International Legal Personality
Before one can delineate the legal personality of Non State Actors under International Laws, it is germane here at the inception to understand as to what an International Legal Personality (ILP) is; we all recognize that International legal personality is a divisive concept of the vast discipline of International Law. There is no clearly established “international law of persons”. It can be said that legal persona is the status which enables an entity to exist and function in a legal order, that is,-
to have certain rights and duties under the International Law, as well as
to be able to invoke international responsibility and
to be held internationally responsible.
Nevertheless, there are different positions among academicians and international lawyers on unerringly which entities count as persons in the International Law, as well as under what criteria personality is acquired, and what specific consequences this status entails.
Further, there are different opinions on what international legal personality is and what the subjects of the International Law are.
According to Roland Portmann there can be several positions on the subjects of the International Law distinguished3:
1. States-only: This position indicates that only States have international personality; Under States-only conception NSA’s are seemed as not directly
3 Roland Portmann, Legal Personality in International Law Pg.13-18 (Cambridge University Press, New York, 2010)
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relevant for the International Law4. In other words, the International Law is reasoned as a relationship only between the States. It is this customary subject doctrine which is criticized these days. The view that the international community comprises only of the States and that only the States have international rights under the International Law and can be bound by this law is incorrect5. The importance of the role of NSA’s in the international plane is rising6.
2. Recognition: the second position recognizes that other entities can also acquire international legal personality; although this pose indicates that States are still the original international legal persons of the International Law, it also acknowledges that other entities can have certain international rights and duties corresponding to those of States, if those entities are recognized by those States7. This is generally how the new States gain international rights and duties, as well as the status of ILP. This also means that by this kind of practice the States can alike recognize NSA’s. Though, Roland Portmann designates that for the non-state actors to achieve the status of international subjects (as well as the prospect to bear international rights and obligations) there must be an acknowledgment of at least two States, because there is a presumption that NSA’s
“[…] naturally belong to the municipal and not to the international, legal order” and, therefore,
“[…] the act of recognition as an international person has to be in more unequivocal terms than is the case with the recognition of states”.8
3. Individualistic: this position states that individuals may also be subjects of the International Law; it states a supposition that States and various other
4 Ibid
5 Ibid
6 Aw Joey, “The role of Non-State Actors in International Relations”, Available at – http://www.academia.edu/5124220/The_Role_of_Non-state_Actors_in_International_Relations
7 Roland Portmann, Legal Personality in International Law, Pg. 80 (Cambridge University Press, New York, 2010)
8 Ibid, Pg. 82
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entities can be international persons, if there are international norms addressing them9. Nowadays it is admitted that the individuals as part of the States and the international organizations should be treated as the subjects of the International Law and as having the ILP10. In addition, individuals are held internationally responsible for the violations of the fundamental international norms no matter, if they were acting as the agent of the State or as a private actor. Question that comes to mind is, what regards NSA’s, there could also be a possibility to apply this conception from the perspective that NSA’s too consists of individuals or groups of individuals. To be precise, one might say individuals as the members of the NSA’s could be held responsible for the violations of the international rules.
4. Formal: the fourth position declares the International Law as an open system; it indicates that every entity can be an international person11. That is, the international legal system is being seen as open to everyone and that the construction and expansion of the international norms do not rest on having a status of international legal personality12. International legal person is a person to whom international legal system has vested rights, obligations and responsibilities13, in other words – personality is not a prerequisite, but the outcome of capacity to possess international rights and duties. Therefore, there can be made a presumption that NSA’s can also be treated as having ILP, because they do have certain obligations and responsibilities under International Law (e.g. it is recognized that NSA’s, especially Armed NSA’s, can be held responsible for the violations of the fundamental international humanitarian norms under IHL and ICL).
5. Actor: the fifth position stipulates an assumption that all effective actors of international relations are relevant for the international legal system.
