1. Introduction
The growing intervention of non-state actors (NSAs) in the international arena involves structural changes that defy the predominant state-centric conception of the international legal system.Footnote 1 For a long time, NSAs have been excluded from systematic examinations and discourses on international law.Footnote 2
In recent times, however, the role and status of NSAs in the international arena has emerged as a significant area of study in both international law and international relations. A substantial amount of literature has accomplished the already difficult goal of placing the focus of attention, at least to some degree, on NSAs.Footnote 3 In this context, Math Noortmann, August Reinisch and Cedric Ryngaert have undertaken the great challenge of reflecting and engaging the various positions and opinions on the subject, providing a general overview of the discourses on NSAs in international law.
Non-State Actors in International Law Footnote 4 not only reviews the main theoretical frameworks that currently relate to NSAs from a legal standpoint (Part I), but also examines the most relevant areas of international law that allow an understanding of the intervention by NSAs in international dynamics (Part II), as well as the main actors in that category (Part III). In addition, it highlights the value of adopting a multidisciplinary approach, incorporating the perspectives provided by the theory of international relations (Part IV).
The main difficulties of undertaking this task are recognised by the editors in the introduction to the volume:Footnote 5 (i) in studying NSAs, ontological and epistemological confusion may arise as a result of the centrality of international legal personality in the development and understanding of international law; and (ii) the diversity of existing NSAs limits their definitional bond to the fact that they are not states, yet somehow still participate in the international system. These obstacles seem to shape most of the practical complexities and theoretical challenges that should be overcome in order to adequately incorporate NSAs into a theory of international law. Throughout the book they are dealt with, in one way or another, by all the contributors.
In this review, I will trace the elements of each chapter that reveal concrete examples of the first obstacle. In the next section, I will address Parts II and III of the book, contrasting them with the views of other scholars and identifying how state-centrism has given rise to theoretical and practical complexities concerning different branches of international law and with regard to a myriad of NSAs. In Section 3, I will comment on the theoretical alternatives presented in Parts I and IV of the volume, examining the extent to which each of them may help in overcoming the said difficulties. A general assessment of the volume is provided in the final remarks.
2. Diverse Actors, Different Spheres: Similar Constraints
While Part II of the book deals with the law on the use of force, international humanitarian law (IHL), international human rights law (IHRL) and state responsibility, Part III focuses on investors, multinational corporations (MNCs), international governmental organisations (IGOs), non-governmental organisations (NGOs) and armed groups. Although various approaches are adopted by the contributors, when analysed as a whole all chapters accurately reflect how NSAs are transversally relevant in most areas of international law.Footnote 6 In addition, they are rich in examples of the participation of NSAs in the international realm, examining international dynamics from novel standpoints and questioning reductionist perspectives.
Christian Henderson (Chapter 5) focuses on the law on the use of force by states against NSAs, especially when they are perceived as terrorists and located outside the territory of the state that intends to use force. In an effort to adapt the rules apparently conceived to deal with interstate situations, he suggests that the aforementioned scenarios should be framed within the legal structure provided by the prohibition established by Article 2(4) of the UN CharterFootnote 7 and customary international law, as well as its accepted exceptions.Footnote 8 In this vein, he explains that states have predominantly taken in their hands the use of force in response to terrorism as a matter of self-defence, a position that is possibly supported by the lack of reference in Article 51 of the UN Charter to states as authors of the armed attack – as noted by the separate opinion of Judge Higgins in the International Court of Justice (ICJ) Wall advisory opinion – and by state practice since 9/11.Footnote 9 This view is defended with fervour by Jordan Paust (Chapter 13), who holds that self-defence against NSAs is permissible under both the UN Charter and customary international law, even if there is no consent by the host state, no attribution of the NSA's actions to that state or a situation that amounts to an international or non-international armed conflict taking place, as long as necessity and proportionality are respected.Footnote 10 However, these stances are extremely controversial, as highly qualified publicistsFootnote 11 and seminal case lawFootnote 12 seem to point in a different direction. To some extent, Higgins’ view that Articles 2(4) and 51 of the UN Charter remain open to multiple interpretationsFootnote 13 still appears to be true.
