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SUBMITTED BY
Kanishka (2010/BA/025)
Srijan Mehrotra (2010/BA/051)
Sunny (2010/BA/053)
Swatantra Rai (2010/BA/054)
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TABLE OF CONTENTS
RESEARCH METHODOLOGY.........................................................................................................................3
INTRODUCTION.................................................................................................................................................4
1.KINDS OF NON-STATE ENTITIES................................................................................................................5
(1)International Non-governmental organizations (INGOs).........................................................................5
B.)
ENVIRONMENT ISSUES:..................................................................................................................12
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RESEARCH METHODOLOGY
APPROACH:
In this project, we have adopted an analytical approach as we would be analyzing the various methods by which
non-state entities contribute to international law through international conventions and conferences
RESEARCH QUESTIONS:
Whether non-state entities are recognised as a legal personality in the forum of International Law?
How do these non-state entities play a role in the formulation of international law ?
SCOPE OF STUDY:
The paper intends to study the role played by non-state actors in defining the dimensions of
contemporary international law.
To study the contribution of non-state actors through different international Conferences and
Conventions.
OBJECTIVE OF STUDY:
To analyse the role of deviant non-state actors in formulation of new international law
To analyse the nexus between non-state entities, nation states and international organisations
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INTRODUCTION:
It is an established fact that international law is applicable to nation-states. However, in contemporary times, it
is extending its scope to include other beings such as individuals and international organizations. However, its
applicability to non-state entities is still a very debatable question.Non-state entities may be defined as a broad
category of actors in global politics who represent interests and exert influence on issues but who dont have
state characteristics. This includes international organizations such as United Nations (UN) and (North Atlantic
Treaty Organization (NATO), multinational corporations, Non-governmental organizations (NGOs), etc. 1 The
non-state entities occupy a very unique position in the formulation, usage and enforcement of international law,
either directly or indirectly. The non-state entities are of two types:
(1)International non-governmental organisations(INGOs) which form a part of the good entities responsible
for the formulation of many treaties through international organisations such as United Nations, by actively
participating in the economic, social ,environmental progress of the member states by means of attainment of
consultative status with the ECOSOC(Economic and Social Council).For example, the Earth Summit, which
saw the participation of 24,000 NGOs alongwith the nation-states that gave rise to the United Nations
Framework on Climate Change(UNFCC) which is a legally binding treaty
(2)Non-state armed groups (NSAGs) and transnational corporations, who by their position as deviant
organizations whose operation is international in character, violate the basic humanitarian tenets of social
responsibility and hence such violation attract the formulation of stringent international laws to curb the same.
However, it has been noticed that an absence of prescribed rules and regulations for such non-state entities
entail complete autonomy on their operations. Although their role in the development of international law is
indisputable, the lack of recognition to their status as subjects or active participants in the law-making process
fails to give them legitimacy as an effective entity of international character which further reduces the scope of
formalizing or accurately quantifying the scope and effect of their operations and hence proves to be a handicap
in the sphere of public international law.
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3 Steve Charnovitz, Nongovernmental Organizations and International Law, 100 AM. J. INTL L 348, 348-72 (2006) in
NON STATE ACTORS AND INTERNATIONAL LAW (A. Bianchi Ed.,2009)
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international levels. Within states, these INGOs harmonize state practices, provide humanitarian aid, ensure
public participation and link transnational movements with social skills.4
(2) National Liberation Movements The main wars of national liberation took place in the middle and
second half of the twentieth century but many conflicts took place before this time, where armed groups rose up
against their established governments. Only some of these conflicts triggered the application of humanitarian
law, and other conflicts remained within the scope of application of municipal criminal law only.
Traditional international law distinguishes between three categories, or indeed, stages, of challenges to
established state authority. On an ascending scale of intensity of the challenge to the government, these
categories are: 1. rebellion, 2. insurgency and 3. belligerency. An analysis of these categories and the
requirements needed to be fulfilled before a conflict could satisfy the threshold of any particular category is of
central importance. As pointed out by Falk5 , the rights and obligations of parties to a conflict are first decided
by the status of the factions in a conflict. The following section analyses how wars of national liberation were,
and indeed could have been, treated under traditional international law.
