, supra note. 6 Peter Willetts argues that “the strongest evidence that NGO rights have become established in customary law

is the way in which NGOs can often gain access to intergovernmental proceedings even when the political

climate turns against them and there is significant opposition to their presence” (Peter Willetts, From

“Consultative Arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN, 6

– 2 –

In this paper, I will explore a third source which can have an important role in the

discussion: general principles of law, in the terms of article 38.1.c of the Statute of the

International Court of Justice7. More specifically, I will argue for the existence of a principle

of participation8, according to which the authority of public regulations is dependent on the

degree of participation (not only electoral, but also non-electoral) of the citizenry in the

process in which they were established9. If this principle indeed exists, then the authority of

international law depends not only on the “transitive legitimacy” that states may imprint as

proxies of the interests of their nationals10, but also on the degree of direct participation of

those individuals in its creation. Then, if international law pretends to be authoritative -as I

assume it does-, citizen participation must be allowed in a greater degree in the law-making

process.

GLOB. GOV. 191–212, 205 (2000).). Eduardo Szazi builds a quantitative argument regarding the acceptance of

NGOs’ consultative status in International Organizations, and concludes that it currently holds a customary

nature (EDUARDO SZAZI, NGOS: LEGITIMATE SUBJECTS OF INTERNATIONAL LAW 143–169 (2012).). 7 See infra, section I. 8 Several scholars have presented their own versions of this idea, although this specific wording of the content

of the principle is of my own authorship. For references, see Sabino Cassese, Administrative Law without the

State? The Challenge of Global Regulation, 37 NYU J. INT. LAW POLIT. 663–694, 685, 689, 694 (2004).

(“Global administrative law ascribes two fundamental rights to citizens, and these are derived from domestic

administrative law: the right to participation and the right to defense” (…) “Shifting decision-making from the

national to the global level deprives citizens and corporations of these participatory rights. Hence, there should

be greater participation in the formation of the national position ahead of global administrative negotiations, or

actual participation in these negotiations, directly or through (similarly global) non-governmental

organizations”); Armin von Bogdandy, Globalization and Europe: How to Square Democracy, Globalization,

and International Law, 15 EUR. J. INT. LAW 885–906, 900 (2004). (“the demand for a democratic world

federation can be legally construed from the principle of democracy set out in national constitutions. If the

principle is understood as requiring individual self-determination, a structural democratic deficit in the age of

globalization arises (…) Against this background, participation in and the opening up to global democratic

institutions may overcome democratic deficits in national decision-making processes”); Claudio Grossman &

Daniel Bradlow, Are We Being Propelled towards a People-Centered Transnational Legal Order, 9 AM. UNIV.

J. INT. LAW POLICY 1–25, 23. (according to the principle of participation, “all parties that will be directly

affected by the decisions and actions taken, regarding any particular issue, should be able to participate in the

formulation of those decisions”); SUSAN MARKS, THE RIDDLE OF ALL CONSTITUTIONS. INTERNATIONAL LAW,

DEMOCRACY AND THE CRITIQUE OF IDEOLOGY. 109–118 (2000). (the principle of democratic inclusion is “an

ongoing call to enlarge the opportunities for popular participation in political processes and end social practices

that systematically marginalize some citizens while empowering others”) 9 As it was seminally explained by Henry Steiner, the right to political participation has two sides: “the relatively

vague and abstract right to take part in the conduct of public affairs or government, and the relatively specific

right to vote in elections.” (Henry Steiner, Political Participation as a Human Right, 1 HARVARD HUM. RIGHTS

YEARB. 77–134, 78 (1988).) 10 For this idea, see Thomas Christiano, Democratic Legitimacy and International Institutions, in THE

PHILOSOPHY OF INTERNATIONAL LAW 119–137 (John Tasioulas & Samantha Besson eds., 2010); Philip Pettit,

Legitimate International Institutions: A Neo-Republican Perspective, in THE PHILOSOPHY OF INTERNATIONAL

LAW 139–160 (Samantha Besson & John Tasioulas eds., 2010).

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The paper will be divided in three sections. In a first section, I will briefly locate my

proposal in the current literature on general principles of law, with particular reference to

those schools that have studied general principles of public law. In a second section, I will

present the two main methods used by scholars and practitioners to identify general principles

under article 38.1.c (the “comparative” and the “essentialist” methods), and I will argue that

whatever the method chosen, the principle of participation indeed exists. I will focus only on

the non-electoral side of the principle, since -as I’ve mentioned- there is a plausible argument

that the electoral side is already fulfilled in international law-making when individuals elect

the state officers that will represent them abroad11. Finally, the third and concluding section

will be devoted to a reflection on the impact of the principle on the broader discussion on the

role of civil society in international law-making and the legitimacy and authority of

international law.

I. GENERAL PRINCIPLES OF PUBLIC LAW: GAL, GLOBAL CONSTITUTIONALISM AND

INTERNATIONAL PUBLIC AUTHORITY

There is ample consensus among international legal scholars that the “formal”12 sources

of international law are the three mentioned in article 38 of the Statute of the International

Court of Justice, i.e. first, “international conventions”, second, “international custom”, and

third, “the general principles of law recognized by civilized nations”13. However, the

jurisprudential development of the three sources has been uneven: references to general

principles of law have traditionally not abounded in the practice of international courts and

tribunals, in the writings of scholars and in the daily life of international affairs14.

11 This is a controversial argument, which I wish to avoid in this paper for reasons of extension. For a full

discussion, see Maisley, supra note. 12 Alain Pellet, Article 38, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (2ND

EDITION) , 757, 774 (Andreas Zimmermann et al. eds., 2012). Most scholars agree that the list is not exhaustive,

though, and even the International Court of Justice has recognized the binding nature of other sources, such as

unilateral acts of States (Id. at 757–774.). 13 According to Julio Barberis, the inclusion in Article 38 of the ICJ Statute of a phrase regarding the role of the

Court, (“whose function is to decide in accordance with international law such disputes as are submitted to it”),

“suggests that the authors had considered this article as an enunciation of the sources already existing in the law

of peoples” rather than as establishing specific sources for the Court (Julio A. Barberis, Los Principios

Generales de Derecho como Fuente del Derecho Internacional, 14 REV. DEL INST. INTERAM. DERECHOS

HUMANOS 11–41, 20 (1991).). See also Michael Bogdan, General Principles of Law and the Problem of

Lacunae in the Law of Nations, 46 NORD. TIDSSKR. INT. RET 37–53, 41 (1977). 14 See Pellet, supra note at 833. (“The Court itself has referred to Art. 38, para. 1 (c) with an extreme parsimony.

If the present author is not mistaken, this provision has been expressly mentioned only four times in the entire

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In the past few years, however, three (very related) new schools of international legal

thought have somehow revived the relevance of principles for the regulation of global

issues15. First, scholars working on the project of global administrative law (GAL) have

advocated the import of domestic administrative law principles (such as due process,

accountability, transparency, etc.) to apply them to the new regulatory mechanisms operating

in the global sphere16. And then, scholars working on the global constitutionalism and

international public authority projects have suggested that constitutional and public law

principles (such as political accountability, rule of law, separation of powers, judicial review,

etc.) can either already be found operating in the international arena17 or should be used to

guide the future development of the discipline18.

Two peculiarities can be underlined in these new developments. The first is that while

the classic reference to principles usually pointed in the direction of domestic private law19

–the most classic example being Hersch Lauterpacht’s dissertation, “Private Law Analogies

case law of the Court since 1922 and each time, it has been ruled out for one reason or another.”) See also Jan

Klabbers, Goldmann Variations, in THE EXERCISE OF PUBLIC AUTHORITY BY INTERNATIONAL INSTITUTIONS

713–726, 714 (Armin von Bogdandy et al. eds., 2010); Barberis, supra note at 21; Wolfgang Friedmann, The

Uses of “General Principles” in the Development of International Law, 57 AM. J. INT. LAW 279–299, 280

(1963); Robert Kolb, Principles as Sources of International Law (with special reference to good faith), 53

NETHERLANDS INT. LAW REV. 1–36, 36 (2006). 15 For a critical assessment of this process, see Jan Klabbers, Law-making and Constitutionalism, in THE

CONSTITUTIONALIZATION OF INTERNATIONAL LAW 81–125, 99–107 (Jan Klabbers, Anne Peters, & Geir

Ulfstein eds., 2009). 16 See, generally, Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global

Administrative Law, 68 LAW CONTEMP. PROBL. 15–61 (2005); Daniel Esty, Good Governance at the

Supranational Scale: Globalizing Administrative Law, 115 YALE LAW J. 1490–1562 (2006). 17 See, e.g. Jan Klabbers, Setting the Scene, in THE CONSTITUTIONALIZATION OF INTERNATIONAL LAW 1–44

(Jan Klabbers, Anne Peters, & Geir Ulfstein eds., 2009). 18 See, e.g. Armin von Bogdandy, General Principles of International Public Authority: Sketching a Research

Field, in THE EXERCISE OF PUBLIC AUTHORITY BY INTERNATIONAL INSTITUTIONS 727–760, 734 (Armin von

Bogdandy et al. eds., 2010); Peters, supra note; Erika De Wet, The International Constitutional Order, 55 INT.

COMP. LAW Q. 51–76 (2006). 19 Armin von Bogdandy, Common principles for a plurality of orders: A study on public authority in the

European legal area, 12 INT. J. CONST. LAW 980–1007, 984–985 (2014). (“The commonly recognized

principles of law, in the sense of article 38(1)(c) of the ICJ Statute, are rooted above all in private law constructs:

think only of pacta sunt servanda, bona fides, and the obligation to make reparations.”); Stefan Kadelbach,

From Public International Law to International Public Law: A Comment on the “Public Authority” of

International Institutions and the “Publicness” of their Law, in THE EXERCISE OF PUBLIC AUTHORITY BY

INTERNATIONAL INSTITUTIONS 33–50, 43–45 (Armin von Bogdandy et al. eds., 2010); Barberis, supra note at

30. However, back in the 1950s, Rudolf Schlesinger and John Hazard already considered that human rights and

other elements of public law could be codified through general principles: see Rudolf B. Schlesinger, Research

on the General Principles of Law Recognized by Civilized Nations, 51 AM. J. INT. LAW 734–753, 750–751

(1957); John N. Hazard, The General Principles of Law, 52 AM. J. INT. LAW 91–96, 93 (1958). See also

Friedmann, supra note at 281.

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in International Law”20–, these new approaches look into principles that are eminently related

to the public domain. The is move is not unintentional, but rather conscious, as these scholars

explicitly consider that international law is increasingly more comparable to domestic public

regulation than to agreements between private subjects21.

The second feature of this new recourse to principles is that although some of these

authors mention article 38.1.c of the Statute as one of the possible sources of these new

principles22, only few have made actual efforts to square their proposals with the traditional

understanding of this third source of international law23 (and some have even expressed some

skepticism regarding this possibility24). A possible cause of this hesitancy in the literature

may be that the role usually ascribed to the source in article 38.1.c is only subsidiary, i.e. its

only purpose is said to be, first, filling lacunae in the law, and second, helping in the

interpretation of other, indeterminate rules of international law25. As the ambition of these

20 Hersch Lauterpacht, Private law analogies in international law, 1926, http://etheses.lse.ac.uk/664/. The thesis

was later published as HERSCH LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES OF INTERNATIONAL

LAW (WITH SPECIAL REFERENCE TO INTERNATIONAL ARBITRATION) (1927). 21 See, specifically, Anne Peters, Bienes Jurídicos Globales en un Orden Mundial Constitucionalizado, 16 ANU.