Even if one concedes that ‘there is now a right of self-defence against non-state actors regardless of any state involvement’,Footnote 14 Henderson is conscious that the most problematic issues stem from their location within the territory of another state and from considerations of necessity and proportionality.Footnote 15 Hence, the modular part of the chapter analyses whether and how the sovereignty barrier might be overcome in this regard. The argument is based upon the shift of state practice towards accepting forcible responses limited to targeting NSAs and their bases.Footnote 16 Consequently, while proportionality seems to be covered, in principle, by the fact that the actions will be directed only to the NSAs concerned, necessity would require the state either to request the host state to take the appropriate measures or request consent to do so itself.Footnote 17
To a certain degree, the author seems willing to dismiss state-centric approaches even if that involves accepting that international law is not appropriately prepared to deal with contemporary forms of terrorism.Footnote 18 Thus, his position reflects the idea that the UN Charter must be interpreted in the contemporary contextFootnote 19 as a living instrument that is continuously shaped by and adapted to the interests of the parties.Footnote 20 However, Henderson is cautious in that he explains that his perspective, rather than a weakening of the rules, is a recognition of what necessity and proportionality mean nowadays, which prevents NSAs from acting with impunity while still allowing the use of force regime to be ‘seen through the prism of state sovereignty’.Footnote 21
Within the framework provided by IHL, Hans-Joachim Heintze and Charlotte Lülf (Chapter 6) deal with humanitarian aid organisations devoted to mitigating the consequences of war. It should be noted that although the rights and obligations of NSAs under IHL have been especially studied, focus has been placed mainly upon armed groupsFootnote 22 while the status and role of NGOs in this area of international law has hardly been addressed.Footnote 23 Therefore, this is a very welcome contribution to the study of NSAs in this field.
After distinguishing the unique status of the International Committee of the Red Cross (ICRC) from other components of the Red Cross and Red Crescent movements, IGOs and NGOs,Footnote 24 the authors highlight that national societies of the Red Cross and Red Crescent may sometimes play roles in the context of non-international armed conflicts, although they need the consent of the state party and, in practice, also of the NSA involved in the conflict.Footnote 25 They also examine the situation of humanitarian NGOs at large, pointing out that their activities have similarly fuelled debate on the issue of sovereignty and state consent in order for humanitarian aid to be carried out.Footnote 26 In addition, they note that protection by IHL ‘is to a great extent denied’Footnote 27 and that, although the legal framework has adapted to the growing practice of humanitarian assistance and relief by various actors, there are still claims to revise and promote a more flexible understanding of neutrality and impartiality.Footnote 28 In that respect, they highlight that in IHL these organisations are ‘merely mentioned in comparison to the ICRC, and are only given a limited task and protection by concrete provisions’.Footnote 29
The difficulties mentioned by Heintze and Lülf can be framed within the observations made by the former President of the ICRC, Jakob Kellenberger, who has emphasised that the ‘reinforcement of international law rules and mechanisms lies in the hands of States’.Footnote 30 In fact, even if customary IHL has progressively included specific rules of protection for any humanitarian organisation,Footnote 31 its respect is still predominantly dependent on the favourable disposition of states and, to some extent, on the willingness of armed groups.
