A growing body of scholarship suggests that we live in an age of global legal pluralism. The heterogeneous, fluid, functionally fragmented, and uncertain architecture of international law gives rise to overlaps and lacunae in governance; a given set of actions may be governed by an assortment of regimes or none at all. The classic question of ‘who governs?’^{Footnote 1} warrants more complicated answers than ever. Nevertheless, most existing research is concerned with high-level conflicts among regimes, while scholars have paid scant attention to the subjects of global legal pluralism. Once norm-making power is no longer monopolized by the state but dispersed among sub-, supra- and transnational institutions, what happens to individuals as subjects of the law? With the multiplication of legal orders, individuals may be recognized as subjects under several canopies of law and may have access to uncertain and shifting constellations of rights and remedies. How are questions of standing, rights, privileges, remedies, entitlements, responsibilities and political participation reconfigured when jurisdictions are no longer autarkic and contiguous but composite and contested? What kind of rights, duties and recourses can natural and legal persons expect to derive from the global multiplication of legal regimes? Does the proliferation of legal orders mean that individuals get more rights? Do some individuals get more than others? Who or what determines the level of protection, and is it enhanced or diminished by pluralism? What kinds of asymmetries exist vis-à-vis rights, entitlements and obligations within a plural landscape, and how are they constituted? Is there a rift between the entitlements of legal and natural persons? Does pluralism create new forms of political agency by opening up opportunities for voicing a more diverse array of claims? Does it do so for a select few? How do interactions between local, national, regional and global levels affect the constitutional status of individuals within the domestic context? This special issue investigates these questions from a variety of perspectives including those of constitutional theory, European Union law and public international law, and as they arise within substantive areas such as trade, human rights, criminal responsibility, corporate social responsibility and the environment.

One of the key considerations that motivate this special issue is the contention that global legal pluralism not only qualifies the authority claims of states, but also affects individuals, who have hitherto relied solely on their status as members of a sovereign body politic for legal recognition. In a state-centred international legal order, the status of individuals is analytically straightforward if empirically messy: international law applies to states while individuals, for the most part, fall within the determinate jurisdiction of a given state. Seen through this lens, pluralism is novel partly because legal regimes beyond the state have begun to extend special forms of recognition (whether legal status, rights or participatory opportunities) to private actors, whether legal or natural persons.^{Footnote 2} Miguel Maduro terms this gradual process the ‘subjectivation’ of international law.^{Footnote 3} To be sure, subjectivation is a relatively recent and underdeveloped process. In many areas of international law, it may be seen as inapplicable or insignificant. In other areas, there is a significant burden of showing whether private actors can be meaningfully described as the subjects of international regimes alongside states.

In recent years, there have been area-specific investigations of the emerging forms of individual rights, responsibilities and remedies, not least in the fields of international economic institutions, investment law and transnational arbitration, environmental law and human rights. Similarly, scholars of law and political science have offered normative frameworks for understanding the kinds of political agency exercised by legal and natural persons in the international realm.^{Footnote 4} And yet, the question of the status of private persons (both natural persons and fictional ones such as corporations) under global legal pluralism implicates a wide array of substantive areas of law and policy, which calls for a collaborative effort that draws on the specializations of multiple scholars. The substantive areas of law addressed in this special issue have been chosen to highlight recent and consequential legal developments, and to document areas where subjectivation has made some headway and whom it has empowered.

As such, the present special issue takes up a challenge issued by the editors of Global Constitutionalism in their first Editorial, namely that of investigating ‘how the interaction between different political and legal orders impacts on the fundamental rights of individuals in ways that deserve much more attention’.^{Footnote 5} In so doing, one of our primary goals is to draw on the specialized knowledge of scholars of law and political science as to whether the kinds of overlap and conflict they observe in their respective fields of research affect the ability of individuals to shape and challenge the exercises of power that affect them.

In investigating the changing status of individuals under global legal pluralism, contributors to this special issue have been asked to address the following questions:

1. 1. In the area(s) of law that you address, does the multiplication of relevant legal regimes, and the shift, if any, to global governance mechanisms,

   1. i. Affect the accountability of states and other global actors?

   2. ii. Improve or diminish the overall protection of individuals (rights, remedies)?

   3. iii. Affect the level of responsibility of natural and legal persons?

2. 2. The existence of a plurality of regimes governing the same set of phenomena could result in norm conflict or system integration,^{Footnote 6} inter-institutional standoff or dialogic accommodation, the crystallization of shared principles or the entrenchment of differences. What are the tools, if any, that judicial bodies use to deal with regime overlap? How are alternative modes of accommodation played out in the area(s) you address, and what are the consequences for the rights, remedies and responsibilities of natural and legal persons?

3. 3. Legal pluralism has sometimes been presented as a democratizing force, one that enables individuals to counter the hegemony of the state or of other dominant interests. Does pluralism create new forms of political agency, and what happens to old forms of political agency? Do you see a multiplication of ‘ports of entry’^{Footnote 7} in the area(s) of law you address? If so, who are its beneficiaries?

