1 - Whose public? Which law? Mapping the internal/external distinction in international law

Summary

a. A violent order is a disorder; and

b. A great disorder is an order. These

Two things are one.

– Wallace Stevens

Introduction

The chapters in this volume address different aspects of the same basic dilemma: how to understand the conceptual relationship between the rights of states and the rights of individuals. Classic Westphalianism offers a relatively clear picture. The fundamental rights and duties of states, regardless of their ‘private’ belief systems, forms of political organisation or cultures, are to be determined by that body of customary and consensual norms known as ‘public’ international law. The fundamental rights and duties of individuals, regardless of their ‘private’ comprehensive religious, philosophical or moral doctrines, are to be determined by that body of constitutional, administrative and criminal norms known as ‘public’ law. The former defines the ‘sovereignty’ of states as subjects of an international community; the latter defines the ‘liberty’ of individuals as subjects of a national community in the form of a state.

In each case a particular distinction between ‘public’ and ‘private’ spheres, and a particular conception of fundamental rights, is advanced. These approaches in turn generate the distinctive internal/external dichotomies and contradictions that characterise both fields of law. It is critical to realise at the outset, however, that the underlying rationale of the move to ‘public law’, whether domestic or international, is to establish the conditions necessary for community and social order by limiting the freedom of legal subjects.