9 Roland Portmann, Legal Personality in International Law, Pg. 126 (Cambridge University Press, New York, 2010)
10 Ibid, Pg. 13-18
11 Roland Portmann, Legal Personality in International Law, Pg. 173 (Cambridge University Press, New York, 2010)
12 Ibid, Pg. 13-18
13 Hans Kelsen, General Theory of Law and State translated by Anders Wedberg , Pg. 99 (Harvard University Press, Cambridge, 1945)
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According to this conception, international legal persons are those who have realistic power in decision-making process during which certain rights and duties arise to these persons14. This means that decision-making process determines international rights and obligations of those, who participate in that process. For this purpose, the actor conception suggests that the phrases “actor” or “participant” should be used instead of “ILP”, because all those who participate in the development of international legal system are international persons15.
NSAs do not possess official or government authorities and powers, and do not have institutional and fiscal relationships with states. As such they have not generally been recognized as traditional objects of international law but, instead, as potentially new subjects of it, which is also the outlook of many scholars:
“NSAs are subject or persons of international law. The conception of NSAs as an object of international law does, however, not sufficiently explain its present day position in the international law… In the other words, power and influence of NSAs in many cases goes far beyond that of entities to which international law has traditionally accorded to object-states”.16
“Nowadays international law reaches beyond nations, many acts such as certain criminal acts, trade, finance, commercial relationships, environmental issues, human rights and more. Now international law directly touches many individuals”.17
14 Roland Portmann, Legal Personality in International Law, Pg. 14 (Cambridge University Press, New York, 2010)
15 Ibid, Pg. 13-18
16 J. E. Nijman, “Non-State Actors and the International Rule of Law: Revisiting the ‘Realist Theory’ of International Legal Personality”, Non-State Actors in International Law, Politics and Governance Series 5, 2010.
17 P. M. Nichols. Reconceptualizing the Rule of Law as an International Norm, Available at – http://www.cd-n.org/index.php?the-status-of-non-state-actors-under-the-international-rule-of-law-a- search-for-global-justice Last accessed on 24th Feb 2015 at 0700hrs.
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International law seems, consequently, to be in the process of recognizing the significance of NSAs. That clears the conduit for recognizing their formal, legal personality. However, there are debates and qualms about the consequences of such recognition of legal personality:
“There is a fear that one “legitimizes” actors by giving them human rights obligations and implies a power which they may themselves erode, rather than enhancing, human freedom and autonomy.”18
Ergo, it can be asked mildly, whether NSA’s are the law-makers or the law-takers? That is to say do they actually affect the law making process directly? And whether or not they are affected by the laws made by more conventional subjects of International Law like Nation States?
As it has been gathered up till now, conventionally speaking, international legal system does not include (neither in theory nor in abstract) NSA’s in its law-making procedures. On the other hand, it can also not be denied that NSA’s have a great influence on international decision-making – the acts and solutions of the non-state actors have an impact on the State’s policy and practice, as well as on the safety of civilians and on the maintenance of international in the big picture.
Hence, NSA’s could be treated as subjects of international law, and also as participants of the International Law that have the influence in the law-making process and, in unison, as having certain international rights, duties and responsibilities.
18 Andrew Clapham, Human Rights Obligations of Non-State Actors, Pg. 53 (Oxford University Press, Oxford, 2006)
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Status of the Non-State Actors in the International Law
Under the traditional subject doctrine, which still prevails in the international legal reasoning, the International Law is based on the rules made by the States, for the States, and only the States have ILP as they are the bearers of the international rights and obligations, as well as they have international law-making and law enforcement powers.19
The International Court of Justice (ICJ) in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations Case, indicated that being an international legal person
“It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims”.20
In other words, International legal personality includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under the International Law.