This brings us back to the contribution of Jordan Paust (Chapter 13), who explains that armed groups can perform different activities, some of them with a degree of formal recognition in international law. He describes how nations, peoples, tribes, belligerent groups and insurgent groups engaging in violence against a state or other NSA throughout history have been granted some kind of formal participatory status,Footnote 32 as can be observed in the application of customary law with regard to such belligerentsFootnote 33 and insurgent groups.Footnote 34 He argues that some specific ways of waging war – such as through terrorism, piracy, and the use of mercenaries, brigands and bandits, as well as organised criminal activities – have been specifically outlawed.Footnote 35 In this respect, it should be noted that the performance of prohibited acts does not necessarily exclude the application of IHL or consideration of the entities that carry out the acts as armed groups, provided that the legal requirements for the situation to amount to an armed conflict are met.Footnote 36
In addition, Paust holds the view that any armed conflict can be internationalised if its territorial component exceeds the jurisdiction of any one state, or if there is any outside intervention in the fighting by armed forces of another state, nation or people, regardless of who they support.Footnote 37 Despite being a fair attempt to extend greater levels of protection by IHL in a significant number of situations, it should be noted that this position is difficult to reconcile with either the text of Common Article 2 to the 1949 Geneva ConventionsFootnote 38 and of Article 1(3) and (4) of Additional Protocol I of 1977,Footnote 39 or with the ICRC's authoritative interpretation of their content.Footnote 40
In any case, this contribution provides a grasp of the importance of armed groups in the context of IHL, as they increasingly tend to play leading roles in a world where non-international armed conflicts prevail in number over those of an international character.Footnote 41 As noted by Paust in terms of ‘formal recognition’, IHL directly addresses armed groups, imposing specific obligations upon them.Footnote 42 However, one of the unresolved challenges of this field is how to achieve greater levels of respect for the law by such entities,Footnote 43 especially taking into account that international rules are agreed by states.Footnote 44 In this regard, in an attempt to overcome the difficulties of dealing with a state-centric framework and to achieve a higher degree of effectiveness in the application of IHL rules by NSAs, some arguments and strategies have been put forward concerning the possible participation of armed groups in the creation of international law through different mechanisms.Footnote 45
The difficulties of relying on state consent reappear in the sphere of IHRL. Manfred Nowak and Karolina Miriam Januszewski (Chapter 7) point out that by focusing on the state's role as guardian of human rights and relying on their enforcement at the national level, ‘[e]fforts to establish explicit horizontal international human rights obligations for non-state actors have until now failed’.Footnote 46 After adopting the view that current international dynamics have caused ‘the state-centric construction of international human rights law to totter’,Footnote 47 the authors refute the idea that there are theoretical constraints that prevent the consideration of NSAs as subjects of international law bearing international obligations and, building on Rosalyn Higgins’ arguments, they consider it an issue of state interest and political will leading to an international consensus, but not of immutable conceptual barriers.Footnote 48
In that vein, although the predominant perspective places human rights violations within a vertical (states vis-à-vis citizens) and static system, the authors hold that the existence of horizontal relationships is conceptually dependent on the understanding one adopts of the meaning and purpose of human rights.Footnote 49 Hence, one of the core ideas of the chapter is that the equal entitlement of every individual to live a life in dignity means – as it has been recognised by modern moral and political theory – that the ‘effective realisation of human rights thus logically implies a broad conception of claims against all actors able to affect the dignity of a human person’.Footnote 50 This type of approach has been advanced in recent literature by prestigious authors in the field,Footnote 51 and Nowak and Januszewski even identify the idea of ‘an “all-round” effect of human rights’ with the widely accepted understanding that they are a means to challenge and tame power, which can be traced back to social contract theories.Footnote 52
The position presented by Nowak and Januszewski challenges the liberal distinction between public and private spheres, recognising that it does not reflect current international dynamics, that it leaves outside the scope of human rights very relevant issues such as family violence, gender-based violence and domestic workers’ rights, and that it prevents the acceptance of private actors as bearers of human rights obligations.Footnote 53 In fact, when confronted with the reality of significant power shifts towards multiple NSAs, the legitimacy of the state-centric paradigm of IHRL is questioned, especially if one attempts to understand this legal regime as centred on the empowerment of the rights holder.Footnote 54 In this line, Philip Alston has warnedFootnote 55 that:
[IHRL's] aspiration to ensure the accountability of all major actors will be severely compromised in the years ahead if it does not succeed in devising a considerably more effective framework than currently exists in order to take adequate account of the roles played by some non-state actors.
