17

Concluding Observations
CEDRIC RYNGAERT, MATH NOORTMANN
AND AUGUST REINISCH

N
ON-STATE ACTORS ARE characterised negatively as, indeed,
actors that are not states. This characterisation is normatively
charged, as it presupposes that states are the dominant and para-
digmatic actors in international relations and international law, and that
non-state actors are Fremdkörper that are at best not easily accommodated
by extant conceptual frameworks, and at worst irrelevant to the discipli-
nary analysis. Indeed, in the realist and rational choice strands of interna-
tional relations that have dominated discussions of international power
and normativity, non-state actors are typically left out of the equation.1
These strands view international law as a set of normative expectations
which states have vis-à-vis each other, or as unstable enunciations of
converging strategic interests of, again, states. Also doctrinally, non-state
actors have been relegated to the margins of international law. They have
no role in the process of ascertaining international legal norms, and thus
cannot formally contribute to the formation of international law. Where
the existence of non-state actors is recognised by international law, it is
mainly in their capacity as addressees or objects of regulation. In short,
classic international law does not consider non-state actors to be true
subjects of international law who can participate in the formation of the
collective will to which they are subject.
Classic international law and international relations may—purposively
or inadvertently—have turned a blind eye to the phenomenon of non-
state actors, but globalisation and world society theories have increasingly
recognised the influence of such actors on the international community’s
constitution. They have drawn attention to the factual and normative
power of a panoply of organised transnational entities, such as intergov-
ernmental organisations, multinational corporations, non-governmental

1 Jack L Goldsmith and EA Posner, The Limits of International Law (Oxford, Oxford

University Press, 2005); Andrew T Guzman, How International Law Works: A Rational Choice
Theory (Oxford, Oxford University Press, 2008).
370 Cedric Ryngaert, Math Noortmann and August Reinisch

organisations, armed opposition groups, terrorists, indigenous peoples,

religious movements, etc., whose activities affect people’s lives in at times
more incisive ways than those of states.
The accumulation of power by these non-state actors can be the result of
a formal transfer of competences by states (eg, to international organisa-
tions), of a conscious governmental choice to empower private entities to
deliver goods or further ideals (eg, corporations respectively civil society
groups), or of—sometimes violent—challenges to a state-based order (eg,
armed opposition groups). This categorisation, which is based on non-
state actors’ mode of genesis, shows that non-state actors, or the environ-
ment in which they operate, are not created ex nihilo. In fact, states could
be seen as the very creators of non-state actors, either by formal act, or by
factual oppressive policies that inevitably engender opposition. After all,
states set up international organisations2 and incorporate private entities.
And where they have not formally created non-state actors, they may at
least have facilitated their rise. There is no denying that liberal states have
encouraged the ascendancy of non-state for-profit actors by establishing a
favourable regulatory framework that allowed them to develop lucrative
financial centres, to transfer capital worldwide, and to set up production
facilities at reduced cost. Moreover, states may support non-state armed
groups intent on overthrowing foreign (hostile) regimes, either by actively
assisting them or condoning their territorial presence, or they may have
contributed to the rise of these groups by oppressive and discriminatory
policies antagonising crucial segments of the population.
In international law, this proximity of—at least a number of—non-state
actors to the state has invited the question whether the latter could be held
responsible for abuses committed by the former, or whether instead a ‘pri-
vate’ veil is drawn that insulates states from responsibility for the acts of
non-state actors.3 With a view to providing a modicum of accountability,
but also to discourage the kind of totalitarianism in which overly broad
rules of state responsibility could result, the law of responsibility has
drawn up rather arcane rules of attribution of conduct and responsibility.

