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Article Excerpt
[Non-state actors have a profound and growing impact on international affairs. In light of their international influence, it is unsurprising that certain types of non-state actors have also been involved in high-profile international legal disputes. Yet, despite their relevance to international law, international lawyers have struggled to integrate non-state actors into the state-centric constructs of the discipline. This article analyses the decisions of one international legal body, the ICJ, that involve non-state actors. The article discusses the arbitrary and incoherent approaches taken by the Court when confronted with legal issues which bear upon the rights and obligations of various non-state actors and analyses the implications for states of the Court's problematic jurisprudence, arguing that international law is in a resultant state of fragmentation ratione personae. The article advances an alternative, coherent framework for addressing non-state actors which avoids the legal complications, ambiguities and lacunae caused by the current approaches and is more attuned to the realities of international life.]
CONTENTS
I Introduction II Personality and Participation: The Theoretical Context A Positivism, Realism and State-Centrism B Natural Law and Anthropocentric Theories C Policy-Oriented and Pragmatic Theories D Theory as Practice III The Resolution of Non-State Actor Disputes in the ICJ A The Reparations Opinion, International Organisations and the Birth of ILP 1 The Court's General Approach to Non-State Actors 2 The Court's Conception of ILP: Untangling the Complex Threads (a) Preconditions of ILP (b) Consequences of ILP B Non-State Groups: From Self-Determination to Fragmentation 1 Post-Colonialism and Self-Determination 2 East Timor and the Fragmentation of Sovereignty (a) Self-Determination, Participation and Multiple Sovereignties (b) Non-State Actor Rights and the Enforcement of General Obligations 3 The Israeli Wall Opinion and the Conceptual Crisis of Non-State Actors (a) The Non-State Actors Issue (b) The Internal/External Attack Issue IV Non-State Actors in International Dispute Settlement: Beyond Fragmentation A A New Conceptual Framework for Non-State Actors 1 International Legal Personality 2 Factual Capacity 3 Recognition and Conferral of Rights and Responsibilities 4 Advantages of a Universal Framework B Overcoming the Procedural Hurdle: A Presumption of Access V Conclusion
[T]he progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. (1)
1 INTRODUCTION
'Fragmentation' has become the defining metaphor of early 21st century scholarship on international dispute settlement, encapsulating widespread anxiety about the implications of the proliferation of specialist international dispute resolution fora. (2) There exists a common concern that this proliferation is entrenching divisions between the different international legal issue-areas in a manner which undermines the coherence and interdependence of international law, leading to exclusion and inconsistency. (3) We might call this type of fragmentation 'horizontal fragmentation' or 'fragmentation ratione materiae'. This article examines a different type of fragmentation. Its concern is not with the separation of international issue-areas, but with the divisions between different types of international actors--a phenomenon we might call 'vertical fragmentation' or 'fragmentation ratione personae'.
Non-state actors play a crucial role in today's globally interdependent world. The actions of international organisations, multinational corporations, terrorist groups, non-government organisations ('NGOs'), minority peoples and individual persons now permeate all areas of international life--from economics and trade to peace and security, and from human rights to the regulation of the natural environment. Countless commentators have remarked upon the changing nature of international relations and global power structures that have accompanied the 'rise' of non-state actors. (4) One necessary consequence of this increase in the scope and intensity of international interaction is a correlative increase in international grievances, disputes and claims between non-state actors and states, and between different non-state actors. (5) This article seeks to analyse
the way in which one international dispute resolution body, the International Court of Justice, has sought to accommodate non-state actors within the international legal system.
Non-state actors pose particular challenges for international lawyers because they do not fit comfortably within the traditional, state-centric constructs of international law. The jurisdictional limitations on the ICJ are but one manifestation of this state-centrism. Notwithstanding these limitations, the ICJ has, since its inception, had to grapple regularly with the complexities posed by non-state actors. (6) Whilst the Court has purported to develop international law in a manner that accommodates the realities of non-state actor influence, (7) this article argues that it has done so haphazardly and arbitrarily. The Court has failed to develop a coherent conceptual framework for its approach to non-state actors and has demonstrated a lack of appreciation for the implications of its conclusions. Consequently, the Court's jurisprudence has produced a fragmentation ratione personae of international law.