Of course, the authors recognise that there have been some attempts to modify the exclusively vertical understanding of human rights. This can be observed in the African human rights law instruments, in the Convention on the Rights of the Child and its Optional Protocol on the involvement of children in armed conflict, and in the development of international criminal law. In addition, a series of ‘soft law’ instruments deal with human rights obligations of transnational corporations, IGOs and NGOs, mainly as a result of demands regarding their accountability and transparency, although they only set general guidelines which do not cover the whole myriad of human rights, and they lack monitoring mechanisms.Footnote 56 Despite the fact that these experiences lead them to conclude that ‘the existent vertical human rights regime is not that easily transposable to the horizontal level’,Footnote 57 Nowak and Januszewski emphasise that it is indisputable that NSAs have a negative obligation to respect human rights and, when they take over governmental functions and exert a degree of control, also positive obligations. In this sense, regardless of how their accountability is achieved, the centre of any analysis should still be the right of the victim to obtain adequate reparation for the harm suffered.Footnote 58
Beyond the realms of IHL, IHRL and the law relating to the use of force, the roles and status of multiple NSAs in international law have been the object of growing attention from numerous scholars, both from a legal perspectiveFootnote 59 and within international relations theory.Footnote 60 In this context, the chapter by Math Noortmann (Chapter 10) and the contribution by Jan Wouters and Anna-Luise Chané (Chapter 11), focusing respectively on NGOs and MNCs, are good examples of the progressive expansion of a variety of NSAs that play influential roles in international dynamics affecting numerous branches of law.
Noortmann begins by pointing out that the limitations of international legal personality demand a pragmatic engagement with NGOs, while also recognising that the construction of the category as a negation of government entails difficulties for its analytical understanding.Footnote 61 Hence, he proposes a functional approach and argues that the rights and responsibilities of NGOs are interconnected and co-determined by their activities,Footnote 62 which are admittedly increasing day by day.Footnote 63
The author considers that it is not possible to hold a clear analytical and conceptual distinction ‘between social, political and legal spaces, between non-permeable private and public spaces, or between national, international, transnational and global levels of participation’.Footnote 64 He highlights that these distinctions do not exclude the examination of some of the activities of NGOs in law enforcement and dispute settlement, but they do appear as a barrier to considering their role in lawmaking.Footnote 65 In addition, he points outFootnote 66 that despite the predominant and biased discourse on accountability:
There is no reason to assume that NGOs are incapable of violating primary rules that are established by the international community … [nor] to assume that no accountability and dispute resolution mechanisms involving NGOs can be agreed upon and established at the global level.
In sum, given the diversity and variety of the roles and activities conducted by NGOs at the global level, there are still constraints that prevent them from acquiring a legal status:Footnote 67
Understanding the legal status of internationally operating NGOs in the traditional terms of international legal personality or subjects of international law obfuscates the need for an inclusive legal system that entitles and obliges states, governments and non-governmental organisations equally.
In fact, NGOs are sometimes straightforwardly denied any kind of international legal statusFootnote 68 or are simply ignored in seminal pieces on the subjects of international law,Footnote 69 as their role is perceived as a matter of extralegal influence.Footnote 70 Those who consider that NGOs may possess international legal personality are clearly in the minority.Footnote 71
As an alternative, Noortmann suggests that the behaviour of these entities must be assessed according to rules of international and transnational law, while disputes between them and other actors should be settled through transnationally agreed procedures.Footnote 72 In the following section, the same author's view on transnational law will be discussed further.
