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States vs. non-state actors - a public international law perspective

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Agata Kleczkowska
Polish Academy of Sciences
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States vs. non-state actors –

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 States vs. non-state actors –
a public international law
perspective
As non-state actors increasingly interact with states, either of their own
free will or not, new legal instruments are needed to regulate the status,
role, and responsibilities of non-state actors at the international level. –
writes Agata Kleczkowska, Assistant Professor, Institute of Law
Studies of the Polish Academy of Sciences.

The term ‘non-state actor’ (NSA) covers a wide In light of the above, it is in the interests of the
range of diversified entities with one particular whole international community to legally regulate
trait in common – while often playing a significant the status of NSAs.
role in international relations, they are inde- The lack of regulation concerning the
pendent of states. This broad term covers, inter international legal status of NSAs is most visible
alia, individuals, corporations, non-governmental with regard to those actors that are most clearly
organizations, armed non-state actors, de facto involved in relations with states, namely individu-
regimes, trade associations, and many more. als, corporations, international non-governmen-
Even though international law as a legal system tal organizations (NGOs), and armed non-state
is becoming increasingly sensitive to NSAs, it still actors (ANSAs).
primarily regulates relations between states and Individuals were initially denied a status under
intergovernmental organizations, and does not international law, and their position was upgraded
touch upon the status, role, and responsibilities only with the development of human rights law.
of NSAs at the international level. Nevertheless, Today it is undisputed that international law
in the current security environment, where hybrid confers some substantive rights on individuals,
threats are an integral element, this does not mean and not only in the field of human rights (see
that NSAs do not interact with states. On the con- e.g. the protection given to specific groups of indi-
trary, they often do since states may (ab)use the viduals under international humanitarian law). In
undetermined legal status of NSAs to challenge addition, international law grants individuals some
their adversaries, while NSAs themselves may procedural rights, such as the right to file a com-
seek to influence a state’s policies. plaint before international bodies (e.g. in the com-
At present, it is states that decide when and plaint system based on the European Convention
under what circumstances a given NSA may be on Human Rights). Individuals also have obligations
embraced by international law, depending on their under international law, and may be held directly
interests and the potential benefits. States are responsible on the grounds of international law
interested in retaining the current status of NSAs for committing international crimes such as geno-
since, on the one hand, regulating the status of cide, war crimes or crimes against humanity. Even
NSAs under international law could upgrade their though individuals are usually tried for these viola-
role in international relations and weaken the posi- tions of international law before domestic courts,
tion of states while, on the other hand, states could under some circumstances they may be tried
lose a very useful tool for exerting an impact on before international courts as well (see e.g. Article
international policy thanks to the stealthy activities 17 of the Rome Statute of the International Crim-
of NSAs, which are hardly subject to international inal Court, which states that a case is admissible
law. before the court if a state ‘is unwilling or unable

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 to genuinely carry out the investigation or prose- where the responsibility of international corpora-
cution’). Given this situation, scholars today are in tions should be determined is human rights law.
general agreement that individuals possess some The efforts to establish a legally binding frame-
degree of limited legal personality in international work for corporate responsibility with regard to
law. However, two observations are significant in human rights has thus far ended in failure. Among
this regard: Firstly, the rights and obligations of the instruments created within the UN, the Guid-
individuals under international law are created ing Principles on Business and Human Rights, as well
with regard to their specific situation in relation to as Draft norms on the responsibilities of transna-
states, which implies that individuals cannot exer- tional corporations and other business enterprises
cise the competences of a state; for example, they with regard to human rights should be mentioned,
cannot conclude a treaty, cannot dispatch diplo- and several other documents could also be enu-
matic representatives, and so forth. Secondly, indi- merated. However, none are binding. On the other
viduals’ competences under public international hand, it should also be observed that international
law are restricted to those given to them by states. corporations have certain rights under interna-
They themselves do not determine the scope of tional law. These rights are derived not only from
their international legal rights and obligations since human rights law (see Art. 34 of the European
it is states (or international intergovernmental Convention on Human Rights, which provides that
organizations) that conclude human rights treaties the European Court of Human Rights may receive
for example, decide upon the scope of jurisdiction applications from any ‘non-governmental organi-
of international courts, and so on. Therefore, zation’, which includes corporations), but primar-
even though the position of individuals under ily from international investment law. Moreover,
international law has changed significantly over disputes between a state and a foreign inves-
the last century, and they were given some rights tor (also including an international corporation)
and obligations under international law, it is still may be resolved through investment arbitration,
states that control their status. This means that and not before domestic courts, which guaran-
states could restrict the rights of individuals under tees investors a more unbiased procedure than
international law and burden them with additional under national law, conducted by an independent
obligations. An example could entail a state with- body. At the same time, one should highlight that
drawing from a treaty establishing an international in order to commence an investment arbitration,
court, in order to deprive its nationals of additional the host state must first consent to such a proce-
protection by an international organ and the right dure. Thus, the discussion on the status of corpo-
to file complaints against the state, resulting in the rations under international law is not aimed at
absence of an independent watchdog to super- equalising their position with that of states, but
vise the state’s actions. Even though this scenario rather at providing protection for states’ inter-
seems highly unlikely in the contemporary state of ests against possible abuses committed by cor-
relations, where the protection of individuals occu- porations, as well as safeguarding the interests
pies an important place, it used to be the case that of companies against excessive and unjustified
for the sake of security issues, for example, states interference on the part of states. For example,
deprived individuals of some rights. if an international corporation was regarded by
Secondly, the status of corporations under a state’s regime as hostile, the government could
international law is often discussed due to the adopt legislation aimed at financially destroying the
fact that such actors may possess powers and corporation. On the other hand, an international
assets comparable to those at the disposal of states corporation may be powerful enough to corrupt
(or even more than some states), and may also the government and quietly control the whole state
significantly affect the lives of individuals, politics, apparatus. The international regulation of the
the economy, the environment, and many public status of corporations could help to avoid such
spheres. On the one hand, the most important field situations.