Therefore, a subject of the International Law should be able to21:
1. Bring claims before international and national courts and tribunals to enforce their rights;
2. Have the capacity or power to come into agreements that are binding under the International Law;
3. Enjoy imperviousness from the authority of foreign courts;
4. Be subject to obligations under the International Law.
19 Philip Alston, Non-State Actors and Human Rights, Pg. 70 (Oxford University Press, Oxford, 2005) 20 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations Case, ICJ, 1949, Available at- http://www.icj-cij.org/docket/files/4/1835.pdf last accessed on 25th Feb 2015 at 0700 hrs.
21 Ruwanthika Gunaratne, Who is a Subject of International Law, Available at- https://ruwanthikagunaratne.wordpress.com/2011/03/26/1-2-an-introduction-to-subjects-of- international-law/ last accessed on 25th Feb 2015 at 0700 hrs.
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However, the definition of ILP given by the ICJ in its Reparation for Injuries Opinion is rather uncertain. That is, the Court does not clearly indicate which entities actually are (or should be considered as) international legal persons and also the Court does not mention any specific criteria under which the status of the entity as a subject of the International Law would be apparent22. Still, the given meaning of ILP indicates that ILP is being created by the international legal system when this system addresses the entity through an international norm and standards which, as a result, creates rights, obligations and certain responsibility to that entity23.
In the same element, this also means that there is a possibility to include NSA’s as the subjects of the International Law, if international situation so requires
“The 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”24).
Through the Reparations Opinion, the ICJ widened the scope of the traditional theory of subjects of International Law25.
That is, the ICJ in Reparation for Injuries Opinion has noted that:
“The 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. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in
22 Roland Portmann, Legal Personality in International Law, Pg. 10 (Cambridge University Press, New York, 2010)
23 Ibid. Pg. 10
24 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations Case, ICJ, 1949, Pg. 8 Available at – http://www.icj-cij.org/docket/files/4/1835.pdf last accessed on 25th Feb 2015 at 0700 hrs.
25 Andrea Bianchi, “The Fight for Inclusion: Non-State Actors and International Law” , Pg. 1-21, Pg. 3, in “From Bilateralism to Community Interest: Essays in Honour of Bruno Simma”, Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer, and Christoph Vedder, 2011.
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the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States”26.
Certainly, all the subjects of the International Law do not have the same privileges, duties and capacities. For this purpose, non-state actors, like the individuals, international organizations and etc., could in principle, be regarded as a subject of the International Law and possibly have certain international rights and obligations.
Additionally, concerning the status of the NSA’s in the International Law, NSA’s can be defined very plainly, as the description of these actors is in their name, – a group of actors composed of all actors that are not States. This definition is wide and includes individuals, as well as the groups of individuals.
“. . .Non-state actors today encompass inter alia sub-state entities and denied statehood, national and international issued-based NGO’s, individuals, ‘kitchen- tablers’, the corporate and business sector, shareholders, churches and religious groupings, trade unions and employees, academics, think tanks, consumer groups, para-military forces, professional associations, including those of judges, lawyers, parliamentarians and law enforcement agencies, expert communities, sport associations and criminal terrorist associations”27.
Although, today, NSA’s are increasingly being treated as possibly bearing some international rights and duties as States and other recognized subjects of International Law, the NSA’s are the actors that do not possess the authority and the power of the State and its organs28.
Yet, NSA’s are still not considered to be subjects, but objects of the International Law29.
26 Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations Case, ICJ, 1949, Pg. 8, Available at – http://www.icj-cij.org/docket/files/4/1835.pdf last accessed on 23rd Feb 2015 at 1900hrs.