LA FAC. DERECHO LA UNIV. AUTÓNOMA MADRID 75–90, 77–80 (2012). See, generally, Armin Von Bogdandy,

Philipp Dann & Matthias Goldmann, Developing the Publicness of Public International Law: Towards a Legal

Framework for Global Governance Activities, in THE EXERCISE OF PUBLIC AUTHORITY BY INTERNATIONAL

INSTITUTIONS 3–32 (Armin von Bogdandy et al. eds., 2010). 22 See, e.g. Benedict Kingsbury, The Concept of “Law” in Global Administrative Law, 20 EUR. J. INT. LAW 23–

57, 29 (2009); Bogdandy, Dann, and Goldmann, supra note at 24; Kingsbury, Krisch, and Stewart, supra note

at 29; Nicholas Tsagourias, The Constitutional Role of General Principles of Law in International and

European Jurisprudence, in TRANSNATIONAL CONSTITUTIONALISM: INTERNATIONAL AND EUROPEAN

PERSPECTIVES 71–106 (Nicholas Tsagourias ed., 2007); Klabbers, supra note at 99–107. 23 Stefan Kadelbach and Thomas Kleinlein have specifically argued that “the constitutional principles of

universal respect for human rights, of democratic legitimacy or accountability and of the rule of law, but also

the principle of respect for the environment, can be established as general principles of international law”

(Stefan Kadelbach & Thomas Kleinlein, International Law – a Constitution for Mankind? An Attempt at a Re-

appraisal with an Analysis of Constitutional Principles, 50 GER. YEARB. INT. LAW 2–39, 34 (2008).) Another

vague attempt is briefly made by Armin von Bogdandy, regarding the democratic principle: von Bogdandy,

supra note at 900. 24 Anne Peters has recently expressed some skepticism regarding this endeavor, at least with respect to the

potential identification of a “general principle of transparency”. For her, the problems in that case were the

absence of (i) sufficient precision, and of (ii) a specific “obligor and obligee”. “As a result, it would seem

difficult to argue that transparency as such is a norm of hard international law—and maybe it can never become

one. But this finding might be of little relevance. Maybe the classic boxes, the “sources” in terms of Art. 38

ICJ-Statute, do not tell us much about the state of international law and its power to influence the behaviour of

internationally relevant actors” (Anne Peters, The Transparency Turn of International Law, 1 CHINESE J. GLOB.

GOV. 3–15, 6 (2015).). 25 See, e.g. FABIÁN O. RAIMONDO, GENERAL PRINCIPLES OF LAW IN THE DECISIONS OF INTERNATIONAL

CRIMINAL COURTS AND TRIBUNALS 42–44 (2008); LAUTERPACHT, supra note at 85; Barberis, supra note at 29.

For a diverging opinion, see Hermann Mosler, GENERAL PRINCIPLES OF LAW ENCYCLOPEDIA OF PUBLIC

INTERNATIONAL LAW 89–105 96–97 (1984).

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three projects seems to go beyond this mere hermeneutic function, it is possible that the

concept of general principles of law might be too narrow for their purpose.

In my view, however, squaring the traditional concept of “general principles of law”

with these new “public law principles” may be indeed useful for the broader aims of these

three projects, for two reasons. First, public law principles can indeed be very neatly

transferred to the global sphere through this third source. In fact, most scholars now agree

that general principles of law are not limited to private law, but also include areas of public

regulation, a consensus that facilitates this process26. And second, the fact that this source

has only a subsidiary role is almost irrelevant for a normative project, given the blatant

indetermination of most international legal rules. Consider the case I pretend to study in this

paper: if a principle of participation indeed exists, then the whole structure of international

law-making has to be reevaluated to accommodate this public law principle, even though its

function is merely hermeneutical. In this, as in most areas of international law, there is no

consensus regarding what the rule is, and thus, the role of the principle becomes crucial. The

finding of a general principle of law can therefore be a key asset in the struggle against, for

example, the democratic deficit of international law27. In the next two sections, I will delve

into this question, first analyzing whether the principle exists, and then assessing its potential

impact on the rules regulating the creation of international law.

II. THE PRINCIPLE OF PARTICIPATION AS A GENERAL PRINCIPLE OF LAW IN THE TERMS

OF ARTICLE 38.1.C OF THE ICJ STATUTE

Despite the binding nature of general principles of law, “international lawyers have never

reached agreement on the[ir] definition28. According to most scholars, this indeterminacy

regarding their content dates back to their very inception, in the Advisory Committee of

Jurists established by the League of Nations Council to draft the Statute of the Court29.

26 See Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens, and General

Principles, 12 AUST. YEARB. INT. LAW 82–108 (1989); Mosler, supra note at 100; RAIMONDO, supra note at

47–48. 27 On the democratic deficit of international law and its need for further legitimacy, see, e.g. Rüdiger Wolfrum,

INTERNATIONAL LAW MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (2006). 28 Pellet, supra note at 254. See also Schlesinger, supra note at 734. (“Among students of international law it is

no secret that the concrete determination and formulation of the general principles of law recognized by

civilized nations is a task hardly begun”). 29 See, generally, BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND

TRIBUNALS (Stevens & ed. 1953); Pellet, supra note.

– 7 –

In the Committee, there were two distinct groups of scholars, with contradictory views

regarding the nature of the general principles30. One group, led by Édouard Descamps,

equated principles to “the fundamental law of justice and injustice”31, and suggested that the

purpose of including this source was to provide judges with a tool for those occasions in

which they had to venture beyond “the limits of positive recognised rules”32 to solve a case.

The other group, led by Elihu Root and Walter Phillimore, was wary of this subjective

approach, and made efforts to relate the source of law to the consent of states. Thus, they

argued that the principles in article 38.1.c were not derived from natural law, but were those

“which were accepted by all nations in foro domestico”33. In the end, the two groups reached

a compromise on the current wording of article 3834.

Despite the agreement, the controversy persisted in the literature, and there are nowadays

two opposite positions regarding the method for the identification of general principles35.

While some scholars consider that principles “can be verified by a scientific study of the laws

of different States”36, others claim that these principles “exist independently of the

institutions of any particular country and form the irreducible essence of all legal systems”37.

Thus, while for some the best method consists in comparing domestic regulations, for others,

the identification must rely on an analysis of the indispensability of these principles for the

existence of a legal system.

In what follows, I will argue that whatever the method chosen, the principle of

participation must be understood as a binding norm of international law. To this purpose, I

will first (1) present the “comparative method” and study the principle of participation under

30 Although the division between Descamps and Root/Phillimore is the standard position in the literature, Bin

Cheng actually distinguishes five different positions in the Committee, after a detailed analysis of its work. See

CHENG, supra note at 11. 31 Pellet, supra note at 833. See also RAIMONDO, supra note at 17–20. 32 Pellet, supra note at 741. See also RAIMONDO, supra note at 17–20. 33 Pellet, supra note at 836. 34 Id. at 832–833. 35 Béla Vitanyi, Les positions doctrinales concernant le sens de la notion de “principes généraux du droit

reconnus par les nations civilisées,” 86 REV. GÉNÉRALE DROIT INT. PUBLIC 48–116 (1982). For a review of the

literature, see Marcelo Kohen & Berenice Schramm, GENERAL PRINCIPLES OF LAW OXFORD BIBLIOGRAPHIES

(2013). 36 Michael Akehurst, Equity and General Principles of Law, 25 INT. COMP. LAW Q. 801–825, 814 (1976). See

also, e.g. LAUTERPACHT, supra note at 85; Barberis, supra note at 30; Mosler, supra note at 94–95; Bogdan,

supra note at 51; RAIMONDO, supra note at 46. 37 Frances T. Freeman Jalet, The Quest for the General Principles of Law Recognized by Civilized Nations - A

study, 10 UCLA LAW REV. 1041–1086, 1044 (1963).

– 8 –

its paradigm, and then I will move on to (2) the “essentialist method” and consider the

principle of participation under its scope.

1. The comparative method

An important part of the literature, heir of Phillimore and Root, considers that general

principles of law can be identified after a study of comparative domestic law38. The process

is usually said to involve three main steps39. In a first, somewhat exploratory step, principles

are abstracted from specific rules existing in domestic legal systems40. It does not matter at

this stage whether the rules are from a single state or from many: what matters is whether a

principle can be abstracted from concrete rules. It is only then, in a second step, that the

comparative study is carried out41. At this point, the interpreter examines different domestic

legislations to verify whether the rules from which the principle was earlier abstracted are

indeed common to several legal systems. Finally, in a third step, the interpreter considers

whether the relocation of the principle to the international sphere is admissible, and how it

must be performed42.

In what follows, I will apply this method to consider whether the principle of

participation is a general principle of law in the sense of article 38.1.c of the Statute. I will

first argue that (a) the principle can be abstracted from general references in constitutional

law, together with some specific norms found in different domestic legal systems, such as

freedom of assembly and association, freedom of expression, a right of petition, legislative

initiative, etcetera. Then, (b) I will assess the global diffusion of these provisions and claim

that they have indeed been “recognized by civilized nations”. And finally, (c) I will argue

that the appropriate extrapolation of this idea to the global sphere requires the participation

of individuals (or voluntary associations of individuals), and not only of states, in the

processes of international law-making.

a. A generalization from municipal norms: the principle of participation

38 See, e.g., BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS

376, 392 (1987); Rudolf B. Schlesinger, Research on the General Principles of Law Recognized by Civilized

Nations. Outline of a New Project., 51 AM. J. INT. LAW 734–753 (1957); Akehurst, supra note at 814; Bogdan,

supra note at 43. 39 Barberis, supra note at 29–38; RAIMONDO, supra note at 45–70; Bogdan, supra note at 48; Kolb, supra note

at 10. 40 Barberis, supra note at 30–32; RAIMONDO, supra note at 46–50. 41 Barberis, supra note at 32–36; RAIMONDO, supra note at 50–58. 42 Barberis, supra note at 36–38; RAIMONDO, supra note at 58–70.

– 9 –

It is unusual to find an explicit acknowledgment of legal principles in the domestic

legislation of states. For example, most states do not have a rule establishing the legal validity

of the principle of good faith; instead, they have several specific rules (such as those dealing

with abuse of right, for instance) from which the principle can be inferred. As explained by

Akehurst, it is precisely this high level of abstraction what allows for the existence of

common principles among nations43, even when these nations have different rules dealing

with the specific implementation of each “common denominator”44. It is also this slight

difference in content between the domestic rules and the general principle what distinguishes

this source from customary international law45.

Principles can be inferred from all levels of domestic legislation, from constitutions to

local ordinances46. They can also be derived from rules with different wordings and with

different degrees of generality, from declarations to procedural standards47. The level of

generality with which the principles must be constructed has to strike a balance: if they are

too abstract, they will be inapplicable; if they are too concrete, they will never be universal.

As Robert Kolb puts it, they need to have “that just degree of abstraction and concreteness,

to be able to be dynamic and filled with some specific legal meaning at once”48.