In the case of MNCs, Wouters and Chané also acknowledge the complexities of the current discussion of their international legal personality and choose to focus on the rules that apply to them.Footnote 73 To that end, they highlight how the inadequacy of national legislation to deal with the multiple functions performed by the private sector has shifted attention towards international law, not only as a means of recognising rights for MNCs under international investment law and IHRL but also to hold them accountable for violations of human rights, environmental and criminal law.Footnote 74
Albeit noting that the prevailing view recognises no direct obligations for MNCs under international law, the authors stress that there is a growing body of ‘soft law’ regulating their conduct in those three fields. In this vein, they explain that in the context of human rights this type of development has emerged both in IGOs (such as the United Nations, the Organisation for Economic Co-operation and Development and the International Labour Organization) and as self-regulation initiatives, although facing an ever-present resistance at the political, legal and business levels.Footnote 75 Moreover, criminal law initiatives are limited to liability clauses included in some international treaties regarding the protection of the environment and the fight against corruption, terrorism and organised crime.Footnote 76 However, they do observe a greater level of development in international environmental law, through the establishment of civil liability rules for private actors (although they rely on domestic implementation) and the proliferation of self-regulation initiatives.Footnote 77
Although it was observed two decades ago that the regulation of corporations remained a function of national law,Footnote 78 the setting described by Wouters and Chané shows how MNCs have acquired rights at the international level, which contrasts with the persistent lack of international obligations. As another commentator has pointed out, ‘[w]hile there appears to be a great deal of recognition of the enhanced power of transnational corporations, it is unaccompanied by effective efforts to regulate them. In many matters, international law is silent’.Footnote 79 Considering the growing involvement of these entities in human rights abuses and environmental harm, the authors hold that ‘the calls for stronger obligations of MNCs under international law persist’.Footnote 80
The depiction of the role of the private sector in international law is completed by August Reinisch (Chapter 12), who examines how corporate and individual investors have become ‘driving forces of the development of international law’.Footnote 81 To that end, he explains how dispute settlement in the realm of investment law has shifted from the exercise of diplomatic protection to investor-state ad hoc international arbitration, firstly contract based and now predominantly treaty based.Footnote 82
This phenomenon, in conjunction with the question about the existence of direct rights of investors, has not only fostered debates about the possibility of endowing investors with some degree of international legal personality,Footnote 83 but has also allowed them to contribute directly to the development of international law and, particularly, of international investment law. In the adjudicatory process, the submissions and argumentation of investors can be accepted or dismissed by tribunals in shaping international standards.Footnote 84 In fact, it can be quite difficult to resist international claims presented by corporations which frequently have greater economic power than many states.Footnote 85 However, Reinisch notes that this situation has created a backlash, as states have started to modify international agreements which were beneficial for investors and to question the legitimacy and usefulness of investor-state dispute settlement.Footnote 86
Once again, the chief resistance to the development of international law based upon the activities of NSAs appears to be directly linked to (the absence of) state consent. However, in this field such resistance may frequently be accompanied by disinterest on the part of private actors, who may not desire a status that would entail more obligationsFootnote 87 but are nevertheless ‘increasingly functioning as participants in the direct creation, application and enforcement of international law’.Footnote 88
It is precisely the observation of current dynamics which leads Ramses Wessel (Chapter 9) to examine whether IGOs could be viewed as NSAs.Footnote 89 His core argumentFootnote 90 is that:
international organisations cannot be equated to groups of states but are separate international legal entities which are increasingly involved in international law-making and which – in the exercise of their managerial tasks – have become bureaucracies [… which] increasingly rely on international and external experts to deal with the complex (increasingly technical) questions that formed the reason for their creation in the first place.
Hence, he notes that the capacities of any entity reveal its independent position and he recognises that the ICJ doctrine of implicit legal personality, as presented in the Reparation for Injuries case,Footnote 91 can actually be helpful in understanding the separate position of IGOs in international law.Footnote 92 However, Klabbers has criticised this decision for apparently accommodating considerations of necessity but actually tying them to the intents and wishes of member states.Footnote 93
In any case, in Wessel's view, the normative activity carried out by IGOs seems to highlight the increasing autonomy of many of them and can be seen as their ‘non-state dimension’.Footnote 94 In particular, he claims that while international legal personality frames the question as a dichotomy, autonomy is a matter of degree which allows observation of the internal structure of IGOs and identification of the organs that make decisions on a daily basis. This produces a corporate will that is different from the wills of member states, thus implying a distinction between them and the international entity.Footnote 95 In this context, it is also possible to better understand how IGOs have progressively enabled the intervention of multiple NSAs, eventually opening up to cooperation and competition between governmental and non-governmental participants.Footnote 96