4
Next, since intergovernmental organizations are on Recognition of the Legal Personality of Interna-
created and composed by states (e.g. the United tional Non-Governmental Organisations, although
Nations, NATO, the EU, the African Union, and these attempts have not yet met with a great deal
the Organization of American States, among of success. Interestingly, despite much interna-
others), they are not covered by the definition of tional recognition, it is hard to determine what kind
an NSA introduced at the beginning of this anal- of international obligations NGOs have. Most NGO
ysis. However, international non-governmental duties stem from agreements concluded voluntarily
organizations have a different status – they are between NGOs with intergovernmental organiza-
independent from states, and are usually estab- tions and states, which establish the cooperation
lished precisely to monitor the actions of states between these actors. The unregulated status of
in various areas. Examples of the most important NGOs may easily be abused by states, which may
NGOs today that have a say in international fora use the NGO format to fight with adversaries in a
include the International Committee of the Red less detectable way, for example. That is why, for
Cross (ICRC), Amnesty International, Geneva Call, the sake of the international rule of law and to safe-
Médecins Sans Frontières, Human Rights Watch, and guard the positive actions undertaken by many
Greenpeace. These NGOs often supplement or NGOs, their international legal status should be
even substitute the functions of states in terms of comprehensively regulated.
human rights advocacy, international humanitarian Finally, one needs to mention armed non-state
law (IHL), health issues, or the environment. This actors, a category that encompasses those NSAs
is why they are vested with certain privileges that conduct armed combat, namely terrorist
that are inherent to states, such as participation organizations, rebels, insurgents, and many
in international conferences, monitoring mech- more. Many scholars claim that ANSAs possess
anisms, dispute settlement mechanisms, and so an international legal personality, but they can-
forth. Indeed, NGOs may often be more effective not agree on the scope and source of this person-
than states in some fields. For example, they may ality. Nor have they managed to establish a legal
be a valuable intermediary between states and definition of ANSAs, which seems indispensable
other NSAs that may not necessarily trust the for regulating their status under public interna-
states’ organs, but may be willing to co-operate tional law. The doubts in this field concern not only
with an organization independent of a state. For the scope of their rights and obligations, but also
instance, the ICRC and Geneva Call educate ANSAs their law-making capacity and responsibility. When
with regard to the rules of IHL and encourage them it comes to the former, it is sometimes claimed that
to sign declarations of compliance with IHL and ANSAs, by their actions, can contribute to the cre-
human rights, which may be far more effective than ation of customary international law, either by cre-
prosecuting and punishing ANSAs for breaches ating a separate category of quasi-custom or by
of basic humanitarian standards. Likewise, NGOs participating in the making of customs binding upon
may also demand that their practices be taken into states. The issue of their responsibility is equally
account in international law-making with respect complicated. The most widespread form of
to important standards for states’ actions, and responsibility borne by ANSAs today is indirect
may also wish to play a consultative role during the responsibility, meaning the responsibility of indi-
drafting process of legal acts. The role of NGOs has viduals and states when it is possible to attribute
been included in some legal acts, including the UN acts committed by ANSAs to them. On the other
Charter (Art. 71) or the Geneva Conventions (Art. hand, a model of direct responsibility borne by
10 of the First, Second and Third Geneva Conven- ANSAs, which would take into account their
tions, Art. 11 of the Fourth Geneva Convention). activities as collective entities, has not yet been
There have also been attempts to regulate the established. Most importantly, however, in addition
status of NGOs in a more comprehensive manner. to all of these theoretical and practical problems,
Worthy of note here is the European Convention one needs to highlight that the proposals

5
 made in the doctrine of law that ANSAs possess the creation of law, human rights, IHL and so forth,
some degree of international legal capacity do states nonetheless still play the leading role on
not accord with the position of states, which are the international stage. Moreover, they are not
reluctant to specify the status of ANSAs since to only the most important actors but also gatekeep-
do so would amount to upgrading their status and ers, in the sense that they determine the scope of
standing in international law. For instance, if a state the rights and obligations of all other entities that
agreed to render an international legal personality interact with them. Even though there is a vast
to ANSAs and allowed them to become full-fledged scholarship that strives to have NSAs included in
parties to a treaty, it might mean that an ANSA international law, their claims remain for the most
could subsequently oversee the implementation part proposals de lege ferenda or intellectual exer-
of a treaty by a state and, on these grounds, make cises, since it is not scholars but states that cre-
claims against a state. ate international law and decide who can be
To sum up, even though the contemporary allowed to share the privileges granted by inter-
international stage is awash with different actors national law. Nevertheless, the lack of comprehen-
that contribute to the shape of international rela- sive legal regulation regarding the status of NSAs
tions, and although states are no longer the only may be a source of serious abuses by both states
parties that have a say in many domains, including and NSAs themselves.

Author
Agata Kleczkowska is Assistant Professor at the Institute of Law Studies of the Polish Academy of
Sciences. She holds a PhD in public international law, having defended her thesis on the ‘Use of Force
by States under Customary International Law’ in 2018. Her research interests include, but are not
limited to, the use of force, armed non-state actors, hybrid threats, recognition and statehood. In 2018,
she continued her research on armed non-state actors with a fellowship from the Max Planck Institute
for Comparative Public Law and International Law. She is also a Rapporteur at the Oxford International
Organizations. Since 2019, Agata has served as a legal expert at the UP Centre for International
Humanitarian and Operational Law. She is also a participant in Hybrid CoE's Pool of Legal Experts.

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