Part II of this article sets the scene for this analysis by seeking to place the issue of non-state actors in the context of broader debates within international legal theory concerning the nature of international legal personality ('ILP') and its implications for the role of the state. Part Ill analyses and critiques the ICJ's jurisprudence with respect to international organisations and non-state groups including self-determination or liberation movements and terrorist groups. Part IV draws these developments together and considers some possible alternative approaches for the international community and for the Court to better address the international legal challenges posed by non-state actors.
II PERSONALITY AND PARTICIPATION: THE THEORETICAL CONTEXT (8)
An understanding of the concept of ILP is indispensable to any international legal analysis of non-state actors. ILP may broadly be defined as 'the concept lawyers use to identify a certain actor as a separate and independent entity' in international law. (9) The importance of ILP to the question of non-state actors cannot be overstated as it (at least partly) determines which actors are subject to the regulatory force of international law. It thus represents the boundaries of the international legal realm; (10) the difference between inclusion and exclusion, silence and voice. (11) Some scholars see ILP as the 'bridge' by which non-state actors cross from the sphere of international relations into the sphere of international law. (12) The bridge metaphor provides a useful way of visualising the existence of a gap between the realities of international life and the rules of the international legal system in the context of non-state actor participation. This article discusses how that bridge has been constructed through the decisions of the ICJ and how it might be improved.
The implications of ILP are, however, far greater than its function as gatekeeper of the international legal realm. As this article will explore, the way in which ILP is conceived has profound consequences for the entire international legal order, (13) including the nature and extent of limitations on state sovereignty, state rights over territory and the legality of the use of force. (14) It is in part because of these tar-reaching implications that 'any discussion of legal personality almost necessarily opens the whole field of legal theory'. (15) Accordingly, an understanding of international legal theory is critical to analysing the question of non-state actors and ILP.
This section briefly sets out the main theoretical approaches to ILP as adopted by international legal scholars over the centuries. At the risk of oversimplification, the various approaches to ILP are grouped into three main schools of thought for heuristic utility. (16)
A Positivism, Realism and State-Centrism
The classical positivist and realist approaches to international law posit the state as the only subject of international law. (17) The positivist world consists of autonomous, sovereign states and sovereignty is conceived of maximally, such that the only limitations on sovereignty are those to which states have consented via their ratification of treaties or their participation in the development of custom. (18) Under this approach, the concept of ILP has negligible relevance beyond its application to states and little, if any, legal significance is accorded to non-state actors. Restorative scholars and realists such as Morgenthau thus conceived of ILP as a 'shield' against the corrosion of the supreme authority of the state. (19)
The problem with this approach is that it fails to accommodate adequately international legal developments in which ILP has been accorded to non-state actors. The historical attribution of ILP to international organisations (20) and individuals (21) has discredited the theory that only the state can bear rights and duties at international law. Later editions of textbooks which adopt a positivist approach have acknowledged such developments, with the 'new' subjects being treated as limited exceptions (22)--the theoretical implications of such structural changes tend to be ignored. (23) As Clapham notes, if international law has already expanded the range of actors which enjoy ILP, there is no reason in principle why the categories could not expand further. (24)
For the purposes of this article, it is useful to conceive of state-centric, positivist approaches to ILP (and sovereignty) as representing one extreme on a spectrum of possible juridical approaches to non-state actors.
B Natural Law and Anthropocentric Theories
If state-centric positivism represents one extreme, then theories based on natural law represent the other. (25) Natural law theorists posit the individual as the primary unit of international law, which is considered to be based on normative foundations of justice. (26) The role of the state is envisaged in terms of its obligations to uphold the fundamental rights of individuals through democratic entitlements. (27) Accordingly, natural law theorists tend to attribute ILP exclusively or primarily to individuals. (28) Interestingly, anthropocentric approaches to international law and to ILP have re-emerged in contemporary 'post-postmodern' attempts to reconstruct the individual subject as the empowered global citizen. (29)
While natural law theories can serve as interesting intellectual projects, they have been criticised for being over-idealistic and for lacking sufficient basis in the reality of international relations. (30) It is for this reason that such approaches have tended to be eschewed in the context of actual disputes involving non-state actors. Nonetheless, as we shall see, appeals to natural law are often implicit in the approaches of at least some ICJ judges to non-state actors. (31) Accordingly, an understanding of natural law theory remains relevant to contemporary analyses of non-state actor disputes in international law.