In our case, the principle of participation can be inferred from two different sets of rules

with a different degree of generality. First, it can be derived from the group of generic

statements usually included in constitutions regarding the ultimate ownership of the people

over the law. A logical conclusion of these provisions is that the people must have some

participation in the process of elaborating the rules of the system49. Otherwise, it wouldn’t

be theirs, and thus, it would have no authority.

Some may argue, however, that it suffices that this participation is carried out through

electoral representation, and that no other mechanism is actually required by the principle.

But this is actually contradicted by the very legislations of the different systems, which do

43 Akehurst, supra note at 814. See also RAIMONDO, supra note at 49; Barberis, supra note at 32. 44 Mosler, supra note at 95. 45 Barberis, supra note at 32. 46 Id. at 31.; RAIMONDO, supra note at 48. 47 Bogdan, supra note at 47. 48 Kolb, supra note at 9. 49 On this idea, see, e.g. Joshua Cohen, Procedure and Substance in Deliberative Democracy, in DEMOCRACY

AND DIFFERENCE. CONTESTING THE BOUNDARIES OF THE POLITICAL 95–119, 106 (Seyla Benhabib ed., 1996).

See also Nahuel Maisley, Cohen v. Cohen: Why a Human Right to (Domestic and Global) Democracy Derives

from the Right to Self-Determination, 4 LAT. AM. J. POLIT. PHILOS. (2015).

– 10 –

usually establish means beyond elections to give voice to the “will of the people”. These

specific methods must also be considered in the construction of the principle of participation,

and it is on these non-electoral means that I will focus in this paper50.

The second set of rules from which the principle can be derived are those outlining the

specific modalities that this participation may acquire in different states. For instance, the

principle of participation can be inferred from the availability of guarantees for freedom of

expression regarding political issues, of freedom of political assembly and association, of a

right to petition the authorities, or of the possibility of legislative initiative by citizens, among

others. The availability of these resources shows that what the constitutions mean by the

ownership of the people over the law is that they should be their authors.

It is true that many states do not have each and every of these rules in place, but again,

that is not expected for the identification of a general principle. As explained by Akehurst, a

principle exists not only when the exact rules are present in different states, but also “when

different systems of municipal law achieve the same result by different means”51. Although

there are several countries with authoritarian governments which significantly restrict the

direct engagement of the citizenry in law-making processes, these states usually do have

some minimal participatory mechanisms, at least with the purpose of paying lip service to

the idea of the ownership of the people over their legal system. Thus, the principle of

participation can still be inferred in these cases, even when its implementation may be said

to be treacherous or deficient.

Departing from both these general and concrete (but diverse) legal provisions, I abstract

a principle that is somewhat vague, and that does not establish specific rules of what ought

to be done in each law-making occasion. The principle of participation would thus have a

high level of generality, indeed, but it is exactly the level required for a general principle. As

Judge Arnold McNair famously explained, “the way in which international law borrows from

this source is not by means of importing [municipal] law institutions ‘lock, stock and barrel’,

ready-made and fully equipped with a set of rules”52. Otherwise, the source would not be a

50 Of course, there are also normative arguments to defend this idea, but I will go into them when considering

the “essentialist” method, in the next section. 51 Akehurst, supra note at 814. 52 ICJ, International Status of South-West Africa (Advisory Opinion), 1950 ICJ 128 (Jul. 11, 1949), Separate

Opinion of Judge Arnold McNair, p. 148. The same idea seems to be present in the work of the international

public authority project: “it is a truism that the principles of international public authority cannot be simple

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principle, it would simply be a group of rules. Instead, the ideas should be taken as “an

indication of policy and principles”53 that should guide the different actors in their daily tasks

that require interpreting the law. In our case, the principle of participation would help those

in charge of the law-making processes understand what their obligations are regarding the

inclusion of other actors in the course of the procedure. The guiding principle of participation

would tell them to select that interpretation of their duties which “enlarge[s] the opportunities

for popular participation in political processes and end[s] social practices that systematically

marginalize some citizens while empowering others”54.

The interesting point is that, if I prove my point, this would no longer be a matter of only

normative preferences -as it has traditionally been in the writings of several scholars55-, but

rather a legal mandate, as a result of article 38.1.c of the Statute.

b. The comparative study: the principle of participation in the domestic legislation of States

The next step in the process consists in studying whether the principle has indeed been

“recognized by civilized nations”, as required by article 38. The literature now unanimously

dismisses the original, colonialist idea of “civilized nations” embedded in the Statute in the

1920s56. However, it also rejects the idea that principles must be recognized by every single

state in the world. Indeed, most scholars now agree that it suffices to prove that the principle

in question has been recognized by some of the most representative systems of each “legal

family”57. As it is hard to identify which are the “families” and which system is most

representative of each of them, writers are tending to give preeminence to an “equitable

geographical distribution”58, together with consideration regarding the traditions of each

system.

copies of domestic principles because international institutions are different: the domestic analogy, based on

the assumption that an exercise of international authority parallels an exercise of domestic authority in all

essential elements, cannot convince in most cases” (von Bogdandy, supra note at 735.). 53 ICJ, International Status of South-West Africa (Advisory Opinion), 1950 ICJ 128 (Jul. 11, 1949), Separate

Opinion of Judge Arnold McNair, p. 148. 54 MARKS, supra note at 111. 55 The whole literature on global democracy would fit this description. For an unorthodox review, see Nahuel

Maisley, Completando un proyecto inconcluso. Una propuesta de aplicación de la teoría de la democracia

deliberativa de Carlos Nino al plano global., 35 ANÁLISIS FILOSÓFICO 275–308 (2015). 56 On the colonialist background of, for example, Édouard Descamps, see MARTTI KOSKENNIEMI, THE GENTLE

CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870–1960 161–162 (2002). For a defense

of the Committee, see Bin Cheng, The Meaning and Scope of article 38(1)(c) of the Statute of the International

Court of Justice, 128-132 GROTIUS SOC. TRANS., 130–131 (1953). 57 See, e.g. LAUTERPACHT, supra note at 85; Mosler, supra note at 95; RAIMONDO, supra note at 54. 58 Id. at 55.

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To prove the existence of the principle of participation, I have conducted a survey of the

constitutions and/or founding documents59 of the 193 states which are members of the United

Nations60. I have specifically looked at five variables, including -as argued in the previous

section- both general manifestations and specific applications of the principle. While the

complete results are presented in a table annexed to the paper, I will now try to extract some

conclusions from the data.

i. Recognition of the people as the ultimate source of authority. 166 out of the 193

member states of the United Nations (an 86.01%) have clear references in their constitutions

or foundational documents to the ultimate authority of the people over the law or the

government. The formulations of this idea are varied: some present it in the Preamble, where

the people are acknowledged as the constituent power; others suggest it with the definition

of the form of government (as a democracy or a republic)61; while others do it explicitly,

stating, for example, as Lebanon, that “the people are the source of powers and of

sovereignty”62.

The geographical distribution of the 166 states is quite balanced: there are

representatives of every culture, and of every geographic region. Further, there is no

correlation between the strongest and most explicit wordings and the geographic location or

the ethnic background of the state. Just to mention a few examples, the constitution of Kiribati

(Oceania) states that “the will of the people shall ultimately be paramount in the conduct of

the government of Kiribati”; the constitution of Japan (Asia) states that “government is a

sacred trust of the people, the authority for which is derived from the people, the powers of

which are exercised by the representatives of the people, and the benefits of which are

enjoyed by the people”; the constitution of Mexico (Latin America) holds that “all public

power emanates from the people and is instituted for their benefit”; the constitution of

59 I have worked mainly with the database of the Constitute Project, which compiles the constitutions of over

190 states. See https://www.constituteproject.org/. For some nations, I have gathered further information from

different official documents. 60 I have chosen this pool of states to avoid controversies regarding the statehood of the entities under scrutiny.

This is why I chose to avoid including entities like Kosovo, Taiwan or Palestine. 61 In some cases, the constitution defined democracy as the form of government but nevertheless recognized

the ultimate authority of a monarch (eg, the case of Kuwait, whose constitution states: “We, Abdallah Al Salem

Al Sabah, Amir of the State of Kuwait, Desirous of fulfilling all of the exigencies of democratic rule in our

beloved homeland”, Constitution of Kuwait, 1962 (reinst. 1992), Preamble). Those cases were excluded from

this category and labelled as “dubious” or as “no recognition” depending on the specific circumstances. 62 Constitution of Lebanon, 1926 (rev. 2004), article D.

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Sweden (Europe) establishes that “all public power in Sweden proceeds from the people”;

the constitution of Tunisia (Arab League) aims at establishing “a civil state founded on the

sovereignty of the people”; and the constitution of Zambia (Africa) acknowledges “the equal

worth of men and women in their rights to participate, and freely determine and build a

political, economic and social system of their own free choice”.

Among those states that do not clearly support the idea that ultimate authority rests on

the people, I have labeled 12 cases as “dubious” (a 6.22% of the total), and other 15 cases as

“denying” (a 7.77% of the total). The dubious cases were usually those in which the

sovereignty of the people was somehow acknowledged, but power was still vested in a

monarch. The denying cases were those in which the very constitution stated that ultimate

authority rested on an autocrat and not on the people. The geographical distribution of this

list is also quite balanced, except for the absence of Latin American states and some

preeminence of Arab and European states (8 each)63.

ii. Ratification of article 25 of the International Covenant on Civil and Political Rights.

163 out of the 193 member states of the United Nations (an 84.46%) have ratified article 25

of the ICCPR, which establishes the right of citizens to take part in the conduct of public

affairs. Another 7 states (3.63%) have signed the treaty but have not yet ratified it; 3 states

(1.55%) have attached considerable reservations or declarations; 1 state (North Korea,

0.52%) has intended withdrawal; and 19 states (9.84%) have taken no action. The

geographical distribution is once again somewhat even, aside for the non-ratification of

several small Pacific islands and some Asian and Arab states, and the unanimous ratification

from European and Latin American states. Comparing this data with that of the previous

variable, only 10 states (5.18%) that have no reference to the ultimate authority of the people

in their constitutions have not ratified article 25 of the ICCPR.

iii. Guarantees for freedom of expression regarding public affairs. 190 out of the 193

member states in the United Nations (a 98.45%) have explicit protections for freedom of

expression in their constitutional documents. However, most of these constitutions also

foresee the possibility of establishing restrictions to this right by law, making the analysis

63 It is also worth noting that at least 28 states include references to the Universal Declaration of Human Rights

(including article 21.3, which states that “the will of the people shall be the basis of the authority of

government”) in their constitutions, while many others have acknowledged it in other parts of their legal

systems. See the results of the search in the database of the Project Constitute, at

https://www.constituteproject.org/search?lang=en&q=universal%20declaration%20of%20human%20rights.

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much more complex. In particular, 8 states (4.15%) explicitly mention in their constitutions

potential basis for restrictions which would be incompatible with the role the freedom of

expression has regarding the principle of participation, as they would curtail the engagement

of the citizens with political affairs. For instance, Tonga does not allow negative comments

regarding the King, and countries like Malaysia, Iran and the Maldives acknowledge freedom

of expression as long as it is compatible with Islam, which is -at the same time- an important

component of governmental activity.