These questions can only be addressed by drawing on multiple substantive areas of law. That said, this special issue does not claim to exhaustively address them, but aims to provide a starting point for a cross-disciplinary debate on the important but patchy and disparate ways in which the declining primacy of the sovereign state and the multiplication of sources of law in the realm of global governance affect the status of individuals.

The special issue leaves the meaning of global legal pluralism open in order to allow each contributor to elaborate on what they consider to be pluralistic developments in their substantive fields of focus. In her article Isiksel provides one such account of global legal pluralism as a descriptive and normative position. From a conceptual lens, Isiksel highlights three distinct understandings of what global legal pluralism might entail; first, as a hypothesis about the nature of law as a multivocal social medium; second, as the coexistence of diverse legal orders within a given space (whether territorial, personal, functional or global); and third, as the pluralism of ordering principles that purport to govern the relationships between a multitude of legal orders. That said, Isiksel’s main focus is on the difficulties associated with fashioning pluralism into a prescriptive vision of global order. In the absence of substantial principles of political legitimacy such as democracy, freedom, equality or justice, Isiksel argues, pluralism is a normatively underdetermined principle and therefore inadequate as a guide for adjudicating the conflicts and overlaps generated by the fact of legal pluralism.

In their article, de Wet and Vidmar investigate whether or not judicial bodies, faced with multiple overlapping legal norms, resolve norm conflicts in a way that favours international human rights obligations (not least jus cogens norms). They find that adjudicators often shy away from attributing a hierarchical structure of international norms so as to place human rights in a superordinate position, instead preferring a conciliatory approach that downplays the extent of norm conflict and refuses to commit to a hierarchical conception of international law. Because courts are anxious to smooth over norm conflicts, the authors argue, they can end up whittling down the scope of rights protections for the sake of reconciling the regimes in question. That, in turn, suggests that an abundance of legal sources does not necessarily favour the rights of individuals or the status of rights norms in international law.

Examining the prolific debate on counterterrorist sanctions adopted against individuals in the UN, EU and national contexts, Eckes argues that such sanctions count as ‘extreme’ examples of pluralism in the global legal sphere insofar as they entail competing claims of ultimate authority. Even where the result of litigation is to honour an international obligation, Eckes argues that if the decision is motivated by ‘the internal logic of the domestic constitutional framework’, it strengthens pluralism rather than amalgamating different sources of law. Like Isiksel, Eckes warns that a simple acceptance of pluralism (which is implicit in each legal order’s decision to resolve a norm conflict with reference to its own indigenous norms) can discourage the articulation of shared principles and values that can aid in resolving conflicts. This can only be mitigated if courts relate their decisions to external normative points of reference, such as international (human rights) treaties and decisions of other courts. Indeed, in the specific case of counterterrorist sanctions, attempts to relate to the outside have increased (e.g., the 2012 Nada case of the European Court of Human Rights).

Thies’s article looks at the impact of the European Union’s membership of the World Trade Organization (WTO) in the context of international trade disputes. The article focuses on the scope of the rights and remedies of traders who are affected by retaliation by other WTO members in response to EU breaches of WTO law in accordance with the dispute settlement system of the WTO (Bananas and Hormones cases). Thies emphasizes the role of the European Court of Justice in providing judicial protection under EU law where individuals have no other means of access to judicial review regarding contested EU conduct that has allegedly caused damage to them. Thies argues that EU law does not permit the international context or global dimension of the EU conduct affecting individuals to justify the setting aside of EU rights and remedies. She suggests, however, that the EU and WTO legal orders are intertwined to such an extent that governmental discretion granted under WTO law can shape the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest. In sum, the pluralist phenomenon, whereby not only the EU but also the WTO legal order regulates contestable EU conduct, affects the scope of rights and remedies that can be enforced by individuals before EU/domestic courts.

Hilson’s article analyses the environmental jurisprudence of the European Court of Human Rights (ECtHR) as an example of ‘global legal pluralism in action’ and identifies the implications of that jurisprudence for the position of individuals. Specifically, Hilson focuses on how the Court accommodates domestic environment-related standards when assessing the states’ interference with Convention rights by deploying ‘pluralistic devices’ such as the margin of appreciation doctrine and emerging principles of domestic irregularity and domestic court rulings. His analysis shows that the ECtHR takes its role as a human rights court seriously also with regard to environmental issues, which might also entail a review of whether or not states’ measures reflect a ‘fair balance’ between community interests and applicants’ enjoyment of their rights. Hilson’s overall assessment suggests, however, that the ECtHR’s application of these pluralistic devices in its environmental jurisprudence has been primarily a manifestation of the international court’s respect for the national legislature and judiciary (‘balancing’ individual and community interests), rather than an attempt to prioritize the protection of individual interests or the environment.