2 Understood as intergovernmental organizations with a separate international legal personality.

Note that, obviously, individuals can set up non-governmental organiszations—but such

organisations will be organised under the domestic laws of states.
3 See Arts 4–11 of the International Law Commission’s (ILC) Draft Articles on the Respon-

sibility of States for Internationally Wrongful Acts (2001) on the attribution of conduct of
non-state actors to states. See also Part V of the ILC’s Articles on the Responsibility of Inter-
national Organizations for Internationally Wrongful Acts (2011), on the responsibility of
member states in connection with acts of international organisations. See on states’ respon-
sibility for the acts of non-state actors, the contribution by Ryngaert to the present volume
(ch 8). Obviously, states and non-state actors may both be held responsible for jointly contrib-
uting to the same harmful outcome. See on shared responsibility: André Nollkaemper and
Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34
Michigan Journal of International Law 360.
 Concluding Observations 371

These rules are formulated so strictly that only in a handful of cases will
states be held responsible for the acts of private actors or international
organisations.4 Indeed, in most scenarios, non-state actors, even if initially
created by states or even as state proxies, have sufficiently emancipated
themselves from their state creators to be taken seriously as actors who
participate in international affairs in their own right.5
The participation of autonomously operating non-state actors in inter-
national decision-making has drawn the attention of scholars since the
early post-war years, when the policy-oriented New Haven School pos-
ited that international normativity does not come into being on the basis of
decisions taken by states, but rather as a consequence of value- or welfare-
maximising actions taken at different levels by a panoply of actors, includ-
ing non-state ones (policy-oriented research used the term ‘participants’
for all those actors, in order to reflect the equality of states and non-state
actors).6 Given the diversity of actors participating in the formulation of
an international collective will, the question was concomitantly raised, at
about the same time, whether the term ‘international’, with its inevitable
‘national’ or ‘state’ connotation, is an appropriate term to characterise the
said decision-making process. Philip Jessup has famously suggested using
‘transnational law’ in this respect, a law that would encompass public and
private regulation in which both states and non-state actors participate.7
While policy-oriented approaches and transnational law have captured
the imagination of scholars, they have not led to an epochal epistemic trans-
formation of how we conceive of international regulation. Nevertheless,
in more recent times, which have seen increased privatisation of govern-
ance and regulatory functions, the moniker ‘transnational law’ has staged
a remarkable comeback in both practice and scholarship in the guise of
‘transnational private regulation’ by—in particular—corporate actors. It is
probably no exaggeration to say that this scholarship, pioneered by private
lawyers and regulation theorists, advances more innovative ideas on the

4 See notably the strict ‘effective control’ standard require for the attribution of acts of

private actors—armed groups in particular—to states: Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v United States of America) (Merits) (Judgment) [1986] ICJ Rep 14,
64 [115]; Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 [385]–[415].
5 See on the independence of international organisations from their member states the

contribution by Wessel (ch 9).

6 See the seminal piece by Myres S McDougal, ‘The Law School of the Future: From Legal

Realism to Policy Science’ (1946–47) 56 Yale Law Journal 1345. See also the contribution by
Suzuki (ch 3). The term ‘participants’ for non-state actors has proved influential in interna-
tional legal scholarship. See Rosalyn Higgins, Problems and Process: International Law and How
We Use It (Oxford, Oxford University Press, 1995) ch 3; Jean d’Aspremont (ed), Participants
in the International Legal System: Multiple Perspectives on Non-State Actors in International Law
(London, Routledge, 2011).
7 Philip C Jessup, Transnational Law (New Haven CT, Yale University Press, 1956). See also

the contribution by Noortmann (ch 4).

372 Cedric Ryngaert, Math Noortmann and August Reinisch

role of non-state actors in global governance than public international law

and international relations scholarship combined.8 It is observed, how-
ever, that this private regulation scholarship, unlike Jessup’s writings on
transnationalism, analyses not just a particular state of affairs. Their flag-
bearers may not shy away from making the normative claim that private
regulation is a more efficient and more legitimate form of global regula-
tion than classic state- or international organisation-based command and
control mechanisms. A concern here is how to ensure that such regula-
tion sufficiently accounts for the externalities of corporate action, and thus
safeguards public values. It is this concern that has informed the lively
and ongoing debate on the international obligations of multinational
corporations.9
Advocates of transnational private regulation ultimately envision a
‘brave new world’ where borderless communities live under their own
laws without state intervention. With this eschatological, post-geographic
vision,10 they most radically challenge the time-honoured Westphalian
system of world order dominated by states. This radical challenge should
however not obfuscate the increased profile which non-state actors have
already acquired in discrete traditional international norm-making, norm-
application, and norm-enforcement processes. Human rights treaties11 and
investment agreements12 have conferred substantive and procedural rights
on individuals and other non-state entities. International humanitarian
law treaties have recognised rights of non-state humanitarian actors and
have imposed obligations on non-state armed groups.13 The jus ad bellum,
for its part, appears to be in the process of allowing the exercise of self-
defence against non-state actors.14 Yet it would be mistaken to characterise
these normative evolutions within the ‘vertebrate system’15 as creeping

