Non-State Actors (International Law)

Introduction

There are competing definitions of what entities classify as nonstate actors. The broadest notion holds that nonstate entities are all entities different from states. Most theories concur in any case that nonstate actors differ considerably among themselves. Nonstate actors are examined in light of international law for multiple purposes. Some legal materials and analyses examine all nonstate actors, although it is often the case that they focus on certain types of nonstate entities, considered relevant for their purposes. Generally, nonstate actors are relevant for international law insofar as they are often able to impact legal values and must accordingly be regulated. The aforementioned impact may be a positive or a negative one, and this justifies both the existence of rights and the special status of nonstate entities that enables them to contribute in fields of their competence, as revealed by ECOSOC Resolution 1996/31 (consultative relationship between the United Nations and nongovernmental organizations), or to consider that they can have responsibilities, be they social and sometimes legal, as happens with international criminal law. Furthermore, responding to nonstate actions is crucial in certain fields. For instance, the fact that nonstate conduct can be inimical to human rights, as evinced by state obligations to prevent or respond to such violations and to protect rights, explains why several authors discuss if a human rights framework that ignores the need to directly protect individuals from nonstate actors is flawed and fails to uphold its foundation: human dignity. Altogether, although they have acquired greater power and formal relevance, nonstate actors have impacted international law and participated in international legal processes throughout history, which explains why state-exclusivist approaches to international law and international relations are deficient and the study of nonstate actors and their interaction with multiple international legal dimensions and processes is called for. The importance of nonstate actors and the possibility that they might be addressees of international law makes it troublesome to consider that they are irrelevant for international law. Moreover, given their power, participation, influence, and impact on legal interests and processes, some nonstate entities are properly referred to as actors. Furthermore, they may have direct, indirect, formal, or informal impact on such legal processes as lawmaking, law enforcement, or dispute settlement.

Definitions and Relevance

Contrary to what may be thought at first glance, there are several contradictory attempts to define nonstate actors. Some texts that do this, examined herein, favor notions dependent on such factors as independence from states, private nature, or the mere difference from states, among others. Choosing one or the other theory is relevant, and entities as international organizations, whose members can be entities different from states, may be classified as nonstate or not depending on the election. By contrast, nonstate actors have been examined from different disciplines, which acknowledge their relevance and attach importance to the international and transnational dimensions of nonstate conduct given their power or impact. Some of those studies have sought to define nonstate actors. However, given the diverging goals and substrata of different studies, definitions often differ widely among them. Clapham 2009 examines this problem of the notion of nonstate actors from a legal perspective, acknowledging that all entities different from states are nonstate in nature and that yet some narrower definitions exist, with more limited scopes. Additionally, it examines legitimacy and accountability concerns related to nonstate conduct. Del Arenal 2002 examines the phenomenon of increased nonstate power and relevance in international society in a changing landscape; and McDougal 1955 highlights the importance of studying nonstate actors, given their participation in power processes. Schachter 1997 examines the changing role and relevant actions of nonstate actors and their interaction with international law in a global context; Halliday 2001 studies nonstate dynamics, their relevance throughout history, and the importance of regulations of nonstate conduct. Reinalda 2001 has insights on the classification of nonstate entities based on their goals, origin, and scope of participation, and examines in detail nongovernmental organizations (NGOs) and corporations from the perspective of some theoretical paradigms. Josselin and Wallace 2001 offers a definition that is narrower than the one presented in Clapham 2009 and examines, among others, conditions that encourage nonstate participation, also formulating questions on nonstate roles. Calame 2008, in turn, arguing that nonstate actors are important given the international and transnational relevance of their operations and their abilities to contribute to the provision of public goods, discusses several relevant issues, including those related to their responsibility, regulation, activity, legitimacy, advantages, or influence. Finally, Reinalda, et al. 2001 highlights the importance of studying nonstate actors from multiple disciplines, given their relevance, and proposes a way to classify them.

Calame, Pierre. “Non-state Actors and World Governance.” Forum for a New World Governance Discussion Paper. 2008.
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Highlights the relevance of nonstate actions across boundaries and nonstate contributions to provide public goods. Additionally, the paper examines nonstate responsibility, representativeness, regulation, cooperation, coordination, legitimacy, and governance; areas in which actors play a key role; their advantages in comparison to states; and the influence they can wield.
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Clapham, Andrew. “Non-state Actors.” In Post-Conflict Peacebuilding: A Lexicon. Edited by Vincent Chetail, 200–212. New York: Oxford University Press, 2009.
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Defines nonstate actors as all entities different from states, acknowledging that some legal materials use narrower definitions. Legitimacy and dilution fears about engaging with nonstate actors are rebutted, and their monitoring is discussed. Additionally, examines related issues of accountability and entitlements of those actors, state obligations, and implementation of law.
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del Arenal, Celestino. “La nueva sociedad mundial y las nuevas realidades internacionales: Un reto para la teoría y para la política.” In Cursos de Derecho Internacional de Vitoria-Gasteiz 2001, 17–85. Bilbao, Spain: Servicio Editorial de la Universidad del País Vasco, 2002.
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Analyzes multiple types of power gained by nonstate actors in the current world social landscape and the new important roles they play therein. Those factors are considered related both to dynamics of interdependence, globalization, and transnationalization and to the weakening of territoriality as an element of power.
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Halliday, Fred. “The Romance of Non-state Actors.” In Non-state Actors in World Politics. Edited by Daphné Josselin and William Wallace, 21–40. New York: Palgrave, 2001.
DOI: 10.1057/9781403900906Save Citation »Export Citation »E-mail Citation »
Explores the goals, alleged impact, operations, and relations with states of some nonstate entities: those not being under state directions. Considers that they have been relevant throughout history and that not all of them are benign, and argues that all actors must respect norms upholding certain democratic and good governance-related values.
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Josselin, Daphné, and William Wallace. “Non-state Actors in World Politics: A Framework.” In Non-state Actors in World Politics. Edited by Daphné Josselin and William Wallace, 1–20. New York: Palgrave, 2001.
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Independence from states is not considered to define nonstate actors, but the text focuses on entities with autonomy from public actors that are transnational or participate in transnational networks. They are considered to flourish in liberal and stable contexts and participate more given certain social developments. Briefly analyzes problematic issues.
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McDougal, Myres S. “The Realist Theory in Pyrrhic Victory.” American Journal of International Law 49 (1955): 376–378.
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Stresses the importance of studying the participation of nonstate and substate entities in world and social power processes, and their objectives, dynamics, practices, and relevance therein.
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Reinalda, Bob. “Private in Form, Public in Purpose: NGOs in International Relations Theory.” In Non-state Actors in International Relations. Edited by Bas Arts, Math Noortmann, and Bob Reinalda, 11–37. Aldershot, UK: Ashgate, 2001.
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The chapter offers a classification of nonstate actors based on their interests (profit or not), origin (private or public), and geographic scope of operations. Focusing on NGOs and corporations, the impact and role of those actors are analyzed from the perspective of three paradigms: pluralism, transnationalism, and collective social action.
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Reinalda, Bob, Bas Arts, and Math Noortmann. “Non-state Actors in International Relations: Do They Matter?” In Non-state Actors in International Relations. Edited by Bas Arts, Math Noortmann, and Bob Reinalda, 1–8. Aldershot, UK: Ashgate, 2001.
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Emphasizes the need for studying nonstate actors with an interdisciplinary approach given their proliferation in the international arena; classifies them in three categories based on their private or public constitution and goals; and considers that they are relevant because of their influence, expertise, and participation. Provides overviews of articles on the subject.
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Schachter, Oscar. “The Decline of the Nation-State and Its Implications for International Law.” Columbia Journal of Transnational Law 36 (1997): 7–23.
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Discusses issues of the globalized context as nonstate and substate loyalties and identities; nonstate power; nonstate governance or aid functions; private regulation and functional norms; the interaction between nonstate actors and international law; the role of the so-called civil society, their diversity and conflicts; and the power of criminal actors.
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NGOs and Corporations

NGOs and corporations are two of the most examined nonstate actors by scholars and practitioners. Among other reasons, this is due to their influence, international or transnational activities, and the impact their actions and omissions can have on international legal processes. While both are entities with private origins, they differ in their goals, among other aspects (as examined in Reinalda 2001, cited under Definitions and Relevance). Among the works that study the two types of actors from an international legal perspective, Remiro-Brotóns, et al. 2007 and Thürer 1999 are worth mentioning. In the first, not devoted exclusively to those nonactors but highlighting their relevance, the reasons that have led to their international legal relevance and some challenges they raise are explored. Thürer 1999, in turn, analyzes the participation of NGOs and corporations in international legal dynamics, the features that make them important, and their differences, proposing a constitutional approach that seeks to protect individuals and prevent abuses of power and takes those actors into account. In Gatto 2005, stressing the power held by corporations, practice, modalities, and mechanisms of corporate social responsibility are examined in a critical way, exploring among others the role of the European Union to promote that responsibility. In George 2009, different viewpoints on issues as the regulation of corporate conduct, corporate responsibility, and how to address corporate abuses are presented. In contrast, Letnar Cernic 2012 examines the environmental and human rights aspects introduced by the fifth update to the OECD Guidelines for Multinational Enterprises, the contribution of some NGOs to their effectiveness, and what could be done to overcome the enforceability deficits of the guidelines. Rebasti and Vierucci 2002, in turn, examines whether the consultative status of NGOs is satisfactory, what alternatives may exist, and whether NGO participation in international dispute settlement is necessary and under what conditions it should be exercised. Lastly, Reinalda 2011 examines the evolving character of nonstate participation in an international context in which states are highly relevant, and overviews relevant issues concerning nonstate actors from multiple perspectives.