Nevertheless, beyond these complexities regarding the implementation of the right, it is

clear that a vast majority of states considers that allowing citizens to make their voices heard

in (what Habermas calls) the “informal public sphere”64 is at least valuable in principle. Only

2 states (a 1.04%) make no reference to this freedom in their declarations of rights (Saudi

Arabia and Brunei Darussalam), while one other (Thailand) only makes vague references to

the respect of human rights, in general.

iv. Freedom of assembly and association. The same states that afford explicit protections

of freedom of expression to their citizens (190 out of 193, a 98.45%) also acknowledge their

freedoms of assembly and association. Once again, the difficulty lies in determining which

restrictions are admissible. However, at least from what can be expounded from the text of

the constitutions, the number of states which restrict this right explicitly regarding political

activities seems even lower than in the previous case: only two states do so (Malaysia and

Iran, a 1.04%). The same three states (a 1.55%) that did not recognize their citizens’ freedom

of expression do not acknowledge this right either.

v. Right to petition the authorities, to demonstrate publicly and/or to participate in

political affairs. 163 out of the 193 member states of the United Nations (an 84.46%) grant

their citizens a right to participate in the political life of the community beyond voting in

elections, either via public demonstrations regarding political affairs, via formal petitions to

the authorities, or via the right to legislative initiative. The geographical distribution is, again,

quite balanced, although there is some tendency among sub-Saharan African states (7),

Caribbean and Pacific islands (6 and 4, respectively) and Arab nations (4) to restrict these

opportunities.

64 See, generally¸ JURGEN HABERMAS, BETWEEN FACTS AND NORMS (1998).

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vi. General analysis. In conclusion, only two states (Brunei Darussalam and Malaysia, a

1.04%) obtained negative results in all of the categories. Saudi Arabia only grants its citizens

the right to petition the authorities, while Thailand has only ratified the ICCPR, but has no

specific protections to political participation in its constitutional law. Then, Oman, Pakistan

and Tonga ranked positively in only two of the categories. In total, 7 states (a 3.62%) received

negative scores in three or more categories. In terms of geographical distribution, 4 are from

Asia, 2 from the Middle East, and 1 from Oceania, but 5 of them are Islamic states.

From this revelation, someone could derive that the principle does not hold in Muslim

nations. However, this would oversee the fact that several Islamic states (including some of

the most important and most populated, like Indonesia, Bangladesh, Egypt, Nigeria and

Turkey) do indeed have legislations from where the principle can be rightly inferred. Thus,

the “legal family” of Islam also seems to support the existence of the principle.

The group of states that ranked positively in only three of the five categories includes 4

Caribbean nations, 4 Gulf states, 3 Pacific islands, 2 Asian states, and 1 European and 1

African state, for a total of 15 (a 7.77%). The geographical distribution is evident from the

list, and the only noticeable fact is the absence of American nations, all of which ranked

positively in four or more categories.

Finally, an astonishing 88.60% of the member states of the United Nations (171 states)

have obtained four or more positive results in the study, suggesting that they uphold (at least

rhetorically, in the text of their constitutions) a strong protection and acknowledgement of

political participation. Of those, only 45 states (a 23.32% of the total) ranked positively in

four categories, while 126 (a 65.23%) achieved affirmative results in each and every of the

variables. The geographical distribution, as it occurred in every step of the process, was

considerably balanced. Lastly, -and perhaps surprisingly- the list of those who strongly

acknowledge political participation includes 18 of the 20 most populated nations in the world

(all except for Pakistan and Iran), suggesting that the principle not only holds among many

nations but also among many citizens of the world.

In sum, it seems like the legislation of the civilized nations of the world acknowledges

the idea that the authority of the law depends on the participation of the citizenry in the

political process that leads to its creation. The question is now whether this idea is applicable

in the international sphere, and if that is the case, how it is to be applied.

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c. The relocation to the international sphere: the principle of participation and the role of

individuals in international law-making

The final step in the comparative process consists in “transposing”65 the principle from

municipal legal systems to international law. Most scholars agree that the main instrument in

the import of domestic ideas is that of analogy66, which Lauterpacht defines as an “identity

or similarity of proportion”67: the interpreter should look at the relations between the relevant

subjects at the municipal level, and then use the principle to create a proportional relation

between the subjects of international law. The method, as Lauterpacht acknowledges, is not

scientific, but rather “inductive and experimental”, and “subject to correction”68.

In this case, the principle regulates a relation between those exercising public authority

and those who are subject to that authority69. In the municipal sphere, this relation has been

traditionally established between individuals and the state (or, what is the same, state

officials). In the global sphere, however, this relation is now usually established between

several different entities. Consider the following three situations, out of many possible70.

First, the relation may present itself between two states, horizontally. This is the case

when one state appeals to international law (a source of authority) to solve a dispute with

another state, be it with or without recourse to jurisdiction. In this situation, as it has been

taught classically by the positivist school, the authority of the law will depend on the

participation (or, in its strongest formulation, the consent) of both states in the establishment

of said rule71. For instance, in what seems to be an application of the principle, a treaty that

was not ratified by one of the parties will have no authority over the relation between them72.

Second, the relation may present itself between a state and an international organization.

Again, in this situation, the role played by the state (which would now be the subject, and not

65 See RAIMONDO, supra note at 58. See also Mosler, supra note at 95–96. 66 LAUTERPACHT, supra note at 81–87; Barberis, supra note at 36–37; RAIMONDO, supra note at 59–62. 67 LAUTERPACHT, supra note at 83. 68 Id. at 84. 69 The international public authority project defines “authority as the legal capacity to determine others and to

reduce their freedom, i.e. to unilaterally shape their legal or factual situation” (Bogdandy, Dann, and Goldmann,

supra note at 11.). 70 For a review of the different exercises of international public authority, see e.g. Bogdandy, Dann, and

Goldmann, supra note; von Bogdandy, supra note. 71 This is actually much more complex. For the purposes of this paper, it suffices to say that consent is a

necessary but not a sufficient condition for the authority of the law. On this discussion, see ALLEN BUCHANAN,

JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 303 (2004). 72 Vienna Convention on the Law of Treaties (1969), 1155 U.N.T.S. 1155 (1980), article 34.

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the authority) in the establishment of the organization and in its decision-making process is

crucial to determine the latter’s authority over the situation. According to the principle of

participation, if the state was not allowed to make its voice heard in the deliberations, and if

it was not given duly consideration before the decision was made, then the authority of the

organization would be trimmed. In the actual practice, these situations do not typically unfold

so explicitly, but this is merely because the procedural rules of international organizations

usually incorporate the principle, just as the municipal rules surveyed in the previous section

did.

Third, the relation may also develop between a state or group of states (or an

international organization, or even a private entity) and an individual. This usually occurs not

only in those extreme cases in which international law explicitly foresees direct effects for

human beings (e.g. in the case of international criminal law), but also in many other

situations, in which the formal addresses of the rules are not individuals but their states.

Consider the following example. A cancer patient in a developing country, who is benefitting

from using generic medicines to treat her illness, is forced to modify her treatment as a result

of the entry into force of an international agreement on intellectual property protection73. In

the treaty negotiations, her voice was only allegedly carried by her President, who she

campaigned against, and did not vote. No one else raised the position of cancer patients in

the discussion. In this case, to make the relation between her and the group of states parties

to the treaty proportional to the one she has toward her own state, as regulated by the principle

of participation (i.e., to apply the principle by analogy), the rules of the treaty-making process

should have been interpreted allowing her to participate, somehow, in the discussions. This

is the most important role the principle should have in international law.

Someone could argue that the problem with my analogy is that I assume that individuals

can be a relevant subject of international law (as states, or international organizations), when

this is not the case. In the situation of the patient, they would say, the problem is not between

the woman and the states parties to the treaty, but rather between her and her government,

which was legitimately elected, and then freely decided to ratify and implement the

regulation regarding intellectual property.

73 I have analyzed a case like this in Maisley, supra note.

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There are four main problems with this argument. The first is that international law has

already explicitly acknowledged individuals as inherent subjects of that legal system74. For

instance, in the Preamble to the International Covenant on Civil and Political Rights, it was

accepted that the rights listed in the treaty were not granted by the states (as it should have

been if states were the only subjects of the system), but rather, that they derived “from the

inherent dignity of the human person”75. Thus, individuals have been considered inherent

right-holders (i.e. primary subjects) at the international sphere, alongside states, at least since

the 1960s76.

But further, and this is the second problem, it makes no sense to separate the legal

obligations and entitlements of a collective entity, like the state, from those of the members

that compose said collective entity, i.e. its citizens. As Lauterpacht rightly points out, with

reference to the work of John Westlake: it is ultimately “men upon whom international law

imposes rights and duties, and not the mystical entity called State”77. The rights and

obligations of states must always be traced back of those of its citizens, of whom states are

mere representatives. In this case, applying the principle at the international sphere only to

the conduct of states would not mean that individuals are completely excluded from the

process: indeed, some individuals -those who can access using their power and resources-

would still be able to participate. However, some other individuals -those who do not have

said connections- would certainly be excluded. When we lift the corporatist veil of the

personification of states, what we see is that some individuals are arbitrarily included, and

some others are arbitrarily excluded.

The third reason has to do with the content of the principle itself. The principle

acknowledges the capacity of individuals to grant authority to public regulation. This

74 For more on this idea, see, classically, Hersch Lauterpacht, The Subjects of International Law, in

INTERNATIONAL LAW. BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, VOLUME I: THE GENERAL

WORKS 136–150 (Elihu Lauterpacht ed., 1970). See also Peters, supra note. 75 International Covenant on Civil and Political Rights, 999 UNTS 171 (Dec. 19, 1966), Preamble. This was

explicitly acknowledged by the Human Rights Committee, which explained that the object and purpose of the

ICCPR is not to create these rights but rather to “define” them, to establish the standards in relation to which

they are to be measured, and to place them “in a framework of obligations which are legally binding for those

States which ratify [the Covenant]” (Human Rights Committee, General Comment No. 24: General comment

on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols

thereto, or in relation to declarations under article 41 of the Covenant, (Nov. 2, 1994), UN Doc

CCPR/C/21/Rev.1/Add.6, ¶ 7). 76 Indeed, it could be argued that this acknowledgement came much earlier, as it was already suggested by

Hersch Lauterpacht in 1947 (see LAUTERPACHT, supra note at 73–80.) 77 Id. at 80.

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acknowledgment presupposes that individuals are autonomous agents, who have a

conscience of their own that allows them to make decisions about what is best for themselves.

The same cannot be said of states, unless reference is made to their role as representatives of

individuals78. Hence, applying the principle to collective entities like states, disregarding the

role of the individuals that compose them, implies misunderstanding the whole idea behind

the principle.

Finally, the fourth reason has to do with the implementation. If the relevant relation of

public authority for the cancer patient were only considered to be that established between

her and her state, then the principle would require that she had some sort of a say in the

decision of the state of establishing the rule on intellectual property regarding its own

territory. However, the possibilities of her voice having at least a small influence over the

decision in this situation would be minimal (and certainly smaller than if applied at the global

sphere), for two reasons. First, the text of the treaty arrives at the domestic sphere as a closed

decision, in which no changes can be made: it is either take it, or leave it. And second, as

much of the literature currently acknowledges, the process of globalization has significantly

curtailed the possibilities of states of deciding not to participate in international cooperative

schemes as the one under analysis79. It is likely that if the cancer patient’s state did not ratify

the intellectual property treaty, it would be excluded from commercial opportunities that are

crucial for its development, as it happened with the TRIPS agreement and the WTO. Thus,

she would have a chance to participate, but only playing in a game with loaded dice.