8 See, eg, Gralf-Peter Calliess and P Zumbansen, Rough Consensus and Running Code:

a Theory of Transnational Private Law (Oxford, Hart Publishing, 2010).

9 See contribution by Wouters and Chané. This debate has not been terminated by the

adoption of the UN Guiding Principles (2011), which affirmed transnational corporations’

non-legal duties to respect human rights in their operations. Indeed, civil society organisa-
tions, and even some states, have continued to favor the imposition of direct international
human rights obligations on corporations. See recent initiative for a convention (REF).
10 See also Daniel Bethlehem, ‘The End of Geography: The Changing Nature of the

International System and the Challenge to International Law’ (2014) 25 European Journal of
International Law 9.
11 See the contribution by Nowak and Januszewski (ch 7).
12 See the contribution by Reinisch (ch 12).
13 See the contributions by Heintze and Lülf (ch 6), as well as Paust (ch 13).
14 See the contributions by Henderson (ch 5) and Paust (ch 13).
15 See the contribution by Axford (ch 16), drawing on A Appadurai, Fear of Small Numbers:

An Essay on the Geography of Anger (New York, Columbia University Press, 2006) 25 (defining
the vertebrate system as a system ‘predicated on generalized norms of conduct, conjoint
institutions such as the UN and, of course, the international system of states and discrete
sovereignties’, and contrasting it with the ‘cellular system’, which ‘embraces “disorganized”
virtual capitalism, terrorist networks and emergent, sometimes utopian forms of grassroots
networking across borders’).
 Concluding Observations 373

inroads that are made by non-state actors. In fact, they are inroads made
by states themselves, who, as gatekeepers of the international system, have
conferred (limited) rights and obligations on non-state actors, largely to
suit their own needs. To name just a few examples, armed groups have
been burdened with obligations under humanitarian law so as to ensure
reciprocity in the conduct of hostilities, terrorists, pirates and transna-
tional criminals have been outlawed so as to protect states’ trading and
security interests, and non-state actors have been made legitimate targets
of the right to self-defence to expand states’ options to use force against
outside threats. Even where rights have been granted to non-state actors,
these may in fact serve state interests, eg, the rights conferred on investors
further the economic interests of their home states—a notion that formed
the original underpinnings of diplomatic protection.
Only when it comes to human rights and human security16 does it
appear that no state interest is served; on the contrary, human rights con-
stitute fundamental constraints on the behaviour of states towards non-
state actors. Therefore, the recognition of human rights can be seen as an
historical victory of non-state actors over state power, a victory which
has been further cemented by the emergence of a global civil society
that has relentlessly named and shamed state abusers of human rights,
and has accordingly been instrumental in enhancing state compliance with
international human rights law.17 Still, one cannot fail to note that states
may well be inclined to abuse the discourse of human rights to bring oth-
ers into disrepute, and even to pave the way for military intervention to
protect non-state actors allegedly suffering at the hands of hostile states.
When thus used, human rights are the modern-day equivalent of the cru-
sades or the civilising mission, and amount to no more than a hegemonic
instrument in the hand of dominant states.18
Leaving possible instrumentalisation of human rights aside, their
enduring attractiveness for a theory of non-state actors lies in their con-
sidering the individual, the non-organised non-state actor par excellence, as
the primary unit of analysis. The autonomy or—one could even say—
‘sovereignty’ accruing to individuals pursuant to human rights theory
allows them, by dint of their freedom of assembly and association, to
bond together in communities of solidarity or purpose that coalesce as
organised collectivities that are not necessarily states. It is recalled that
long before the rise of human rights, and even before the entrenchment of
states as the units of world public order, individuals did just that: in an era
of powerless or even entirely absent territorial sovereigns, they formed

16 Cedric Ryngaert and Math Noortmann (eds), Human Security and International Law:

the Challenge of Non-State Actors (Antwerp, Intersentia, 2014).