27 Alan Boyle and Christine Chinkin, The Making of International Law, Pg. 44 (Oxford University Press, Oxford, 2007).
28 Neomi Gal-Or, “Observations on the Desirability of an Enhanced International Legal Status of the Non-State Actor”, Pg. 125-149, Pg. 130, Math Noortmann and Cedric Ryngaert, (Eds.) Non-State Actor Dynamics in International Law. From Law-Takers to Law-Makers, (Ashgate, Farnham 2010.) 29 Janne E. Nijman, “Non-State Actors and the International Rule of Law: Revisiting the “Realist Theory” of International Legal Personality” Pg. 91-124, Pg. 93 in Math Noortmann and Cedric
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Hitherto, the clear position and status that NSA’s have nowadays is not expressed clearly by this scrutiny. Of course, it cannot also be denied that NSA’s depends greatly on the States and their law-making powers, such as recognition of a new subject of the International Law.
The other raison d’être why NSA’s are treated as objects of the International Law lies in their own negative term – non-state actors.
Noted international law scholar and human rights practitioner Philip Alston calls this “The “Not-A-Cat” Syndrome30” and states that “this kind of negative term do not stem from language inadequacies but instead have been internationally adopted in order to reinforce the assumption that the state is not only the central actor, but also the indispensable and pivotal one around which all other entities revolve”31 and this means that other entities in the International Law can “only be identified in terms of their relationship to the State”32.
According to Alston’s view, subjects in the international legal system are then divided in two categories: states and not-states. This, again, means that other entities can become subjects of the International Law and gain ILP, but, with the prevailing traditional view to what are (or should be) the subjects of the International Law, those other entities would need to look very similar to the States in order to meet the requirements of ILP33
States are looking cynical to a prospect of recognizing NSA’s as subjects having ILP, as well as there are no clear international legal documents that would define as the crow flies the rights, obligations and responsibilities of the NSA’s and their role in the international plane on the whole.
For this reason, the status of the NSA’s in the International Law is vague, although non-state actors do participate in and do have an impact on the international legal processes and, therefore, NSA’s should be presumed to have a duty to conform with international legal obligations, especially what regards the protection of the
Ryngaert (Eds.), Non-State Actor Dynamics in International Law. From Law-Takers to Law-Makers, (Ashgate, Farnham, 2010)
30 Philip Alston (Ed.) Non State Actors and Human Rights,( Oxford University Press, New York, 2005) 31 Ibid, Pg. 3
32 Ibid, Pg. 4 33 Ibid, Pg. 20
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fundamental human rights. On the whole, the emphasis should be put more not on the notion of “subject” or “ILP”, but on the obligations and direct responsibility of the NSA’s for the violations of the International Law norms.
In other words, if there is an acknowledgement that NSA’s do actually participate in the international legal system, there should also be international legal norms that would clearly indicate their role in the international legal process as there are norms that define the role and obligations, as well as responsibility of the States.
Ultimately, it can be concluded:
1. The vague status of the NSA’s leads to the fact that the traditional subjects doctrine is no longer proficient to present a satisfactory account of the social realities underlying the International Law;
2. There is the need to refresh and rejuvenate the fundamental creed of the international law theory, including the doctrine of subjects.
3. Mounting pressure of the NSA’s in the international legal course raises the need of redefining the limitations of the international legal system regarding the ability to participate in the international plane for the other entities, such as NSA’s, because the International Law can no longer be so state-centric and stagnant, for stagnation is death.
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Functions of NSAs under International law
In reality, and on a different key as to their disposition, in expectation of better understanding their personality, NSAs have been found to put forth either positive or negative functions in the realm of International Law and Politics. Here below have been discussed instances of both.
NSAs such as Human Rights Advocacy Organizations or other Non- Governmental Organizations (NGOs) or Inter Governmental Organizations (IGOs) perform important positive functions ranging from human rights education to the enforcement and monitoring of human rights standards. Perhaps the most significant role of such NSAs is that they have played an effective role in the international norm making process like their participation in the preparation of the Draft on the UN Convention on the Rights of Persons with Disabilities34.
NSAs also have a significant role in peace building processes, such as the role of the Center on Housing Rights and Evictions for the International Protection of Individuals and People of Kosovo35.