Finally, Cedric Ryngaert (Chapter 8) examines how the rules on the international responsibility of states are insufficient in terms of accountability when international law is confronted with the activities of NSAs. In the first place, the author notes that the Articles on the Responsibility of States for International Wrongful ActsFootnote 97 may provide solutions in some cases where there is a sufficiently strong link between the state and the conduct of NSAs, in accordance with Articles 5, 8, 9, 10 and 11.Footnote 98 However, he highlights that Articles 5 and 9 include requirements which establish a threshold that ‘may well result in non-attribution of non-state actor conduct to the state, even if the non-state actor is exercising elements of governmental authority’.Footnote 99 In addition, the strictness of the effective control standard, as applied by the ICJ with regard to Article 8, limits the chances of attributing the conduct of NSAs to states.Footnote 100 In turn, Article 10 is relevant only in the case of insurrectional movements which are successful in overthrowing the government and forming a new one, or in seceding from the state with which they are fighting. The acts of defeated movements and of those included in national reconciliation governments at the outset of the conflict fall outside the scope of this provision.Footnote 101
A second alternative is to hold states directly responsible for their failure to prevent wrongful NSA conduct (due diligence failure).Footnote 102 In this case, state responsibility no longer derives from secondary rules of international law (as in the other situations) but from primary rules which are present mainly in the law of immunity, international environmental law and IHRL.Footnote 103 However, given the difficulties in broadening the capacity of states to exercise due diligence over the acts of NSAs and to lower the threshold of attribution, Ryngaert claims that ‘[i]f non-state actors are exercising real international power and cause harm to third parties, it is only logical that they are held to account on the basis of a separate, tailor-made responsibility regime’.Footnote 104
An overview of Parts II and III of the book has shown how different branches of international law suffer from similar constraints derived from state-centric conceptions, which may be observed in the prevalence of the notions of international legal personality and state consent. As a result of inconsistencies between theory and practice, the role and status of diverse NSAs in the international realm are the subject of lengthy debates that seem to be far from ending.
3. Theoretical Alternatives: Narrowing the Gap between Theory and Practice
The progressive incorporation of the term ‘actors’ in international law has not prevented most theoretical approaches from being driven mainly by the notion of international legal personalityFootnote 105 and, consequently, subject to the constraints that were examined in the previous section. The editors of the volume evidently are conscious of the separation between contemporary international dynamics – and, particularly, the role played by NSAs – and the predominant theoretical explanations provided by legal scholarship. This can clearly be noticed in Part I of the volume, which presents three perspectives devised to deal with NSAs in international law.
Despite their substantial differences, the three chapters build on earlier theories and recognise the need to adapt our current standpoint in order to appreciate NSAs' ‘presence in the international realm’.Footnote 106 While Jean d'Aspremont (Chapter 2)Footnote 107 argues within the positivist paradigm, Eisuke Suzuki (Chapter 3)Footnote 108 promotes a significant theoretical shift through the adoption of the policy perspective, and Math Noortmann (Chapter 4)Footnote 109 advocates that the most adequate framework to give account of such practices rather than international law is transnational law – understood as an autonomous and differentiated system.
The legal approaches of Part I are complemented interestingly by a series of contributions from international relations scholars, presented in Part IV. In this sense, Markus Kornprobst (Chapter 14)Footnote 110 provides a comprehensive overview of the literature on the subject and advocates in favour of interdisciplinary research; Alan Chong (Chapter 15)Footnote 111 explores how the activities of NSAs can be understood in terms of soft power, and Barrie Axford (Chapter 16)Footnote 112 examines them through the lens of global governance.
D'Aspremont argues that a modern interpretation of the positivist paradigm recognises that the social practice that involves NSAs grants them a role which pertains to the design of the secondary rules of international law concerning the sources of international law – that is, the modes of cognition of the international legal order as a whole.Footnote 113 This requires distinguishing between NSA engagement with content determination and with law ascertainment, despite the fact that both activities frequently take place simultaneously in legal reasoning.Footnote 114
The author claims that a pluralistic positivist view broadens the scope of the actors taken into accountFootnote 115 when analysing the communitarian semantics that inform the content of the doctrine of sources of international law.Footnote 116 However, he also admits that such inclusion remains an open question which encompasses a political dimension and the risk of leading to a hegemonic approach, as international lawyers are faced with decisions as to what types of NSA behaviour ‘are allowed to feed into the social practice’.Footnote 117
D'Aspremont's view is of great value, as it accepts the need to re-evaluate some of the basic theoretical underpinnings of positivism. However, it could also be understood, once again, to leave everything in the hands of states, who seem to be entitled to grant or deny NSAs access into the field of communitarian semantics. Even if NSAs are admitted, it is exclusively into the field of law ascertainment, while law creation remains strictly out of their reach. Moreover, it should be further considered whether this theoretical approach could be employed to explain the broad range of activities carried out by NSAs within the various fields of international law, as discussed in the previous section.