17 See also the contribution by Kornprobst (ch 14).
18 See for a critique of the Western human rights discourse: Immanuel Wallerstein, European

Universalism: The Rhetoric of Power (New York, New Press, 2010).

374 Cedric Ryngaert, Math Noortmann and August Reinisch

non-territorial communities, often of a tribunal nature. To be true, joining

such a community was not always a voluntary process and cannot prop-
erly be seen as an exercise of human rights. But the point should never-
theless be clear: the system of territorially delimited states—Westphalia’s
progeny—need not be the natural global order. Especially in times like
ours, times of heightened individualism, choice, and autonomy, one can
surely imagine that individuals may identify more with self-chosen com-
munities than with their state of nationality,19 an imagined and involun-
tary community forced on them by mere birth, which its members often
cannot even escape through migration. Should one not respect a group
of individuals’ choice to self-identify with a particular community—of
value, purpose, or profit—as much as individuals’ choice to join a state?
And if the answer is in the affirmative—which arguendo it should, if one
takes freedom seriously—should one not accord these communities a
legal status on a par with the status of states?
One is obviously tempted to again answer in the affirmative what
appears to be just a rhetorical question. Nevertheless, one should not
overlook that a qualitative difference remains between a community and
a state The variegated communities we currently know are functionally
differentiated and cater to different, and often quite circumscribed wishes
and needs of individuals: individuals may at the same time join Green-
peace, the Catholic Church, and an e-gaming community, without these
memberships being mutually exclusive. States, in contrast, may lay, to a
larger extent than non-state actors, totalising claims on individuals, pur-
porting to regulate all, or at least significant aspects of individuals’ lives.
Such regulation can be freedom-restricting, eg, when autocratic states
manage to limit individuals’ membership of competing communities of
choice. It can however be freedom-enhancing where states provide physi-
cal protection against inside and outside threats (ie, the Hobbesian con-
struction to escape the state of nature) or where modern welfare states
ensure a fair distribution of resources. This safety net thrown by states
may constitute their enduring appeal and legitimacy.
But when states fail in their protective mission, one can expect individu-
als to turn for relief to non-state actors, who use their soft, and sometimes
hard power to attract members.20 When states oppress them, they might
join armed opposition groups bent on the regime’s overthrow. When
states fail to stand up for public goods, they might join non-governmental
organisations defending a conception of global justice.21 When states fail

19 See at length Paul Schiff Berman, Global Legal Pluralism: a Jurisprudence of Law Beyond

Borders (Cambridge, Cambridge University Press, 2012).

20 See on soft power of non-state actors the contribution by Chong (ch 15).
21 See for the international legal status of such organisations, or rather the absence of such

status, the contribution by Noortmann (ch 10).