Gatto, Alexandra. “Corporate Social Responsibility in the External Relations of the EU.” Yearbook of European Law 24 (2005): 423–462.
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Highlighting corporate power, explores the notion of regulatory and voluntary initiatives of corporate responsibility; examines shortcomings of domestic and international laws, codes of conduct, social labels, social disclosure, value added statements, and their complementarity. Additionally, suggests how corporate social responsibility can be promoted by the European Union and other actors.
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George, Erika R. “Corporate Liability for Human Rights Crimes.” In Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference: 2007 Hague Joint Conference on Contemporary Issues of International Law. Edited by Willem J. M. van Genugten, Michael P. Scharf, and Sasha E. Radin, 170–187. The Hague: T. M. C. Asser, 2009.
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This selection offers different and diverging viewpoints on issues such as efforts to regulate corporations by means of soft, domestic, and international law; and examines their problems, prospects, and state; corporate criminal responsibility; extraterritorial jurisdiction over corporate abuses; nonjudicial ways to address corporate abuses; and state and corporate responsibility.
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Letnar Cernic, Jernej. “The 2011 Update of the OECD Guidelines for Multinational Enterprises.” American Society of International Law (ASIL) Insights 16 (2012).
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Examines reasons that motivated the fifth update to the OECD Guidelines for Multinational Enterprises and what it changed, focusing on state and corporate human rights, legal and nonlegal responsibilities, and environmental issues. Additionally, critically examines the implementation of the guidelines, analyzing nongovernmental contributions, implementation shortcomings, and proposals to overcome them.
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Rebasti, Emanuele, and Luisa Vierucci. “A Legal Status for NGOs in Contemporary International Law?” Paper prepared for the workshop “A Legal Status for NGOs in Contemporary International Law? A Contribution to the Debate on ‘Non-state Actors’ and Public International Law at the Beginning of the Twenty-First Century,” held at the European University Institute on 15–16 November 2002.
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Examines the participation of NGOs in both international organizations and dispute-settlement procedures, the problems it can cause (e.g., concerning rights of parties), its benefits (e.g., representation of public interests), and proposals of formal, informal, and ad hoc mechanisms that seek to ensure NGO participation while checking its legitimacy and persuasiveness.
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Reinalda, Bob. “Non-state Actors in the International System of States.” In The Ashgate Research Companion to Non-state Actors. Edited by Bob Reinalda, 3–17. Farnham, UK: Ashgate, 2011.
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Examines the evolution of the international participation of nonstate actors with private origins and public purposes (NGOs), public nonstate actors (international organizations), and business entities. Additionally, overviews other chapters, dealing with certain actors (e.g., religious ones), dispute settlement, accountability issues (e.g., internal and external), or fields in which actors are relevant.
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Remiro-Brotóns, Antonio, et al. Derecho Internacional. Valencia, Spain: Tirant Lo Blanch, 2007.
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In pp. 269–289, argues that social transformations and the actions of transnational actors, as NGOs and corporations, challenge international legal notions, including subjectivity. The relevance of nonstate conduct for new branches of law, nonstate participation in official scenarios, and nonstate regulation are considered to make some actors increasingly relevant.
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Thürer, Daniel. “The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State.” In Non-state Actors as New Subjects of International Law: International Law—From the Traditional State Order towards the Law of the Global Community. Edited by Rainer Hofmann and Nils Geissler, 37–58. Berlin: Duncker & Humblot, 1999.
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Considers that nonstate actors as NGOs and transnational corporations can contribute to changing international law and participate in the context of a federalizing trend. Analyzes their relevance, description, purposes, activities, and some challenges. Proposes a constitutional approach that takes account of those actors, human rights, and the checking of power.
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International Legal Materials

The diversity of nonstate actors and the different roles with international legal relevance that they can play are reflected in the heterogeneity and divergent content of international instruments concerned to a greater or lesser extent with nonstate actors. Some of them, like United Nations Economic and Social Council 1996, are devoted to the status of certain entities in some international contexts and their rights and accountability therein, being that instrument focused on the consultative relations with nongovernmental organizations (NGOs) and the rights and regulations pertaining to such relations. Other instruments, in turn, envisage lawmaking capacities of certain actors and their rights and obligations in relation to certain sources of international law, as happens with the 1986 Vienna Convention on the Law of Treaties, which regulates the participation of international organizations in international treaty processes. Other instruments are concerned with the responsibility of certain actors, and in this regard United Nations 2011a offers a recent understanding of the International Law Commission on how that responsibility is to be regulated. Likewise, United Nations 1950, which parts from the acknowledgment of international obligations of individuals, deals with several issues related to their international criminal responsibility. Some instruments, such as United Nations 2008, address ways in which nonstate actors can be engaged with the aim of protecting human rights from them. The Convention on the Rights of Persons with Disabilities, for its part, deals with the positive and negative impact that nonstate actors can have on the enjoyment of human rights by protecting the contribution of nonstate entities that promote those rights, by admitting that certain regional international organizations become parties to that instrument, and by demanding protection from nonstate abuses. Similarly, the United Nations Office on Drugs and Crime 2004 aims to protect individuals from certain criminal entities and to tackle transnational organized crime in a cooperation scheme, which is necessary given factual criminal power in the context of globalization. Lastly, United Nations 2011b belongs to another instrument that seeks to protect individuals from nonstate threats, offering guidelines based on three pillars (of protection, respect, and remedies) in order to strengthen the protection of human rights from corporate abuses.

Convention on the Rights of Persons with Disabilities, 3 May 2008.
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This international human rights treaty permits some regional international organizations to become parties to it; imposes obligations of protection from nonstate actors on states and nonstate parties to it; and promotes and guarantees the participation of persons with disabilities in organizations to promote their rights and interests, highlighting their importance.
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United Nations. “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with Commentaries.” Yearbook of the International Law Commission (1950): 374–378.
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According to the principles, individuals can have direct international duties and responsibility as perpetrators or accomplices of violations regardless of the existence of domestic prohibitions or superior orders, it being important to sanction the entities that effectively carry out violations to enforce law. Some international crimes are also recognized therein.
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United Nations. Manual of Operations of the Special Procedures of the Human Rights Council. New York: United Nations, 2008.
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Considers that while international law focuses on the protection of individuals from all threats by states, there are events in which nonstate actors can be held accountable for their violations; and that sometimes it is desirable that UN mandate holders interact with them, to make recommendations, communicate opinions, and protect victims.
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United Nations. Draft Articles on the Responsibility of International Organizations, with Commentaries. UN Doc. A/66/10 (2011a).
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In this latest version of the draft articles on the responsibility of international organizations, noteworthy are articles on their responsibility regarding jus cogens, on the responsibility of states in connection with their conduct, or considerations on effective control for attributing the conduct of entities placed at their disposal, among others.
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United Nations. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect, and Remedy” Framework: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie. 17th Session, Agenda Item 3, UN Doc. A/HRC/17/31. (2011b).
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These foundational and operational principles offer guidelines concerning state duties to protect from nonstate abuses through different means; corporate responsibility to respect rights and address adverse impacts, and how corporations can meet expectations on them; and the accessibility and effectiveness of remedies against corporate abuses, both state and nonstate based.
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United Nations Economic and Social Council. Consultative Relationship between the United Nations and Non-governmental Organizations. Resolution 1996/31, 49th Plenary Meeting, 25 July 1996.
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Regulates with which NGOs consultative relations may be established and how they are established; regulates the purposes of such relations; envisages different consultative status and the rights and participation possibilities they entail; and has norms on the suspension, withdrawal, and other questions of the aforementioned status.
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United Nations Office on Drugs and Crime. United Nations Convention against Transnational Organized Crime and the Protocols Thereto. New York: United Nations, 2004.
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A foreword by Kofi Annan argues that addressing criminal human rights violations requires cooperation and using opportunities of globalization. Additionally, the convention and its protocols offer norms, suggestions, and tools to tackle transnational organized crime committed by natural and legal persons and to protect victims through individual and international cooperation measures.
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Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986.
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Not in force. Aims to regulate written treaties in which intergovernmental organizations, but not other nonstate entities, participate. Generally follows the 1969 Vienna Convention on the Law of Treaties, taking into account rules of organizations, jus cogens; and not prejudging on obligations and rights of member states under those treaties.
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Case Law and Reports

International case law and reports have addressed different issues pertaining to nonstate actors and international law. Some noteworthy decisions and recommendations acknowledge that, as long as lawmakers determine so, nonstate actors can be addressees of international law in both positive and negative dimensions; that is to say, as bearers of international rights or obligations, among other legal capacities. In this regard, in Reparation for Injuries Suffered in the Service of the United Nations the International Court of Justice stressed that, responding to social and normative needs, entities such as international organizations may be addressees of international law and may have legal entitlements, even in an implied manner. Likewise, in Kononov v. Latvia the European Court of Human Rights confirmed that individuals can have international obligations, although interestingly, it stressed that such obligations must respect the principle of legality. This confirms that nonstate obligations must respect human rights and the rule of law. Moreover, in the Boimah Flomo, et al., v. Firestone Natural Rubber Co. case, customary obligations of corporations were deemed as possible. The advisory opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo reiterates the preceding ideas, recognizing that the Security Council may impose demands on nonstate entities. From another perspective, the United Nations 2006 stresses that human rights are protected in a territory from whatever entity, state or not, that administers it. This dimension is recognized in the United Nations 1999 case, where it was held that guarantees like the non-refoulement one are applicable when nonstate threats exist, although the case evinces that it is considered by some that specialized instruments with narrow scopes may require identifying certain quasiofficial nonstate conduct. The Inter-American Commission on Human Rights 1999 report highlighted different ways in which nonstate abuses may be addressed, but handled a human rights state-centered paradigm criticized by some authors (furthermore, see Obligations, Responsibilities, and Roles).

Boimah Flomo, et al., v. Firestone Natural Rubber Co., LLC. US Court of Appeals for the Seventh Circuit, No. 10-3675 (2011).
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Holds that corporations and other entities can violate international customary law, a possibility that is not denied by the lack of previous prosecutions or punishments, due to the difference between substantive and procedural issues and the freedom of states to enforce international law. Examines territorial and comity issues of Alien Tort Statute (ATS) litigation.
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Inter-American Commission on Human Rights. Third Report on the Human Rights Situation in Colombia. O.A.S. Doc. OEA/Ser.L/V/II.102, Doc. 9 rev. 1 (1999).
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Mentions that, while its competence to examine individual complaints is limited to state abuses, the Inter-American Commission on Human Rights can address nonstate abuses in press releases, communications, or reports. Examines nonstate conducts in light of international humanitarian law, which is described as not legitimizing them; but upholds a state-centric position concerning human rights, criticized by some.
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International Court of Justice. “Reparation for Injuries Suffered in the Service of the United Nations: Advisory Opinion of 11 April 1949.” ICJ Reports (1949): 8–9.
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The Court put forward a notion of international legal personality related to entitlements or functions that is accepted by many authors and contested as circular by others. Examines implied powers, the impact of community needs on legal subjectivity, and the divergent possession of rights and duties by different entities.
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International Court of Justice. “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo: Advisory Opinion of 22 July 2010.” ICJ Reports (2010): 403–453.
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Recognizes that the Security Council has made demands on actors different from states and intergovernmental organizations and can create legal obligations that bind them. However, it considers that Resolution 1244 (1999) did not prohibit the Kosovo Albanian leadership and other actors from issuing a declaration of independence from Serbia.
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Kononov v. Latvia. Judgment of 17 May 2010 (Merits and Just Satisfaction), European Court of Human Rights (Grand Chamber), Application no. 36376/04 (2010).
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Confirms the possibility mentioned in international treaties and case law of directly binding individuals by international obligations, although their right to the respect of the principle of legality, with its components of foreseeability and accessibility, must be respected. The obligations examined by the Court were customary criminal and humanitarian duties.
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United Nations Committee against Torture. Annex: Views of the Committee Against Torture under Article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 22nd Session. UN Doc. CAT/C/22/D/120/1998 (1999).
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Holds that nonstate factions that exercise prerogatives similar to those exercised by states can be considered as if they were public officials or as acting in an official capacity for the purposes of the UN Convention against Torture. Therefore, its substantive and procedural safeguards can be invoked to request protection from them.
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United Nations Human Rights Committee. Concluding Observations on Kosovo (Serbia). 87th Session. UN Doc. CCPR/C/UNK/CO/1 (2006).
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Holds that human rights protected in a territory must continue to be so regardless of changes in administration, even if carried out by nonstate actors such as the UN Interim Administration Mission in Kosovo, which are urged to respect, ensure, and promote rights. Supports a broad protection of rights ratione personae, overcoming state-centered preconceptions.
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Legal Theoretical Studies