In conclusion, if my previous arguments were right, then (a) the principle can be derived

from both general manifestations and specific applications of the idea of the people “owning”

the law; (b) the principle is indeed recognized by civilized nations, since these provisions are

widely shared worldwide, with almost 90% of the states acknowledging them; and (c) the

principle must be applied in the international sphere not only in the relations between states,

but also in the relations involving other subjects of international law, particularly, human

beings. In the following section, I will provide an alternative argument, using another method

78 See CARLOS SANTIAGO NINO, THE ETHICS OF HUMAN RIGHTS 152–158 (1991); CARLOS SANTIAGO NINO,

OCHO LECCIONES SOBRE ÉTICA Y DERECHO PARA PENSAR LA DEMOCRACIA 120 (2013). See also my own

application of these ideas at the international sphere: Maisley, supra note. 79 See, e.g. the explanation in Jurgen Habermas, THE POSTNATIONAL CONSTELLATION. POLITICAL ESSAYS

(2001).

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for the identification of general principles of law, which does not require the comparative

analysis carried out in this section.

2. The essentialist method

a. The method

Although most authors hold that the comparative method is the most precise device for

the identification of general principles of law, in practice, most scholars and most courts fail

to carry out these kinds of studies when applying this source of law. The reason can probably

be found in the resources needed to rigorously survey various legal systems, but also in

another, simpler fact: for many, the acknowledgment of the principle in municipal legal

systems is not constitutive of the principle, but rather, declaratory. As stated by Bin Cheng,

municipal law only “provides the evidence of the existence of a particular principle of law”80,

but principles are in fact beyond this practice: they are “rooted in the good sense and common

practice of civilized nations”81, they are “juridical concept[s that lie] in the very nature of

law, as exemplified by municipal law”82, they “form the basis of positive rules of law”83.

Departing from these ideas, some scholars have argued that an interpreter can reach the

same conclusions without conducting a comparative survey, by simply studying whether a

principle is indeed indispensable for the existence of a legal system84. Frances Freeman Jalet

has probably been the most enthusiastic supporter of this idea. According to him, “it is not

because rules or legal principles exist in most, or even in every, legal system that they

constitute general principles, but because they are so basic and fundamental as to compose

the substratum from which positive rules may be derived”85. For him, it is this -and not

universality or consent- what the interpreter should look for when attempting to identify a

general principle86.

b. The principle of participation as essential for the existence of a legal system

80 CHENG, supra note at 392. 81 Id. at 394., quoting Lord Asquith of Bishopstone in Abu Dhabi Oil Arbitration, 1 ICLQ 247 (1951) at 257. 82 Id. at 392. 83 Id. at 376. 84 See Alfred Verdross, Les Principes Généraux du Droit dans la Jurisprudence Internationale, 52 RECL. DES

COURS L’ACADEMIE DROIT INT. LA HAYE 191–249, 203 (1935). 85 Freeman Jalet, supra note at 1085–1086. 86 Freeman Jalet indeed seems to prefer this method over the comparative one, although he accepts it might also

be useful, just like Cheng: “since general principles of law form the theoretical basis of all positive rules, it

follows that they can be sought by a process of induction from those rules (…). That this is possible, however,

does not mean that it is a recommended procedure” (Id. at 1078.)

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The question, then, is whether the principle of participation composes this substratum

from which positive rules can be derived. Can there be any positive rule, i.e. any law, without

the participation of the citizenry in its creation? Is the participation of the subjects of the law

a requisite for its validity, generally?

The first step in answering this question is to clarify what the question points to, and

particularly what it means by “the law”. As Carlos Nino explains, legal theorists have put out

two main different concepts of law, which are not necessarily incompatible, and which can

be used in different circumstances87: first, a descriptive concept of law, as “a series of rules

that are, in fact, acknowledged”88, and second, a normative concept of law, as “a series of

rules that should be acknowledged”89.

Two elements suggest that the question posed here refers to a normative concept of law.

The first is that if the question assumed a descriptive concept of law, then the only way to

answer it would be by relying on the comparative method. Looking at whether the principle

is acknowledged in the different systems is precisely what I did in the survey conducted in

the previous section. If this were the only way to answer the question, then it would make no

sense to distinguish the two methods.

The second reason is that I believe the question is ultimately a question regarding the

validity of the law, and thus: first, it cannot be answered by looking at the law itself90, and

second, it cannot be answered by reference to facts91. It cannot be answered by looking at the

law itself because, otherwise, we would incur in an indefinite regression: we can base the

validity of one rule on another rule, but we would then need yet another rule to prove the

validity of the second, and then again with this third one, and again endlessly92. Ultimately,

there needs to be a non-legal argument as of why the law is binding, and that non-legal

argument is exactly what our question is looking for93.

87 See CARLOS SANTIAGO NINO, DERECHO, MORAL Y POLÍTICA. UNA REVISIÓN DE LA TEORÍA GENERAL DEL

DERECHO 21–86 (2014). 88 Id. at 37. 89 Id. at 37. 90 See HANS KELSEN, PURE THEORY OF LAW 193 (1967); HERBERT LIONEL ADOLPHUS HART, THE CONCEPT

OF LAW 107 (1994); NINO, supra note at 60–61. 91 See KELSEN, supra note at 193–194; NINO, supra note at 62. 92 Id. at 60. 93 Hart acknowledges that this is the only question that his theory cannot answer from an internal point of

view regarding the law: “no such question can arise as to the validity of the very rule of recognition which

provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this

way” (HART, supra note at 109.)

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In my view, this non-legal argument must inevitably be of a normative nature. The most

important defender of the opposite idea, Herbert Hart, classically argued that the non-legal

criterion is simply the practice of the community, i.e. a matter of fact. If those who participate

in the legal practice acknowledge mechanism X for determining which rule is valid and

which isn’t, then, that mechanism X becomes the criterion for validity94. If this were true, it

could be possible that the mechanism for the identification of the law did not require

participation of the citizenry in its creation: the mechanism would be whatever happened in

practice. However, the problem with Hart’s argument is that while he pretends to work with

a descriptive concept of law, he does not, and his proposal hides a normative argument behind

it. What Hart pretends to do is derive a normative statement (“the subjects ought to obey the

rules derived from X”) from a statement of fact (“most subjects obey the rules derived from

X”). But what he is actually doing is presenting an argument which is ultimately normative:

he is saying “the subjects ought to obey those rules which most of the community

acknowledges as binding, which, in this case, are those derived from X”. Hence, even Hart,

the utmost defender of avoiding normative ideas to answer this question, ended up presenting

a normative argument.

So, the first conclusion is that the question posed at the beginning indeed presupposes a

normative concept of the law. Thus, to understand what “law” means in this sense, we have

to move beyond the realm of the law itself, and beyond the description of social practices, to

engage in an exchange of arguments as of what definition of the law is more appropriate for

the subjects to be morally obliged to comply with it. So the question could be rephrased as

follows: Should individuals be expected to comply with the law if the law was created

without their participation?

Providing a full-fledged answer to this question would require going over six centuries

of political theory, something which clearly exceeds the purposes of this paper. Thus, I will

only present the one argument I believe decisive to answer this question, which is an

argument based on the equal autonomy of all individuals95. If the law is to respect each human

being as an equal and autonomous subject, then the law itself should be created through a

94 Id. at 79–123. 95 See also Nadia Urbinati & Maria Paula Saffon, Procedural Democracy, the Bulwark of Equal Liberty, 41

POLIT. THEORY 441–481 (2013); Eyal Benvenisti, The Law of Global Governance, 368 RECL. DES COURS

L’ACADEMIE DROIT INT. LA HAYE 49–279, 137 (2014).

– 23 –

process that is respectful of the equality of the citizens. As Jürgen Habermas explains, it

should be established in a manner “according to which the addressees of law are

simultaneously the authors of their rights”96.

Now, to make sure that the law that is to be established is a true expression of the

collective will of all the citizens (and not only of the majority, for instance), the law must be

the result of an inclusive process of deliberation among them97. This necessarily requires that

every citizen has the possibility to participate in the law-making process, not only by voting,

but also by making his or her voice heard. “Citizens [usually] have substantial, sometimes

compelling reasons for addressing public affairs”, writes Joshua Cohen. “Because they do,

the failure to acknowledge the weight of those reasons for the agent and to acknowledge the

claims to opportunities for effective influence that emerge from them reflects a failure to

endorse the background idea of citizens as equals”98. In other words, as suggested by Jeremy

Waldron, the ultimate justification of the principle of participation has to do “with avoiding

the insult, dishonor, or denigration that is involved when one person’s views are treated of

less account than the views of others”99. This dishonor is a violation of the equal autonomy

of individuals, which is, in turn, the ultimate justification for the existence of a legal

system100.

In sum, the participation of the subjects in the process of law-creation seems to be an

indispensable condition for the law to be recognized as authoritative. Thus, the principle of

participation can indeed be said to be “so basic and fundamental as to compose the substratum

from which positive rules may be derived”101, as required by the essentialist method.

96 HABERMAS, supra note at 104. 97 See Cohen, supra note at 99. Habermas argues that it is in these “discursive processes of opinion and will-

formation in which the sovereignty of the people assumes a binding character” (HABERMAS, supra note at 104.) 98 Cohen, supra note at 107–108. See also JOHN RAWLS, A THEORY OF JUSTICE 33–37 (1971); JOHN RAWLS,

POLITICAL LIBERALISM 327–330 (1993); CARLOS SANTIAGO NINO, THE CONSTITUTION OF DELIBERATIVE

DEMOCRACY 128–134 (1996); Roberto Gargarella, Full representation, deliberation,and impartiality, in

DELIBERATIVE DEMOCRACY 260–280 (Jon Elster ed., 1998); JOSÉ LUIS MARTÍ, LA REPÚBLICA DELIBERATIVA.

UNA TEORÍA DE LA DEMOCRACIA 133–175 (2006). 99 JEREMY WALDRON, LAW AND DISAGREEMENT 238 (1999). 100 As explained by Habermas, “at a conceptual level, rights do not immediately refer to atomistic and estranged

individuals who are possessively set against one another. On the contrary, as elements of the legal order they

presuppose collaboration among subjects who recognize one another, in their reciprocally related rights and

duties, as free and equal citizens. This mutual recognition is constitutive for a legal order from which actionable

rights are derived” (HABERMAS, supra note at 88.). 101 Freeman Jalet, supra note at 1085–1086.

– 24 –

Therefore, according to this method, it must also be acknowledged as a general principle of

law.

III. THE PRINCIPLE OF PARTICIPATION AND THE INTERPRETIVE CONTROVERSY

REGARDING THE RIGHTS OF GLOBAL CIVIL SOCIETY IN INTERNATIONAL LAW-MAKING

If either of my two previous arguments (the comparative or the essentialist) are correct,

then the principle of participation is a general principle of law, under article 38.1.c of the

Statute of the ICJ. Hence, it must be taken into account when interpreting other rules of

international law, or when there are gaps in the regulations that are not covered by treaty or

custom102.

