Other types of actor now qualify as subjects of international law apart from sovereign states – discuss.

“At the beginning of the twenty first century it is no longer true to say that the international legal order is primarily concerned with the activities and legal relations of sovereign states, other types of actor now qualify also as subjects of international law. Explain and discuss this statement by identifying the new subjects of international law and discussing which rules of international law may apply to such non state actor”

Non-State Actors in International Law

Introduction

International law was established on the premise of becoming a set of rules governing the relations of states inter se. Recognition as a ‘State’[1] therefore affords all the capacities in full measure and is regarded as a subject of international law par excellence. An example of this can be observed from Article 34(1) of the Statute of the International Court of Justice, which provides states with exclusivity in international law, as only they have locus standi to be a party to proceedings in contentious matters.

Globalisation has, however, aided in somewhat distorting such exclusivity in the international legal arena, with the emergence of non-state actors. Such entities possess varying degrees of personality in international law. They can come in the form of international organisations, multinational corporations, individuals and others. These non-state actors have emerged on the international legal landscape playing an important role in virtually every aspect of international law. As to what, or who, is a non-state actor, and the extent of their personality in international law, depends solely on the agreement and recognition of states. This essay seeks to explore what entities qualify as non-state actors, and identify the pertinent rules of international law that apply to the same.

International Organisations

International organisations will generally enjoy varying degrees of personality, according to the organisation’s aims and objectives, terms of its constitution and its constituent documents.[2]

Most notably in this sphere, the United Nations (‘UN’) is something of an anomaly. In the international law arena it possesses objective legal existence, which implies that its personality is not dependant on any state for recognition. In the Reparations Case 1949 I.C.J. Rep. 174, the International Court of Justice (‘ICJ’) considered, inter alia, whether or not the UN had legal personality to recover reparations in its own right. The Court confirmed that it did indeed have such personality and emphasised that it had objective legal existence. Further, the independent nature of the UN’s international personality was reaffirmed by the ICJ in its Advisory Opinion on the Applicability of Article VI of the Convention on the Privileges and Immunities of the United Nations (1989) ICJ Rep. 177.[3]

In addition, all UN specialised agencies possess varying degrees of personality in order to fulfill their purposes on the international stage. For instance, the General Assembly has the power to request an Advisory Opinion from the ICJ, as illustrated in the Legality of Nuclear Weapons Case 1996.

Generally speaking, however, to discern whether or not an international organisation has personality in international law, and the extent of such, a thorough examination needs to be conducted of the organisations powers and responsibilities. The position was clearly summed up by the ICJ, when it said:

‘… International organisations are governed by the ‘principle of speciality’, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them.’ [4]

Multinational Corporations

States frequently do business with multinational corporations during their commercial activities. In the event of a dispute arising, these activities are generally governed by the national law of one country or another. In such circumstances, the state would be treated as any other litigant.

In specific instances however, such relationships can be governed by international law. This may result by virtue of a contractual obligation[5], or due to prior agreement between the parties that a certain dispute will be adjudicated upon by an international panel pursuant to international rules.[6]

That said, the current position regarding the international personality afforded to some corporations could change in the foreseeable future, as the wealth and power wielded by some has led to growing calls for corporate accountability.[7]

Individuals

Traditionally speaking, individuals have only enjoyed limited personality in international legal matters. Albeit, the development of international human rights law has given birth to the individual now possessing locus standi to initiate proceedings, or even having a right to appear before international tribunals/courts. For instance, under Articles 34 and 35 of the European Convention of Human Rights, individuals can initiate claims alleging a violation of their Convention rights by their national state.[8]

Similarly, one can also petition the Human Rights Committee under the International Covenant on Civil and Political Rights 1966, if his/her state has signed the Optional Protocol.[9]

Further evidence of the individual’s increasing presence on the international law stage is the establishment of the International Criminal Court.[10] The Court has jurisdiction to prosecute crimes committed by individuals, who are personally responsible for crimes committed against others, irrespective of the national law position.[11] Accordingly, the individual is now not only the beneficiary of certain rights; he is also a subject of international law.

Others

As outlined above, international personality has been bestowed upon numerous and varied entities. The concept is not absolute. It can include representative organisations such as the Palestine Liberation Organisation, or insurgent groups. The extent of capacities afforded to an international personality will be subject to the particular circumstances. It is worthy of noting, however, that recognition by a host state need not be the determining factor of international personality, as concluded by the ICJ in its Advisory Opinion (Obligation to Britrate on UN Headquarters Agreement Case 1988 ICJ Rep 12). In that case the ICJ highlighted the principle that a host state cannot choose to ignore the personality of a subject of international law irrespective of its own political stance.

Conclusion

The case law clearly illustrates that defining what entities constitute a non-state actor is fraught with problems, due mainly to the a priori nature of the subject. This, for the most part, is due to the fact that recognition does not depend solely upon legal criteria. Recognition as a non-state actor can result from ‘political recognition’, or even ‘effective existence’. What the cases do illustrate however, is that the days when ‘States’ were to be considered the exclusive subjects of international law[12] are gone. The advent of globalisation has introduced a new and seemingly permanent international personality to the international arena – the non-state actor. Whilst such international legal persons may only enjoy limited personality, they do possess the most important capacity of recognition under international law.