Nonstate actors have been examined from an international legal perspective in order to assess and address their relevance in international legal processes and their impact on legal interests. Paust 2011 is an essay that puts forward that nonstate actors have been addressed by international law and have participated in international legal processes like lawmaking throughout history, even when theories of an allegedly state-centered international law were defended by some authors. Hobe 1999 posits that international law must take into account nonstate actors and examines issues of their participation, responsibility, and obligations. D’Aspremont 2009, for its part, considers that, despite an increased participation of nonstate entities, it is states that mostly dominate international lawmaking, and that insistence on examining nonstate actors may be explained because of the temptation to legitimate or expand studies that may lure some scholars. Paust 2004 examines possibilities for the participation of nonstate actors in international legal processes and their being addressed by international law. Some texts have a general approach and examine multiple dimensions and aspects of the relevance of nonstate actors for international law. Noortmann 2001 explores the exclusion or inclusion of nonstate actors in international law, their relevance, the possibility of international law governing their conduct, and the questions of their legal personality and participation. The text focuses on international organizations, insurrection movements, transnational companies, and nongovernmental organizations (NGOs). The International Law Association 2010 analyzes questions related to nonstate participation in monitoring processes, the interaction of nonstate actors with the sources of international law, their responsibility, personality, capacities, and status; while the International Law Association 2008 examines questions related to whether nonstate commitments can be attached certain indirect legal value by international law; nonstate inclusion and responsibility; services provided by nonstate actors; self-defense against nonstate attacks; or the sufficiency of norms on state responsibility to tackle challenges posed by nonstate actors. Finally, Chinkin, et al. 1998 examines multiple issues related to nonstate actors and international law, such as accountability, legitimacy, interests, impact, or institutionalization.

Chinkin, Christine, Dianne Otto, John Jackson, Mark Janis, and Virginia Leary. “Wrap-Up: Non-state Actors and Their Influence on International Law.” Proceedings of the Annual Meeting (American Society of International Law 92 (1998): 380–387.
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The authors raise questions over issues like the diversity of nonstate actors; their interests; their accountability, legitimacy, and representativeness; their formal and informal impact on lawmaking and other legal processes; their positive or negative roles; their inclusion or exclusion; their roles in different areas; their historical relevance; or their institutionalization.
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d’Aspremont, Jean. “Non-state Actors in International Law: A Scholarly Invention?” Paper presented at “Non-state Actors in International Law,” FWO Seminar, Leuven, Belgium, 26–28 March 2009.
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Argues that international lawmaking and the creation of nonstate rights and duties are still mostly state dominated, notwithstanding the increased participation of nonstate actors in some legal processes. It is further considered that there is a temptation for authors to exaggerate or demand nonstate participation to legitimate or expand their studies.
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Hobe, Stephan. “Individuals and Groups as Global Actors: The Denationalization of International Transactions.” In Non-state Actors as New Subjects of International Law: International Law—From the Traditional State Order towards the Law of the Global Community. Edited by Rainer Hofmann and Nils Geissler, 115–135. Berlin: Duncker & Humblot, 1999.
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Posits that international law must include actors to tackle transboundary challenges and become transnational and global by making actors gain lawmaking and institutional capacities. Examines community interests, changes in paradigms on the position of individuals and groups, NGO participation, international representation, responsibility, and erga omnes obligations of all subjects.
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International Law Association. Preliminary Issues for the ILA Conference in Rio de Janeiro, August 2008. London: International Law Association, 2008.
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Posits the ideas that nonstate actors can adopt policies or soft law that produce legal effects due to legal principles and can sometimes consent to internationally relevant norms; recognizes some nonstate obligations and asks if state responsibility alone sufficiently addresses challenges posed by nonstate conduct and if nonstate actors have legal responsibility.
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International Law Association. First Report of the Committee: Non-state Actors in International Law: Aims, Approaches, and Scope of Project and Legal Issues. London: International Law Association, 2010.
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Using a narrow definition of nonstate actors, overviews: nonstate involvement in hard and soft law processes; nonstate roles in the enforcement and monitoring of international law; nonstate social and legal responsibility; human rights obligations of nonstate actors; international legal personality, status, and capacities; and state involvement in their determination.
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Noortmann, Math. “Non-state Actors in International Law.” In Non-state Actors in International Relations. Edited by Bas Arts, Math Noortmann, and Bob Reinalda, 11–37. Aldershot, UK: Ashgate, 2001.
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Acknowledging the complexity of international society and relevant actors, describes theories that support the participation of different entities in international law and lawmaking and criticizes restrictive notions of legal personality and subjectivity. Examines the rights, duties, and participation in dispute settlement of international organizations, insurrection movements, transnational corporations, and NGOs.
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Paust, Jordan J. “The Reality of Private Rights, Duties, and Participation in the International Legal Process.” Michigan Journal of International Law 25 (2004): 1229–1249.
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Argues that international law offers possibilities for democratizing nonstate participation in normative and sanction processes and for nonstate entities to be addressed by that law expressly or by implication (focusing on criminal and human rights law); that formalistic analyses may ignore this; and that myths to the contrary can prevent implementation of law.
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Paust, Jordan J. “Nonstate Actor Participation in International Law and the Pretense of Exclusion.” Virginia Journal of International Law 51 (2011): 977–1004.
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This persuasive essay puts forward the idea that, contrary to what some state-centered theories of international law have sustained, nonstate actors have been relevant participants in and addressees of international law throughout history, even during supposedly state-predominant stages. Provides compelling examples.
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International Legal Personality and Subjectivity

Far from being settled issues, the questions of the personality or subjectivity of nonstate actors are controversial and related to notions of the composition of the international legal society, dualism between objects and subjects of law or the capacity of entities addressed by international law to shape it, which are relevant because of the exclusion or inclusion of potential addressees of rights, legal capacities, and responsibilities in sensitive fields. Parlett 2008 argues that the Permanent Court of International Justice admits the possibility of individuals directly having international rights created by lawmakers. Similarly, in Suy 2002 it is posited that entities with the capacity to do so determine what entities are its subjects, that is to say its addressees, mentioning nonetheless that actors without that status can participate in dynamics that are relevant for international law. Some scholars have put forward their understandings of personality or subjectivity, as Clapham 2006, which highlights how nonstate entities can have international legal capacities to different extents when law so determines, there being neither limitations that demand the coexistence of substantive and procedural rights or obligations nor obstacles related to theoretical definitions of international persons. In Portmann 2010, international legal persons are equated with addressees of international law, notions of primary persons are dismissed, and the idea that peremptory, criminal, and fundamental human rights norms are presumed to apply to some entities is defended. In Meijknecht 2001, the issues referred to at the outset of this paragraph are examined, and the theory that there are three elements of personality, namely capacity, subjectivity, and jus standi, is explained. Higgins 1995, besides examining the personality of international organizations, challenges the dyad of objects and subjects of international law, arguing that who it addressees are subject to modification and that nonstate entities can participate in legally relevant processes and be addressed by international law. In Nijman 2009, an interesting theory is posited, calling for regulation of entities with factual power and the ability to affect legal interests, as demanded by rule of law, good governance, and realistic considerations. In Franck 1999, lastly, the evolution of the international subjectivity of individuals and groups is analyzed, and the prevalence of individual rights is upheld.

Clapham, Andrew. Human Rights Obligations of Non-state Actors. New York: Oxford University Press, 2006.
DOI: 10.1093/acprof:oso/9780199288465.001.0001Save Citation »Export Citation »E-mail Citation »
In pp. 59–83, arguments that challenge that international legal personality is a barrier to nonstate obligations are examined. It is asserted that different actors may have legal capacities, including obligations, and that substantive and procedural capacities need not coexist. Case law, practice, and doctrine arguments supporting nonstate obligations are explored.
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Franck, Thomas M. “Individuals and Groups of Individuals as Subjects of International Law.” In Non-state Actors as New Subjects of International Law: International Law—From the Traditional State Order towards the Law of the Global Community. Edited by Rainer Hofmann and Nils Geissler, 97–113. Berlin: Duncker & Humblot, 1999.
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Examines the evolution of the international rights and subjectivity of individuals and groups. Exploring clashes between individual, group, and sovereignty values and rights, affirms that as the only natural ones, morally individual rights prevail, which is relevant when law, that often balances the three components, is silent or ambiguous.
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Higgins, Rosalyn. Problems and Process: International Law and How We Use It. New York: Oxford University Press, 1995.
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Chapter 3 (pp. 39–55) examines the international legal personality of international organizations and whether individuals can have international substantive or procedural rights. Considers that the notions of subjects and objects are improper, that international regulation is not fixed, and that nonstate entities can make claims in decision-making processes and have international rights.
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Meijknecht, Anna. Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law. Antwerp, Belgium: Intersentia, 2001.
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Chapter 2 (pp. 23–63) examines international legal personality and notions of subjects and objects of law, participants in legal processes, or legal capacities, and proposes a theory that identifies three elements of personality: the capacity to be addressed by law, the subjectivity of all addressees of law, and international jus standi.
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Nijman, Janne E. “Non-state Actors and the International Rule of Law: Revisiting the ‘Realist Theory’ of International Legal Personality.” In Amsterdam Center for International Law Research Paper Series. By Janne E. Nijman, 1–40. Amsterdam: University of Amsterdam, 2009.
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It is argued that powerful international nonstate actors must be subjects of international law, because a realist notion of personality calls for regulating entities with factual power and the rule of law and global governance demand the subjection of all entities, especially all governing actors, to law.
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Parlett, Kate. “The PCIJ’s Opinion in Jurisdiction of the Courts of Danzig. Individual Rights under Treaties.” Journal of the History of International Law 10 (2008): 119–145.
DOI: 10.1163/157180508X320163Save Citation »Export Citation »E-mail Citation »
Examines the opinion of the Court and its background and posits that, despite its somewhat ambiguous wording and controversies regarding what the Court meant to say, it departed from a state-centric viewpoint, recognizing that individuals could be direct beneficiaries of rights under international treaty law when state parties so intend.
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Portmann, Roland. Legal Personality in International Law. Cambridge, UK: Cambridge University Press, 2010.
DOI: 10.1017/CBO9780511779848Save Citation »Export Citation »E-mail Citation »
Describes personality conceptions. Argues that international law is an open system: thus, all entities addressed by its norms are legal persons, subject to norms on responsibility. Also considers that basic human rights, criminal law, and jus cogens norms apply to individuals and bind some legal persons if logic allows.
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Suy, Eric. “New Players in International Relations.” In State, Sovereignty, and International Governance. Edited by Gerard Kreijen, et al., 373–386. New York: Oxford University Press, 2002.
DOI: 10.1093/acprof:oso/9780199245383.001.0001Save Citation »Export Citation »E-mail Citation »
Considers that states ultimately determine who the subjects of international law are; examines developments regarding nongovernmental organizations, armed groups, criminals, and corporate actors. Considers that there may be important entities not formally recognized as subjects, and defends both permitting nonstate contributions to managing globalization and strengthening law and curbing nonstate excesses.
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Relevant Procedural Areas

As discussed by scholars, nonstate actors have increasingly participated in several procedural dimensions of international legal activity. In that regard, some authors have discussed whether nonstate actors can have a direct or indirect impact on the creation of international law and even if they can create lex privata or “global law.” Apart from normative-creation processes, one of the procedural dimensions of nonstate actors that has been explored as of late is that of their participation in dispute-settlement procedures, both as parties in them or as representatives of or assistants to those who are parties to a conflict. Lastly, it is convenient to mention that the distinction between substantive and procedural dimensions of the legal relevance of nonstate actors is not clear, because the latter entail the enjoyment of duties or rights and the former may be accompanied by procedural capacities. Nevertheless, and bearing this in mind, for didactic purposes it is useful to distinguish (mainly) procedural and substantive legal dimensions of the regulation of nonstate actors. In Buergenthal 2006, the contribution of the United Nations and nongovernmental organizations (NGOs) to the evolution and effectiveness of human rights law is examined. This article thus examines one field in which the procedural impact of nonstate actors is undeniable.

