The past two decades have seen a great deal of scholarship discussing the legal nature and responsibility of non-state actors under international law. In general, some inquiries into non-state actors try to hold such actors directly responsible for breaches of international law while others try to find ways to attribute their conduct to states. The problem of the label ‘non-state actors’ is that it is overly broad: it establishes a false dichotomy between states and all other actors capable of acting on the international plane. This means that a corporation, a non-governmental organisation, you, I, the European Union, the United Nations, Transnistria, the International Committee of the Red Cross, Daesh, Taiwan, Scotland, and Hong Kong all fall within the same category of non-state actors. But their capacities to act on the international plane and even incur responsibility under international law can be quite different.
It appears that international legal scholars are now increasingly rejecting this false dichotomy between states and non-state actors, and instead have begun to consider how legal status is created under the sources of international law. International legal status indeed needs to be established in the sources of international law. It cannot be magically transposed from domestic law to the international level (i.e. if a corporation is incorporated in the Netherlands and has a branch in a foreign state, this does not mean that it has legal personality under international law). It is well-established that the legal status of international organisations is created by states, mostly by treaties, although in some limited circumstances it can be argued that this can also happen via customary international law. In some largely historic situations, other forms of international legal status have also been created, such as the Holy See and the Sovereign Order of Malta. In most circumstances, however, legal status under international law is territorial in nature. The most common legal status is statehood, but it is not the only one.
Most non-state actors discussed in contemporary scholarship on non-state actors do not have their status grounded in the formal sources of international law, so they do not have the capacity to breach the rules of this legal system. They were indeed not created by those who do have the law-making capacity on the international plane. In this sense, one needs to distinguish between legal persons under domestic law and those under international law. A legal status under domestic law does not imply a legal status under international law. Scholarly writings on non-state actors commonly make this mistake: they assume that an actor which is a legal person in domestic law must or should also possess an international legal status. But that is not the case where this actor’s legal status has not been established under the formal sources of international law.
In this volume, several articles focus on the questions of international legal personality, the legal rights and duties of individuals in certain specialised international legal regimes and their procedures, and the use and abuse of international law in the EU legal order. The volume begins with an article on international legal personality. Neil Nucup conducts a critical reappraisal of the current definition of international legal personality, before applying these findings to international courts and tribunals (ICT s). These bodies should, he argues, be understood as international legal persons, and this finding is central to understanding and developing the role, impact, and accountability of ICT s within international law.
Moving from international courts to international arbitration, Aniruddha Rajput’s contribution focuses on the lawfulness and desirability of investment treaty arbitration being used as a forum for the enforcement of commercial arbitration awards. Focusing in part on the definition of an ‘investment’, he contends that investment arbitral tribunals do not have jurisdiction to investigate alleged breaches of other treaties, and that to ignore this lack of competence would have implications in the realms of both law and legitimacy.
Next, Bethany Gamble conducts a comparative analysis of the European Court of Human Rights’ margin of appreciation doctrine and the plenary power doctrine over immigration laws in the USA. She analyses both doctrines as tools by which the interests of the state and the individual can be balanced in the context of immigration, and concludes that the margin of appreciation doctrine should serve as a model for the USA to be able to maintain sovereignty without sacrificing respect for individual human rights.
This is followed by two articles on the immunity of foreign state officials. First, Maeve Claffey’s article examines the procedural safeguards formulated by the International Law Commission in their Draft Articles on this topic. She emphasises the importance of such safeguards with regard to the legitimacy of determinations made in relation to immunity, and with regard to the peaceful and orderly conduct of diplomatic affairs. Alejandro Ortega Navarro then brings the discussion to the immunity of foreign state officials in the context of prosecution of international crimes before domestic courts. He critically reexamines the nature of immunity and how it operates, arguing that immunity exists as an exception to jurisdiction and it is thus dependent on the type of jurisdiction that is being asserted. In the context of international criminal responsibility, he contends, state officials are not shielded by functional immunity, even during domestic proceedings.
Staying within the area of international criminal law, the next article examines the application of the complementary principle in Columbia through the ongoing work of the work of the Jurisdicción Especial para la Paz (JEP). Jana Kreulach identifies a number of failures and challenges in this regard, particularly in relation to the differing interpretation of ‘command responsibility’ by the JEP and under the Rome Statute. She contends that the dependence of the JEP on the jurisprudence of the Colombian Constitutional Court in this regard does not reflect the rationale of the Rome Statute, thus undermining the operation of the complementarity principle in Columbia.
Following this, Jure Vidmar’s contribution focuses on certain international law aspects of the Slovenia v Croatia case before the Court of Justice of the European Union. He argues that, although the Court may have been correct in finding that it lacked jurisdiction to hear the case, its reasoning was flawed. Contrary to the Court’s judgment, Vidmar contends that the Arbitral Award between Croatia and Slovenia had created an objective legal fact which would have been applicable in this case.
The final article in this volume provides a critical analysis of The Gambia’s submissions to the International Court of Justice in the ongoing proceedings relating to the alleged genocide in Myanmar. Andrés H. Cáceres-Solari contends that The Gambia’s argumentation regarding genocidal intent (dolus specialis) is doomed to fail, having regard to the perspective taken on this by the ICJ in previous cases. In its place, Cáceres-Solari develops an alternative approach which he suggests is more likely to be successful.
Each in their own way, these contributions shed new light on the complex and multifaceted beast that is non-state actors in international law. By illuminating different aspects of this topic from varied and diverse angles, this volume serves to consolidate and to clarify; to re-examine and to re-imagine. We hope that you enjoy reading it.
Prof Jure Vidmar
Editor-in-Chief
Dr Sarah Thin
Managing Editor