Non-State Actor Dynamics in International Law

From Law-Takers to Law-Makers

Cedric Ryngaert, Math Noortmann

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409403166
• eBook ISBN: 9781317086918
• Topic: Law
• Subtopic: International Law
• Index: Law

Non-state actors have always been treated with ambivalence in the works of international law. While their empirical existence is widely acknowledged and their impact and influence uncontested, non-state actors are still not in the centre of international legal research. The idea that non-state actors are not law-makers, however, stands in sharp contrast with the growing notion of non-state actors as law-takers. This book examines the position of non-state actors in international law as law-makers and law-takers and questions whether these different positions can or should be separated from each other. Each contribution reveals both the political and normative aspects of the question as well as the positivistic possibilities and constraints to accommodate non-state actors as law-takers and law-makers in the contemporary international legal system. Altogether, each expert reveals that the position of non-state actors in international law is not a fixed one but changes with the functional and theoretical perspectives of the observer. Non-State Actor Dynamics in International Law is a welcomed addition to an under researched field of legal study. An indispensable read to scholars and policy makers wishing to gain new insights into general discourse on non-state actors in international law and the process of norm formation in the international realm.

1 Introduction

Non-State Actors: International Law's Problematic Case

Math Noortmann and Cedric Ryngaert

DOI: 10.4324/9781315598475-1

The difference between those who ‘make’ the law, those who determine and enforce the law and those who ‘take’ the law is generally considered to be a formal distinction, which is exclusively determined by the constitutional characteristics of the legal system in question. As a rule, law-takers outnumber law-makers. The international legal system has been the traditional exception to that rule: states were at the same time the exclusive law-makers and law-takers in an exact ratio of 1:1.

With the definitive and recognized breakthrough of entities, which are not nation-states at the international plane, the state has lost its exclusive position as law-taker. Fragmented sets of international rights and obligations have been attributed to a most diverse cluster of non-state actors (NSAs). The label ‘non-state actor’ can hardly be considered to constitute a term of art because it includes such wide range of identifiable organizations as non-governmental organizations (NGOs) (Weiss 1999, Charnovitz 2006), multinational enterprises (MNEs) (Kokkini-Iatridou 1983, Muchlinski 1999), national liberation armies (Wilson 1988) and intergovernmental organizations (IGOs) (Huntington 1973), as well as more amorphous groupings such as armed NSAs (Zegveld 2002, Chesterman 2006), indigenous peoples (Howitt 1996), criminal and terrorist organizations (Alexander 2001) and social movements (Keck 1989). The list of NSAs is in contrast to the list of states simple inexhaustible. What is more, each typography of non-state actor contains a specific sub-categorization, which makes it even more difficult to understand and explain every single NSA under one single heading, be it from a legal, political or social disciplinary perspective (Noortmann 2001, Reinalda 2001, Schneckener 2006).

That fragmentation, however, does not undermine the observation that NSAs have, as a category, acquired enforceable and less enforceable international legal entitlements and – what is perhaps more important – it does not determine the general consensus, that NSAs (of whatever nature) should be subjected to regimes of global responsibility and accountability. The International Law Commission’s (ILC) conclusion that ‘the topic “responsibility of international organizations” was appropriate for inclusion in its long-term programme of work’¹ in 2000 was due ever since the International Court of Justice (ICJ) observed in 1948 that ‘the progressive increase in the collective action of States, has already given rise to instances of action upon the international plane by certain entities, which are not States.’² That the ILC’s work on the responsibility of international organizations is only the beginning of a long set of reports on the responsibility of different kind of NSAs is evidenced by the recent appointment of Prof. John Ruggie as the UN Secretary General’s Special Representative on Business and Human Rights.

1 See Official Records of the General Assembly, Fifty-fifth Session, Supplement No. 10 (A/55/10), paras 726–728 and 729 (1). 2 Reparation for Injuries suffered in the service of the United Nations, Advisory Opinion: ICJ Reports 1949, p. 174 at 180.

The mushrooming of non-state actors has not only triggered question as to the diversification of international responsibilities and rights, but also with respect to the question as to the role and position of non-state actors in the international law-making and decision-making process. Notwithstanding the political dimension of that question, it is clear that it transcends the concepts of political power and influence. Unfortunately, the impact and influence of non-state actors and more in particular NGOs and MNEs is rather uncritically assumed then that it is critically investigated in most studies.