Buergenthal, Thomas. “The Evolving International Human Rights System.” American Journal of International Law 100 (2006): 783–807.
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Examines the shortcomings and contribution of bodies from the United Nations and regional systems to the evolution of international human rights law; and the participation of NGOs in the protection of human rights, by lobbying, submitting reports, representing petitioners, or advocating the acceptance of new norms that protect them.
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Norm-Making Processes

The relationship between nonstate actors and normative processes can be a two-way one: besides being addressed by international law and other normative systems (legal or not), some of those actors can exert formal, informal, direct, or indirect influence on the generation and content of those systems as well. These two roles have been described as law-taking and lawmaking roles, as in Noortmann and Ryngaert 2010, where some issues related to both roles are explored. In Peters, et al. 2009 the focus is placed on the proactive dimension of nonstate relevance, specifically concerning standards in the creation of which nonstate actors participate, analyzing the context in which this activity takes place and the various elements relevant for their legitimacy and effectiveness. Moreover, scholars have pondered the capacity of nonstate entities to create and implement private regulation without official intervention in a global context. Regardless of agreement with the idea that such regulation can be regarded as “legal” or not, private regulation has been deemed to be able to interact with international law sometimes, be it because the latter refers to it and attaches some value to it, or because principles of law make private regulation or conduct relevant to bind its creators or for other purposes. Concerning this discussion, in Teubner 1997, the idea that nonstate entities can bring about the creation of regulations with a legal character that are private in nature and in whose creation states do not participate is put forward. It is argued that when some conditions are met, normative processes lead to regulations that can truly be regarded as legal. Finally, in Kingsbury 2009, criteria of “publicness,” related to human rights and legality, among others, are deemed as important and as necessary of being respected by nonstate regulations of the sort described in the previously commented text or by others, given needs and dynamics in the context of global administrative processes.

Kingsbury, Benedict. “The Concept of ‘Law’ in Global Administrative Law.” European Journal of International Law 20 (2009): 23–57.
DOI: 10.1093/ejil/chp005Save Citation »Export Citation »E-mail Citation »
Considers that nonstate actors may play roles in global administrative law, creating and applying it, and discusses challenges of that participation. Additionally, critically examines private orderings and theories that regard them as law, considering that “publicness” requirements (of legality, rationality, human rights, proportionality, or rule of law) must be respected.
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Noortmann, Math, and Cedric Ryngaert. “Introduction: Non-state Actors: International Law’s Problematic Case.” In Non-state Actor Dynamics in International Law: From Law-Takers to Law-Makers. Edited by Math Noortmann and Cedric Ryngaert, 1–6. Farnham, UK: Ashgate, 2010.
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Drawing a distinction between lawmakers and law-takers, posits that by having international rights and obligations, nonstate actors are law-takers besides states; explores discussions and initiatives concerning their responsibility. Regarding lawmaking and participation, describes analyses of informal nonstate influence on the content of law, legitimacy, and concerning possible scholarly inventions.
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Peters, Anne, Lucy Koechlin, and Gretta Fenner Zinkernagel. “Non-state Actors as Standard Setters: Framing the Issue in an Interdisciplinary Fashion.” In Non-state Actors as Standard Setters. Edited by Anne Peters, Lucy Koechlin, Till Förster, and Greta Fenner Zinkernagel, 1–32. Cambridge, UK: Cambridge University Press, 2009.
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Considers that standards can be means of judgment, nonlegal, and created by nonstate actors, even in partnerships or self-regulation, especially due to globalization, privatization, and liberalization. Explores this from legal, sociological, and political science perspectives and examines related issues of legitimacy, authority, power, accountability, governance, and effectiveness.
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Teubner, Gunther. “‘Global Bukowina’: Legal Pluralism in the World Society.” In Global Law without a State. Edited by Gunther Teubner, 3–28. Aldershot, UK: Dartmouth, 1997.
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Argues that, in a globalized context, sectors of world society develop global laws without state intervention, lex mercatoria being a successful example; their legal character being embedded in a pluralist framework and the product of self-reproductive discourses that use a legal/illegal binary code, producing normative expectations and serving multiple functions.
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Sources and Development of International Law

While they can generally interact with normative processes that may interact in turn with international law, nonstate actors can also contribute to shaping (and can be addressed by) international law. Nonstate actors are able to influence the use of sources of international law indirectly, informally, directly, or formally. The latter capacity is currently enjoyed only by some actors in relation to certain sources and to different extents. Concerning these issues, Pérez-Prat-Durbán 2008 discusses new modalities of nonstate participation in treaty-making processes, the formal and informal impact that nonstate entities can have on the content of international norms, and their use of self- or hetero-regulation without state intervention. Regarding the specific field of international treaties, both United Nations 1966 and United Nations 1962 posit that certain entities with international legal subjectivity have the capacity to enter into agreements governed by international law, as confirmed in the 1986 Vienna Convention on the Law of Treaties (cited under International Legal Materials). The same is held in Aust 2007, which also mentions that those entities and other actors without the previously indicated capacity may enter into memorandums of understanding that may be useful for multiple reasons despite not being treaties. Henckaerts 2007 examines the interaction of some nonstate entities with customary law in the field of international humanitarian law, especially concerning the capacity of the International Committee of the Red Cross (ICRC) to participate in its generation or to prompt it. The article illustrates that customary law can be somewhat influenced by entities with certain features (relevant activities, mandates, and subjectivity). Finally, the International Law Association 2012 report examines practice, discussions, theories, and problems related to the possibility of nonstate actors contributing to shaping international law directly or indirectly, formally or not, by participating in public–private partnerships, creating regulations overseen by states or the creation of which is delegated to them, or by influencing lawmaking processes or dispute-settlement or implementation mechanisms that generate interpretations that are likely to be followed by addressees of law. This text covers a wide range of relevant topics, as the ideal extent of nonstate participation or the advantages (e.g., democratization) and disadvantages (e.g., risks that certain interests have an undue influence while other stakeholders are excluded) of nonstate actors participating in the shaping of international law. Alvarez 2006 examines, lastly, how the actions of international organizations have paved the way for new participants in the development of international law, including themselves.

Alvarez, José E. International Organizations as Law-Makers. New York: Oxford University Press, 2006.
DOI: 10.1093/acprof:oso/9780198765639.001.0001Save Citation »Export Citation »E-mail Citation »
Examines how international organizations and their agents generate rules, have an impact on legal developments, and contribute to make state and nonstate actors with which they interact participants in the development of international law through several processes. Analyzes challenges to state-centric conceptions of legal sources and participation (see pp. 608–620).
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Aust, Anthony. Modern Treaty Law and Practice. 2d ed. Cambridge, UK: Cambridge University Press, 2007.
DOI: 10.1017/CBO9780511811517Save Citation »Export Citation »E-mail Citation »
Considers that nonstate entities with subjectivity can be parties to treaties and that entering into memorandums of understanding with nonstate actors without treaty-making powers is practical. Explores the treaty-making capacity of international organizations and other actors. Regards individuals and corporations as objects of international law, a notion criticized by some authors.
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Henckaerts, Jean-Marie. “Customary International Humanitarian Law: A Response to US Comments.” International Review of the Red Cross 89 (2007): 473–488.
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Considers that because of its personality, official mandate, and promotion activities, the ICRC can participate in the formation of international humanitarian law through its appeals, prompting reactions from participants in armed conflicts, and sometimes extending principles of international humanitarian law. Its actions are not regarded as primary evidence of customary law, though.
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International Law Association. Second Report of the Committee: Non-state Actors in International Law: Lawmaking and Participation Rights. London: International Law Association, 2012.
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Examines if nonstate actors can shape hard and soft law and normative attitudes by interacting with sources of international law and compliance mechanisms directly, indirectly, formally, and informally. Noteworthy insights address why unilateral commitments can be binding, quasicustom, and the problems and benefits of nonstate entities shaping international law, particularly customary law.
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Pérez-Prat-Durbán, Luis. “Actores no estatales en la creación y aplicación del Derecho Internacional.” In La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público: Los actores no estatales: Ponencias y estudios. Edited by Victoria Abellán-Honrubia and Jordi Bonet-Pérez, 21–38. Barcelona: J. M. Bosch, 2008.
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Considers factors that lead nonstate actors without international legal personality to have greater relevance in international legal issues; explores their increased participation in international lawmaking processes, both formally and informally; and examines nonstate private self- and hetero-regulation.
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United Nations. First Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur. UN Doc. A/CN.4/144 and Add.1 (1962).
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Considers that subjects of international law possessing a separate international legal personality with the express or implied capacity to do so, such as the Holy See and international organizations and agencies, may conclude agreements governed by international law; and that individuals and corporations, even if they are subjects of law, may not.
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International Law Commission. “Draft Articles on the Law of Treaties with Commentaries.” Yearbook of the International Law Commission 2 (1966): 187–274.
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The commission stressed in draft article 3 and the commentaries to that article and to draft articles 1 and 2 that agreements in which nonstate subjects of international law, as international organizations or insurgent communities, participate, may be treaties, even absent state participation.
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Dispute Settlement

Some of the most discussed topics related to nonstate actors and international law are those related to how law addressing nonstate entities may be implemented or made effective, and how those entities may contribute to the effectiveness and implementation of law. One topic is the participation of nonstate actors in dispute-settlement mechanisms, whether they have jus or locus standi, as petitioners, defendants, third parties, or otherwise, or because they may contribute informally to the effectiveness of the outcome or the proceedings of international dispute-settlement mechanisms. Three articles that examine this are Pérez-Prat-Durbán 2008, which studies both formal and informal ways of nonstate participation in law implementation and dispute settlement; Orrego-Vicuña 2001, which examines branches of law and fields in which nonstate participation of that kind is possible under positive law, besides examining proposals regarding that participation; and Crook 2009, which conducts a case study that illustrates the possibility of nonstate actors being parties to arbitration in which international law is applicable, concretely, by resorting to Optional Rules of the Permanent Court of Arbitration. Besides studying the active roles of instituting proceedings or contributing to their conduction, other studies examine the procedural dimension of how to tackle nonstate abuses, as does the briefing paper Corporate Responsibility Coalition 2010, which critically analyzes domestic, judicial, and nonjudicial alternative dispute-resolution mechanisms to address corporate human rights abuses. Apart from dispute-resolution mechanisms, the question of how to make regulations of nonstate conduct effective is crucial and related to the overarching issue of the effectiveness of law. Regarding this, Capie 2008 examines processes of socialization, persuasion, and influence that can contribute to adjusting nonstate conduct concerning humanitarian norms. Bellal and Casey-Maslen 2011, for its part, explores factors that may lead to nonstate noncompliance with norms and factors that can encourage or increase the likelihood of compliance. It is worth noting that other studies examine if and how nonstate entities may contribute to the implementation of or compliance with international law. In Kirk, et al. 2004, a case study leads the authors to examine the ways in which nonstate actors can contribute to law being implemented and some processes that may make nonstate participation problematic and even contrary to the implementation of international law. Posner 2009 expresses a skeptical viewpoint; the author argues that some factors make it difficult to assess whether nonstate actors truly exert an influence on compliance with international law.

