Observations on the Desirability of an Enhanced International Legal Status of the Non-State Actor

Abstract

This paper arises out of two main observations regarding the rights and obligations of Non-State Actors (NSAs) under international law. First, there is considerable disagreement as to what the position of the NSA is, (Bianchi 2009; Reinisch 2009) and should be, under international law; and second - flowing from that and from the fragmented state of international law - that there is an urgent doctrinal (Carty 2006 ) need for an integrated and comprehensive assessment of the status of the NSA in international law. Because it is indisputable that the NSA has already been recognised as enjoying a set of rights and being bound by certain obligations in international law, this paper will investigate the desirability of charting international legal development towards further enhancement of the legal status already secured by the NSA. Undeniably, legal status in international law hinges on the elusive concept of international legal personality (ILP), a matter “negated” (Nijman 2004) for long yet enjoying gradual renewal. This is a normative, and of course, political, question. The paper, however, does not explore the value of an NSA’s enhanced legal status; rather, it brings forward a proposal outlining how to examine the essence of an NSA’s legal status and its “weight” in international law. Such knowledge is invaluable for the maintenance of consistency and coherence in a fast transforming and developing international law. (Frank 1995; Hart 1994) Also, it is important to note that our focus is not on whether or not a specific NSA should or should not be recognised as a subject of international law. Rather, the purpose of this paper is to propose how to explore three fundamental questions from a doctrinal perspective because, as eloquently observed, “[in] a world where there is no want of information [...] somewhat paradoxically, doctrine may still mediate, no longer between primary sources and their potential users but, rather, between secondary sources and interested readers,” (Bianchi 2009:xii) and all the more so, where the subject matter is still suffering from lack of systematic scrutiny (Bianchi 2009; de Brabandere 2009). The first question is whether the NSA should be recognised as a general category of an actor. Specifically, should the NSA be considered as consisting of a “garden variety” of various types of actors akin to the State, and to which a fundamental unitary set of rights and obligations in international law applies? Consequently, the second question is whether the NSA - as a general category or as several single types of NSAs - should be considered a subject of international law equal to the State and consequently recognised as bound by the identical and full set of rights and obligations pertaining to the State? Thirdly, should the rights and obligations of the State be adjusted to accommodate the legal status needs (and gains) of the NSA? In other words, would it be desirable to break out from the current doctrinal paradigm of international law? In reference to the dictum of the International Court of Justice (ICJ) that [t]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community (Reparation 1949, emphases added), another question arises: Would the NSA’s interests and needs - at both domestic and international realms - be more appropriate satisfied by applying municipal, rather than international, legal standards? If so, then equality before international law, between international actors, would not require their equality under international law. Following a discussion on the meaning of “legal status” and international law, the methodology regarding how to answer the above questions will be addressed from two angles. First, stock is taken of the current state of the art regarding the status of the NSA in international law and the conditions requisite for possession of ILP including an observation concerning as well as a discussion on the viability of a doctrinal general category of NSA. An analytical model to serve as methodological tools for further research will be presented. This examination is followed by the question of whether further changes to the legal status of the NSA are likely to enhance the development of international law. Accordingly, it is suggested to conduct this inquiry by exploring whether international law passes the test of the NSA challenge to the extant doctrine.