C Policy-Oriented and Pragmatic Theories
The final category is essentially a group of theorists who sit somewhere in between the extremes of positivism and natural law. Under the 'policy science' or 'law as process' approach taken by proponents of the New Haven School such as McDougal and Higgins, sovereignty is conceived of as a relative concept, encompassing both exclusive state rights as well as inclusive community responsibilities--including responsibilities to non-state actors. (32) McDougal saw little use for rigid concepts such as ILP, arguing that there was a need for international law to accommodate the interests of the whole range of participants in international power structures--both to protect their interests and to subordinate them to the authority of the law. (33)
Although different legal methods and language were used, the approaches adopted by scholars such as Friedmann and Lauterpacht were similar in their pragmatic progressivism. Essentially, these scholars sought to develop international law progressively, albeit within established legal frameworks. They sought the expansion of ILP to encompass non-state actors in line with developments in treaty-making and state practice, and with the demands of international justice. (34) Both writers emphasised that 1LP must encompass both rights and duties for non-state actors, (35) which in turn had important implications for the rights and duties of states. (36)
D Theory as Practice
It can readily be seen from this brief survey of major theories that one's approach to the question of non-state actors and ILP is inextricably linked with one's broader theoretical approach to international law. One cannot take a stand on issues of ILP without implicating more fundamental concepts such as state sovereignty and the nature of international legal obligation.
As will be seen in the next part of this article, it is primarily in accordance with a functional, quasi-progressive approach that the 1CJ has sought to accommodate non-state actors within the international legal system. Nijman rightly points out that this sort of pragmatic, entity-specific approach has led to a reduction in jurisprudential concern for the concept of ILP as a feature of international legal theory. (37) However, what this brief theoretical excursion has revealed is that all approaches to ILP necessarily have important theoretical and practical implications for international law.
III THE RESOLUTION OF NON-STATE ACTOR DISPUTES IN TIdE ICJ
The ICJ's jurisdiction is limited by its governing statute to contentious disputes between states and advisory opinions on legal matters submitted by the UN and its specialised organs. (38) The fact that the world's pre-eminent international judicial forum is precluded from adjudicating disputes brought by or against the vast majority of non-state actors reveals the historical attitude of the international community towards the role of non-state actors.
Notwithstanding the Court's limited jurisdiction, it has regularly been confronted with disputes involving non-state actors both within its advisory and contentious jurisdictions. As a result, the Court has made a number of findings which not only impact upon the rights and duties of non-state actors, but which, in some cases, affect fundamental tenets of international law. This part analyses and critiques the Court's approach in these contexts.
A The Reparations Opinion, International Organisations and the Birth of ILP
To understand the way in which the ICJ has attempted to accommodate non-state actors within the international legal system, it is critical to examine the Court's reasoning in the Reparations opinion. (39) In this case, the Court was asked to give an opinion as to, inter alia, whether the United Nations was a separate entity in international law and whether it had the power to espouse an international legal claim. This section discusses a number of issues relating to the nature, rights and duties of non-state actors which arise from the Reparations opinion and from other opinions of the Court concerning international organisations.
1 The Court's General Approach to Non-State Actors
Broadly speaking, the ICJ in the Reparations opinion set the tone for the Court's general approach to the issue of non-state actor participation within the international legal system:
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 the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. (40)
It is clear from this paragraph that the Court's overarching approach was to be one of pragmatic, progressive development. However, the Court emphasised that the legal nature and rights of different subjects will differ--the rights of states being paramount. (41) The Court was careful to ground these progressive developments in the realities and 'requirements of international life' and, in particular, in the 'activities of States'. (42) The expansion of non-state actors would therefore appear to depend on the interests and needs of states to interact with non-state actors (but not vice versa). The Court was thus able to distance itself from the extreme position that only states may be subjects of international law, (43) yet at the same time reinforce the dominant, positivist paradigm.
2 The...
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