McCorquodale analyses the relationship between the international legal order and corporations as ‘participants’ on the international stage. After outlining the status of corporations under international law and their direct and indirect access to the creation and enforcement of international economic law for their protection, McCorquodale focuses on the development of corporations’ international responsibilities for human rights abuses. Using examples from recent practice, he highlights the normative role of civil society (including indigenous groups and trade unions), which has been recognized under the Framework on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises developed by John Ruggie, the United Nations Special Representative on Business and Human Rights. McCorquodale stresses the powerful role that corporations play in norm-creation in comparison to (other) civil society participants (‘inequality of access’) and highlights the corporations’ scope to do so, at least partially, in the interest of their own business activities. In the light of the Framework’s and the subsequent Guiding Principles’ focus on the role of states in improving the protection of human rights from corporate activity, McCorquodale criticizes states’ reluctance to set up effective international compliance mechanisms for holding corporations directly responsible for human rights abuses. McCorquodale concludes that legal pluralism in this area has ‘operated asymmetrically to the benefit of corporations’.

In her article, Bonafé assesses the implications of the proliferation of legal orders in the area of criminal law for the status of individuals. Her analysis focuses on the interaction between international criminal law and national legal orders with regard to the prosecution of ‘international crimes’. While recognizing that national courts’ increased involvement in the prosecution of international crimes alongside international courts might be beneficial for the protection of individuals – in particular because of an increased number of cases being prosecuted – Bonafé claims that the plurality of legal orders can be responsible for legal uncertainties. She thereby distinguishes between ‘substantive uncertainties’ regarding ‘the definition of crimes and the way in which domestic courts apply such notions’ on the one hand, and ‘procedural uncertainties’, which concern jurisdictional matters. Analysing recent examples from a variety of domestic courts, Bonafé demonstrates how those uncertainties can affect the position of the individual. At the same time, she identifies the legal devices that have been developed to achieve better coordination between international criminal law and the national legal orders, relying mainly on the domestic judiciary to allow for the prosecution of international crimes. Bonafé concludes that the mechanisms of coordination employed by the national judiciary and the international tribunal might not only be beneficial in the light of common goals regarding the effective prosecution of international crimes but might also be ‘part of a broader phenomenon of global constitutionalization’.^{Footnote 8}

Taken together, the different accounts of global legal pluralism gathered in this special issue expose the growing challenges for domestic and international courts of balancing different interests, particularly when each legal order is functionally specialized. Thus, human rights may need to be balanced against environmental policy or obligations under international law, or international trade rules may need to be balanced against individual rights under EU law.^{Footnote 9} Tensions of this sort renew the relevance of international courts in accommodating conflicts and overlap between norms, particularly when their decisions reverberate (directly or indirectly) in a multitude of domestic legal orders. In a pluralist global legal sphere, judicial fora may be well placed to supply the common principles, methods of interpretation, and boundary-maintenance necessary for managing normative uncertainty and complexity. At the same time, as Hilson’s article shows, this can be particularly challenging where international courts must accommodate a diverse multitude of domestic legal systems. Moreover, as de Wet and Vidmar argue, courts’ efforts to de-emphasize conflicting norms and instead overcome discrepancies among overlapping orders through accommodation may result in a lowering of standards of protection of individual rights.

Furthermore, although global legal pluralism highlights the potential for normative and jurisdictional overlap, such overlap is often a matter of indirect or ‘shadow’^{Footnote 10} effects between different legal orders whose laws and decisions affect future norm-making by their peers. As the investigations in this volume show, this can take a variety of forms. According to de Wet and Vidmar, national and international bodies operate against the background of human rights norms, whose requirements they modulate in the light of actual or potential conflicts. Thies demonstrates that the European Court of Justice takes account of governmental discretion provided under the WTO legal order when defining the scope of rights and remedies under EU law, while Bonafé’s assessment of the reach of international criminal law provides an example of how national courts develop legal tools to accommodate international law in the absence of direct effect or implementation in national legal orders.

Above all, the contributions to this special issue suggest that whether and how the plurality of applicable legal orders to the same set of circumstances affects individuals hinges on the substantive area of law in question and the configuration of the various regimes curating it. Eckes argues that some highly pluralistic areas of international law (such as counterterrorist sanctions) remain largely walled off against individual participation and challenge even when fundamental rights are at stake. By contrast, Isiksel argues that private economic actors, including firms and business groups, enjoy privileged access to the adjudicative organs of international economic regimes particularly in comparison to non-commercial actors. Similarly, in the arena of corporate social responsibility, McCorquodale argues that the lack of a transnational regime of binding rules over the conduct of private actors (in this case, corporations) may limit the remedies available to those adversely affected by rapacious business practices despite the proliferation of ‘soft’ or ‘self-imposed’ standards.

Ultimately, global legal pluralism is not the brave new world it may sometimes be made to appear: although it heralds new legal actors and alters the terms by which legal regimes (both new and old) relate to one another, pluralism nevertheless affords great latitude for states and national legal orders over the creation of international norms. Uncertainty over the seat of interpretive authority under a pluralist world order renews the urgency for domestic courts to uphold the primacy of domestic constitutional ‘standards’ (as Eckes and Thies argue) on the one hand, while giving due effect to international legal norms on the other hand (as Bonafé illustrates in the area of international criminal law). As McCorquodale points out, in areas where adequate regulation and compliance mechanisms under international law are wanting, states acting singly or in concert may be best placed to constrain private actors where their conduct impinges on other private persons.