Many people pledge their primary allegiances not to the state and government that rules them, but rather to their
ethno-national group which shares a common civilization, language, cultural tradition, and ties of
kinship6.These ethnic groups play a significant role in international politics. For example, African National
Congress (ANC) of Nelson Mandela of South Africa which eventually brought down the white supremacist
government. Such non-state actors indirectly govern international law by taking an active role in the decision
making of the government of nation states who are the main subjects of international law.
4
Muhittin Ataman, The Impact of Non-state actors on World Politics: A Challenge to Nation-States, 2 TURKISH JOURNAL
OF INTERNATIONAL RELATIONS 42,42-66(2003)
5
Falk in Rosenau 1964, 197.
6
THE GLOBAL AGENDA: ISSUES AND PERSPECTIVES(C.W.Kegley & E.R.Wittkopf eds.,1995)
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Although the working of such movements are restricted to the nation-states they have an enormous impact on
the international field. In the above example, such a struggle by the African National Congress gave rise to the
apartheid convention (1973), condemnation of South Africa at World Conference against Racism (1978-83), led
to arms embargo in South Africa and also gave rise to the Organization of African States (OAU) in 1963 which
fought against apartheid and was successful in its elimination. This shows how a non-state entity operating at
national level spearheads conventions at international level.
(3) Non-State Armed Groups(NSAGs) - Non-state armed groups can be defined as those non-state actors
which are independent of state control and act against the legitimate force of state to achieve the political ends.
Most of the NSAGs get indirect financial support from the state, an example being the case of Pakistan where
the fundamentalists or the strong believers of Jihad of Pakistani Armed Military help these groups with funds
that is granted by United Nations. Religious groups like al-Qaeda and Islamic Movement of Uzbekistan (IMU)
are also amongst those groups who use illegitimate force to fulfill their common religious interests. 7
Governments and humanitarian organizations have faced sanctions from national authorities for operating in
areas controlled by NSAGs or for holding talks with them. In July 2007, the government of Ethiopia expelled
the International Committee of the Red Cross from the Somali Regional State on the basis that it provided
support to the Ogaden National Liberation Front (ONLF), a movement the government regularly refers to as
terrorist. The armed conflicts due to these groups result in gross human right violations and this is where
international humanitarian law as a source for rules on governance comes into picture because armed conflicts
are prone to bringing about situations of governance without government. Such situations arise when, during an
armed conflict, a non-state actor gains power over a certain area for some time.
(4) Transnational Corporations Any corporation that is registered and operates in more than one country at
a time; also called a multinational corporation.
A transnational, or multinational, corporation has its headquarters in one country and operates wholly or
partially owned subsidiaries in one or more other countries. The subsidiaries report to the central headquarters.
The growth in the number and size of transnational corporations since the 1950s has generated controversy
because of their economic and political power and the mobility and complexity of their operations. Some critics
argue that transnational corporations exhibit no loyalty to the countries in which they are incorporated but act
7
Mohammad-Mahmoud Ould Mohamedou, Non-Linearity of Engagement: Transnational Armed Groups, International
Law, and the Conflict between Al Qaeda and the United States(2005)
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solely in their own best interests. U.S. corporations have various motives for establishing a corporate presence
in other countries. One possible motive is a desire for growth. A corporation may have reached a plateau
meeting domestic demands and anticipate little additional growth. A new foreign market might provide
opportunities for new growth. Other corporations desire to escape the protectionist policies of an importing
country. Through direct foreign investment, a corporation can bypass high tariffs that prevent its goods from
being competitively priced. For example, when the European Common Market (the predecessor of the European
Union) placed tariffs on goods produced by outsiders, U.S. corporations responded by setting up European
subsidiaries.8
Two other motives are more controversial. One is preventing competition. The most certain method of
preventing actual or potential competition from foreign businesses is to acquire those businesses. Another
motive for establishing subsidiaries in other nations is to reduce costs, mainly through the use of cheap foreign
labor in developing countries. A transnational corporation can hold down costs by shifting some or all of its
production facilities abroad.
