2 States, Non-State Actors and Human Rights
2.2 Non-State Actors
2.2.1 Definition of Non-State Actors
The definitions of state and sovereignty matter in the scope of this research, because international law and thus international human rights law has been centralised around state actors for its entire existence. International law does not exist without nation states. States are the key players in the international field and possess the authority and power to consent and bind themselves to international obligations.
They are the subjects of international law, who can therefore act as the receivers of rights and responsibilities. When recognised, statehoods operate in the sphere of international law and human rights. Therefore it is rather simple to define non-state actors as all other entities that cannot be characterised as non-states. As such,
68 International Court of Justice, Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v.
Belgium, dissenting opinion Van den Wyngaert (14 February 2002) 46.
69 William J Aceves, ‘Liberalism and International Legal Scholarship: The Pinochet Case and the Move Toward a Universal System of Transnational Law Litigation’ (2000) 41 Harvard International Law Journal 129, 134.
70 ibid; term used also by Philip C Jessup, Transnational Law (Yale University Press 1956).
71 Harold Hongju Koh, ‘Transnational Public Law Litigation’ (1991) 100 Yale Law Journal 2347, 2348.
they enjoy human rights compared to states that are the responsible party in their protection. States are still seen as the only true subject of international law and hence must be segregated to avoid confusion between these clearly different entities, and the term non-state actors indicates the bipartite division of international actors, because actors are defined either as states or non-states.
Typically we define non-state actors as all actors that cannot be qualified as states. Philip Alston call this the ´not-a-cat’ syndrome, in which everything that is not defined as a state actor is defined as a non-state actor.72 By this classification, with regard to multinational corporations, international organisations consider individuals and all other private entities as non-state actors. Views on the actors characterised to belong under the term diverge between scholars. Bas Arts defines non-state actors as all actors that are not states, but operate on an international level and are potentially relevant to international relations.73 He continues to depict criteria of relevance of international relations to size, constituency, formal recognition and political impact.74 His view attempts to sort solely domestic actors from the real international operators who are at the centre of our attention, as well. The Cotonou Agreement depicts non-state actors to include the private sector, economic and social partners, including trade union organisations; and civil society in all its forms according to national characteristics.75 Others, such as Arts, have specified five general groups of non-state actors: intergovernmental organisations, international non-governmental organisations, transnational corporations, epistemic communities and a remaining general category.76 However a number of actors can be placed within the term. For example international terrorist groups or political movements could be seen to represent international non-state actors, as well.
Attempts at defining the term have been made in various situations. The European Commission notes that non-state actors are created voluntarily by citizens and are independent from the state.77 Although they can promote an issue and even have a role in defending those interests or policy-making, they are still only a profit or non-profit organisation.78 It is hence clear that international
non-72 Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 3.
73 Bas Arts, Non-State Actors in Global Governance Three Faces of Power (Max-Planck-Gesellschaft 2003), 5.
74 ibid; also see Elliott R Morss, ‘The New Global Players: How They Compete and Collaborate’ (1991) 19 World Development 55, 55.
75 The Cotonou Agreement - International Cooperation and Development - European Commission, 2000/483/
EC (23 June 2000) <https://ec.europa.eu/europeaid/where/acp/overview/cotonou-agreement/index_
en.htm_en>, 6(1).
76 Arts (n 73) 5.
77 Commission of the European Union, Communication from the Commission to the Council, the European Parliament and the Economic and Social Committee of 7 of November 2002, Participation of Non-State Actors in EC Development Policy (2002) 5.
78 Ibid.
state actors operate on an international level and can even be relevant or vital to international policy-making. This does not however make them in any way relatable to state actors. As early as in 1949, the International Court of Justice (ICJ) commented that ‘the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community’.79
A few things are certain. Firstly, there exists a clear differentiation between states and non-states. This is obvious, as the wording itself of the term already entails the difference. Wording can also differ in other aspects than the name.
Some only use “violation” in relation to human rights when the actor in question is a state in contrast to a situation in which a non-state actor violates human rights. In these situations the term “infringement” is typically used. However this research uses the term “violation” in relation to both state and non-state actors, due to the nature of this work.
Secondly the different terms emphasise the different roles states and other entities play and possess. The terminology attempts to demonstrate that non-state actors are not recognised statehoods, which means that they do not possess the rights and obligations granted to states by international law. Non-state actors are not wished to act and cannot act in the same manner as states in the international community.80 The sovereignty of nation states remains the valid argument differentiating state and non-state actors, since demanding state-like behaviour from private actors would violate the existence of sovereignty. If non-state actors acted like states, they would, even if only on a theoretical level, become a rival source of power.
2.2.2 Globalisation, State and Non-State Actors
Without globalisation and the rapid growth of capitalism, sovereign nation states would not have needed to consider diminishing of sovereignty on the part of private actors. International organisations would have continued to impact the internal affairs of states, but other non-state actors would have not had an affiliation when it came to matters regarding sovereignty. The power has, however, shifted, and non-state actors have evolved into a somewhat imminent threat to sovereignty. States have always had and continue to have legislative and enforcement power inside their jurisdiction, and international law applies to non-state actors indirectly through
79 International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion (11 April 1949) 178.
80 Naghmeh Nasiritousi, Mattias Hjerpe and Karin Bäckstrand, ‘Normative arguments for non-state actor participation in international policymaking processes: Functionalism, neocorporatism or democratic pluralism?’ (2016) 22 European Journal of International Relations 920, 923.
domestic legislation. Sovereignty allows states to bind themselves to international obligations of their choice, to translate the obligations into domestic law and to enforce those norms on subjects inside their jurisdiction with internal legislative measures. The jurisdiction of a state represents the scope of municipal law in which international obligations may only operate inside the territory of a state with the specified consent of the state.81
Clearly in today’s modern world a variety of international players have adopted some of the power and control that states used to solely possess. Scholars such as Georg Schwarzenberger insist that the real measure of power is not economic, but military and political power, which are superior to economic power.82 Schwarzenberger does not see that economic power could surpass military and political power in any situation.83 The entry of new obligators of human rights would not diminish the meaning of states, as they would continue to be the main actor in the promotion of rights. Some could even consider the current situation to depict the end of sovereign states, but at least there exists an undisputed change appearing in the role of a state. The globalised economic markets have meant that corporate action and the lives of individuals are not directly linked to only one jurisdiction.