 Concluding Observations 375

to provide work or develop industries, individuals are driven toward self-

employment or the formation of corporations. And when the fervour of
state ideologies has ebbed, individuals may look for salvation in preach-
ers or entertainers. This is a stylised account, of course, since in reality, as
indicated above, states may accommodate non-state actors’ demands for
limited autonomy. But it remains no less true that the current ascendancy
of, and societal/scholarly interest in non-state actors can largely be attrib-
uted to the latter ’s role as a filler of gaps deliberately or accidentally left
by a retreating state—for better or worse. It is this de facto gap-filling role
that has led to calls for a more secure legal status of non-state actors, with
properly delineated rights of participation in national and global govern-
ance, and with clear accountability rules in case their factual participation
turns awry.
Confronted with the growth of intergovernmental organisations after
the Second World War, and attendant calls for the recognition of their legal
capacity, the International Court of Justice held, in its advisory opinion
in Reparation for Injuries (1949) in respect of the United Nations ‘that the
Organization was intended to exercise and enjoy, and is in fact exercising
and enjoying, functions and rights which can only be explained on the
basis of the possession of a large measure of international personality and
the capacity to operate upon an international plane.’22 It is posited that
this functional approach is also appropriate to determine the international
legal personality of other non-state actors. As functional differentiation is
a hallmark of the phenomenon of non-state actors—which indeed distin-
guishes them from states—a conferral of legal personality need not involve
the allocation of the bundle of all possible international rights and obliga-
tions. Such capacities should be contingent on the actual functions and
powers exercised. This suggestion may appear to amount to a paradigm
shift, as it allows sociological changes to affect the law without legislative
intervention, thereby challenging the supremacy of state consent, and of
state gatekeeping of the international legal system. Still, even positivists
have admitted that at the level of deciding what international law is and
what it is not, non-state actors do and should play a role in determining
the criteria for international law-ascertainment. As d’Aspremont observes
in this volume, given the meagre social practice of law-applying bodies
with respect to such criteria, so as to generate sufficient ‘communitarian
semantics’ ‘the practice of other [non-state] actors engaged in the appli-
cation of international law should be included in the social practice …
at the heart of formal law-ascertainment in international law’.23 Or, put
differently, non-state actors, even apart from their actual contribution to
the content-determination of substantive legal norms, may have a key role

22 Reparation for Injuries suffered in the service of the Nations, Advisory Opinion [1949] ICJ Rep 79.
23 See ch 2.
376 Cedric Ryngaert, Math Noortmann and August Reinisch

to play in developing criteria that allow us to separate international law

from other forms of normativity. That being said, one should not force
non-state actors into the straitjacket of international law where this would
require such far-reaching adjustments to the primary and secondary rules
of international legal process,24 that international law loses its social valid-
ity. This does not equal regulatory defeat, however. After all, internation-
ally active non-state actors may not only be regulated by international
law, but also by other forms of regulation that are transnational in nature.
Such regulation may perhaps lack the formal binding character reserved
for classic public international law, but may nevertheless command legiti-
macy and compliance at a level only aspired to by international law.25 The
normative expectations generated by novel forms of regulation—through
‘soft law’, private regulation, or hybrid state/non-state arrangements—
may harden into forms and shades of law, if we understand law as a set
of normative commands steering human behaviour. The landscape of
transnational regulation and governance may thus become a polycentric
or pluralistic one, with commands and expectations emanating from vari-
ous sources without any one source dominating, or aspiring to dominate,
another. State-based regulation may not disappear, but be repositioned
by the development of transnational networks, or in the words of Saskia
Sassen, ‘global assemblages’, which imbricate the territorial infrastruc-
ture of the state to project global power.26 What we ultimately envision
here is a new ontology of global public order that is partly ‘beyond
territoriality’,27 where new non-state geographies of power, regulation and
responsibility, shaped by a variety of actors, emerge which supplement,
rival, and replace the apparatus of the territorially delimited nation-state.

24 The primary rules of international law can be defined as those rules containing

substantive commands addressed at subjects of the law. The secondary rules are ‘rules of
recognition’ in a Hartian sense; they set forth the—procedural—criteria, which have to be
met for a norm to be considered as a norm of international law.
25 In fact, studying such regulation presents a window that allows us to bridge the gap

between international law and international relations, the two disciplines at the heart of
this Handbook. See the contribution by Kornprobst (ch 14) (‘All too often, interdisciplinary
research between International Relations and International Law is confined to the question
of how incentives make actors comply with formalised legal norms. Yet there is much more
to the interdisciplinary borderlands between International Relations and International Law.
Informal legal norms as well as the ideas in which they are embedded, such as customs and
practices, are highly salient in global politics. These constitutive elements of normativity
ought to be studied, too’) (footnote omitted).
26 Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton

NJ, Princeton University Press, 2006). See also the contribution by Axford (ch 16).
27 Günther Handl, Joachim Zekoll, Peer Zumbansen (eds), Beyond Territoriality. Transnational

Legal Authority in an Age of Globalization (The Hague, Brill/Nijhoff, 2012).