Sometimes, specialized NSAs in the human rights arena may influence international norm making by participating in consultations on specialist legal matters. They may also act as lobbyists36.
Another particularly important area of activity is that of international norm making in the international environmental area37.
Another positive activity of NSAs concerns the enforcement of international law norms and standards. With regard to binding international laws, certain NSAs have
34 V. J.Bernstorff, Legality and Legitimacy of NGO Participation in International Law, Non-State Actors in Law Making and in the Shaping of Policy. Pg. 17-21, 2007.
35H. Hassine, Regulating Property Rights in Kosovo and Elswhere’. Available at- http://en.wikipedia.org/wiki/state-sponsoredterrorism last accessed on 23rd Feb 2015 at 1910hrs.
36 C Ryngaert, Imposing International Duties on Non-State Actors and the Legitimacy of International Law, 2009, Working Paper No. 42 – March 2010, Leuven Centre for Global Governance Studies, Available at – https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp41- 50/wp42.pdf last accessed on 23rd Feb 2015 at 1900hrs.
37K Raustiala. Non-State Actors in the Global Climate Regime, Public Law and Legal Theory Research Paper Series. Research Paper no. 7-29.
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had a positive influence on the application of international laws to national legal systems, in particular, where they have already been consulted or taken part in formulating the applied norms and standards38.
The negative role of NSAs can be analyzed from different points of view. First, governments are aware that the legal status of NSAs in international law is not well established and because of that NSAs cannot be held legally responsible for their actions. Further, since states are unwilling for their legitimacy be questioned in international community, therefore they may seek to co-opt NSAs for use against individuals, opposition groups and minorities.39 Such states use NSAs as fig leaves to evade international responsibility.
In other circumstances, governments may simply fail to act against human rights violations such as torture, arbitrary arrests and killings of opposition groups and civil movement activists by NSAs which share the same ideology of states40.
In international law, the presumption of innocence of states in such circumstances can hardly be accepted. In fact, the contrary is more accurate, particularly where the government is undemocratic and there has been a previous and constant violation of human rights.
Second, in some cases states may not be at fault or manipulate NSAs in wrongful acts but NSAs independently may abuse their positions, institutions, personnel, and powers against certain groups and individuals. In these circumstances, to prove that states have any direct responsibility for such actions may be difficult in law. International law in the these circumstances does not recognize the direct
38A. Peters, L. Koechin. and G.F. Zinkernagel, Non-State Actors as Standard Setters: Framing the Issue in an Interdisciplinary Fashion. Available at- https://ius.unibas.ch/uploads/…/20100219154311_4b7ea37fbba74 last accessed on 23rd Feb 2015 at 1910hrs.
39 J. Crawford, Human Rights and State Responsibility, Pg. 4-5, 12th Raymond & Beverly Sackler Distinguished Lecture Series, Thomas Jodd Research Center, University of Connecticut, Available at – http://thedoddcenter.uconn.edu/wp-content/uploads/sites/319/2013/10/10.25.2006-Sackler-Lecture- James-Crawford-Transcript.pdf last accessed on 25th Feb 2015 at 0910hrs.
40 Nicolas Carrillo Santarelli, Non-State Actors Human Rights Obligations and Responsibilities under International Law, Pg. 1-10, Available at http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB 0QFjAA&url=http%3A%2F%2Fwww.reei.org%2Findex.php%2Frevista%2Fnum15%2Farchivos%2F Carrillo.pdf&ei=sPw8Vb- 8CYKiuQTJw4D4CA&usg=AFQjCNFQn9O08IkEYnyQPk9VY__6D7WQIA&bvm=bv.91665533,d. c2E last accessed on 25th Feb 2015 at 0910hrs.
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responsibility of NSAs, notwithstanding that in several international human rights documents, the obligations of NSAs have been set down. Based on most cases, the states have been addressed as the main responsible bodies. It seems that the only exception is in international humanitarian law, where, for example, under the Second Protocol of the Geneva Convention, the direct responsibility of rebels, terrorist and armed opposition groups have been admitted41.