For many, this is exactly the current situation regarding the regulation of the admission

of civil society organizations, i.e., voluntary associations of individuals, into international

law-making processes. For the most classic text on international law-making, written by Alan

Boyle and Christine Chinkin, the legal situation is undergoing a slow evolution: the role of

civil society is growing, but it is still “premature to assert that there is a right to access and

participation”103. A similar conclusion -perhaps a bit more optimistic- is reached by another

expert in the field, Steve Charnovitz. He also denies the existence of the right104, but mentions

several pathways that suggest that the obligation will develop in the near future, and holds

that some basic demands are already in place, like freedom of expression in the global public

sphere105. The Committee on Non State Actors (NSAs) of the International Law Association

(ILA) also adopts a dubitative wording regarding the issue: “NSAs may not (…) have a

general right to access and participation” to international law-making, but “there may be said

to be at least an expectation that NSAs are included in [these] deliberative processes”106.

102 See, e.g. Pellet, supra note at 850–854. 103 BOYLE AND CHINKIN, supra note at 57. 104 He states that “the question whether states or IOs have a duty to consult NGOs is an interesting one. The

answer appears to be no at this time” (Charnovitz, supra note at 368–372.). 105 Id. at 368–372.. See also his 2011 piece, in which he states that “while NGOs can be kept on the sidelines

when so-called lawmaking occurs within an IO, there can hardly be any grounds for excluding NGOs from the

conversation that precedes lawmaking”, and that his “own scholarship associates with the minority view and

suggests that state practice is moving toward a duty to consult NGOs in the activities of IOs” (Steve Charnovitz,

The Illegitimacy of Preventing NGO Participation, 36 BROOKLYN J. INT. LAW 891–910, 908, 909 (2011).). 106 ILA, SECOND REPORT OF THE COMMITTEE NON-STATE ACTORS IN INTERNATIONAL LAW: LAWMAKING AND

PARTICIPATION RIGHTS (2012), http://www.ila-hq.org/download.cfm/docid/E1B513C8-FCFF-4F8D-

8C047815E1FDF8AE.

– 25 –

Similar ambiguous conclusions are reached by scholars like Anne Peters107, Anna-Karin

Lindblom108, Cedric Ryngaert109, Barbara Woodward110 and Thomas Kleinlein111.

In this context of legal uncertainty, a general principle of participation can have a crucial

role. In this case, the principle would suggest that the appropriate interpretation of the current

rules is that which is more lenient to admitting the right of these actors to participate in the

law-making processes. However, as a general principle, it would not mandate the specifics

of what the content of this right should be112; rather, it would simply present the interpreters

with a warning that their hermeneutical task should be respectful of an agreement regarding

the nature of legal systems which is now widely shared among civilized nations.

Considering this conclusion, I believe that my overall argument can be criticized from

two very distinct angles. On one flank, some may say that my proposal is insufficiently

ambitious, and that it stops a step short of what we actually need, which are institutions of

global democracy. The participation of different actors in the law-making process is a

positive development, they may say, but the principle can actually be built on the ideal of

democracy, and thus render even better results. Meanwhile, on the other flank, some may

107 See, e.g , Peters, supra note at 221–227; Anne Peters, Till Förster & Lucy Koechlin, Towards Non-State

Actors as Effective, Legitimate, and Accountable Standard-Setters, in NON-STATE ACTORS AS STANDARD

SETTERS , 545 (Anne Peters, Till Förster, & Lucy Koechlin eds., 2009). 108 ANNA-KARIN LINDBLOM, NON-GOVERNMENTAL ORGANISATIONS IN INTERNATIONAL LAW 526 (2006). She

also answers “the question whether there are any elements of this status which are common to all categories of

NGOs throughout the world” by saying that “as regards rights, this is uncertain” (Id. at 520.). However, in the

same page, she states that “the influence that NGOs seem to have in some international fora demonstrates that

the rules that allow for their presence and for their submissions are not just a facade, but evidence of an

acceptance of the participation of NGOs in international legal discourse” (Id. at 520.). 109 For Ryngaert, despite its desirability, “non-state actor participation in international norm-setting processes

remains a ‘discretionary’ decision of relevant bodies and institutions” (Ryngaert, supra note at 81.)

Nevertheless, Ryngaert is a strong supporter of the “creation” of this right: “no liabilities could ensue when the

actors, who are burdened with them are not acknowledged as ‘parties’ in the community, with the concomitant

democratic right to voice opinions and decide on the desirability of any burdens imposed on them” (Id. at 85.). 110 Woodward presents an extensive analysis of the participation of global civil society in international law-

making, and concludes that “though States formally make international law by their consent, to legitimate public

international law, (…) States also need the approval of those likely to be affected” (WOODWARD, supra note at

390.). However, she does not translate this into a legal provision, and cautiously holds that “questions

concerning the role of NGOs and the wider dimensions of Global Civil Society in global governance remain

unanswered in 2009” (Id. at 40.). 111 Kleinlein mentions the existence of potential entitlements to participation, but considers their current

application to the international sphere as still no “more than a legal fiction” (Thomas Kleinlein, Non-state actors

from an international constitutionalist perspective. Participation matters!, in PARTICIPANTS IN THE

INTERNATIONAL LEGAL SYSTEM. MULTIPLE PERSPECTIVES ON NON-STATE ACTORS IN INTERNATIONAL LAW 41–

53, 48 (Jean d’Aspremont ed., 2011).). 112 For an analysis of this point, see Maisley, supra note.

– 26 –

hold that my ideas are exceedingly romantic, that states would never agree to what I am

saying, and that it is unlikely that it will have any practical outcomes.

For an international legal scholar, these criticisms are not surprising. In fact, it is very

likely that I am guilty as charged, in both cases: I am, indeed, both apologetic -as the

ambitious critics would say- and utopian -as the conservative critics would call me-. And I

am neither of them, simultaneously, as well. As Martti Koskenniemi and David Kennedy

have been explaining for several years, a defining element of international law is its

continuous and implausible commitment to both of these contradictory goals113. Every

international legal argument oscillates between these two poles, without being able to free

itself from any of them. Otherwise, it would stop being a legal argument, and would become

either political philosophy or mere realpolitik. Thus, I take these criticisms as what they are:

an inherent part of the project of looking at questions concerning the legitimacy of the

international legal system from the perspective of the mud of the system itself.

However, while it is unavoidable to incur in these problems, I believe that the

combination of these two poles in a single argument can be promising, considering the

potential bridges that could be built between these two shores. These bridges are, indeed,

very much needed. As Philip Allott claimed a few years ago, the international legal system

has not taken sufficient note of the vastly endorsed development of political theory in the

past four centuries. “It is as if the external life of our societies were still a reflection of the

internal life of centuries ago”, Allott writes: “a fitful struggle among Teutonic knights or

European barons or Chinese feudal lords or Japanese shoguns. It is as if Thomas Hobbes

were the world’s only social philosopher. It is as if there had never been Locke and Rousseau

and Kant and Hegel and Marx, let alone Plato and Aristotle and Lao Tzu and Confucius”114.

In sum, it is as if the principles we have widely agreed on at the municipal sphere have had

no impact on the way international relations are governed.

I believe the principle of participation that I tried to prove in this paper can help in this

task of transposing the development of political theory to international relations. Indeed, as

Cheng rightly noted over sixty years ago, this is what principles are for: they are “the paths

113 See MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF THE INTERNATIONAL LEGAL

ARGUMENT (2005); David Kennedy, The Sources of International Law, 2 AM. UNIV. INT. LAW REV. 1–96

(1987). 114 PHILIP ALLOTT, THE HEALTH OF NATIONS. SOCIETY AND LAW BEYOND THE STATE 410 (2004).

– 27 –

which civilized mankind has learned in its long experience in the municipal sphere to be

those leading to justice, and which it would perforce have to follow if it wished to establish

Law and Justice among nations”115. One of such paths seemingly learned by mankind is that

the participation of the subjects is essential for the creation of authoritative regulations. It is

time to transpose this idea to international law.

ANNEX: TABLE OF RESULTS OF THE SURVEY FOR THE COMPARATIVE METHOD

State

General Manifestations Mechanisms for participation

Explicit

Recognition of the

People as Source of

Authority

Ratification

of article 25

of the

ICCPR116

Guarantees of freedom

of expression (including

political matters)

Guarantees of

freedom of

assembly/

association

Right to participate

beyond elections

(petition,

demonstrate,

initiative)

Afghanistan Yes (C, Preamble) Yes Yes (C, 34) Yes (C, 36) No

Albania Yes (C, Preamble) Yes Yes (C, 22.1) Yes (C, 47) Yes (C, 48; 81.1)

Algeria Yes (C, 6) Yes Yes (C, 41) Yes (C, 41) Yes (C, 31)

Andorra Yes (C, Preamble;

C, 3) Yes Yes (C, 12) Yes (C, 16) Yes (C, 23)

Angola Yes (C, Preamble) Yes Yes (C, 40) Yes (C, 47) Yes (C, 73)

Antigua y

Barbuda Yes (C, Preamble) No action Yes (C, 3.b) Yes (C, 3.b)

Yes (C, Preamble,

.c)

Argentina Yes (C, 33) Yes Yes (C, 14) Yes (C, 14) Yes (C, 14; 39)

Armenia Yes (C, Preamble) Yes Yes (C, 27) Yes (C, 29) Yes (C, 27.1)

Australia Dubious (Queen,

Australia Act) Yes

Yes (created by High

Court, ICCPR) Yes (ICCPR)

Yes (SO 69, 70,

71117)

Austria Yes (C, 1) Yes Yes (ECHR) Yes (C, 10.1.7) Yes (C, 11.6; 41.2)

Azerbaijan Yes (C, 1.I) Yes Yes (C, 47) Yes (C, 49) Yes (C, 57; 96)

Bahamas Yes (C, Preamble) Yes Yes (C, 23) Yes (C, 24) No

Bahrain Yes (C, 1.D) Yes Yes (C, 23) Yes (C, 28) Yes (C, 29)

Bangladesh Yes (C, Preamble) Yes Yes (C, 39) Yes (C, 37) Yes (C, 11)

Barbados Yes (C, Preamble) Yes Yes (C, 20.1) Yes (C, 21.1) Yes (C, Preamble,

.c)

Belarus Yes (C, Preamble) Yes Yes (C, 33) Yes (C, 35) Yes (C, 40)

Belgium Dubious (Popular

Monarchy) Yes Yes (C, 19) Yes (C, 26) Yes (C, 28)

Belize Yes (C, Preamble,

item c) Yes Yes (C, 12) Yes (C, 13)

Yes (C, Preamble,

.c)

Benin Yes (C, Preamble) Yes Yes (C, 23) Yes (C, 25) Yes (C, 25)

Bhutan Yes (C, 1) No action Yes (C, 7.2) Yes (C, 7.12) Yes (C, 22.1)

Bolivia Yes (C, Preamble) Yes Yes (C, 21; C, 106) Yes (C, 21.4) Yes (C, 24; 162.1)

Bosnia and

Herzegovin

a

Yes (C, 2) Yes Yes (C, 3.h) Yes (C, 3.i) No

Botswana Yes (C, 1) Yes Yes (C, 12) Yes (C, 13) No

115 CHENG, supra note at 386 & 394. 116 Data from http://indicators.ohchr.org/ and

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en#35 117 See http://www.aph.gov.au/Parliamentary_Business/Petitions/Senate_Petitions/rules