Bellal, Annyssa, and Stuart Casey-Maslen. “Enhancing Compliance with International Law by Armed Non-state Actors.” Goettingen Journal of International Law 3 (2011): 175–197.
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Identifies factors that may generate lack of compliance of armed nonstate actors with their obligations; examines their possible international humanitarian law and human rights obligations and responsibilities; analyzes military, political, legal, and humanitarian incentives for compliance with nonstate duties; and offers suggestions for enhancing compliance, such as engaging with those actors.
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Capie, David. “Influencing Armed Groups: Are There Lessons to Be Drawn from Socialization Literature?” In Exploring Criteria & Conditions for Engaging Armed Non-state Actors to Respect Humanitarian Law & Human Rights Law: Conference Report—Geneva, 4–5 June 2007, 86–96. Geneva, Switzerland: Program for the Study of International Organization(s), UNIDIR, and Geneva Call, 2008.
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Considers that there is a deficit of studies on how norms affect nonstate actors, and that persuasion and social influence can contribute to making nonstate actors heed norms in a process of socialization, explaining how those dynamics can impact nonstate behavior. Highlights the importance of engaging and studying nonstate actors.
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Corporate Responsibility Coalition. Protecting Rights, Repairing Harm: How State-Based Non-judicial Mechanisms Can Help Fill Gaps in Existing Frameworks for the Protection of Human Rights of People Affected by Corporate Activities. London: Corporate Responsibility Coalition, 2010.
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This paper is worth noting because it examines limitations of national judicial and soft law mechanisms to address corporate human rights abuses and offers suggestions on both how complementary nonjudicial mechanisms may be used to address those abuses and what institutional design and substantive approaches may help to tackle them.
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Crook, John R. “Abyei Arbitration—Final Award.” American Society of International Law (ASIL) Insights 13 (2009).
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Examines an example of arbitration in which principles of international law were applicable concerning a dispute between a state and a nonstate entity, Sudan People’s Liberation Army, which resorted to the Permanent Court of Arbitration’s Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State.
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Kirk, Elizabeth, Kirsty Sherlock, and Alison D. Reeves. “SUDS Law: Non-state Actors and the Haphazard Route to Implementation of International Obligations.” Non-state Actors and International Law 4 (2004): 87–109.
DOI: 10.1163/1571807042341764Save Citation »Export Citation »E-mail Citation »
The article examines how nonstate actors can contribute to implementing international obligations by lobbying, giving advice, or even carrying out implementation tasks, possibly entrusted due to strained public resources. Problems may arise if actors pursue goals that run counter to obligations or if problematic implementation mechanisms are adopted due to path dependency.
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Orrego-Vicuña, Francisco. “Individuals and Non-state Entities before International Courts and Tribunals.” In Max Planck Yearbook of United Nations Law. Vol. 5. Edited by Rüdiger Wolfrum, Jochen Abr Frowein, Rüdiger Wolfrum, and Christiane Philipp, et al., 53–66. Leiden, The Netherlands: Martinus Nijhoff, 2001.
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Examines the jus standi and locus standi of individuals and other nonstate entities in international dispute settlement in the fields of human rights, criminal law, the law of the sea, investment, trade, or within international organizations; alternative dispute resolution systems; historical antecedents; and proposals for nonstate participation in the International Court of Justice.
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Pérez-Prat-Durbán, Luis. “Actores no estatales en la creación y aplicación del Derecho Internacional.” In La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público: Los actores no estatales: Ponencias y estudios. Edited by Victoria Abellán-Honrubia and Jordi Bonet-Pérez, 21–38. Barcelona: J. M. Bosch, 2008.
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Examines the participation of nonstate actors in the settlement of disputes and in the implementation and supervision of international norms in the backdrop of their international relevance.
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Posner, Eric A. The Perils of Global Legalism. Chicago: University of Chicago Press, 2009.
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Chapter 3 (pp. 40–79) argues that it is difficult to prove that nonstate and substate actors may make states comply with international law, due to factors such as the ability to pressure states to defend their beliefs or interests regardless of law; lack of competence; or the weak procedural and substantive legitimacy of international norms.
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Relevant Substantive Fields

The material expansion of international law and the increasing participation and relevance of international law for nonstate actors can be considered related issues, insofar as the former makes more of the activities of the aforementioned actors relevant from a legal point of view, because those activities impact on regulated fields of jus gentium. The fields related to the protection of human dignity and the promotion of international peace are particularly relevant because of how they enjoy legitimacy and are attached prevalence by practitioners, civil society actors, and public entities. As a result, and given the de facto power of nonstate actors to prevent the enjoyment of rights and guarantees protected by those fields, it comes as no surprise that many studies and regulation initiatives attempt to address the protection of the legal goods related to peace and human dignity from nonstate threats. By contrast, the possible accountability of nonstate entities in general and in the fields related to the protection of human dignity or the promotion of peace, among others, is currently one of the most widely studied aspects of nonstate actors under international law (along with related procedural dimensions on the enforcement of duties to repair). Concerning this, it is telling that both draft international norms, as some created by the International Law Commission or other international bodies, and doctrinal studies, analyze whether nonstate entities can have legal or nonlegal responsibilities in light of the need to protect international legal goods from nonstate actors that have the factual capacity to harm them and prevent the achievement of the pertinent legal goals. Dunoff, et al. 2006 examines practice, case law, and doctrine related to the international personality, participation, impact, responsibility, regulation, duties, and rights of some nonstate actors, covering many areas where they are relevant for international law in substantive terms (as well as in procedural ones). However, the substantive impact and relevance of nonstate actors goes hand in hand with their inclusion as addressees of international law or participants in the international legal realm. Concerning them, Nijman 2002 explores several theoretical constructions on subjectivity and related issues in light of the exclusion or inclusion that may result from their use and of legitimacy based on democratization and representativeness.

Dunoff, Jeffrey L., Steven R. Ratner, and David Wippman. International Law. Norms, Actors, Process: A Problem-Oriented Approach. 2d ed. New York: Aspen, 2006.
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Examines the relevance of nonstate actors in the creation and enforcement of international law. Practice, case law, and opinions on the following issues are explored in relation to them: personality; rights; impact and accountability of nongovernmental organizations (NGOs); corporate responsibility; codes of conduct; norms and guidelines; the protection of individuals; and individual criminal responsibility.
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Nijman, Janneke. “Sovereignty and Personality: A Process of Inclusion.” In State, Sovereignty, and International Governance. Edited by Gerard Kreijen, et al., 109–144. New York: Oxford University Press, 2002.
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Explores theories about international legal personality and alternative constructions, considering that it is a notion that can reflect changes and be used to include or exclude entities from legal processes. Puts forward that legitimacy demands a paradigm shift that places individuals and their participation rights at the center of law.
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Accountability

Given their power and impact on legal and nonlegal interests, it comes as no surprise that the question of the accountability of nonstate entities is widely debated and even addressed by soft law and draft instruments (see International Legal Materials). Remiro-Brotóns, et al. 2007 analyzes the contrast between the needs of holding accountable those nonstate actors that negatively affect legal goods protected in branches such as human rights law, environmental law, or labor law, and the alleged difficulty of holding nonsubjects of international law accountable under international law; and additionally examines the possibility of having responsibilities in certain frameworks in which they participate, nonstate voluntary commitments, and nonstate domestic legal responsibility with its shortcomings regarding entities that operate transnationally. Other works examine nonstate responsibility in certain contexts. In this sense, Van Boven 2010 explores some issues of nonstate responsibility in the field of human rights, particularly concerning the reparation of victims of nonstate misdeeds. Other texts focus on the accountability of certain types of nonstate entities. Of this sort, Cortés-Martín 2008 studies the complex issue of the international legal responsibility of international organizations. It is an interesting work that examines different kinds of organizations from the viewpoint of their responsibility, the distinction of those entities from states, the state and nonstate membership in those organizations, and the identification of a trend toward holding accountable entities that affect law and the need to do this. In this line of work, Dufresne 2004 addresses several relevant issues regarding the accountability of armed groups, such as the sources of their obligations or the pertinence of their responsibilities in light of the specific features of those actors, the study of which is undeniably important given the high number of armed conflicts in which nonstate entities participate, a current problematic phenomenon. By contrast, other works examine nonlegal dimensions of nonstate responsibility, that is, related to social, good governance, ethical, or legitimacy issues. Concerning this, Anderson 2011 distinguishes between internal and external accountability of entities as NGOs, focusing on the latter in light of global governance and legitimacy; identifying dynamics through which nonstate entities of a private and public character may attempt to legitimate each other; and examining the differences of external accountability in domestic and international settings. Sano 2002, however, examines how global governance imposes demands on nonstate entities, the respect for which may be urged by other nonstate entities as well.

