Abstract
This chapter introduces some theoretical discussion related to non-state actors and international human rights. In this context, the chapter argues that the legal status of a given agent under international human rights—whether as a state with a recognized legal personality and ability to be party to any international treaty or as a non-state actor without such recognized personality or ability—is not the only condition for holding such an agent accountable under international human rights law. Any non-state actor remains obligated to uphold human rights insomuch as this actor exercises certain control over a population and impacts the public sphere.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
By the same token, article 56 of the UN Charter calls states “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Among other things, Article 55 refers to the “universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Groups and persons were charged with the same duty according to the same article, but the state representing them remains the main body to be held accountable for their behavior.
By the traditional notion of state sovereignty, I refer to a state’s absolute right to decide the manner in how it treats its own people without the intervention of other states, or international organizations. The relationship of any state with its people is perceived, according to this notion, as a state’s own business, and as a matter of exclusive domestic jurisdiction in which no other state or international organization whatsoever has the right to intervene. This notion, first promoted by the French Philosopher Jean Bodin and later endorsed by the Treaty of Westphalia (1648), promoted an international order centering around the state as the only legal entity with certain legal responsibilities and rights. However, these legal responsibilities and rights are related to inter-state interactions, more than to state–society interactions. Thereby, an individual, according to this notion, is considered as a mere object, possessing no rights under international law. See Paul Gardon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 26–27.
Apart from the International Bill of Human Rights (which is considered the cornerstone of the global system of human rights, and which refers to the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and its two optional protocols, and the International Covenant on Economic, Social and Cultural Rights), there are nine core international human rights treaties, each of which has established a monitoring body composed of a number of international legal experts (called a treaty-based body) to monitor states’ observance of their obligations in these treaties. All of these treaties obligate states parties to respect, protect, and fulfill human rights laid down by the treaty at issue. The state’s obligation to respect human rights refers to the state’s duty not to intervene in the enjoyment of human rights by individuals. The state’s obligation to protect human rights refers to the state’s duty to prevent violation of human rights by a third party, and its obligation to fulfill human rights refers to its duty to take appropriate measures (legislative, financial, administrative, and so on) to ensure full realization of certain rights. See Henry J. Steiner, Philip Alston, and Rayan Goodman, International Rights in Context: Law, Politics, Morals, 3rd edn. (Oxford: Oxford University Press, 2007), 669–75.
See alsoMartin Scheinin, “Characteristics of Human Rights Norms,” in International Protection of Human Rights: A text Book, eds. Catarina Krause and Martin Scheinin (Turku: Institute for human rights/Abo Akademi University, 2009), 27–29.
As quoted, and slightly reformulated, in Liesbeth Zegveld, Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002), 40–41.
Though private spheres are naturally regulated by the state (e.g., laws regulating marriage, inheritance, market relations, and others) the liberal principle of state non-intervention in the private spheres leaves human action taken in these spheres less scrutinized and monitored by state than human action taken in the public sphere. See Zahra F. Kabaskal Arat, “Looking beyond the State but not Ignoring it: A Framework of Analysis for Non-State Actors and Human Rights.” See also Michael Goodhart, “Human Rights and Non-State Actors: Theoretical Puzzles,” in Non-State Actors in the Human Rights Universe, ed. George Andreopoulos et al. (USA: Kumarian Press, 2006), 3–19, 23–39.
The concept of globalization is used to describe a process that is characterized by a rapid, extended, and intensive mode of interactions among people and goods worldwide. In this mode of interactions, a decision or event in one part of the world affects people in a distant part. Globalization’s impact is far-reaching and touches society’s sectors, including political, economical, cultural, human rights, and moral sectors. See Sia Spiliopoulou Akermark, “Human Rights, Globalization, Trade and Development,” in International Protection of Human Rights: A Text Book, ed. Catarina Krause and Martin Scheinin (Turku: Institute for human rights/ Abo Akademi University, 2009), 343–47.
Andrew Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006), 8–12.
Ibid., 12–15.
As reported in Zegveld, Accountability, 1–2.
Philip Alston, “The ‘Not-a-Cat Syndrome’: Can the International Human Rights Regime Accommodate Non-State Actors?,” in Non-State Actors and Human Rights, ed. Philip Alston (Oxford: Oxford University Press, 2005), 1–36.
Ibid.
For a discussion of the law of war see Leslie C. Green, Essays on the Modern Law of War, 2nd edn. (Ardsley, New York: Transnational Publishers, 1998).
This article obligates parties to the conflict to treat protected persons (mainly civilians, non-combatants, and persons who are placed hors de combat) humanely, without distinction of any sort. With a view to realizing this goal, it forbids certain acts, including murder, torture, cruel, humiliating, and degrading treatment, taking of hostages, and unfair trial. See Heather A. Wilson, International Law and the Use of Force by National Liberation Movements (Oxford: Oxford University Press, 1988), 42–48.
