Participants in the International Legal System

Multiple Perspectives on Non-State Actors in International Law

Jean d'Aspremont

• Publisher: Taylor & Francis
• Year: 2011
• Print ISBN: 9780415662468
• eBook ISBN: 9781136724923
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The international legal system has weathered sweeping changes over the last decade as new participants have emerged. International law-making and law-enforcement processes have become increasingly multi-layered with unprecedented numbers of non-State actors, including individuals, insurgents, multinational corporations and even terrorist groups, being involved. This growth in the importance of non-State actors at the law-making and law-enforcement levels has generated a lot of new scholarly studies on the topic. However, while it remains uncontested that non-State actors are now playing an important role on the international plane, albeit in very different ways, international legal scholarship has remained riddled by controversy regarding the status of these new actors in international law.

This collection features contributions by renowned scholars, each of whom focuses on a particular theory or tradition of international law, a region, an institutional regime or a particular subject-matter, and considers how that perspective impacts on our understanding of the role and status of non-State actors. The book takes a critical approach as it seeks to gauge the extent to which each conception and understanding of international law is instrumental in the perception of non-State actors. In doing so the volume provides a wide panorama of all the contemporary legal issues arising in connection with the growing role of non-state actors in international-law making and international law-enforcement processes.

Part I

Theoretical perspectives

1 Non-state actors from the
perspective of legal positivism

The communitarian semantics for
the secondary rules of international
law

Jean d'Aspremont

After spelling out the conception of legal positivism which it espouses, this chapter makes the argument that non-state actors, while not necessarily qualifying as subjects of the international legal order from an international legal positivist perspective, remain very instrumental in providing the social practice that gives a meaning to law-ascertainment criteria in international law. In doing so, this chapter attempts to demonstrate that legal positivism can accommodate many of the contemporary developments of the international society, including the pluralization of international law-making and the growing role of non-state actors.¹

1 Postmodern legal positivism

Legal positivism in legal theory or in the international legal scholarship is associated with so many different, if not conflicting, meanings – even among legal positivists themselves²– that the debate about the value of legal positivism sometimes is unintelligible.³ Yet, for this short contribution, positivism is associated with a conception of law that rests on two fundamental concepts: the source thesis and the social thesis. The conception of legal positivism which I espouse here thus rests on an association between formalism and positivism,⁴ for the former usually refers to the use of formal-law identification criteria whose meaning is derived from social practice.⁵ Legal positivism, in a broad sense, probably encapsulates other theories than the source and social theses in that the source and social theses are only two of the main tenets of classical legal positivism.⁶ Yet, I here stick to this restrictive conception of positivism,⁷ which I have called elsewhere ‘postmodern legal positivism’ to emphasize its continued relevance.⁸

This restrictive conception of positivism primarily refers to the use of formal standards to identify rules of international law. According to that blueprint, any norm that meets such predefined standards is a rule of international law. These standards constitute the pedigree of international legal rules. The idea that law is identified by virtue of a standardized pedigree of rules constitutes, what is referred to in the literature as the source thesis.⁹ Because this pedigree is the object of a prior standardization, the source thesis is thus synonymous with formal law-ascertainment. The source thesis is often contrasted with models of law-ascertainment based on substantive criteria, like that defended by the classical natural law school. It also is sometimes conceptualized as a rule-approach to law,¹⁰ in contrast to effect-based¹¹ or process based¹² definitions of law.

The source thesis found in positivism inevitably brings about some indeterminacy.¹³ Indeed, because of the indeterminacy of the language with which the standard pedigree of the rules is defined, formalism as a set of standardized criteria of law-identification inevitably fails to produce an autonomous and self-contained linguistic convention for the sake of law-identification. Herbert Hart himself recognized that law-ascertainment criteria – in his words the ‘rule of recognition’ – are vague and open-textured.¹⁴

Although this is often overlooked in the literature, positivists have devised several conceptual strategies to overcome the non-self-sufficiency of the source thesis and to rein in, to the extent possible, the inevitable indeterminacy of the formal standards of law-ascertainment. One of them is the use of social practice to stem the indeterminacy stirred by the source thesis. Such a particular conception of the foundations of the source thesis has been designated in the literature as the social thesis. The archetype social thesis purports to supplement the classical positivist source-based criteria of identification of international law (‘the source thesis’), with a view to endowing it with some limited autonomy, by inferring the meaning of the standard pedigree of rules derived from the practice of law-applying authorities.¹⁵ While the social thesis does not completely eliminate indeterminacy or provide autonomy from the source thesis, it still constitutes a useful framework within which the indeterminacy of formal standards of law-ascertainment can be domesticated without falling into naive objectivism. In that sense, and thanks to its definitional advantages, the social thesis remains a good starting point for the modernization of formalism envisaged here. This is true even if the peculiarities of international law – and the unique configuration of its law-making processes – have always impeded a mechanical and full transposition of the social thesis into the theory of international law. This understanding of legal positivism is certainly not new. It corresponds to the well-known conception defended by Herbert Hart in the Concept of Law.¹⁶