Transnational Corporation is an economic entity which operates and has business enterprises in more than one
country. In the process of building subsidiaries in other countries those corporations end up violating the certain
rights of workers, hence transnational corporations should look into the social and cultural objectives, values
and traditions of the countries in which they operate. In their social and industrial relations, transnational
corporations shall not discriminate on the basis of race, colour, sex, religion, language, social, national and
ethnic origin or political or other opinion.9
(5) Intergovernmental organizations The Yearbook of International Organizations, which aims to identify
and list all intergovernmental organizations, defines such bodies as:
1. Being based on a formal instrument of agreement between the governments of nation states
8
http://www.fao.org/docrep/005/y4671e/y4671e0e.htm
9
Letter from the Chairman, Reconvened Special Session of the Commission on the Transnational Corporation to the
President, Economic and Social Council, U.N.(May 31,1990) (on file with author)
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and sympathy extended universally and impartially to all human beings. Humanitarianism has been an evolving
concept historically but universality is a common element in its evolution. No distinction is to be made in the
face of suffering or abuse on grounds of gender, sexual orientation, tribe, caste, age, religion, or nationality.
Humanitarianism can also be described as the acceptance of every human being for plainly just being another
human, ignoring and abolishing biased social views, prejudice, and racism in the process, if utilized individually
as a practiced viewpoint, or mindset.
10
http://www.intergovernmentalorganizations.org/whatis.asp
11
Gustaaf Geeraerts,Analyzing non-state actors in world politics(1997) available at
http://asrudiancenter.wordpress.com/2009/02/09/analyzing-non-state-actors-in-world-politics/
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International Red Cross, International Red Crescent, and Amnesty International (AI) are the most well-known
and influential NGOs among humanitarian international organizations that monitor human rights worldwide.
The first two gives assistance to wartime prisoners and send help in areas affected by natural and
man-made disasters in peacetime. They mainly work along with the UN and related organizations .Amnesty
International
monitors
human
rights violations
against oppression, torture, and individual and group rights. It initiates worldwide campaigns against states
because of human rights violations. Some
12
12
Ataman, supra note 3
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instance,
regarding
human
rights
13
MICHAEL J STRUETT, NGOS,THE INTERNATIONAL CRIMINAL COURT, AND THE POLITICS OF WRITING INTERNATIONAL
LAW,321-53(2004)
14
Michael J.Struett, The politics of constructing the international criminal court: NGOs, discourse, and agency(2009) in Non State
Actors and International Law (A. Bianchi Ed.,2009)
15
I.C.J Statute, Art. 66
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NGOs have not been given a formal role in such proceedings, they are given some form of access in the Peace
Palace, if not directly in the Court.
The law-enforcement stage can be seen in Article 71 of the UN Charter which determines that NGOs can be
granted consultative status by the UN Economic and Social Council (ECOSOC). The NGOs having such
consultative status,have,alongwith the right to participate in the early stages of drafting of documents, a right
and privilege to be on the floor, to circulate documents, to address the delegates,etc.16
16
Lance Bartholomesz,The amicus curiae before international courts and tribunals(2005) in Non State Actors and
International Law (A. Bianchi Ed.,2009)
17
Beate Rudolph, Governance without Government Non-state Actors and International Law (2009)
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These non-state actors then went back and lobbied their particular governments for certain policies, developed
proposals for international negotiation and even carrying on certain litigation in some of the national courts and
international tribunals, with their eye on the goal of strengthening the protection of intellectual property rights.19
The Committee on Economic, Social and Cultural Rights attaches great importance to cooperation with all nongovernmental organizations (NGOs) active in the field of economic, social and cultural rights - local, national
and international, those in consultative status with the Economic and Social Council and those without such
status. The Committee constantly encourages their participation in its activities. In an effort to secure the most
effective and widest possible participation of NGOs in its activities, the Committee adopted, at its eighth
session, on 12 May 1993, a document entitled "NGO participation in activities of the Committee on Economic,
Social and Cultural Rights", which explains in a concise manner the modalities of NGO participation in the
Committee's work. The basic principles set out in that document have since been supplemented, as the
Committee's practice evolved. These developments are reflected in the annual report of the Committee, in the
chapter entitled "Overview of the present working methods of the Committee".