Suzuki's starting point is the New Haven school's well-known criticism of the subject/object dichotomy, which he links to the ‘gatekeeper’ role that governments and IGOs play with regard to organised arenas of formal lawmaking.Footnote 118 In contrast, the notion of ‘participants’ enables the consideration of all groups and communities that intervene in global decision processes within a theoretical framework intended to describe with precision any social process.Footnote 119 In that vein, the activities of NSAs can be understood by reference to major value processesFootnote 120 and to the performance of different decision functions.Footnote 121 Hence, the perspectives and operations of human beings are the basic empirical foundation of pluralism and diversity, while IHRL may be construed as its basis for authority. In this sense, Suzuki concludes that the range of participants should be as comprehensive as feasible, although achieving effectiveness requires considerations of economy, transparency and accountability.Footnote 122
In sum, the author proposes as an appropriate alternative the description of ‘the world's different community decision processes in terms of the interpenetration of multiple processes of authoritative decisions of varying territorial compass’.Footnote 123 However, he considers that NSAs still need to stimulate demands and expectations about authority for themselves as effective participants in the global constitutive process, as well as capitalise on the will and capability of local and national institutions in order to transnationalise the internal decision processes and integrate them globally.Footnote 124
The added value of the New Haven theory seems to be the lack of a priori limitations as to the consideration of which actors are relevant for each aspect of social practice. In addition, it openly proposes a world order of human dignity as its ultimate goal,Footnote 125 which seems to be in line with the preeminent place of IHRL within the international legal system.Footnote 126 However, Shaw has noted that such an objective is difficult to reconcile with many state actions, and he has also warned that this framework may eventually lead to support any practice carried out by the dominant powers.Footnote 127 Moreover, Portmann has contested that actual practice and its normative significance are as closely linked as this position suggests, arguing that it is theoretically inconsistent to hold that there can be direct normative implications drawn from effective behaviour or power.Footnote 128
In turn, Noortmann presents his view of transnational law as ‘an independent legal realm, separated from, but partially overlapping with national law, public international law, and private international law’.Footnote 129 In this vein, what distinguishes transnational law from other legal systems is that ‘all transnational actors, state or non-state, are potential constituents of and participants in transnational law’.Footnote 130 Thus, it shares with lex mercatoria the deconstruction of the national–international and the private–public dichotomies, but it is not restricted to the commercial realm.Footnote 131
In this context, NSAs possess transnational lawmaking capacity, although this is not understood as an absolute status (as in the case of states in international law) but with a temporal/special functionality.Footnote 132 After explaining some basic elements of a possible theory of sources of transnational law and of dispute resolution,Footnote 133 Noortmann proposesFootnote 134 that:
[t]he law that is neither ‘national’ nor ‘international’ must properly be called ‘transnational’, based on its own sources and subjected to its own rules of identification, which … are not wholly different in character from the sources of other legal systems.
The qualification of any given forum as national, international or transnational will depend on its constitutional context: that is, ‘who has access, which rules will be applied and what is the relevance of the authoritative outcome’.Footnote 135
The greatest virtue of this approach seems to be its flexibility, as it recognises the normative value that may be found in multiple interactions between diverse actors. However, it can also be observed that it is not presented as a solution within international law, but outside its boundaries. Consequently, it could entail problems regarding the delimitation of each legal system and, eventually, concerning the relations between them.
Although the three contributions included in Part I propose divergent interpretations, they seem to agree on the need to take into account the social practice of multiple actors, albeit understood in narrower or broader terms. This clearly sets the ground for the adoption of a multidisciplinary approach which may benefit from conceptual tools capable of presenting a better depiction of international dynamics. In this sense, Part IV of the book introduces interesting elements that should be taken into account and further developed in future studies on the role and status of NSAs in international law.
