Course Synopses/Outlines:

Non-State Actors and Their Impact on International Human Rights Law

Outline for AALS Workshop on Human Rights
Alexandria, Virginia, October 26-28, 2000

Siegfried Wiessner, Professor of Law & Academic Director, Human Rights Institute, St. Thomas University School of Law, Miami, Florida

Since Grotius and Vattel, traditional international legal theory recognized as the only "actors" governments representing nation-states, the original epistemic units, seats of ultimate, "sovereign" power, who made law amongst and between themselves by agreement. This statement, if it ever was true, does not reflect today's reality.

I. The Fallacies of Formalism

1. There have always been "actors" other than the state. In fact, empirically speaking, states do not "exist." The phenomenal world only knows individuals dressed up in the cloaks of abstract entities such as "states," "governments," or other social organizations (Radcliffe-Brown). Within organizations, different individuals have different roles; some are vested with authority in a given community to make and/or enforce decisions. The "power of the State" is thus just a convenient abbreviation, a figure of speech for referring to the power of individuals -- kings, presidents, policemen, voters, etc.

2. Powers behind the throne, in modern, pre-modern and post-modern times, might have been more important/influential than powers on the throne. Traditional positivism, however, focused on action by the powers on the throne, the formal holders of office of government. Their commitments, and their commitments alone, counted. This focus had the advantage of reducing the complexity of the social process to the actions of a very few persons acting in the name of a government, an "ideal" agent acting on behalf of an "ideal" principal, the nation-state. It did nothing to help understand the commitments entered into, nor was it of much help in predicting future decisions. Certainty of law, the primary (Platonic) virtue of positivism, was, and is, but a mirage.

II. A Realist, Problem- and Policy-Oriented Response

3. Some forward thinkers have long corrected, in their analysis of the social process, this myopic view of international law. For them, authoritative and controlling decision was the key element separating the legal process from the social process at large. Any theory that could contribute to understanding decisions and their modifications over time could increase effectiveness in lawyering. Problem-solving benefits tremendously from in-depth knowledge about a problem, conflicting claims, claimants and other relevant actors, their bases of power, past decisions and their determining/conditioning factors, and changes in the environment and the body of decisionmakers that would allow for a prediction of future decision approaching accuracy (McDougal, Lasswell, Reisman).

III. Non-State Actors and the Social Sciences

4. Social sciences also helped identify, in the era of the nation-state, actors other than the state. Rousseau viewed intermediate associations as a threat to the democratic state indispensable in providing intimacy necessary for human survival (Emile), but a constant and jealous competitor for individuals' loyalty. Hegel's theory of the state located collective actors below the state, such as private associations and the family, whereas Marx would view the state as the product of market society. Otto von Gierke even wrote about the "reality" of corporations, which, in his view, make a community out of society. Modern approaches such as social choice theory, research on coalitions, civil society and social movements focus on different aspects of group identifications, functions, and impacts. Non-governmental organizations (NGOs), in particular, represent the interests of internal collective agents (such as indigenous peoples and cultures) that are distinct from both the state and the market.

5. Structural marxism as well as law and economics tend to view NGOs as mere reflections of the underlying forces of the market. From that perspective, both unrealistically reduce human aspirations to functions of wealth. While not underestimating the allure of wealth, in reality, humans variously also value other things: power, affection, well-being, enlightenment, skills, respect and rectitude (Harold D. Lasswell a similar critique of the insufficiency of wealth-based theoretical approaches moves the work of Amartya Sen, Alan Wolfe and communitarian philosophers such as Michael Sandel, Amitai Etzioni, Charles Taylor, and Alasdair MacIntyre). Human rights, in particular, is mostly about things other than wealth. The movement sets out to protect all human aspirations and has been called, aptly, the legal expression of the "respect revolution." NGOs have played an important role in powering the human rights agenda, as they were indispensable in the global struggle for the protection of the environment and the development of international humanitarian law.

6. Empirically speaking, however, non-state actors impacting human rights do not only encompass members of the idealized "civil society." They also include the Mafia, Russian or American, gangs trafficking in women and/or drugs, sweatshop operators, pressure groups pro and contra the environment, etc. In fact, they, and not primarily the nation-state, may be oppressors worse than the state, the traditional target of human rights law. Governments do not commit acts of "domestic violence;" they usually do not trade in women or children; today, they mostly are not the ones who enslave humans or let them work in unbearable conditions. As many have recognized, the next frontier of human rights law is abuse of private power. As municipal law, power and political will was insufficient to avert the fires of the Holocaust, municipal law, power and political will did not, and does not, put an end to offenses against the dignity of the individual committed by mighty private groups or individuals.