– 28 –

Brazil Yes (C, 1) Yes Yes (C, 220) Yes (C, 5.XVI) Yes (C, 5.XXXIV.a;

14.III)

Brunei

Darussalam No (Sultan) No action No No No

Bulgaria Yes (C, Preamble) Yes Yes (C, 39) Yes (C, 43) Yes (C, 45)

Burkina

Faso Yes (C, Preamble) Yes Yes (C, 8) Yes (C, 7) Yes (C, 30; 98)

Burundi Yes (C, Preamble) Yes Yes (C, 31) Yes (C, 32) Yes (C, 51)

Cambodia Yes (C, Preamble) Yes Yes (C, 41) Yes (C, 41) Yes (C, 35, 39)

Cameroon Yes (C, 2.1) Yes Yes (C, Preamble, 16) Yes (C, Preamble,

16) No

Canada Dubious (Queen,

Canada Act) Yes Yes (C, I.B.2.b) Yes (C, B.2.c) Yes (SO 36)

Cape Verde Yes (C, 1.3; C, 2.1) Yes Yes (C, 45.1) Yes (C, 52.1) Yes (C, 57; 109)

Central

African

Republic

Yes (C, 20) Yes Yes (C, 14) Yes (C, 8, 14) Yes (C, 58.2)

Chad Yes (C, Preamble) Yes Yes (C, 27) Yes (C, 27) No

Chile Yes (C, 5) Yes Yes (C, 19.12) Yes (C, 19.13) Yes (C, 19.14)

China Yes (C, 2) Signatory Yes (C, 35) Yes (C, 35) Yes (C, 41)

Colombia Yes (C, Preamble) Yes Yes (C, 20) Yes (C, 37) Yes (C, 23; 103,

155, 375)

Comoros Yes (C, Preamble) Signatory Yes (C, Preamble) Yes (C, Preamble) No

Congo Yes (C, 2) Yes Yes (C, 19) Yes (C, 21) Yes (C, 40)

Congo

(Democratic

Republic)

Yes (C, Preamble) Yes Yes (C, 23) Yes (C, 25-26) Yes (C, 27)

Costa Rica Yes (C, Preamble) Yes Yes (C, 29) Yes (C, 26) Yes (C, 27; 102,

105, 123, 124)

Côte

d'Ivoire Yes (C, Preamble) Yes Yes (C, 9-10) Yes (C, 11) No

Croatia Yes (C, 1) Yes Yes (C, 38) Yes (C, 42) Yes (C, 46)

Cuba Yes (C, Preamble) Signatory Yes, but only if

socialist (C, 53) Yes (C, 54) Yes (C, 63; 88.g)

Cyprus Yes (C, 1) Yes Yes (C, 19.1) Yes (C, 21.1) Yes (C, 29)

Czech

Republic Yes (C, Preamble) Yes Yes (CoR, 17) Yes (C, 19.1) Yes (C, 29)

Denmark No (King) Yes Yes (C, 77) Yes (C, 79) Yes (C, 54)

Djibouti Yes (C, Preamble) Yes Yes (C, 15) Yes (C, 15) No

Dominica Yes (C, Preamble,

item c) Yes Yes (C, 10.1) Yes (C, 11.1) No

Dominican

Republic Yes (C, Preamble) Yes Yes (C, 49) Yes (C, 48)

Yes (C, 22.4; 22.3,

97)

Ecuador Yes (C, Preamble) Yes Yes (C, 45, 66) Yes (C, 66.13) Yes (C, 66.23; 61.3,

103, 134)

Egypt Yes (C, Preamble) Yes Yes (C, 65) Yes (C, 73) Yes (C, 85; 138)

El Salvador Yes (C, 83) Yes Yes (C, 6) Yes (C, 7) Yes (C, 18)

Equatorial

Guinea Yes (C, Preamble) Yes Yes (C, 13.b.i) Yes (C, 13.k) Yes (C, 13.h)

Eritrea Yes (C, Preamble) Yes Yes (C, 19.2.2) Yes (C, 19.5) Yes (C, 32.11)

Estonia Yes (C, Preamble) Yes Yes (C, 45) Yes (C, 47) Yes (C, 46)

Ethiopia Yes (C, Preamble) Yes Yes (C, 29) Yes (C, 30.1) Yes (C, 30.1)

Fiji Yes (C, Preamble) No action Yes (C, 17) Yes (C, 18) Yes (C, 18)

Finland Yes (C, 2) Yes Yes (C, 12) Yes (C, 13) Yes (C, 109; 53;

POA, 2)

France Yes (C, 2) Yes Yes (DoCR, 11) Yes (LoFA, 1) Yes (C, 72.1)

Gabon Yes (C, Preamble) Yes Yes (C, 1.2) Yes (C, 1.13) No

Gambia Yes (C, Preamble;

C, 1.2) Yes Yes (C, 1.a) Yes (C, 25.1d) Yes (C, 25.1.f)

Georgia Yes (C, Preamble) Yes Yes (C, 19) Yes (C, 25-26) Yes (C, 5.2; 67.1)

– 29 –

Germany Yes (C, Preamble) Yes Yes (C, 5.1) Yes (C, 9.1) Yes (C, 17; 29)

Ghana Yes (C, Preamble) Yes Yes (C, 21.1.a) Yes (C, 21.1.d) Yes (C, 21.3, 37.2)

Greece Yes (C, 1.2) Yes Yes (C, 14.1) Yes (C, 11.1) Yes (C, 10)

Grenada No (Queen, Gov.

Gral) Yes Yes (C, 10) Yes (C, 11.1) No

Guatemala Yes (C, Preamble) Yes Yes (C, 35) Yes (C, 33) Yes (C, 28)

Guinea Yes (C, Preamble) Yes Yes (C, 7) Yes (C, 10) Yes (C, 10)

Guinea-

Bissau Yes (C, Preamble) Yes Yes (C, 44) Yes (C, 44) Yes (C, 43.2)

Guyana Yes (C, Preamble) Yes Yes (C, 146) Yes (C, 147) Yes (C, 13)

Haiti Yes (C, Preamble) Yes Yes (C, 28) Yes (C, 31) Yes (C, 29)

Honduras Yes (C, Preamble) Yes Yes (C, 72, 74) Yes (C, 78) Yes (C, 79-80; 5;

213)

Hungary Yes (C, Preamble) Yes Yes (C, 1.1) Yes (C, VIII.1) Yes (C, XXV; 8)

Iceland Yes (C, 1) Yes Yes (C, 73) Yes (C, 74) No

India Yes (C, Preamble) Yes Yes (C, 19.1.a) Yes (C, 19.1.b) No

Indonesia Yes (C, 1.2) Yes Yes (C, 28E.2) Yes (C, 28E.3) No

Iran Yes (C, Preamble) Yes Yes (C, 24), if not

against Islam

Yes (C, 27), if not

against Islam Yes (C, 90)

Iraq Yes (C, Preamble;

C, 5) Yes Yes (C, 38) Yes (C, 38) Yes (C, 20)

Ireland Yes (C, Preamble) Yes Yes (C, 40.6.1) Yes (C, 40.6.1) Yes (PoRA)

Israel Yes (DoI) Yes Yes (Court creation) Yes (Court

creation) No

Italy Yes (C, 1) Yes Yes (C, 21) Yes (C, 17) Yes (C, 50; 71; 75)

Jamaica No (Queen) Yes Yes (C, 22) Yes (C, 23) No

Japan Yes (C, Preamble) Yes Yes (C, 21) Yes (C, 21) Yes (C, 16)

Jordan No (King) Yes Yes (C, 15.1) Yes (C, 16.1) Yes (C, 17)

Kazakhstan Yes (C, Preamble) Yes Yes (C, 20.1) Yes (C, 32) Yes (C, 33.1)

Kenya Yes (C, Preamble) Yes Yes (C, 33.1) Yes (C, 37) Yes (C, 119; 257)

Kiribati Yes (C, Preamble,

item 1) No action Yes (C, 12) Yes (C, 3.b) No

Korea

(Democratic

People’s

Republic)

Dubious (Great

Leader “represents

the interests of

people”)

Intended

withdrawal

(1997)

Yes (C, 67) Yes (C, 67) Yes (C, 69)

Korea

(Republic

of)

Yes (C, Preamble) Yes Yes (C, 21) Yes (C, 21) Yes (C, 26)

Kuwait No (Amir)

Reservatio

n to art.

25(b): only

male vote

Yes, but subject to the

conditions specified by

law (C, 36)

Yes (C, 44) Yes (C, 45)

Kyrgyzstan Yes (C, Preamble) Yes Yes (C, 31.2) Yes (C, 34) Yes (C, 41, 52.2;

79)

Lao

People’s

Democratic

Republic

Yes (C, 2) Yes Yes (C, 44) Yes (C, 44) Yes (C, 41)

Latvia Yes (C, Preamble) Yes Yes (C, 100) Yes (C, 103) Yes (C, 104; 65; 78)

Lebanon Yes (C, D) Yes Yes (C, 13) Yes (C, 13) No

Lesotho Dubious

(“Democratic

Kingdom”)

Yes Yes (C, 14) Yes (C, 4.1.k) Yes (C, 4.1.p)

Liberia Yes (C, Preamble) Yes Yes (C, 15) Yes (C, 17) Yes (C, 17)

Libya Dubious

(transitional

constit.)

Yes Yes (C, 14) Yes (C, 14) Yes (C, 14)

Liechtenstei

n No (Prince) Yes Yes (C, 40) Yes (C, 41) Yes (C, 42; 64.1)

Lithuania Yes (C, Preamble) Yes Yes (C, 25) Yes (C, 36) Yes (C, 33; 68)

– 30 –

Luxembour

g

Dubious (Grand

Duke exercises

power that resides

in nation)

Yes Yes (C, 24) Yes (C, 25) Yes (C, 27)

Macedonia Yes (C, Preamble) Yes Yes (C, 16) Yes (C, 21) Yes (C, 24; 71)

Madagascar Yes (C, Preamble) Yes Yes (C, 10) Yes (C, 10) Yes (C, 139)

Malawi Yes (C, Preamble) Yes Yes (C, 35) Yes (C, 38) Yes (C, 40.1.c)

Malaysia No (Supreme

Head) No action

Yes (C, 10.1) but some

political topics can be

excluded

Yes (C, 10.1) but

some political

topics can be

excluded

No

Maldives Yes (C, 4) Yes Yes (C, 27) if not

contrary to Islam Yes (C, 32) Yes (C, 99, 172)

Mali Yes (C, Preamble) Yes Yes (C, 4) Yes (C, 5) Yes (C, 107)

Malta Yes (C, 1.1) Yes Yes (C, 41) Yes (C, 32.b) Yes (C, 42.3)

Marshall

Islands Yes (C, Preamble) No action Yes (C, II.1.1) Yes (C, II.1.1)

Yes (C, II.1.1;

XII.4.7)

Mauritania Yes (C, 2) Yes Yes (C, 10) Yes (C, 10) Yes (C, 19)

Mauritius Yes (C, 31) Yes Yes (C, 12.1) Yes (C, 13.1) No

Mexico Yes (C, 39) Yes Yes (C, 6-7) Yes (C, 9) Yes (C, 8, 35)

Micronesia Yes (C, Preamble) No action Yes (C, IV.1) Yes (C, IV.1) Yes (C, IV.1)

Moldova Yes (C, Preamble) Yes Yes (C, 32.1) Yes (C, 40) Yes (C, 52)

Monaco No (Monarchy)

Declaration

that art. 25

is

notwithstan

ding

monarchy

Yes (C, 23) Yes (C, 29) Yes (C, 31)

Mongolia Yes (C, Preamble) Yes Yes (C, 16.16) Yes (C, 16.16) Yes (C, 16.12)

Montenegro Yes (C, Preamble) Yes Yes (C, 46-47) Yes (C, 52) Yes (C, 57; 93)

Morocco Dubious (“Democ.