It is precisely the proposal of an interdisciplinary agenda for research that is the objective of Kornprobst's contribution.Footnote 136 By exploring the sub-fields of international security and international political economy, as well as the arguments on the role of NSAs in the reconstitution of the global polity, the author presents three contentions. First, there is a proliferation of different kinds of NSA, which goes beyond the examples analysed throughout the volume. Second, the relationship between NSAs and states, or exclusively between states, can be understood in terms of three causal processes: coercion, incentives and persuasion. Finally, the dynamics that link actors and processes are typically explained using metaphors such as governance, network, regime, complex and bloc, but this type of description cannot avoid privileging certain actors and certain causal processes.Footnote 137 In this regard, he concludes that ‘more research would be warranted that aims for a more holistic scrutiny of global political processes’,Footnote 138 a goal that could be advanced by a multifaceted dialogue between international relations and international law.Footnote 139
‘Soft power’ is the specific theoretical tool employed by Chong in order to examine some activities of contemporary NSAs. He begins by pointing out that these entities may strategically choose between exerting soft or hard power, but also argues that the majority has leaned towards the former.Footnote 140 After analysing the use of new technologies, the implementation of campaigns to publicise unethical practices, strategic litigation and the work of grassroots NGOs, he concludes that, as opposed to physical violence, ‘[n]on-state soft power is inherently linked to projecting community. It is ideally a community showcasing the best of humanity’.Footnote 141
In turn, Axford suggests that globalisation theory can be employed as a general framework to examine the role of NSAs in international affairs, within complex governance networks.Footnote 142 In particular, he stresses that the idea of a global public domain is transformative, secular and inclusive, as it encompasses ‘an increasingly institutionalised transnational realm of “discourse, contestation and action” on the part of private and public actors to produce global public goods’.Footnote 143
Regardless of the path that international legal scholars may choose, it seems that an accurate appraisal of the NSA dimension requires a theoretical shift. As a minimum, international law cannot be studied exclusively as a set of static rules, and the consideration of social practice appears to be unavoidable. Ideally, the interaction with other disciplines in order to broaden the conceptual possibilities of international law will no longer be the exception but the rule.
4. Final Remarks
For a long time, state-centric approaches to international law have precluded the advancement of theorisation about the role and status of NSAs within the discipline, leaving aside contemporary phenomena of great relevance.Footnote 144 It is only thanks to the progressive broadening of inquiries in the fields of international relations and political science that it has become possible to begin to theorise on the multiplicity of entities interacting at the international level, and foster a growing dialogue between disciplines.Footnote 145
Part I of the book not only evidences the rising importance of theoretical perspectives concerned with NSAs within international legal literature, but also the need to incorporate tools from other disciplines in order to give proper account of the social practice of current international dynamics. In this vein, Part IV introduces a series of frameworks to deal with the issue from the standpoint of international relations, thus encouraging further research based precisely upon the adoption of multidisciplinary perspectives.
Throughout Parts II and III, the volume evidences the presence of diverse NSAs within different areas of international law and the multiplicity of issues that should be reassessed in the light of a more complete picture of international dynamics. The theoretical constraints of state-centric views are not limited to debates on international legal personality, but have a direct impact on discussions concerning lawmaking, on the determination of international rights and obligations of NSAs, on the need to update international monitoring tools and to adopt new mechanisms aimed at achieving greater levels of transparency and accountability. Moreover, acknowledging diversity in the international realm entails the difficult task of revaluating the various categories of actors encompassed under the NSA label which, as noted by the editors in their concluding observations, is characterised negatively by reference to states.Footnote 146
If one is willing to accept that international law is a political device, its preferred terms and concepts must be analysed in context, recognising its strategic use by states and NSAs. In this vein, international legal scholars play an essential role in shedding light on power struggles taking place and devising theoretical frameworks capable of explaining them. While some are already attempting to draw attention to the bigger picture, taking into account the complex dynamics that involve NSAs, many still advocate in favour of avoiding the conferral of any international legal status for NSAs.
Non-State Actors in International Law provides a complete overview of major positions on the issues currently being discussed with regard to NSAs in the international legal arena, setting the ground for a reinforced research agenda. It is useful not only for those already versed with the topics of the volume, but also for those wishing to study them for the first time. In sum, the book is a fundamental piece that should occupy an important spot on the bookshelves of international law students, scholars and practitioners.