The present document serves to provide detailed guidelines for NGOs with a view to facilitating their
cooperation with the Committee to enhance the effectiveness of the international monitoring, through its
18
Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, Aug.12,1949
19
Christine Chinkin, Dianne Otto, John Jackson, Mark Janis, Virginia Leary, Non-State Actors and their Influence on International
Law, Proceedings of the Annual Meeting , The Challenge of Non-State Actors, 92 AMERICAN SOCIETY OF INTERNATIONAL LAW,380387(Apr 1-4,1998)
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examination of State party reports, of the implementation of the International Covenant on Economic, Social
and Cultural Rights by States parties.
Throughout the Earth Summit and its preparatory meetings, it was the NGOs who not only had the passion
but also the expertise. They were able to come forward with solid information, scientific studies, statistical
materials and with creative ideas and concepts. They brought this to the notice of the attention of the
government delegates who welcomed the inputs. In fact by the time of Rio Conference, NGO delegates were
sitting on more than a dozen official government delegations.20
Green Peace emerged as one of the major actor of global environmental policies. It is known
for its protests against environmental problems caused by some states, i.e., France among others. It prevented
many
initiatives
of
many
states
regarding
environment.
It
makes
environmental policies of states. As a result of its campaign against France due to nuclear
France
was condemned
by international
in poor countries.21
In the past, many development NGOs gained a bad reputation with developing countries because they were seen
as arrogant and going into poor countries and telling people how to do things, or doing things for them. They
have also been described by some as the modern missionaries, referring to the imperial and colonial times,
where things like converting people to Christianity was considered the moral thing to do by European and
American missionaries. And even in recent years, some NGOs, aid organizations and development institutions
20
Catherine Tinker & Paul Szaz, Role of non-state actors in international law-Making during the UN decade of international Law,
Proceedings from 89AMERICAN SOCIETY OF INTERNATIONAL LAW ,177-185(1995) in Non State Actors and International Law (A.
Bianchi Ed.,2009)
21
Ataman,supra note 3
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from the North have been described sometimes as being tools or part of the objectives of the foreign policy
aims of the northern nation from which they come.22
There is also an increasing number of organizations from developing countries as well as both new and more
established ones in the industrialized countries, doing important work, helping to raise important issues or
tackle various problems. In recent years as well, development and environmental NGOs for example, are
learning that they can be more effective, and their work can have more positive effects, if they work with the
actual communities and help them to empower themselves. Working at the grassroots level helps to provide
assistance directly at the source. Often corrupt governments can intercept much assistance so this approach is
sometimes favored23.
22
http://www.globalissues.org/article/25/non-governmental-organizations-on-development-issues
23
Ibid
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25
.Facilitating
transparency and building awareness are two ways in which non-state entities contribute to international law. 26
Not only are non-state actors instrumental in generating soft law, but they can also be influential in accelerating
the political process to motivate states to create hard law. This can be done through lobbying effort,
informational campaigns, and coordinating action among various organizations and segments of society.
International organizations also make it easier to conclude multilateral agreements and increase the options for
24
Angela M.Banks, The Growing Impact of Non-State Actors on the International and European Legal Systems(2003)
26
ibid
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initiating treaties, which creates an alternative to the state-initiated and state-coordinated conference system.
