Week 3 - Non-State Actors

Question 1

What are 6 types of Non-state actors recognized by IL?

Answer 1

1) IOs (are they non-state?)
2) NGOs
3) Individuals
4) Multinational Corporations (rights under investment treaties)
5) Peoples (SDet)
6) Armed Opposition Groups (obligations/rights under law of armed conflict)

Question 2

What degree of legal subjectivity do IOs enjoy? (3)

Answer 2

1) Most capacities of international legal personality (rights, obligations and treaty-concluding capability)
2) IOs legal personality is granted by States (but it has separate personality from members)
3) NETH could be liable for wrongs committed by troops contributed to UN mission since NETH had retained degree of control over troops at relevant moments

Question 3

What degree of legal subjectivity do NGOs enjoy? (2)

Answer 3

1) often observer status in IGOs

2) occasionally invited to treaty negotiations if expertise - however only advise/guide

Question 4

How have IOs risen in prevalence? (4)

Answer 4

1) Before: Conferences were main tool for issue resolution
2) First IOs dealt with localized/technical issues (Rhine Commission, International Telegraph Union)
3) Permanent Court of Arbitration (1899) unusual for its time
4) LoN (1919): first universal IO dealing with wider political issues of security and peace

Question 5

What are 3 different types of IOs?

Answer 5

1) Global Organization (open to (not joined by) all States) (UN, WTO)
2) Regional Organizations (NATO, ASEAN)
3) Supranational Organizations (power devolved to IO) (EU)

Question 6

Where is responsibility of IOs codified? (2)

Answer 6

1) ILC Articles on the Responsibility of International Organizations 2011 (ARIO)
2) taken to largely reflect CIL

Question 7

Where can the definition of an IO be found and what does it entail? (4)

Answer 7

1) Art 2(a) ARIO
2) Membership of States
3) International legal personality
4) Governed by IL

Question 8

What does it entail that IOs must have State membership? (2)

Answer 8

1) predominantly it must be States who are members (although non-states are permitted)
2) confines IOs under ARIO to IGO’s rather than NGOs (to which states cannot become members)

Question 9

What does it ential that IOs must have international legal personality? (3)

Answer 9

1) IOs must have organs for asserting a will DISTINCT from its members to be autonomous
2) usually sufficient with an organ making decisions on majority basis
3) e.g. G20 does not have legal personality since no permanent organs

Question 10

What does it entail that IOs must be governed by IL? (2)

Answer 10

1) IL must be constituted under and governed by IL (not domestic law)
2) may occur by treaty but could also be through UNSCres (ICTY) or series of conferences (OPEC)

Question 11

Is the Kimberly Process Certification Scheme an IO? (3)

Answer 11

1) about preventing blood diamongs on market
2) stakeholders incl Civil Society and diamond industry, but they are only observers not decision-makers
3) not governed by treaty but by UNSC recommendation (rather than binding resolution) –> not governed by IL

Question 12

What was the question in the WHO Nuclear Weapons AO? (1)

Answer 12

Q: “in view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under IL including the WHO Constitution?”

Question 13

What doe the WHO Nuclear Weapons AO tell us? (2)

Answer 13

1) the Q was not within the scope of the competence of the WHO since it asked about ‘legality’; and
2) Giving the AO would be contrary to ‘principle of speciality’: AO should not be given to WHO as specialized agency within greater system where it more accurately fell within another part of UN (UNGA)

Question 14

How can States bestow legal personality on IOs? (2)

Answer 14

1) By treaty (explicitly) (EU, WTO)

2) By deduction (Reparations for Injuries)

Question 15

What does Reparations for Injuries tell us? (3)

Answer 15

1) UN has sufficient legal personality to bring claim against state for injuries to the organization and its agents
2) Objective legal personality: if the vast majority of states create an IO, its personality will be opposable to everyone regardless of their recognition
3) Implied powers theory: IOs posses such rights, powers, privileges and immunities as necessary to exercise their functions

Question 16

What are 3 potential theoretical foundations for deducing IOs legal personality? (4)

Answer 16

1) Functionalist approach: IOs have powers necessary to give effect to explicit power (Klabbers)
2) Will theory: legal personality exists if member states intended it, as deducable from the IOs rights/duties/powers
3) Empirical approach: if an IO satisfies the objective criteria for legal personality it automatically has such personality
4) all three seem to explain Reparations for Injuries

Question 17

What is the approach to finding out whether an IO has legal personality to do a certain act in light of Reparations for Injuries? (2)

Answer 17

1) Does the IO have international legal personality? (look at constituent docs and functions/purposes)
2) If yes, does it amongst its rights have the right to do this certain action (again look at same sources)

Question 18

What are the consequences of IOs having international legal personality? (3)

Answer 18

1) Distinct legal rights/obligations from members
2) Capacity to bring international claims to enforce its rights (not necessarily absolute standing tho)
3) capacity to enter into valid international agreements

Question 19

Do IOs have domestic legal personalities? (2)

Answer 19

1) it is for the individual state to give each IO domestic legal personality
2) Art 104 UN Charter requires MS to provide organization with requisite domestic legal personality to function

Question 20

What are 2 approaches to IOs powers?

