The ‘Open System’ and Its Gatekeepers: From Complexity in International Law, a Seminar in Honour of James Crawford

Abstract

Abstract No account of international law in the modern era would be intelligible without an account of the non-State actor in international law. However, States in no small part continue to set the terms by which others now share the stage. How States set the terms—and how to address the problems arising from the terms they set—are central questions for international law and the organs that apply it. The roles that non-state actors play have been routinized, for example in treaty arbitration. As a result, we sometimes forget that the starting point for what James Crawford called international law’s ‘open system’ is still the State. Non-State actors enter the system more readily than before, but, if we are to understand the continuing limitations on their rights, duties and functions in international law, then we should keep sight of how it is they enter: States are the gatekeepers of the open system, and, even if the terms of access are more liberal and more parties seek access than ever, States still decide who gets in.