IV. Non-State Actors and Traditional International Law

7. Just like domestic law and legal theory, international law cannot, and did not, remain unaffected by this more empirical analysis of its formation and modification, including the determination of relevant actors. While states, more specifically, elites acting on their behalf, are still considered the principal actors, other important players have entered the arena. This has, at least partially, to do with the failure of the state system to protect values considered essential to human dignity (cf. the Holocaust).

8. Substantive protections for individuals and vulnerable groups on the international plane were expanded considerably after WWII. Positivists would still argue that individuals and groups were not real "actors" in this process; they were mere beneficiaries of the actions of states. This statement overlooks the enormous expansion of actors in the field and their increased range of influence in the decision-making process. This influence sometimes reaches into prescription (cf. the participation of employers' and employees' unions in the ILO process); it even has led to the recognition of non-state actors as original (not derivative, such as IGOs) actors in the prescriptive process (cf. the treaty-making capacity of indigenous peoples recognized in the ICJ's Western Sahara opinion).

V. Key to Measuring the Impact of Non-State Actors:
Empirical Analysis of the International Legal Decision-Making Process

9. Beyond positivism's narrow confines of prescriptive capacity, the proper impact of actors other than states can only be gauged by breaking the decision-making process down into its various constituent elements: intelligence-gathering, promotion, prescription, invocation, application, termination, and appraisal. Example: Indigenous peoples and one of their key representatives, Professor S. James Anaya. As a scholar, he gathered intelligence on international law and its treatment of indigenous peoples. He joined the Indian Law Resource Center, in order, partially, to promote claims of indigenous peoples as human rights on the international plane. At the UN Working Group on Indigenous Populations, he and his organization helped formulate the 1993 Draft Declaration on the Indigenous Peoples, as part of an initiative consolidating the emerging new norm establishing indigenous customary law rights to their traditional lands. He and his organization invoked this new norm on behalf of the Awas Tingni tribe in the Nicaraguan rainforest against the Nicaraguan Government before the Inter-American Commission on Human Rights. The Inter-American Commission agreed with him, applied this norm, and lodged a complaint against the Government of Nicaragua before the Inter-American Court of Human Rights. Scholars will appraise whether such a norm is in the common interest. Here again, Professor Anaya will play an important role.

VI. Anchoring Policy in Human Aspirations:
Toward a World Public Order of Human Dignity

10. Beyond the proper critiques of the traditional positivist paradigm advanced by postmodernism, feminism, CLS, CRT, etc., there needs to be a guiding light that allows us to distinguish between "good" and "bad" non-state actors and establish appropriate policies regarding their treatment on both the domestic and the international plane. In other words, the problem of non-state actors and their impact on human rights law needs to be somewhat disaggregated. I suggest using a contextual analytical approach to the discrete problem identified, followed by a recommendation on its solution in the global common interest, i.e. a solution that would ensure maximum access by all to the processes of shaping and sharing of all the values humans desire (power, wealth, respect, affection, etc.). This would not only entail consequences for the "bad" actors appropriate regulation, sanction, etc. but also for the perceived "good" ones addressing "democracy deficits" by increasing the size of the organization and establishing internal participatory processes of decision-making, etc. Form needs to follow function, and the structure of international law needs to allow for an effective response to human needs and the approximation of a world public order of human dignity.

11. To highlight the issue of legitimacy, the argument has been made that "[i]ncreasingly, in international conferences, NGOs present themselves as the representatives of the civil society. Insofar as the NGOs in question find their support in democratic states in Western Europe, North America or Japan, the assertion that they represent civil society is rather anomalous. In situations in which governments are freely elected and parts of them are assigned the competence to represent the collectivity externally, the governmental representatives are the authorized representatives of the civil society. In these circumstances, the NGOs, rhetoric notwithstanding, are often essentially oligarchical entities, purporting to represent all of their civil societies, while, in fact, representing a narrower group defined by its financial support. In authoritarian systems, in contrast, the role of the NGO is much more likely to approximate the aspirations of a civil society that has no effective mode of expression. Ironically, the most influential NGOs in contemporary international law-making derive from Western Europe, North America and Japan." Do you agree? Is the argument lessened by reference to private campaign financing systems in, say, the United States, that arguably leave valuable interests underrepresented in the formal processes of power? Could non-state actors insulate themselves against this type of criticism by providing for systems of accountability, establishing their own credible control mechanisms, annual reviews, etc.?