Answer 20

1) Express powers: IOs only possess such powers as expressly laid out in instruments (Jurisdiction of European Commission of the Danube) (classical position)
2) Implied powers: IOs are deemed to have powers necessary for performance of their duties (Reparations for Injuries)

Question 21

What are advantages and disadvantages of the ‘implied powers’ theory? (2)

Answer 21

1) Advantage: permits IOs to adapt and develop with times (UNSC starting to consider climate change, despite not expressly ‘peace and security’)
2) creates risk of over-reach and thus challenges to legitimacy

Question 22

How should constituent instruments be interpreted? (3)

Answer 22

1) according to normal rules of treaty interpretation (Legality of Use by a State of Nuclear Weapons)
2) Special attention may be given to the IOs nature, objectives, what is required to fulfil its function, and its practice (Certain Expenses)
3) IOs and their organs have kompetenz-kompetenz (“at least in the first place”)(Certain Expenses)

Question 23

What happens to ultra vires decisions of IOs? (3)

Answer 23

1) can in theory be declared ultra vires
2) competence of judicial institutions to declare them ultra vires is a sensitive matter (Nuclear Weapons in Armed Conflict)
3) ICJ cannot judicially review UNSC resolutions but can interpret/apply

Question 24

How to tell if an IO decision is binding? (2)

Answer 24

1) does the constituent instrument bestow power on IO to make binding decisions without addressee consent?
2) If yes, does the decision (through its text/nature) demonstrate intention for it to be binding?

Question 25

How has UNSC developed its competence? (4)

Answer 25

1) Art 24(1) UN Charter “prompt and effective action”: Firefighter on peace and security
2) Art 39 UN Charter: UNSC determine itself what threshold
3) recent years more ‘legislation’ to address abstract structural issues rather than ad hoc/localized (e.g. terrorism)
4) however enforcement/compliance with ‘UNSC legislation’ is impossible to monitor - UNSC should only legislate to extent reflecting will of MS (Talmon)

Question 26

What are criticisms of ARIO? (3)

Answer 26

1) Seeks to apply general rules to IOs which are diverse in nature and functions
2) modelled after Articles on StateRes despite fundamental differences between States and IOs
3) not sufficiently reflective of CIL but also progressive development

Question 27

What does ‘Netherlands v Mustafíc-Mujic’ by NETHSC tell us? (3)

Answer 27

1) Wrongful acts committed by NETH troops on UN mission could create “dual attribution” for NETH and UN
2) NETHSC guided by ARIO
3) although UN had effective control over troops, not mean exclusive responsibility for wrongful acts

Question 28

What is the UNDHR? (3)

Answer 28

1) Universal Declaration of Human Rights 1948
2) UNGAres - non-binding
3) provisions have influenced multilateral treaties, CIL and law interpretation (Hostages in Tehran)

Question 29

What is the ICCPR? (4)

Answer 29

1) International Covenant on Civil and Political Rights
2) mainly negative rights
3) freedom of expression, fair tria etc
4) UN Human Rights Committee (complaints can be brought; non-bindnig views)

Question 30

What is the ICESCR? (4)

Answer 30

1) International Covenant on Economic, Social and Cultural Rights
2) mainly positive rights
3) right to food, health and education
4) Committee on Economic, Social and Cultural Rights (CSCR): may receive complaints, offers General Comments guiding interpretation

Question 31

What is Pauwelyn’s main thesis? (1)

Answer 31

Stagnation Thesis: less law-making and in favour of non-binding agreements since 21st cent

Question 32

Why does Pauwelyn argue less binding law is made? (3)

Answer 32

1) Saturation (main policy areas already covered, fear of external interference in domestic realm)
2) New actors (more diverse states –> difficult unanimity; individs and NGOs cannot treaty)
3) Knowledge society (private actors w/ tech expertise, and quick development requires flexible solutions)

Question 33

How does Pauwelyn see stagnation? (3)

Answer 33

1) positively
2) informal agreements appeals to broader audience than states, and more responsive to societal changes
3) state consent is too strict (unanimity required) and too lenient (mere consent suffices, rather than actual support)

Question 34

How does Pauwelyn argue non-binding agreements should be given effect?

Answer 34

1) by courts and tribunals as interpretation aids or guidelines for standard-setting
2) courts can assess weight to attribute by their procedural integrity (how thick was stakeholder consensus?)

Question 35

What HR obligations do States face in relation to business activities? (3)

Answer 35

1) From UN Guiding Principles on Business and HR (reflective of binding HR law)
2) obligation to protect HR
3) obligation to provide remedies to victims

Question 36

How must states satisfy their obligation to prevent HR abuses? (2)

Answer 36

1) Enact legislation which requires businesses to undertake HR due diligence
2) contained in both UN Guiding Principles on Business and HR, as well as CESCR General Comment No 24

Question 37

What does a HR due diligence require? (2)

Answer 37

1) Principle 17 of UN Guiding Principles on Business and HR
2) identify risks and abate them within your own operations and those of business partners. At worst interaction with HR-violating companies must be cut

Question 38

How must States provide remedies? (2)

Answer 38

1) states must provide remedies even for wrongs committed outside the jurisdiction by companies with HQ in the State/companies over which the State can exercise control
2) paras 30-1 CESCR General Comment No 24

Question 39

When can States be held directly responsible for HR violations by businesses? (4)

Answer 39

1) CESCR General Comment No 24
2) If the business is acting on state instruction or under its control
3) if the business is empowered under legislation to exercise elements of governmental authority (or does so de facto)
4) or if the state acknowledges and adopts the conduct as its own

Question 40

When might a state be indirectly responsible for HR violations by a business? (2)

Answer 40

1) CESCR General Comment No 24
2) Where the state fails to take reasonable measures that could have prevented the violation, where the violation is reasonably foreseeable

Question 41

What did the dutch district court find in Royal Dutch Shell v Milieudefensie?

Answer 41

1) RDS was liable for breaching unwritten standard of care in causing climate change
2) IL and HR were used in interpreting the unwritten standard of care under dutch law
3) it was irrelevant that RDS were in compliance with national law and remained within the ETS cap and trade system boundaries