Consequently, as NSAs are not covered completely by international law norms, their acts can become a real threat to national and international security. In addition, because they exist in a wide range of forms and establishments, it is almost impossible to determine the general responsibilities of an NSA.
41 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva. 12 August 1949., Available at https://www.icrc.org/ihl/INTRO/370?OpenDocument last accessed on 26th Feb 2015 at 1500hrs.
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Status of a De Facto Regimes in International Law
As has been constantly discussed earlier, International law is a legal system whose central task is to secure international peace. The clearest materialization of this pragmatic approach taken by international law is to be found in the Second Protocol Additional to the Geneva Conventions of 8 June 1977. The Protocol is concerned with non-international conflicts, which it defines in Article 1 as
“. . . armed conflicts that take place in the territory of a state between its armed forces and “other organized armed groups, which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”42.
Now, if international law grants even insurgents the status of partial subjects of international law, this must a fortiori apply to quasi-state entities that have consolidated their positions over a longer period of time43.
The principle of effectiveness means that they can gradually be granted international legal personality while remaining unrecognized. Developments on the ground have ultimately led to the emergence of a “stable de facto regime”, as the territory is being governed effectively. Such an entity therefore fulfils the preconditions for statehood and cannot permanently be regarded as legally null.
According to Jochen A. Frowein, the existence of stable de facto regimes is a consequence of the “imperfect nature” of international law, which provides no criteria by which it can be determined whether an unrecognized entity possesses the quality of statehood or not. Against this background, we can refer to state practice, which
42 Office of the United Nations High Commissioner for Human Rights, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, available online at- http://www2.ohchr.org/english/law/protocol2.htm last accessed on 26th Feb 2015 at 1600hrs.
43 Especially since de facto regimes often arose from non-international armed conflicts.
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demonstrates that the international legal subjectivity of even unrecognized entities cannot be denied44.
This advance is indispensable to ensure that the fundamental norms of international law apply to de facto regimes.
The UN General Assembly Definition of Aggression explicitly states that the term “state” is used in the resolution “without prejudice to questions of recognition or to whether a State is a member of the United Nations”45.
This explicitly underlined the fact that the renunciation of violence also applies to Non-State Actors. The same is true of the liability of these entities in international law. In its advisory opinion on Namibia, the International Court of Justice (ICJ) ruled that
“physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States”46.
Further evidence that these entities have a status in international law is provided by the fact that they have been, since a long time and as a well established practice, allowed to join multilateral treaties in the interests of international security – the GDR47 and Taiwan becoming members of the Nuclear Test Ban Treaty in the 1960s, for instance, though both were unrecognized at that time is just one of the many examples.
Stable de facto regimes also continue to play a major role today thanks to their significance for security policy, like South Ossetia to Russia, the same also applies to other entities, such as Northern Cyprus, with its links to Turkey etc
44 Cf. Jochen Abr. Frowein, De facto Regime, in: Rudolf Bernhardt (ed.), Pg. 966, Encyclopedia of Public International Law, Vol. I, Amsterdam 1992.
45 United Nations, General Assembly, Definition of Aggression, A/RES/29/3314, 14 December 1974, Article 1, available online at- http://www.un-documents.net/a29r3314.htm last accessed on 26th Feb 2015 at 1600hrs.
46 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports (1971), Para. 118, Available at http://www.icj-cij.org/docket/files/53/5595.pdf , Last accessed on 1st April 2015 at 1000hrs.
47 German Democratic Republic
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The trademark of a stable de facto regime is the lack of recognition, like the ISIS these days, Consequently, recognition brings an end to this status and the awarding of statehood. The fate of the GDR shows, however, that recognition merely by one’s allies (in this case, the other members of the Eastern bloc) was not enough to eliminate the status of a stable de facto regime48.