Anderson, Kenneth. “‘Accountability’ as ‘Legitimacy’: Global Governance, Global Civil Society and the United Nations.” Brooklyn Journal of International Law 36 (2011): 841–890.
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It is argued that the United Nations and NGOs of certain ideologies attempt to legitimate each other and that only at domestic levels are certain actors democratically checked. Fiduciary, external-political, and subject-matter accountability of nonstate actors; their expertise, advocacy, representativeness, and relation with political dynamics; and competing notions of global governance are studied.
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Cortés-Martín, José M. Las organizaciones internacionales: Codificación y desarrollo progresivo de su responsabilidad internacional. Seville, Spain: Instituto Andaluz de Administración Pública, 2008.
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Considering a trend to hold entities that violate international law accountable, and the unique features of international organizations, the book examines how their obligations are created and when their responsibility is engaged, analyzing whether different organizations are subject to different secondary rules. Their responsibility is distinguished from that of states.
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Dufresne, Robert. “Book Review of: Liesbeth Zegveld. The Accountability of Armed Opposition Groups in International Law.” European Journal of International Law 15 (2004): 226–229.
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Examines the importance of holding armed actors accountable; the identification of their customary obligations when conventional ones are not applicable; the adequacy of obligations to specific features and capacities of entities; the discouragement of undesirable conduct; the responsibilities of individuals, groups, and succeeding entities; and the relevance of multiple branches of law.
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Remiro-Brotóns, Antonio, et al. Derecho Internacional. Valencia, Spain: Tirant Lo Blanch, 2007.
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Considers that actors that are not subjects of international law cannot be held legally responsible but may be held socially accountable and may be called to respect nonlegal norms; that actors can have responsibilities in the context of frameworks in which they participate; and that domestic law cannot sufficiently regulate transnational conduct (pp. 784–786).
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Sano, Hans-Otto. “Good Governance, Accountability, and Human Rights.” In Human Rights and Good Governance: Building Bridges. Edited by Hans-Otto Sano and Gudmundur Alfredsson, 123–146. The Hague: Martinus Nijhoff, 2002.
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Section 4 draws attention to ideas of (institutional) international governance and global governance concerned with multiple entities; discusses how different actors seek to bring about changes in tune with institutional and human principles; and examines the mounting pressure for respect of those principles by entities that enjoy power.
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Van Boven, Theo. The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. New York: United Nations, 2010.
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Indicates that, in the drafting of the principles and guidelines, it was believed that, apart from states, nonstate actors, especially those with territorial or economic power, can be responsible. The instrument is thus victim oriented and refers to the access to reparations by their victims and to compensation by nonstate actors.
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State Responsibility and Nonstate Conduct

International case law stresses that state responsibility may be engaged in connection with abuses carried out by nonstate entities, be it due to assistance to those violations or because of breaches of obligations in the form of failure to prevent or respond to nonstate abuses. In this regard, the International Court of Justice accepted in Application of the Convention on the Prevention and Punishment of the Crime of Genocide that just as states may be responsible for assisting breaches attributable to other states, they can be responsible for assisting nonstate violations as well. The International Court of Justice also considered that sometimes nonstate conduct can be directly attributable to states and that some obligations exist to prevent and address nonstate violations, as stated above. The Case of Velásquez-Rodríguez v. Honduras expands on the content of the duties to prevent and respond to nonstate abuses, which are deemed able to violate human rights. The Case of Ximenes-Lopes v. Brazil examined in greater detail both the possibility of attributing some nonstate conduct to states and the responsibility of states to regulate and supervise nonstate conduct in sensitive areas where the enjoyment of human rights is at stake. Lastly, in the Case of the Pueblo Bello Massacre v. Colombia the Inter-American Court of Human Rights remarked that the intensity of positive duties of the state to deal with nonstate threats to human rights is greater when the state has created the risk that those threats can take place or when systematic and grave violations loom large.

International Court of Justice. ”Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro).” ICJ Reports (2008).
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Considers that state responsibility can be engaged in connection with nonstate wrongful acts committed under state instructions, directions, or effective control; when states knowingly give assistance to violations; or when states breach their obligations to prevent and punish certain violations of international norms or to cooperate with international authorities.
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Case of the Pueblo Bello Massacre v. Colombia, Judgment of 31 January 2006 (Merits, Reparations and Costs). I/A Court H.R., Series C No. 140 (2006).
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Recalls state obligations to respect and ensure human rights, even from nonstate entities. Interestingly, considering special needs of protection, it holds that, when a state creates a risk of a nonstate violation or there are nonstate systematic and grave violations, the aforementioned obligations are accentuated, that is, more stringent.
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Case of Velásquez-Rodríguez v. Honduras, Judgment of 29 July 1988 (Merits), I/A Court H.R., Series C No. 4 (1988).
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Mentions that the determination of state responsibility by the Court is based on compliance with obligations to respect and ensure rights. The latter is described as imposing positive duties of due diligence, including those to prevent, investigate, and punish violations of human rights committed by nonstate entities.
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Case of Ximenes-Lopes v. Brazil, Judgment of 4 July 2006 (Merits, Reparations and Costs). I/A Court H.R., Series C No. 149 (2006).
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Affirms that violations committed by private actors that are attributable to the state engage the latter’s responsibility—for instance, when those actors are authorized to exercise public functions or powers. It also holds that states must supervise and regulate the rendering of public services by private entities to guarantee rights.
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Human Rights

Nonstate actors can have a positive or a negative impact on the promotion and enjoyment of human rights. Their undeniable relevance has made them worthy of attention by scholars and officials alike. Reinisch 2005 is a comprehensive and well-argued text that examines multiple relevant issues as sources of nonstate responsibilities, mechanisms to promote rights, and factors that call for protection from nonstate actors. Steiner 2010 analyzes the promotion of rights by states and entities as NGOs or international organizations, alongside ways in which their misdeeds have been tackled by international law, focusing on indirect ones; whereas Almqvist 2006 stresses the need to protect all victims, regardless of the identity of offenders, pointing out how victims of some entities are protected under some regimes (those related to counterterrorism and human rights). Meron 2006 examines state duties to protect individuals from nonstate violations, conflicts between rights, and the possibility of there being international obligations of nonstate entities. Pariotti 2011 is another interesting piece of writing that explores the capacity of several nonstate actors to play both positive and negative roles in the human rights framework, focusing on the particular interactions of each kind with rights in light of nonstate participation in legal processes, considerations of legal subjectivity, or substantive demands for the protection of human rights regardless of what entity threatens their enjoyment. Bianchi 1997 examines how some nonstate actors can and do impact the content and implementation of human rights law, and how the distinction between legal and nonlegal tenets or aspirations may be blurred by them. Biró and Motoc 2005 examines the notion of nonstate actors, their possible responsibilities, and how self-regulation or hetero-regulation may shape them; their moral obligation to respect human rights, and what is the positive and negative relevance of some entities (such as individuals, NGOs, international organizations, or transnational corporations) in connection with human rights. Carrillo-Santarelli 2012 puts forward the ideas that nonstate actors must be allowed to contribute to the promotion of global legal goods that protect human dignity, because they may offset the shortcomings of domestic and international mechanisms and operate simultaneously to them; and that all nonstate actors that can violate it are implicitly bound by an obligation to respect peremptory law founded upon human dignity.

Almqvist, Jessica. Facing the Victims in the Global Fight against Terrorism. FRIDE Working Paper 18. Madrid: FRIDE, 2006.
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This paper examines the frameworks against terrorism and against human rights abuses and how victims of state counterterrorism measures are underprotected in the former and victims of nonstate actors are underprotected in the latter. Defends that all victims must be protected, as demanded by the right to justice and equality.
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Bianchi, Andrea. “Globalization of Human Rights: The Role of Non-state Actors.” In Global Law without a State. Edited by Gunther Teubner, 179–212. Aldershot, UK: Dartmouth, 1997.
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Considering that a state-oriented approach to the human rights framework is inaccurate; examines formal and informal ways in which individuals, NGOs, jurists, domestic courts, or networks can have an impact on the shaping and implementation of human rights, and how they may interact and blur distinctions between law and aspirations.
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Biró, Gáspár, and Antoanella-Iulia Motoc. Working Paper on Human Rights and Non-state Actors. UN Doc. E/CN.4/Sub.2/2005/40 (2005).
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Considers nonstate actors as actors on the international stage different from states and that all have a general theoretical and moral obligation to respect human rights. Explores classifications and definitions of nonstate actors; self-regulation and hetero-regulation; influence as calling for higher responsibility; questions of responsibility; and some actors in detail.
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Carrillo-Santarelli, Nicolás. “Enhanced Multi-Level Protection of Human Dignity in a Globalized Context through Humanitarian Global Legal Goods.” German Law Journal 13 (2012): 829–873.
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Posits that nonstate conduct can have a positive or negative impact on the protection of humanitarian and other legal values and interests shared by legal systems. Accordingly, nonstate promotion that complements official protection is deemed as necessary; and humanitarian peremptory norms are held to implicitly bind all entities.
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Meron, Theodor. The Humanization of International Law. Leiden, The Netherlands: Martinus Nijhoff, 2006.
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Considering that an effective protection of human rights must offer protection from private abuses, explores case law and norms on state obligations to prevent and punish them and offer remedies. Also examines the extension of obligations to private conduct, the possible tension between rights, and the need to balance values.
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Pariotti, Elena. “Non-state Actors, International Law, and Human Rights.” In International Law: Contemporary Issues and Future Developments. Edited by Sanford R. Silverburg, 95–107. Boulder, CO: Westview, 2011.
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Argues that nonstate actors participate in international legal processes, are regulated by law, and emerged due to social and legal dynamics; and that taking account of them stresses the content and universality of rights. Examines the regulation and positive and negative impact of NGOs, transnational corporations, armed entities, and individuals.
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Reinisch, August. “The Changing International Legal Framework for Dealing with Non-state Actors.” In Non-state Actors and Human Rights. Edited by Philip Alston, 37–89. New York: Oxford University Press, 2005.
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Excellent comprehensive chapter that examines several elements of the framework for protecting human rights from nonstate threats: codes of conduct; domestic litigation; the responsibility of accomplices; nonlegal techniques of promotion; legal and social accountability; state responsibility for nonstate abuses; subjectivity; and legal changes, privatization, and globalization that make protection necessary.
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Steiner, Henry J. “International Protection of Human Rights.” In International Law. 3d ed. Edited by Malcolm D. Evans, 784–813. New York: Oxford University Press, 2010.
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Examines how NGOs and international bodies can promote and contribute to the protection of human rights, and state duties to promote nonstate understandings that respect human rights; and considers that with some exceptions, nonstate actors can violate human rights, have international criminal responsibility, and be indirectly regulated by international law.
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Obligations, Responsibilities, and Roles

Nonstate actors can undoubtedly impede the enjoyment of human rights in factual terms, which justifies positive state obligations to protect individuals from them, as acknowledged in the Case of Velásquez-Rodríguez v. Honduras (cited under State Responsibility and Nonstate Conduct). However, there has been much discussion on the possibility of nonstate actors having direct international human rights obligations and responsibility. A compelling and persuasive analysis is presented in Clapham 2006, in which the author rebuts objections to that direct engagement and explains why duties of that sort can exist and why the foundations of human rights law demand protection from nonstate entities, among other ideas offered therein. Likewise, Jochnick 1999 demands of human dignity and support of communities, and the roles of nonstate entities in violations, are presented as arguments in favor of nonstate human rights duties and accountability. Considering current dynamics, De Feyter 2009 also calls for nonstate human rights obligations for those rights to be effectively protected. In Kabasakal 2006, the needs to address the promotion or violation of human rights by nonstate actors and to abandon a state-centered scheme for those rights to be enjoyed is emphasized; and Goodhart 2006 proposes a functional account of human rights that takes into account power dynamics and overcomes protection deficits and limitations of a traditional liberal human rights paradigm. Alston 2005 insists that nonstate challenges to human rights that cannot be adequately dealt with by domestic law must be addressed and that an effective human rights framework must take into account the capacity of nonstate actors to abuse rights. In Lauterpacht 1950, it is acknowledged that individuals may be bound by international obligations and by criminal law directly, and that in turn, criminal law and international obligations can protect human rights. Finally, and also related to obligations designed to protect human rights, Knox 2008 describes a well-structured description of the types of obligations inscribed in a horizontal human rights nature that are meant to protect individuals from nonstate abuses, classifying them into those that address abuses indirectly (through state mediation) or directly, and in a more or less procedurally intense manner. Additionally, a distinction between converse (owed toward groups) and correlative obligations is made, with the author considering the former as liable to manipulations and the latter as truly protecting human rights but not always being necessary or convenient.

