Extracting Accountability from Non-State Actors in International Law

Assessing the Scope for Direct Regulation

Lee James McConnell

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780367075576
• eBook ISBN:
  9781317220565
• Topic: Law
• Subtopic: International Law
• Index: Law

The human rights of communities in many resource-rich, weak governance States are adversely affected, not only by the acts of States and their agents, but also by powerful non-State actors. Contemporary phenomena such as globalisation, privatisation and the proliferation of internal armed conflict have all contributed to the increasing public influence of these entities and the correlative decline in State power.

This book responds to the persistent challenges stemming from non-State actors linked to extractive industries. In light of the intersecting roles of multinational enterprises and non-State armed groups in this context, these actors are adopted as the primary analytical vehicles. The operations of these entities highlight the practical flaws of existing accountability regimes and permit an exploration of the theoretical challenges that preclude their direct legal regulation at the international level. Drawing insights from discursive democracy, compliance theories and the Pure Theory of Law, the book establishes a conceptual foundation for the creation of binding international obligations addressing non-State actors. Responding to the recent calls for a binding business and human rights treaty at the UN Human Rights Council, and the growing influence of armed non-State actors, the book makes a timely contribution to debates surrounding the direction of future developments in the field of international human rights law.

1 Introduction

The populations of resource-rich States are often vulnerable to severe human rights abuses. The adversities experienced by these communities do not solely emanate from the operations of States and their agents, but increasingly stem from the activities of so-called ‘non-State actors’. Two of the most notable are perhaps multinational enterprises (MNEs) and non-State armed groups.¹ The pattern of negative consequences arising from the intersection of these entities is replicated across the developing world, evidenced by instances of protracted internal armed conflict, torture and threats to physical security, pervasive sexual violence, as well as the recruitment of child soldiers.² In addition, these actors have contributed to rising levels of poverty, environmental degradation and poor labour standards, often leading to widespread ill health.³ Despite the diversity in the motives and goals of these entities, as well as the clear disparity in their economic power and political legitimacy, dominant scholarship continues to reflect their broad terminological classification as ‘non-State actors’. This binary categorisation makes the simple distinction between those entities that are sovereign States – the traditional addressees of international legal obligations – and those that are not.⁴

The interplay between the various subsets of public international law and the extent to which they offer effective protection from the threats highlighted above remains contentious. Given the traditional primacy accorded to States in the international legal system, the onus has typically fallen on these actors alone to effectively safeguard their populations from private entities operating within their jurisdictions. In light of the proliferation of non-State actors, and the correlative decline in State power,⁵ the practical efficacy of this position is now being called into question by scholars, States and non-governmental organisations (NGOs) alike.⁶ This monograph aims to respond to this scenario. It seeks to expose the practical challenges to the extant State-centric model of international law and will examine whether this theoretical framing can conceivably accommodate the direct application of international law to non-State actors. In addition, the study provides a critical appraisal of an alternative theoretical foundation and indicates areas for future normative development in international human rights law.

This introductory chapter establishes the field of research in which the present monograph is situated, defining the aims of the study and explaining the methodological approaches adopted. In doing so, it contextualises: (a) the State-centric focus of mainstream international legal scholarship; (b) the phenomena that have contributed to the significant political and economic influence wielded by non-State actors; and (c) the consequences that this scenario produces vis-à-vis the human rights of vulnerable civilian populations. Accordingly, the chapter begins with a brief contextualisation of the complex nature of non-State actor dynamics, followed by an exposition on the scenario that served as the initial stimulus for this research. It then defines the specific non-State actors adopted as analytical tools throughout the monograph and indicates the trajectory of the research by sketching the focus of the forthcoming chapters.

1.1 Non-State actor dynamics and contemporary challenges

The term ‘non-State actor’ notoriously evades precise definition. Josselin and Wallace suggest that the term includes entities that are:

i) largely or entirely autonomous from central government funding and control: emanating from civil society, or from the market economy, or from political impulses beyond State control and direction; ii) operating as or participating in networks which extend across the boundaries of two or more States – thus engaging in ‘transnational relations’, linking political systems, economies, societies; iii) acting in ways which affect political outcomes, either within one or more States or within international institutions – either purposefully or semi-purposefully, either as their primary objective or as one aspect of their activities.⁷

Although the utility of this detailed approach is acknowledged, McCorquodale suggests that it is both too restrictive, in that it fails to include individuals and inter-State organisations, and too broad, in that violations of international human rights law do not necessarily need to produce transnational effects.⁸ In line with this reading, the present monograph adopts a broader general definition that, it is suggested, is truer to the literal meaning of the term and better reflects the binary approach adopted in classical State-centric scholarship. Thus, for the purpose of this study, the term ‘non-State actor’ may refer to all individuals, groups and organisations that do not constitute sovereign States.⁹