Monarchy”) Yes Yes (C, 28) Yes (C, 29) Yes (C, 14; 15)

Mozambiqu

e Yes (C, 2.1) Yes Yes (C, 48.1) Yes (C, 51) Yes (C, 79)

Myanmar Yes (C, Preamble) No action Yes (C, 354.a) Yes (C, 354.b) Yes (C, 28.b; 383.c)

Namibia Yes (C, Preamble) Yes Yes (C, 21.1.a) Yes (C, 21.1) Yes (C, 17.1)

Nauru Yes (C, Preamble) Signatory Yes (C, 12.1) Yes (C, 3.b) No

Nepal Yes (C, Preamble) Yes Yes (C, 3.12.3.a) Yes (C, 12.3.b) Yes (C, 33.c)

Netherlands

Dubious (King not

responsible for

acts of gov., C,

42.2)

Yes Yes (C, 7) Yes (C, 8-9) Yes (C, 5)

New

Zealand

Dubious (Queen,

Statute of

Westminst.)

Yes Yes (BoR, 14) Yes (BoR, 16) Yes (TWA, 9)

Nicaragua Yes (C, Preamble) Yes Yes (C, 30) Yes (C, 54) Yes (C, 52; 2; 140)

Niger Yes (C, Preamble) Yes Yes (C, 30) Yes (C, 32) Yes (C, 31)

Nigeria Yes (C, Preamble) Yes Yes (C, 39.1) Yes (C, 40) Yes (C, 14.2.c)

Norway No (King) Yes Yes (C, E.100) Yes (C, E.101) Yes (C, E.101)

Oman No (Sultan) No action

Yes (C, 31), but

anything that leads to

discord is prohibited

Yes (C, 32) Yes (C, 34)

Pakistan

Yes (although

ultimate authority is

said to rest on

Allah)

Reservatio

n (only

Muslim

President

and

Ministers)

Yes (C, 19), but with

restrictions based,

among others, on

Islam

Yes (C, 16) Yes (C, 203.D), but

only based on

Islam

Palau Yes (C, Preamble) Signatory Yes (C, IV.2) Yes (C, IV.3)

Yes (C, IV.3,

IX.4.c, IX.17;

XIII.3)

– 31 –

Panama Yes (C, 2) Yes Yes (C, 37) Yes (C, 38) Yes (C, 41; 239)

Papua New

Guinea Yes (C, Preamble) Yes Yes (C, 46) Yes (C, 47) Yes (C, 2.9)

Paraguay Yes (C, Preamble) Yes Yes (C, 26) Yes (C, 32) Yes (C, 40; 123)

Peru Yes (C, Preamble) Yes Yes (C, 2) Yes (C, 2.12) Yes (C, 2.20; 31;

107)

Philippines Yes (C, Preamble) Yes Yes (C, 4) Yes (C, 4) Yes (C, 4; VI.32)

Poland Yes (C, Preamble) Yes Yes (C, 54.1) Yes (C, 57) Yes (C, 63; 118.2)

Portugal Yes (C, Preamble) Yes Yes (C, 37) Yes (C, 45.1) Yes (C, 52; 167.1)

Qatar

Dubious (Emir,

but “the people are

the source of

powers”, C, 59)

No action Yes (C, 47-48) Yes (C, 44) Yes (C, 46)

Romania Yes (C, 2.1) Yes Yes (C, 30) Yes (C, 39) Yes (C, 51; 74.1)

Russian

Federation Yes (C, Preamble) Yes Yes (C, 29.1) Yes (C, 31) Yes (C, 33)

Rwanda Yes (C, Preamble) Yes Yes (C, 34) Yes (C, 36) Yes (C, 45)

Saint Kitts

and Nevis Yes (C, Preamble) No action Yes (C, 12) Yes (C, 13) No

Saint Lucia Yes (C, Preamble) Signatory Yes (C, 10.1) Yes (C, 1.b) Yes (C, 112.3.a)

Saint

Vincent and

the

Grenadines

Yes (C, Preamble) Yes Yes (C, 10) Yes (C, 11) No

Samoa Yes (C, Preamble) Yes Yes (C, 13.1.a) Yes (C, 13.1.b) No

San Marino Yes (DoCR, 2) Yes Yes (DoCR, 6) Yes (DoCR, 6) Yes (DoCR, 2;

L101)

Sao Tome

and Principe Yes (C, 6.2) Signatory Yes (C, 28.1) Yes (C, 33) Yes (C, 59)

Saudi

Arabia No (King) No action No No Yes (C, 43)

Senegal Yes (C, Preamble) Yes Yes (C, 10) Yes (C, 8) Yes (C, 102)

Serbia Yes (C, Preamble) Yes Yes (C, 46) Yes (C, 54) Yes (C, 56; 105;

107)

Seychelles Yes (C, Preamble) Yes Yes (C, 22.1) Yes (C, 23.1) Yes (C, 24.1.a)

Sierra

Leone Yes (C, 5.2.a) Yes Yes (C, 25.1) Yes (C, 15.b) Yes (C, 5.2.c)

Singapore Yes (C, 3) No action Yes (C, 14.1.a) Yes (C, 14.1.b) No

Slovakia Yes (C, Preamble) Yes Yes (C, 26.1) Yes (C, 28) Yes (C, 27)

Slovenia Yes (C, Preamble) Yes Yes (C, 39) Yes (C, 42) Yes (C, 45;

IV.A.88)

Solomon

Islands

Yes (C, Preamble,

item a) No action Yes (C, 12) Yes (C, 3.b)

Yes (C, Preamble,

.e)

Somalia Yes (C, 1.1.) Yes Yes (C, 18) Yes (C, 20.1) Yes (C, 20.2)

South

Africa Yes (C, Preamble) Yes Yes (C, 16) Yes (C, 17) Yes (C, 17)

South Sudan Yes (C, Preamble;

C, 3) No action Yes (C, 24) Yes (C, 25) Yes (C, 26.1)

Spain Yes (C, Preamble) Yes Yes (C, 20.1.a) Yes (C, 21) Yes (C, 29.1; 87.3)

Sri Lanka Yes (C, Preamble) Yes Yes (C, 14.1.a) Yes (C, 14.1.b) Yes (C, 27.4)

Sudan Yes (C, Preamble) Yes Yes (C, 39) Yes (C, 40) Yes (C, 4.d)

Suriname Yes (C, Preamble) Yes Yes (C, 19) Yes (C, 20) Yes (C, 22.1)

Swaziland Yes (C, Preamble) Yes Yes (C, 24.1) Yes (C, 25) Yes (C, 58.1)

Sweden Yes (C, 1) Yes Yes (IoG, 2.1.1) Yes (IoG, 2.1.1) Yes (IoG, 2.1.1)

Switzerland Yes (C, Preamble)

Yes, with

reservation

for direct

democracy

Yes (C, 16) Yes (C, 22) Yes (C, 33; 136-

139; 193-194)

Syrian Arab

Republic Yes (C, 2) Yes Yes (C, 42.2) Yes (C, 44) Yes (C, 44)

– 32 –

Tajikistan Yes (C, Preamble) Yes Yes (C, 30) Yes (C, 28) Yes (C, 31)

Thailand No (King) Yes Dubious (“all human

rights”)

Dubious (“all

human rights”)

Dubious (“all

human rights”)

Timor-Leste Yes (C, 2.1) Yes Yes (C, 40.1) Yes (C, 42) Yes (C, 48)

Togo Yes (C, Preamble) Yes Yes (C, 26) Yes (C, 30) Yes (C, 30)

Tonga No (King) No action Yes (C, 7), but with

protection for King Yes (C, 8) Yes (C, 8)

Trinidad

and Tobago Yes (C, Preamble) Yes Yes (C, 4.i) Yes (C, 4)

Yes (C, Preamble,

.c)

Tunisia Yes (C, Preamble) Yes Yes (C, 31) Yes (C, 37) Yes (C, 139)

Turkey Yes (C, Preamble) Yes Yes (C, 26) Yes (C, 34) Yes (C, 74)

Turkmenista

n Yes (C, Preamble) Yes Yes (C, 28) Yes (C, 29) Yes (C, 29; 95)

Tuvalu Yes (C, Preamble) No action Yes (C, 24) Yes (C, 25) No

Uganda Yes (C, Preamble;

C, 1.1.3) Yes Yes (C, 29.1) Yes (C, 29.1.d) Yes (C, 29.1.d; 255)

Ukraine Yes (C, Preamble) Yes Yes (C, 34) Yes (C, 39) Yes (C, 40)

United Arab

Emirates No (Rulers of the

Emirates) No action Yes (C, 30) Yes (C, 33) Yes (C, 41)

United

Kingdom Dubious (Queen,

but Parliam. Sov.) Yes Yes (HRA, 5.12, 1.10) Yes (HRA, 11) Yes (BoR, 21)

United

Republic of

Tanzania

Yes (C, Preamble) Yes Yes (C, 18.1) Yes (C, 20.1) Yes (C, 21.2)

United

States of

America

Yes (C, Preamble) Yes Yes (A1) Yes (A1) Yes (A1)

Uruguay Yes (C, 1; C, 4) Yes Yes (C, 29) Yes (C, 38) Yes (C, 30; 79; 82)

Uzbekistan Yes (C, Preamble) Yes Yes (C, 29) Yes (C, 33) Yes (C, 33, 35)

Vanuatu Yes (C, Preamble) Yes Yes (C, 5.1.g) Yes (C, 5.1.h) Yes (C, 6.1)

Venezuela Yes (C, Preamble) Yes Yes (C, 57) Yes (C, 53) Yes (C, 51; 70)

Viet Nam Yes (C, Preamble) Yes Yes (C, 25) Yes (C, 25) Yes (C, 30)

Yemen Yes (C, Preamble) Yes Yes (C, 42) Yes (C, 58) Yes (C, 51)

Zambia Yes (C, Preamble) Yes Yes (C, 20) Yes (C, 21) Yes (C, Preamble)

Zimbabwe Yes (C, Preamble;

C, 6.1.117.1) Yes Yes (C, 61) Yes (C, 58) Yes (C, 59)

References:

C: Constitution

DoI: Declaration of Independence

DoCR: Declaration of Citizens’ Rights

CoR: Charter of Rights

BoR: Bill of Rights

IoG: Instrument of Government

HRA: Human Rights Act

A: Amendment

SO: Standing Order

POA: Parliamentary Ombudsman Act

LoFA: Law on Freedom of Assembly

PoRA: Petitions of Rights Act

TWA: Treaty of Waitanga Act

L101: Law N°101