Jean Monnet Center at NYU School of Law

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Access of private parties to international dispute settlement, that is, the settlement of disputes between states and private parties of another state governed by substantive and procedural rules of international law, is a key issue of international law. The reason is two-fold. First, this paper embraces the view that, for the individual to be fully recognized as a subject of international law, her substantive rights must be accompanied by the procedural capacity to enforce them. Substantive and procedural rights are two sides of the same coin, the coin being that of a complete and articulated subjectivity of international law, whereby the individual could fully enjoy an adequate and effective protection and participate in the process of international law. On the other hand, without this procedural capacity, private parties' substantive rights under international law would only be nominal, and thus quite meaningless. Full subjectivity of the individual is also relevant for the purposes of democratizing the process of international law, and recognizing the key role played by the individual in our contemporary society. Second, those international dispute settlement mechanisms which have accorded access of private parties, mostly in the areas of international economic activities and human rights, have served as the Trojan horse for the individual to penetrate the realm of international law. The practice of international law derived from and represented by these dispute settlement mechanisms has contributed, in a decisive manner and especially in this century, to defeat the strong, long-lasting and anachronistic yet prevailing positivist view whereby states are the only subjects of rights and duties of international law, and individuals are its mere objects.

This paper starts with the historical and theoretical framework in which the issue of the individual's subjectivity has been debated, and takes a position on this issue; this framework also comprises an overview of the developments in the practice of international law up to the first half of this century in respect of individual's access to international dispute settlement. Then, in Part II, it moves to the discussion of the traditional mechanism of diplomatic protection, that has been for a long time, and still is in some areas of international law, the indirect and sole way to enforce the rights of private parties. In particular, this discussion highlights the limits of diplomatic protection and the need to look for better alternative models where the private parties play a direct and more active role in enforcing their rights. Delocalization of international dispute settlement is deemed to be the key element of these alternatives. Once the general discussion is completed, the paper pursues what is perhaps its most ambitious goal: the comparative analysis of the main existing mechanisms that accord access of private parties, and are established in the context of international organizations and treaties. The discussion of these mechanisms focuses on those elements of a more direct relevance for the issue of access of private parties, and the comparison seeks to take place on an horizontal level, that is, by looking at how these same elements are present and regulated in the various mechanisms. Finally, the paper speculates on the necessity and the opportunity to open up to private parties the currently state-to-state mechanism for the settlement of international trade disputes.

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