One of the most fundamental challenges presented by this field of study is its expansive scope. It has long been acknowledged that the polar distinction between entities that are ‘States’ and those that are ‘not States’ is excessively reductive.¹⁰ A plurality of actors fall within the latter category, which may include any ‘non-State’ entity, from central institutions within the international legal system, to wholly private, corporate entities, and even armed factions operating on the fringes of weak governance States. In spite of the intensely varied economic influence and political legitimacy exhibited by these actors, their treatment and legal status in dominant scholarship remain essentially synonymous: non-State actors are merely objects, as opposed to direct addressees of international law.¹¹ It will be argued throughout this study that, although undeniably problematic, it is the theoretical foundations of this division that underpin the binding quality of international law in State-centric scholarship. This is a factor that cannot be ignored, for, as Green suggests, ‘an incoherent approach to non-State actors would have undesirable consequences not only for non-State actors, but for the international legal system as a whole’.¹²

Irrespective of the uniform categorisation of non-State actors, catch-all regulatory initiatives would likely prove highly undesirable. Such schemes would fail to account for the diversity in the willingness and capacity of these entities to comply with legal obligations, and would be unable to cater to the specific demands of each scenario. For instance, the form and content of the legal mechanisms required to ensure the effective regulation of an NGO will be entirely different to those for a multinational oil company or a terrorist cell. Thus, the formulation of effective international legal provisions addressing non-State actors is an extremely complex task.¹³ The numerous bodies of law relevant to the regulation of these entities, at both the domestic and international level, are vast, from domestic human rights initiatives, criminal, tort and company law, to the international human rights, humanitarian and criminal law regimes. Clearly, it is beyond the scope of this monograph to provide a detailed practical and theoretical analysis in relation to each and every non-State actor operational today. Rather, this study focuses on two specific categories of actor: MNEs and non-State armed groups. These entities have been selected owing to the power and influence they exert in international affairs, their intersecting roles and their utility as vehicles for complex practical and theoretical analysis. The foregoing caveat notwithstanding, the adoption of these particular actors will permit the elucidation of a number of key theoretical findings that are generalizable to the field as a whole.

A second general challenge presented by non-State actors relates to the expanding roles they perform in society and the undeniable rise in their political and economic influence over the course of the twentieth century.¹⁴ A number of contemporary phenomena have proven conducive to this proliferation.¹⁵ First, the globalisation of the world economy has led to a scenario in which MNEs boast greater gross domestic product (GDP) than many States and control vast resources.¹⁶ This process has encouraged deference to ‘certain economic models which aim almost exclusively to provide the conditions for “free markets” and foreign direct investment with little regard for the immediate effect of these policies on the marginalised or the poor’.¹⁷ Although this power shift has not rendered the territorial State completely redundant in international affairs, it has substantially affected the willingness and capacity of States to constrain the behaviour of private actors, particularly those upon which they are economically dependent. Second, the privatisation of traditional State functions has significantly increased the role of non-State actors at the domestic level, and ‘insufficient attention has been given to the implications for international law of the changing internal role of the State’.¹⁸ The privatisation of law enforcement, prisons, healthcare, education, telecommunications and broadcasting, tied to the Western neo-liberal project of free-market capitalism, is exacerbated by the State-centric focus of international human rights accountability mechanisms, which are unable to respond effectively to the rising influence of private actors.¹⁹

A third factor relates to the nature of warfare. Since the conclusion of the Second World War, armed conflict has become increasingly fragmented and is now dominated by catastrophic internal strife.²⁰ Non-State armed groups – a catch-all term adopted throughout this study to represent opposition groups, rebels, militias and insurgent movements – feature heavily in what the International Committee of the Red Cross (ICRC) has termed ‘anarchic’ conflicts.²¹ In situations in which a State’s governmental or judicial infrastructure is weak or collapsing, it would be naïve to suggest that it possesses the capacity to protect its population from serious human rights abuses.²² Moreover, ‘the extreme individualisation of the factions has made contacts and negotiations very uncertain. Every soldier – adult or child – virtually becomes a spokesperson, or in any case someone with whom to negotiate.’²³ The loose structure of these factions makes it ‘difficult, if not impossible to distinguish between combatants and civilians’.²⁴ This study recognises the importance of effectively responding to these international developments. The particular actors comprising the focus of this monograph in many ways epitomise the phenomena described above, and their utility will contribute to a robust, practical, theoretical analysis that accounts for, and responds to, the adverse consequences they engender.

The preceding discussion notwithstanding, the influence of non-State actors in public life is no longer a particularly novel concept. Scholarship produced throughout the 1990s was then described as ‘adventuresome and timely’.²⁵ It is recognised that, some 20 years later, such remarks are essentially platitudes. Although these phenomena remain relevant and highlight the fundamental societal changes that have taken place in recent decades, legal responses to date have proven inadequate. The threats that non-State actors pose to human rights are persistent and are now more critical than ever. In the words of De Brabandere, ‘the role that non-state actors play and should play in implementing human rights is . . . still largely under-theorised, while nevertheless being at the forefront of current legal, political and ethical debates’.²⁶ The present monograph aims to respond to this challenge. It critically examines the malleability of the dominant, State-centric approach to non-State actor regulation, revealing its core concepts and practical flaws. It demonstrates that the exposure of theoretical weaknesses can help ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of cases
• Table of legislation
• Acknowledgements
• 1 Introduction
• 2 The State as the basis of legal validity
• 3 The practical failings of State-centric accountability regimes
• 4 The theoretical scope for direct non-State actor regulation
• 5 Abandoning the State: towards an alternative theoretical framing
• 6 Conclusion
• Selected bibliography
• Index