Alston, Philip. “The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-state Actors?” In Non-state Actors and Human Rights. Edited by Philip Alston, 3–36. New York: Oxford University Press, 2005.
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Argues that state-centric conceptions ignore changes regarding the participation of nonstate actors and that an effective human rights framework must take them into account. Examines cases that illustrate this argument, definitions of nonstate actors, factors that make them relevant, their subjectivity, and scholarly opinions on related issues and some actors.
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Clapham, Andrew. Human Rights Obligations of Non-state Actors. New York: Oxford University Press, 2006.
DOI: 10.1093/acprof:oso/9780199288465.001.0001Save Citation »Export Citation »E-mail Citation »
This book maintains that human dignity and the needs of victims demand protection from nonstate violations. The author rebuts objections to international human rights obligations of nonstate actors, arguing that they can be created and can strengthen the humanitarian framework. Specific actors, case law, and conflicts in the private sphere are examined.
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de Feyter, Koen. “Globalisation and Human Rights.” In International Human Rights Law in a Global Context. Edited by Felipe Gómez Isa and Koen de Feyter, 51–96. Bilbao, Spain: University of Deusto, 2009.
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Compellingly argues that the effective protection of human rights in an economically globalized context requires direct international obligations of nonstate actors (especially powerful ones) that complement both state obligations to protect rights from those actors and soft law regulation. International organizations, financial institutions, and private actors are studied in detail.
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Goodhart, Michael. “Human Rights and Non-state Actors.” In Non-state Actors in the Human Rights Universe. Edited by George Andreopoulos, Zehra F. Kabasakal Ara, and Peter Juviler, 23–41. Bloomfield, CT: Kumarian, 2006.
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Proposes a functional account of human rights focused on governance, putting forward that the roles played by nonstate actors demand revising the conceptual human rights framework, given what the author perceives as problems of the traditional liberal approach that limit the functional protection of human rights from nonstate abuses.
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Jochnick, Chris. “Confronting the Impunity of Non-state Actors: New Fields for the Promotion of Human Rights.” Human Rights Quarterly 21 (1999): 56–79.
DOI: 10.1353/hrq.1999.0008Save Citation »Export Citation »E-mail Citation »
Considers that human dignity demands protection from nonstate violations. This, coupled with the need to prevent impunity, the possibility of nonstate actors being addressed by international law, and the recognition of nonstate power, is considered to make the appeal for human rights duties of entities such as transnational corporations or international financial institutions.
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Kabasakal Arat, Zehra F. “Looking beyond the State But Not Ignoring It: A Framework of Analysis for Non-state Actors and Human Rights.” In Non-state Actors in the Human Rights Universe. Edited by George Andreopoulos, Zehra F. Kabasakal Arat, and Peter Juviler, 3–21. Bloomfield, CT: Kumarian, 2006.
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Argues that the human rights state-centered paradigm, divided into domestic and international spheres, responds to historical reasons but is ineffective, ignoring how nonstate actors can promote or violate human rights and must be addressed accordingly. Classifies nonstate actors, examines their impact, and studies some developments in the United Nations.
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Knox, John H. “Horizontal Human Rights Law.” American Journal of International Law 102 (2008): 1–47.
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Duties that are correlative to the protection of human rights are deemed as preferable to those owed toward groups, which may be abused by authorities. The international horizontal protection of rights is described as having four levels, which vary in substantive and procedural intensity and may be direct or indirect.
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Lauterpacht, Sir Hersch. International Law and Human Rights. London: Stevens, 1950.
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Chapter 2 (pp. 27–47) holds that the distinction between rights and remedies, and also law and case law, support that individuals can be addressees of international rights and duties, which is also deemed convenient. Prohibiting crimes against humanity is considered to protect human rights. The combination of state and individual responsibility is also examined.
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Protection from Torture and Punishment

Under general human rights law, protection from torture and other cruel, inhuman, or degrading treatment must be given to individuals from all entities, state or not, capable of perpetrating such violations, as implicitly revealed in the Case of N. v. Sweden. Specialized instruments may have a narrower definition of what amounts to such violations, for instance by indicating that officials must be involved somehow for abuses to be regarded as torture, and this may lead to lack of protection by bodies entrusted with overseeing those instruments when nonstate actors engage in abuses that conform to the description of torture and other violations but do not have factual power or control to a certain degree and states are not involved in those violations, as examined in The Redress Trust 2006, which also analyzes the capacity of nonstate entities to perpetrate torture and other prohibited conduct de facto and offers suggestions about how to tackle it and protect human beings from that scourge. Protection from the aforementioned abuses under international humanitarian law and international criminal law are also examined by the Redress Trust. Concurring Opinion of Judge Cecilia Medina Quiroga 2009, concerning the issue at stake, highlights that general human rights norms and definitions of international crimes are not limited by the narrow definitions of some specialized human rights instruments, which are only applicable to them, and therefore argues that nonstate entities are certainly able to commit torture and other abuses, from which individuals are to be protected.

Case of N. v. Sweden, Judgment of 20 July 2010, Application No. 23505/09. European Court of Human Rights, (Third Section), Reports of Judgments and Decisions (2010).
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Holds that the applicant could face reprisals from her husband, his family, her own family, or Afghan society, contrary to her right to not be subject to torture or to inhuman or degrading treatment or punishment, and accordingly holds that her deportation to Afghanistan would violate that right.
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“Concurring Opinion of Judge Cecilia Medina Quiroga in Relation to to the Judgment of the Inter-American Court of Human Rights in the Case of González, et al. (“Cotton Field”) v. Mexico of November 16, 2009.” Judgment (Preliminary Objection, Merits, Reparations and Costs). I/A Court H.R., Series C No. 205 (2009).
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Considers that, generally and under jus cogens, the distinction between torture and other violations of personal integrity depends on the severity of the conduct, state participation being a requirement mentioned only in specialized instruments that, as with other norms, oblige states to protect individuals from nonstate entities, which can commit torture. See pp. 156–161 of the judgment.
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The Redress Trust. Not Only the State: Torture by Non-state Actors; Towards Enhanced Protection, Accountability and Effective Remedies. London: The Redress Trust, 2006.
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Examines torture committed by nonstate actors, especially de facto regimes and armed groups; examines how case law, practice and norms of human rights law, international humanitarian law, and international criminal law address it (recognizing it as torture or not), identifying their shortcomings; and has suggestions on how to address nonstate torture.
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Corporations

Given their economic power and ensuing capacity to influence certain state authorities looking for investment; their capacity to operate in a transnational manner and evade certain domestic controls; or their capacity to “affect virtually all internationally recognized [human] rights” (as explained in United Nations Human Rights Council 2008, p. 4), scholars and authorities have examined how human rights can be protected from abuses attributable to corporations or from violations to which they are complicit. Before examining the materials described below, it must be noted that corporations can also contribute to promoting human rights, as described in Pariotti 2011 (cited under Human Rights). On the need to protect human rights from corporate abuses, the Framework proposed in United Nations Human Rights Council 2008 proves to be quite interesting, suggesting a framework that rests on three pillars: state protection from corporate abuses; corporate responsibility to respect human rights; and the availability of state and nonstate, judicial and nonjudicial mechanisms to investigate, punish, and redress corporate violations. United Nations 2011b (cited under International Legal Materials) offers guidelines on the implementation of this framework. Clapham and Jerbi 2001 examines lex lata and lex ferenda elements of corporate complicity, distinguishing direct, beneficial, and silent types of that complicity. Martínez-Barrabés 2008 studies Alien Tort Statute (ATS) litigation in cases of private and corporate involvement in human rights violations, focusing on the Unocal case and highlighting the need for the availability of domestic venues to protect victims and address abuses. Concerning ATS litigation as well, in the Kiobel v. Royal Dutch Petroleum case the US Court of Appeals for the Second Circuit considers that corporations currently do not have customary human rights obligations but that they may be created in the future. This decision was, however, considered an outlier in the Boimah Flomo, et al., v. Firestone Natural Rubber Co case (cited under Case Law and Reports). Alvarez 2011 argues that the human rights edifice may be weakened if corporations are regarded as full international legal persons, because of possible attachment of prevalence to corporate rights by some authorities or due to the cross-fertilization of corporate rights notions into human rights law, among others. The author argues, nevertheless, that not considering corporations as international persons does not detract from the possibility of their being bound by international obligations, which the author argues should take into account the specific features of those entities. International Commission of Jurists 2012 presents opinions on controversial issues related to the topic.

Alvarez, José E. “Are Corporations ‘Subjects’ of International Law?” Santa Clara Journal of International Law 9 (2011): 1–36.
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Analyzes subjectivity; criticisms to equating corporate/investor and human rights, possible imbalance and conflicts between them; and argues that human rights may be weakened and corporations overempowered by considering them international legal persons, and that lack of personhood does not prevent corporate rights and obligations that take into account their features.
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Clapham, Andrew, and Scott Jerbi. “Categories of Corporate Complicity in Human Rights Abuses.” Hastings International and Comparative Law Review 24 (2001): 339–349.
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Examines the definition and elements of three forms of corporate responsibility: direct complicity (intentional participation with knowledge of likely effects of assistance), which resembles complicity in international criminal law; beneficial complicity (knowingly benefiting from abuses); and silent complicity (failure to denounce abuses), which may not be present in law.
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International Commission of Jurists. “High Level Discussion on Advancing Human Rights and Business in the Human Rights Council.” Parallel Event to the Human Rights Council 20th Regular Session. Palais de Nations, Geneva, 21 June 2012.
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Presents opinions and discussions over corporate responsibility for gross human rights abuses; codes of conduct and mechanisms to monitor them and make them effective; multidimensional approaches; integration of human rights into corporate activities; the need to have a binding document, arbitration, and responsibility clauses; or possibilities to sue corporations.
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Kiobel v. Royal Dutch Petroleum. US Court of Appeals for the Second Circuit, Docket nos. 06-4800-cv, 06-4876-cv (2010).
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Examines subjectivity and holds that unlike individuals, corporations can be liable under domestic law but currently do not have customary international human rights obligations, as allegedly confirmed by a lack of cases and instruments in which their responsibility in that regard is asserted. Judge Leval disagreed and issued a separate opinion.
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Martínez-Barrabés, Mireia. “La responsabilidad civil de las corporaciones por violación de los derechos humanos: un análisis del Caso Unocal.” In La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público: Los actores no estatales: Ponencias y estudios. Edited by Victoria Abellán-Honrubia and Jordi Bonet-Pérez, 221–267. Barcelona: J. M. Bosch, 2008.
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Indicating the threats of increasingly powerful nonstate actors, analyzes the Unocal case considering the developments of ATS litigation concerning applications against private actors; notions of corporate complicity; jus cogens; and the importance of having different domestic or international venues to tackle nonstate abuses, protect human rights, and prevent impunity.
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United Nations Human Rights Council. Protect, Respect and Remedy: A Framework for Business and Human Rights: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie. 8th Session, Agenda Item 3, U.N. Doc. A/HRC/8/5 (2008).
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Considers that governance gaps favor corporate abuses, which can affect virtually all human rights, and proposes a framework resting on differentiated but complementary responsibilities with three core principles: state obligations to protect; corporate responsibility to respect rights with due diligence; and access of victims to judicial and nonjudicial remedies.
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Protection from Nonstate Criminal Threats

Nonstate violations of norms against international crimes and transnational organized crime or of those that protect refugees are serious insofar as they are inimical to the protection of human dignity and other legal goods. In relation to refugee law, both in Galindo-Vélez 2001 and in United Nations High Commissioner for Refugees 1992, it is maintained that individuals are protected under that law from all agents of persecution, which can be nonstate in formal nature. In the former text, this is examined in the background of the considerable power that criminal, armed, and other nonstate actors that can be agents of persecution of refugees can have and the need of individuals to be protected when their states cannot offer effective protection against those actors. Regarding transnational organized crime, in Badia-Martí 2008, the legal framework for tackling increasingly powerful criminals and the conditions for its success are explored; while in Obokata 2005, it is considered that, just as trafficking of human beings, another act linked with transnational organized crime that can be committed by nonstate actors, namely their smuggling, can also generate human rights violations, which in turn can cause smuggling as well; and substantive and procedural aspects to address that conduct are examined. Bantekas 2010 examines several aspects of international criminal law, such as how human rights are affected in relation to international crimes committed by nonstate actors; what rights the accused have; and the allegation that actors denouncing violations of human dignity engage in so-called lawfare, which is criticized.