27
There are some interesting examples of policy advocacy such as the efforts of Transparency International, an
INGO, which developed a new anti-bribery code in the Organization for Economic Co-operation and
Development and has considerable influence in developing transparency among governments. 28These nongovernmental organizations not only participate in this way but take part in the phases of decision-making as
well as drafting conventions of which CEDAW is the brightest example. The contribution of these organizations
is not only limited to social or economic issues but even legal issues as the creation of International Criminal
Court had a huge support of Amnesty International. The need for such organizations is not only that states at
times fail to co-ordinate among themselves but also there is a necessity of such an entity that can work
independently as well as make sure that harmony is maintained in international level.
Although non-state actors contribute so significantly to international law, they are usually unpopular with the
worlds nation states as they directly challenge government policies and are perceived as a threat to the
countrys national interests29.However, the irony is that, the contribution of NGOs is seen mostly in situations of
states own failure to protect its citizens humanitarian and security interests by virtue of which they step in as a
saving grace. But the problem is that such non-state entities operate in a disguised manner, that is, indirectly
work at international level behind the face of nation-states and other organizations which severely restrict their
scope of operations as they are not regarded as legitimate law-making entities.However,by means of the above
mentioned provisions, these entities are slowly making their presence strongly felt and thus demand a legitimate
recognition in the international law-making sphere.
27
ibid
28
Supra note 15
29
BIBLIOGRAPHY
BOOKS AND ARTICLES :
(1) Steve Charnovitz, Nongovernmental Organizations and International Law (2006) in NON STATE ACTORS AND
INTERNATIONAL LAW (A. Bianchi Ed., 2009)
(2) Muhittin Ataman, The Impact of Non-state actors on World Politics: A Challenge to Nation-States (2003)
(3) The Global Agenda: Issues and Perspectives (C.W.Kegley & E.R.Wittkopf eds., 1995)
International Law, and the Conflict between Al Qaeda and the United States (2005)
(5) Gustaaf Geeraerts, Analyzing non-state actors in world politics (1997) available at
http://asrudiancenter.wordpress.com/2009/02/09/analyzing-non-state-actors-in-world-politics/
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(6) Michael J Struett, NGOs, the International Criminal Court, and the politics of writing international Law
(2004)
(7) Michael J.Struett, The politics of constructing the international criminal court: NGOs, discourse, and
agency (2009) in NON STATE ACTORS AND INTERNATIONAL LAW (A. Bianchi Ed., 2009)
(8) Lance Bartholomesz, The amicus curiae before international courts and tribunals (2005) in NON STATE
ACTORS AND INTERNATIONAL LAW (A. Bianchi Ed., 2009)
(9) Beate Rudolph, Governance without Government Non-state Actors and International Law (2009)
(10) Christine Chinkin and John Jackson, Non-State Actors and their Influence on International Law, American
Society of International Law (1998), available at http://www.jstor.org/stable/25659247 .
(11) Catherine Tinker & Paul Szaz, Role of non-state actors in international law-Making during the UN
decade of international Law, available at http://www.jstor.org/stable/25658908
(12) Bridget M.Hutter, The role of non-state actors in regulation (Apr 2006)
(13) Angela M.Banks, the Growing Impact of Non-State Actors on the International and European Legal
Systems (2003)
(14) W.Raymond Duncan, Barbara Jancar-Webster &Bob Switky, World politics in the 21st century (2009)
(15) Symeon C. Symeonides, Contracts Subject to Non-State, The American Journal of Comparative Law, Vol.
54 available at http://www.jstor.org/stable/20454537 .
(16) Jordan J. Paust, Non-state actor participation in International Law and the Pretence of Exclusion,
available at http://ssrn.com/abstract=1701992
(17) P. A. Reynolds , Non-State Actors and International Outcomes, British Journal of International Studies,
Vol. 5, No. 2 , available at http://www.jstor.org/stable/20096857 .
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