The role and position of non-governmental organizations in global humanitarian, human rights and environmental issues has been the subject of an increasing number of legal, political and sociological studies (Arts, Noortmann and Reinalda 2001, Boli 1999). However, as these studies focus on a limited number of specific NGOs, they fail to grasp the complexity and diversity of normative multi actor frameworks such as the small arms complex, investment regimes and diverse forms of corporate social responsibility (CSR) initiatives. The question whether, and if so to which extent, NSAs effect international law with respect to the idea of corporate social responsibility, and whether and to which extent these actors are affected by international law, has been the subject of significant and longstanding interdisciplinary and societal debates. The Late European Middle Ages and the birth of the modern company is often taken as the starting point of the public debates on the enterprise as a socio-economic and political phenomenon, but one could equally take the pre-medieval times or the ‘rise of big business’ as the focal point for the start of enterprise critical discourses (Micklethwait and Woolridge 2003).

However that may be, there is little doubt that corporate responsibility has become a major issue in both society and in the disciplinary debates of public international law; the question on controlling and regulating MNEs is a thriving subject. Multinational enterprises or transnational corporations have undoubtedly become one of the most discussed and targeted non-state actors in the international system. Since the normative quality of governmental codes of conduct has not been clarified in detail, the CSR debate has been intensified by the increasing number of private initiatives in recent years. These exclusively non-governmental initiatives, in practice and the public and academic debate seem to eclipse the soft law initiatives in the CSR field. The contributions of Leyla Davarnejad and Peter Muchlinski analyse the particular role and influence of the legal epistemic community, NGOs and corporate actors in the legal CSR debate. Their papers describe and analyse one of the (most important) empirical domains in the NSA discourse in international law.

Leyla Davarnejad in particular, argues that the combination of economic and political power of MNEs, the unclear international legal status, their debated impact on human rights, labour or environmental standards has been ameliorated by the actuality intergovernmental organizations (IGOs), NGOs and MNEs themselves have issued an innumerable amount including (CSR) codes. The new concept of CSR has started to depart the usual boundaries between state and market and entails a complete new division of accountability between public and private actors. What is the impact of these codes? Do they change the law or do they change the actors … or both? Are they considered adequate from a legal perspective? In the end Leyla Davarnejad seems to argue that because governmental codes of conduct set themselves apart from private initiatives due to their public authority and their ability to reconcile and to balance the conflicting interests that characterize the CSR debate, the normative difference between law and non-law is of continued relevance.

Peter Muchlinski shares Davarnejad’s socio-political assessment that, given the technological, financial and managerial advantages of MNEs, which are organized and operate across national borders, these actors have significant power and influence in the development of national and international economic and social policy. In the international legal domain, however, Muchlinski observes a process of law-making, which undermines the traditional notion of law-making processes as state or governmental processes. The conceptual separation between (1) the power of MNEs to substantially interact with national policymakers and intergovernmental organizations to develop policy and to exact legal regulation and (2) the constitutional notion of law-making is too formalistic. The question whether MNEs and other NSAs can be considered to act as ‘law-makers’ in the international legal process is the subject of this edited volume. MNEs set the empirical stage to our contribution to the general NSA discourse. Muchlinski’s examination aims to develop a model of the process of international law-making, which takes account of corporate power, and the power of other non-state actors to influence the content of the law.

Part Two of this volume promotes a more particular (re)consideration of such typical legal topics as ‘legal personality’ (Janne Nijman and Noemi Gal-Or) and ‘legitimacy’ (Cedric Ryngaert). Janne Nijman’s investigation appreciates non-state actors in the context of the notion of the ‘rule of law’ and discusses the revival of a realist theory of international law. She does so on the basis of a critique on the traditional approach to international legal personality as the conceptual lens through which the position of non-state actors in international law is generally questioned. Her contribution in particular explores a more ‘internally’ pushed and inter-subjectively created international legal personality of the non-state actor.

Noemi Gal-Or discusses whether, from an international legal perspective, which presumes some legal status for some NSAs, it is desirable to enhance the legal status of the NSA. Hence, the question is not whether a specific NSA should or should not be recognized as a subject of international law, but rather, whether the NSA should be recognized as a general category of an actor to which a basic set of rights and obligations in international law applies and if so which rules and procedures apply to determining who is and who is not entitled to legal personality. These questions will be addressed from two angles. First, stock will be taken of the current state of the art regarding the status of the NSA in international law. Second, a legal theoretical discussion will follow to assess the desirability of any further changes to the present condition of the law measured against the role and nature of international law.