While Hart's theory can prove significantly helpful in sharpening formalism in the context of international law, it can be argued that Hart's insights do not suffice to appraise the place of non-state actors from the perspective of international legal positivism, especially when it comes to the conceptualization of the law-applying authority capable of generating a meaningful social practice for the sake of law-ascertainment. Indeed, as will be explained below, Hart adopts a very restrictive conception of law-applying authority, which is exclusive of non-state actors. A convincing adjustment of that aspect of Hart's thesis is found in the endeavours of Brian Tamanaha,¹⁷ as well as William Twining,¹⁸ to modernize Hart's theory in order to accommodate a wider range of contemporary phenomena. In particular, these authors advocate a broader conception of law-applying authorities at the origin of the social practice, in which formal law-ascertainment is grounded, in order to embrace a wide range of social actors.¹⁹ As is explained in this chapter, this expanded social thesis is precisely the reason why, in the positivistic perspective defended here, non-state actors still play a very important role that ought to be taken into account by international lawyers.

2 Formal status of non-state actors

From a positivist point of view, most non-state actors, even the most influential of them are neither proper law-makers nor subjects of international law. The opposite, however, has been heard in the international legal scholarship where some authors have ventured to infer a quasi-formal status of non-state actors from their growing role and influence. It is argued here that the increased factual role played by non-state actors, while being undeniable – although not unprecedented²⁰– does not suffice to suggest a major upheaval of the entire international law-making system. There is no doubt that, whatever the influence of these non-state actors may be, states and international organizations remain the exclusive international law-makers. This is true for treaty law and, subject to limited exceptions, customary international law. The upstream influence wielded by some non-state actors can help ignite new law-making initiatives or orientate ongoing law-making undertakings but this is insufficient to elevate these actors to the status of law-makers. Indeed, no formal international law-making powers have been bestowed upon these actors²¹ and states and international organizations always retain the final word.²²

It is true that, besides internationally personified international organizations, some of these non-state actors may have been endowed with international legal personality. However, it is essential to highlight the likelihood that, if some of them have acquired international legal personality²³– although to an extent that may be more limited than some have claimed²⁴– it is not the result of a direct conferral of international legal personality upon non-state actors. Rather it is an indirect consequence stemming from their rights and duties.²⁵ That non-state actors can have rights and duties seems unchallenged – as this was confirmed by the International Court of Justice in its Advisory Opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo.²⁶ That means that these actors may well occasionally have a formal international legal personality derived from their rights and duties, but this does not endow them with any formal and actual law-making powers.²⁷ Moreover, it must be understood that the rights and duties that non-state actors may now hold remain the result of a state-centric law-making process. The question of the international legal personality of these actors should accordingly be seen as separate to the question of their formal law-making status.

Likewise, individuals and non-governmental organizations²⁸ are sometimes entitled to institute proceedings against a state before regional courts. The standing that individuals and non-governmental organizations may have before these judicial bodies does not confer upon them any law-making power. At most, their initiative can encourage some judges to engage in some form of law-making.²⁹ But their influence in the institution of the proceedings stands apart from the question of whether they can actually make law.

Despite the foregoing, legal scholars have nonetheless been very prone to see in the pluralization of international law-making the emergence of a new international law-making framework, within which non-state actors enjoy a fledgling status of law-maker.³⁰ Some others, while acknowledging that contemporary law-making processes are still fundamentally state-centric, have come to the conclusion that granting a law-making status to non-state actors should be at least advocated and promoted.³¹ To a lesser extent, it has also been defended that the behaviour of non-state actors should be taken into account for the sake of customary international law,³² as is underpinned by the methodology used in the study of the International Committee of the Red Cross (ICRC) on the customary rules of international humanitarian law.³³ And even when legal scholars back away from this idea and stand by the daily reality of state-centrism, they remain somehow attracted by this image. Many international legal scholars thus prove, in one way or another, amenable to the idea of a law-making role for non-state actors.³⁴

I have argued elsewhere that there are probably many reasons underlying the above-mentioned inclination of scholars to bestow a formal law-making status upon non-state actors, irrespective of their status of legal subject.³⁵ I have in particular pinpointed three main reasons explaining such a leaning. For instance, I have mentioned the need for scholars to find new legal materials and new objects of study for the sake of their own scholarship. I have also referred to the appeal for the representation of international law-making as heterogeneous, since the intervention of non-state actors conveys a cosmopolitan image of law-making processes while simultaneously reinforcing the legitimacy and the acceptance of the rules that are adopted therein. I eventually argued that granting a formal status to non-state actors could also boil down to a means by which to preserve the relevance of the expertise of international legal scholars in fields where other disciplines have been ov...

Table of contents

• Cover
• Participants in the International Legal System
• Routledge Research in International Law
• Title Page
• Copyright
• Contents
• Cases and statutes
• Notes on contributors
• Foreword: Veritas vos liberabit
• Acknowledgments
• Presentation
• Introduction: non-state actors in international law: oscillating between concepts and dynamics
• PART I Theoretical perspectives
• PART II The regional perspectives
• PART III Institutional perspectives
• PART IV Subject-matter based perspectives
• Index