Non-State Actors and the International Rule of Law: Revisiting the 'Realist Theory' of International Legal Personality

Abstract

The present paper argues the inclusion of powerful, international NSAs in the category of 'international legal persons.' The argument builds on the generally accepted idea that for the purpose of both the protection and the accountability of entities within the international legal system, these should have the enhanced status of legal 'subject' rather than 'object.' Behind this legal reality lies the normative reality of the international rule of law ideal: powerful entities that operate to some degree independently on the international plane should be controlled by law and held accountable for their actions. In other words: political or economic actors should be visible also in the international legal order. After these preliminary propositions, this chapter examines if and how the international legal personality (ILP) of NSAs may be constructed today. I distinguish three ways in which the ILP of NSAs is construed within the parameters of the conventional conception of ILP: a) ‘transnational ILP,’ b) ‘soft ILP,’ and c) ‘regular ILP.’ The chapter proceeds, however, to search for a new grounding of ILP theory. This search is supported by the general dissatisfaction with the formal conception of ILP, which draws on fiction theory. I will suggest to reconsider the ‘real personality’ theory or ‘realist’ theory of international legal personality. This paper aims to provoke debate on the possibility of a ‘new’ realist theory so that we may be better equipped when addressing questions of NSAs and international law. In doing so it also aims to build an argument against the popular conviction that the concept of ILP and its theory has flopped. It defends the view that ILP is relevant and useful in today’s international legal reality, provided that a new theoretical grounding is developed.