Some discuss that non-state actors for this reason should have some of the burden of states and not only enjoy their global power. However, non-state actors would as the holders of international responsibilities shift responsibilities away from states.84 This would not only mean that states would lose some of their international power, but it could also lead to a perception that states have less responsibility than previously regarding human rights. By sharing the pool of responsibilities, it would become easier to usher unwanted responsibilities onto someone else.
States could possibly use the new role of private actors to avoid responsibility for the promotion and protection of international human rights and hide behind the role of non-state actors. In this scenario, the language of human rights could be used to justify human rights violations by shifting blame to, for example, rebel groups, hence making a non-governmental organisation the culprit instead of the state.85 The entire concept of human rights as the protection of individuals from state power could be therefore trivialised. This idea however is fully based on the presumption that states have some level of control over all the human rights violations occurring in their jurisdiction.86
81 Lukashuk (n 49 ) 305.
82 Georg Schwarzenberger, Power of Politics - A Study of World Society (Stevens & Sons Limited 1964) 129.
83 ibid.
84 Discussion of a similar critique, on the the Legal Impossibility Agrument in Clapham (n 67) 41–46.
85 ibid 42.
86 Chris Jochnick, ‘Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights’ (1999) 21 Human Rights Quarterly 56, 77.
2.2.3 Definition of Multinational Corporations
The interest here in the scope of non-state actors is obviously multinational corporations. Multinational corporations are private non-state actors by all definitions and are in theory and practice segregated from nation states. The term multinational corporation is widely used, but not always clearly defined, and the content of definitions varies. However, the problem is that the term should not be over-inclusive or under-inclusive.87 Various international and domestic regulative instruments have struggled with attempting to set boundaries of, for example, revenue and employees, to limit the inclusion of companies in their scope.
For the purpose of this text, the term multinational corporation was chosen over transnational corporation, but the terms multinational enterprise and transnational companies typically denote the same meaning.88 Multinational does not however mean the same as transnational. As Andrew Clapham describes, a transnational corporation focuses on a single legal corporation which operates outside the home country with legal status incorporated in the national law in the home country.89 Transnationality emphasises that even when such companies have nationality in their home state, they have clear elements of transnationality.90 A transnational company seeks to establish global operation with little regard for borders, in contrast to a multinational corporation, which expresses a traditional horizontally organised company which has operations in various countries.91 For clarity, the entire dissertation is written by using the term multinational corporation. Only in situations in which “transnational corporation” or “multinational enterprise”
is used in an original text will the text differ on the term.
The OECD Guidelines define multinational corporations as ‘companies or other entities established in more than one country and so linked that they may co-ordinate their operations in various ways.’92 Multinational corporations have three clear characteristics. Firstly, a company is a legal entity which has a separate legal personality from its owners, employees or directors. Limited liability entails that its investors are only subject to losses equal to their investments. The ownership may be private or public.93 Shareholder primacy theories note that as a profit-driven entity, a company seeks profits, and that is its only aim and sole purpose.
87 Surya Deva, ‘Human Rights Violations by Multinational Corporations and International Law: Where from Here’ (2003) 19 Connecticut Journal of International Law 1, 6.
88 Robert McCorquodale, ‘Human Rights and Global Business’ in Stephen Bottomley and David Kinley (eds), Commercial Law and Human Rights (Darthmouth Publishing Company 2002) 91.
89 Clapham (n 67) 199.
90 ibid 200.
91 Celia Wells and Juanita Elias, ‘Catching the Conscience of the King: Corporate Players on the International Stage’ in Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 149.
92 OECD Guidelines for Multinational Enterprises (2011), I.4.
93 ibid.
A corporation is a large company or group of companies authorised to act as a single entity which is recognised by law. Secondly, a corporation is a cluster of legal entities. The parent company exercises a level of control or ownership over its subsidiaries. Corporations are group of separate legal entities with each subsidiary being separate from the parent.94 This problem is often noted to be the
“corporate veil” problem, in which the parent company can hide behind the legal separation between legal entities when their subsidiary has acted in an unethical or questionable manner.
Thirdly, the multinational element of a company could be connected to its international operations, locations or contractors, or for example to its directors’, employees’ or shareholders’ nationality. Typically, for a company to be considered a multinational corporation, ‘a corporation must have a certain minimum size, control over production or service plants outside its home state and have all this unified in corporate strategy’.95 To be classified as a multinational corporation, a private corporation must be large-scale, have operations outside its home state and be profit-driven. Regardless of the chosen term, it is ‘the ability of multinational corporations to operate across national borders and outside the effective supervision of domestic and international law’96 that makes them the focus of attention. Certain specific features of multinational corporations are at the centre of interest in multinational corporations, for example, ‘their capacity to locate productive facilities across national borders; to exploit local factor inputs thereby, to trade across frontiers in factor inputs between affiliates’.97