The territorial control envisaged in the Protocol does not necessarily imply the establishment of a governmental administration on the territory captured by the armed opposition groups. In fact, the Protocol defines territorial control in a very restricted military sense: only to enable these groups “to carry out sustained and concerted military operations and to implement this protocol.” As Article 1 (1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) stipulates; available from http://www2.ohchr.org/english/law/protocol2.htm. In essence, the international humanitarian law excludes acts of rebellion (which involves “isolated and sporadic acts of violence,” with no territorial control by armed opposition groups), from its scope, considering them as a state’s exclusive concern, and which are to be governed by domestic law. See Green, Essays, 66. See also Wilson, International Law, 22–28.
Zegveld, Accountability, 1. It is important to mention in this regard that no armed forces of other states should be involved in the conflict, so that the conflict is deemed as internal. Meanwhile, other treaty law, including the Cultural Property Convention of 1954 and 2nd protocol 1999, in addition to the Weapons Convention of 1980, may govern the conflict. However, it is beyond the scope of this study to discuss these treaties. For discussion, see The Manual on the Law of Non-International Armed Conflict With Commentary (Sanremo Manual.) (Sanremo: International Institute of Humanitarian Law, 2006), available from http://www.dur.ac.uk/resources/law/NIACManualIYBHR15th.pd
Article I (4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), (8 June 1977); available from http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/ f6c8b9fee14a77fdc125641e0052b079
Available from http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR034890.pdf?OpenElement
Rhona K.M. Smith, International Human Rights (Oxford: Oxford University Press, 2007), 254–57.
Ibid., 257–58.
Wilson, International Law, 67–71.
Such an authority may announce its intention to abide by the protocol. See Ibid., 151–66.
This concept, which presumes the existence of the reality of the human being’s welfare in every sphere in which power and authority are exercised, including, but not limited to, the state’s power and authority (or the relationship between government and governed), was borrowed from Goodhart, “Human Rights and Non-State Actors,” 36–38.
As the preamble of the UN Charter stipulates.
Contrary to the functional approach, this approach conceives the reality of a human being’s welfare to exist only in the state’s power and authority, or in the relationship between the government and governed.
Reinisch, “The Changing International Legal Framework,” 70–71.
These resolutions are considered binding for the concerned parties. Chapter VII of the UN Charter (in particular Articles 39, 40, and 41), empower the Security Council with the right to determine the existence of any threat to international peace and security, and to take the necessary measures (including the use of violent, and non-violent means) to restore peace and security in the world.
Referring to the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Zegveld, Accountability, 47–49, 149–51.
S/RES/1509 (2003), available from http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N03/525/70/PDF/N0352570.pdf?OpenElement [Emphasis added]
S/RES/1735 (2006), available from http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/N06/680/14/PDF/N0668014.pdf?OpenElement [Emphasis added]
A/HRC/S-15/2, Situation of human rights in the Libyan Arab Jamahiriya (February 25, 20l1), available from http://www.foreignpolicy.com/files/ fp.uploaded.documents/110225.Ad%20adOPTed%20.resolution.pdf
A/HRC/17/44, Report of the International Commission of Inquiry to Investigate All alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya. 2, (June 1, 2011), available from http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.44AUV.pdf
The NTC, which was est ablished in the city of Benghazi on March 5, 2011, was said to work as an interim government “until such time as violence stops and Gaddafiand his political repressive regime are removed, and power can be handed over to a freely elected government governed by a genuinely democratic Constitution that will establish the capital in Tripoli.” In September 2011, on the eve of the fall of Ghadhafiregime, the United Nations recognized it as holding Libya’s seat at the UN. NTC’s Official Website http://www.ntclibya.com/InnerPage.aspx?SSID=6&ParentID=3&LangID=1 and Wikipediahttp://en.wikipedia.org/wiki/NationalTransitionalCouncil
Zegveld, Accountability, 150.
Report of the Special Rapporteur, Ms. Mona Rishmawi, Submitted in Accordance with Commission on Human Rights Resolution 1997/47 (January 16, 1998), 4, available from http://www.asylumlaw.org/docs/somalia/countryconditions/UNHCR98situtation.pdf
A/HRC/17/44, Report of the International Commission of Inquiry, 7–8.
Ibid., 83–84, [Emphasis added].
Clapham, Human Rights Obligations, 284.
“Public sphere” refers to the sphere relevant to society’s interest. Andrew Clapham, Human Rights in the Private Sphere (Oxford: Oxford University Press, 1996), 134–46.
Ibid., 146. Among other things, the said article stipulates: “(1) Everyone has duties to the community in which alone the free and full development of his personality is possible, (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
Author information
Authors and Affiliations
Copyright information
© 2013 Tariq Mukhimer
About this chapter
Cite this chapter
Mukhimer, T. (2013). Non-State Actors and International Human Rights Law: An Overview. In: Hamas Rule in Gaza: Human Rights under Constraint. Palgrave Pivot, New York. https://doi.org/10.1057/9781137310194_2
Download citation
DOI: https://doi.org/10.1057/9781137310194_2
Publisher Name: Palgrave Pivot, New York
Print ISBN: 978-1-349-45658-1
Online ISBN: 978-1-137-31019-4
eBook Packages: Palgrave Political & Intern. Studies CollectionPolitical Science and International Studies (R0)