The link between the legitimacy of international law and the participation of non-state actors in the law-making and -implementation process is the topic of the argument of Cedric Ryngaert. He investigates the relevance of (1) liberal internationalism, constructivism and the transnational legal process theory, (2) political (input legitimacy) theories, in particular deliberative democracy/theory of communicative action (Habermas), and (3) law and economics theories (tying regulatory design to expected norm-compliance and social effectiveness; these are utilitarian theories focused on output legitimacy). It will be ascertained how these theories could provide building blocks for the regulation of a global society constituted by a variety of international actors, including non-state actors. The said theories have originally been conceived as applying to states or state regulation. International relations theories typically take the state as the chief actor at the international level, and both democracy and economic theories are primarily developed with a view to their application at the domestic (intra-state) level. It is the aim of this article to (1) examine how leading international relations theories could nonetheless be used, or as the case may be, amended with a view to accommodating the role of non-state actors; (2) analyse whether, and to what extent, domestic democracy and law and economic theories could be extrapolated to the international level.

Finally, in Part Three, Math Noortmann and Jean d’Aspremont critically reflect on the added value of a wider non-state actors perspective in the efforts to understand and explain international law. Math Noortmann does so by raising the question whether the notion of ‘participants’ as advocated by the New Haven School should be reintroduced or whether we should stick to the conceptually poor notion of non-state actors.

The notions of transnational law and international law as an authoritative decision-making process (the policy-orientated approach or New Haven School) were the first to conceptualize the idea of a legal space beyond the classic international legal system of states, in which both states and non-state actors would participate in a constitutive manner. Elaborated in the 1950s, both concepts had lost much of its attraction by the late 1970s to be revived again in the 1990s in response to the unbridled increase of actors which are not states in the global realm. Both notions transcend the confinements of the international legal discipline either because the concept has a corollary in socio-political sciences (trans-nationalism) or because the concept was set up as a trans-disciplinary approach to world order in the first place. The paper scrutinizes both approaches and critically assesses their value for contemporary debates on the role of non-state actors in the law-making process.

Last but not least, Jean d’Aspremont raises the ultimate question: is the notion of non-state actors in international law a scholarly invention? He argues that the contemporary assertion that the law-making role of non-state actors in international law is less the result of an actual practice and empirical evidence than it is the outcome of an inclination of international law scholars to expand their field and subjects of study. While the aspiration for the import of new legal materials into the ambit of international legal scholarship can provide a rational explanation of the proneness of international scholars to depict international law-making processes as diverse and heterogeneous, it is not sufficient to explain all the underlying motives of such a leaning. It is submitted here that, in a few circumstances, the tendency to play down the state-centrism of international law-making processes and the magnification of their heterogeneity can also be traced back to a more general and fundamental endeavour of international legal scholars to convey a cosmopolitan vision of international law with a view to fostering the legitimacy of their object of study. This chapter also explains the attraction of scholars to these heterogeneous representations of international law-making as an attempt by international legal scholars to preserve the importance of their expertise and that of their discipline in areas where they have been subject to the competition of other social sciences.

References

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• Arts, B., Noortmann, M. and Reinalda, B. (eds). 2001. Non-State Actors in International Law, Politics and Governance. Aldershot: Ashgate Publishing Company.
• Boli, J. and Thomas, G.M. 1999. INGOs and the Organization of World Culture, in Constructing World Culture: International Nongovernmental Organizations since 1875, edited by J. Boli and G.M. Thomas. Stanford, CA: Stanford University Press.
• Charnovitz, S. 2006. Non-Governmental Organizations and International Law. American Journal of International Law, 100, 348–372.
• Howitt, R., Connell, J. and Hirsch, P. 1996. Resources, Nations, and Indigenous Peoples: Case Studies from Australasia, Melanesia, and Southeast Asia. Melbourne and New York: Oxford University Press.
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• Keck, M.E. and Sikkink, K. 1998. Activists beyond Borders – Advocacy Networks in International Politics. London: Cornell University Press.
• Kokkini-Iatridou, D. and de Waart, P. 1983. Foreign Investments in Developing Countries; Legal Personality of Multinationals in International Law. Netherlands Yearbook of Int...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• List of Abbreviations
• Foreword by Bob Reinalda
• Preface and Acknowledgements
• 1 Introduction: Non-State Actors: International Law’s Problematic Case
• Part One
• Part Two
• Part Three
• Index