Badia-Martí, Anna. “Cooperación internacional en la lucha contra la delincuencia organizada transnacional.” In La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público: Los actores no estatales; Ponencias y estudios. Edited by Victoria Abellán-Honrubia and Jordi Bonet-Pérez, 319–343. Barcelona: J. M. Bosch, 2008.
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Acknowledging changes that have increased the impact of transnational criminal activities and alliances, describes the drafting history and content of the international legal framework for cooperating to outlaw and tackle those activities, which threaten human beings, mindful of the impossibility of properly dealing with transnational organized crime with unilateral actions.
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Bantekas, Ilias. International Criminal Law. Portland, OR: Hart, 2010.
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Controversially considers that, despite their factual abuses, perpetrating international crimes, having domestic obligations, and practice that labels their abuses as “destroying” rights, nonstate actors cannot violate human rights law. Additionally, challenges the idea that nonstate actors denouncing violations of human dignity engage in lawfare, and examines rights of the accused.
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Galindo-Vélez, Francisco. “Consideraciones sobre la determinación de la condición de refugiado.” In Derecho internacional de los refugiados. Edited by Sandra Namihas, 93–166. Lima, Peru: Pontificia Universidad Católica del Perú and UNHCR, 2001.
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Section 4 discusses how some criminal, political, or armed nonstate actors exercise factual jurisdiction, control territories, or have considerable power. The facts that they can threaten the life, freedom, or integrity of individuals and that states cannot always protect against them make them possible agents of persecution under refugee law.
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Obokata, Tom. “Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-state and State Actors under International Human Rights Law.” International Journal of Refugee Law 17 (2005): 394–415.
DOI: 10.1093/ijrl/eei013Save Citation »Export Citation »E-mail Citation »
Considers that smuggling of individuals may be the result of or may generate human rights violations, which can be attributable to nonstate actors. Holds the controversial view that despite demands, those actors do not currently bear international human rights obligations, and offers reasons why state obligations of protection and domestic law mechanisms are examined.
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United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. UN Doc. HCR/IP/4/Eng/REV.1. Geneva, Switzerland: United Nations High Commissioner for Refugees, 1992.
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Affirms that sections of the population in a country can be agents of persecution when authorities prove unable or unwilling to protect threatened individuals effectively. Also holds that the exclusion of those who commit international crimes is applicable to persons that commit them within the framework of nonstate groupings.
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International Humanitarian Law

Nonstate participation in armed conflicts and in the launch of attacks that amount to serious uses of force is a troublesome but undeniable reality that must be taken account of by law. One first question regarding these phenomena is what legal category of armed conflicts corresponds to those in which nonstate entities participate. This issue is examined in Milanovic 2007, where the opinion of US organs, doctrine, and the International Committee of the Red Cross (ICRC) is expounded. In Kalshoven and Zegveld 2001, another pertinent topic is examined, namely what norms of international humanitarian law can bind nonstate actors. Salzman 2008 critically addresses other relevant topics, which are whether some private military contractors can be considered mercenaries, what this would entail, and what problems arise as a result of the participation of those contractors. Another critical analysis is offered in O’Connell 2005, in which (apart from examining self-defense against nonstate attacks) the author puts forward the ideas that labeling terrorists as combatants may be counterproductive because they may be legitimized as a result, and that it is unnecessary to label them so because a law enforcement strategy is what law calls for regarding them. Given the reality of the participation of individuals and armed groups in armed conflicts, studies that examine direct participation in hostilities are important. In Melzer 2009, the notion of such participation, its features, conditions, guarantees of civilians, and the status of those who have continuous combat functions in armed groups are examined. This work is contested regarding the status of combatants with those functions in United Nations Human Rights Council 2010, in which Special Rapporteur Alston deems it worrisome, examines other issues related to the direct participation of civilians in hostilities, and additionally explores questions related to self-defense against nonstate actors, such as its conditions. A topic related to nonstate entities and uses of force that cannot be ignored is the support of those entities by states, and the judgment in the Case Concerning Military and Paramilitary Activities in and against Nicaragua addressed many questions surrounding it, such as the law that may be violated as a result of that support, when nonstate conduct may be attributed to states, or the unlawfulness of encouraging nonstate violations of international humanitarian law. Lastly, in Pearlman and Cunningham 2012 the relevance of examining nonstate participants in armed conflicts in a disaggregated manner to examine those conflicts and possible resolutions to them is defended.

International Court of Justice. “Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (Merits) of 27 June 1986. ICJ Reports (1986): 14–150.
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Holds that supporting rebels is not an armed attack but can amount to intervening in the affairs of other states, using force, or violating territorial integrity; that attributing nonstate conduct to states requires effective control; that encouraging nonstate violations of international humanitarian law is prohibited and denies general rights to support opposition.
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Kalshoven, Frits, and Liesbeth Zegveld. Constraints on the Waging of War. 3d ed. Geneva, Switzerland: International Committee of the Red Cross, 2001.
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Drawing attention to regulation needs created by their participation in armed conflicts, examines some humanitarian and related norms that bind or can bind nonstate actors and describes attempts of the ICRC to persuade the United Nations to be bound by international humanitarian law treaties and the latter’s acceptance of observing its principles.
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Melzer, Nils. Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Geneva, Switzerland: International Committee of the Red Cross, 2009.
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Noting civilian and nonstate armed participation, examines the guarantees of civilians participating in hostilities; explores the notion of direct participation in hostilities; regards individuals with continuous combat functions in nonstate groups as combatants; and considers that, while entitled to protection from direct attacks, civilian contractors may be exposed to risks.
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Milanovic, Marko. “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case.” International Review of the Red Cross 89 (2007): 373–393.
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Argues that the reality of transnational and other nonstate participation in armed conflicts may make their legal dual classification insufficient. Criticizes judgments for allegedly misinterpreting the definition of noninternational armed conflicts, considering that its limits may be dispensed with or that broader customary definitions can exist. Defends guarantees of all combatants.
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O’Connell, Mary Ellen. “Enhancing the Status of Non-state Actors through a Global War on Terror?” Columbia Journal of Transnational Law 43 (2005): 435–458.
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Defining nonstate actors as all actors in the international level other than states, analyzes whether deeming terrorists as combatants instead of criminals may legitimize them. Also examines the evolving regulation of NGOs, armed actors, and terrorists under domestic and international law, and the question of self-defense from nonstate attacks.
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Pearlman, Wendy, and Kathleen Gallaher Cunningham. “Nonstate Actors, Fragmentation, and Conflict Processes.” Journal of Conflict Resolution 56 (2012): 3–15.
DOI: 10.1177/0022002711429669Save Citation »Export Citation »E-mail Citation »
Considers that studies of armed conflicts with nonstate participation must recognize that rather than being monolithic or unitary entities, nonstate actors are often fragmented. Both an organization and a disaggregated analysis of actors are regarded as crucial for examining conflicts. Additionally, examines possible causes and effects of actor fragmentation.
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Salzman, Zoe. “Private Military Contractors and the Taint of a Mercenary Reputation.” Journal of International Law and Politics 40 (2008): 853–892.
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Criticizes the increased use of private military contractors, with concerns related to democratic checks, accountability, the monopoly on the use of force, and the priority of public interests. Additionally, examines the international legal regulation of mercenaries and considers that some of the aforementioned contractors may be regarded as such.
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United Nations Human Rights Council. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston—Addendum: Study on Targeted Killings. UN Doc. A/HRC/14/24/Add.6 (2010).
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Examines the legality of targeted killings under international law, indicating concerns and suggestions regarding the notion of continuous combat function; and examines the extraterritorial use of force against nonstate actors in light of sovereignty and the regulation of self-defense, calling for not weakening the regulation of the use of force.
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Direct Self-Defense against Nonstate Attacks

The question of whether states are entitled to resort to self-defense directly against nonstate actors that engage in what de facto amounts to major uses of force and are located abroad is a controversial one, discussed by states, authors, and judges alike. In this regard, in his separate opinion to the Armed Activities on the Territory of the Congo case, Judge Kooijmans considers that the International Court of Justice has failed to identify the lawfulness of such self-defense, which he deems as important because of the serious armed attacks launched by nonstate actors in practice and the defense needs in relation to them. Conversely, recognizing the factual capacity of nonstate entities to use force, Antonopoulos 2008 defends the limitation of the lawful use of self-defense to interstate affairs, albeit examining arguments on both sides of the controversy. Lastly, Waisberg 2008 examines diverging standpoints on the issue as well and regards the position of the International Court of Justice as unsettled, but considers that there is a trend toward the recognition of the lawfulness of the aforementioned self-defense in some events.

Antonopoulos, Constantine. “Force by Armed Groups as Armed Attack and the Broadening of Self-Defense.” Netherlands International Law Review 55 (2008): 159–180.
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Acknowledging self-defense against major uses of force attributable to nonstate actors effectively controlled by states, and defending an interstate framework, examines theories and practice that support or challenge the legality of direct self-defense against nonstate uses of force, relevant norms and principles, potential threats to territorial integrity, and nonstate demands.
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International Court of Justice. “Separate Opinion of Judge Kooijmans to: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 3 February 2006.” ICJ Reports (2006): 306–326.
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Expresses disagreement with the Court, which the judge deems to have implicitly held that, concerning nonstate armed attacks, victim states can only resort to self-defense when those attacks are attributable to a state. Judge Kooijmans considers that necessary and proportionate direct self-defense against nonstate actors is lawful, as demanded by reality.
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Waisberg, Tatiana. “Colombia’s Use of Force in Ecuador against a Terrorist Organization: International Law and the Use of Force against Non-state Actors.” American Society of International Law (ASIL) Insights 12 (2008).
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Explores opposed standpoints on the legality of self-defense against nonstate actors absent state involvement; identifies a trend toward recognizing its legality when it is proportionate and temporary, respects territorial integrity, and states are unwilling or unable to deal with nonstate entities in their territory. The International Court of Justice’s position is described as unsettled.
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