From Dichotomy to Trichotomy

Abstract

In an era of increasing global interconnection, there has been growing recognition that the interests of individuals and non-state actors should be incorporated into international law. However, whilst some areas of international law have developed to keep pace with changing dynamics, others are lagging behind. In particular, international human rights law has failed to keep pace and evolve. There is a certain irony in the fact that human rights law is lagging behind other areas of law since the primary way that international law has historically been stated to take account of the individual is through international human rights. But, in practice, international human rights law has been conceived of as a system of law that regulates the acts and omissions of states in relation to persons within their own territory. It has not traditionally governed relationships between states and the global individual. It has become increasingly obvious that this framework is not sufficient and can result in gaps in protecting individuals from human rights violations. If a state closes their borders to refugees, hoards vaccines, or ignores the effects of their commercial activities and carbon emissions, individuals all over the world are affected. As a result, there has been a movement to develop international human rights law. However, little normative work has been done to justify the law evolving in this direction. In response, the thesis offers a normative argument for human rights obligations that govern the relationships between the state and individuals beyond their borders and develops a lost strand of Kantian thought for the creation of ‘cosmopolitan law’ as a category of public law that governs the relationship between states and foreign nationals. The Kantian approach transcends the idea that international law ought to further incorporate the individual as a subject of international law. Instead, it suggests that there ought to be a category of law that regulates the relations between states and persons beyond their borders that prioritises the rights of individuals. In line with this Kantian approach, the thesis advocates for the evolution of the global legal order from a bivalent system, which recognises only domestic and international law, to a trivalent system, which also recognises cosmopolitan law. Thus, the thesis proposes that the global legal order be advanced from dichotomy to trichotomy.