27 November 2018

Collective Non-State Entities in International Law

According to the mainstream international law doctrine, collective non-state entities are essentially excluded from the regulatory reach of binding international law. A recent PhD thesis explores adaptations of international law to a globalised environment with respect to those entities, and finds a discrepancy between doctrine and practice. Klara Polackova Van der Ploeg gives us more details on her doctoral research.

How did you choose your research topic?

I served as a law clerk to Judge Christopher Greenwood at the International Court of Justice during the time of its advisory proceedings on Kosovo. In that case, one of the central questions was whether international law prohibited the Kosovar leadership from declaring independence from Serbia. Neither the Court nor the participating states expressed any doubt that – as a matter of principle – international law could have stipulated a prohibition against a declaration of independence to the Kosovar leadership directly. However, this position was resolutely at odds with what I had been taught in my international law classes: that collective non-state entities such as the Kosovar leadership were in principle outside of the regulatory reach of binding international law. This discrepancy spurred me to analyse the relationship between international law and collective non-state entities.

What were your research questions?

I wanted to explore transformations of international law with respect to collective non-state entities, and in particular the phenomenon of rules of international law directly addressing such entities – which include business corporations, armed groups, non-governmental organisations, political opposition groups, humanitarian organisations, indigenous groups, advocacy groups and international terrorist networks. International law treatises have portrayed collective non-state entities as essentially outside of the purview of binding international law. Commentators would readily accept that various non-binding international norms addressing entities like Shell, Lockheed Martin, the Islamic State or Amnesty International have emerged. However, the direct regulation of such entities in binding international law, through the formulation of international legal rights and obligations, would be principally presented as legally impossible or non-existent in positive law.

Yet, there appeared to be instances in which states, international organisations and other stakeholders treat such entities as addressees of international rights and obligations directly, without the interposition of any state. Considering that many collective non-state entities have asserted a major role in the international arena and in relation to matters of international concern, I therefore examined whether international law may have changed on the level of binding law as well in order to directly regulate collective non-state entities through rules of international law, and, if so, whether there was any particular mechanism that facilitated and explained this normative inclusion.

What methodology did you use?

I approached my inquiry in an inductive, essentially empirical manner. I examined legal practice in eight distinct fields of international law – including the law of international peace and security, international human rights law, international humanitarian law, international environmental law, international economic law and the law of the sea – in which collective non-state entities prominently feature. This extensive investigation of primary sources across diverse areas of international law then allowed me to observe shifts in the core structures of international law as a legal order, and to build an original theoretical framework explaining the ongoing processes of normative change in binding international law with respect to collective non-state entities.

Can you tell us more about those processes?

My thesis demonstrates that international law has developed to directly regulate collective non-state entities’ conduct in a legally binding manner, setting forth both direct rights and direct obligations for such entities without the interposition of any state, much more extensively than the standard literature suggests. International law has grown in this way to reflect changes in the global social structures, including changed power relations and changed spatiality of principal interactions, and, nowadays, international law formally structures the relevant relationships between such entities and states. The mainstream international law doctrine in this respect does not correspond to the contemporary practice of international law, and my thesis exposes this discrepancy.

In order to explain the emergence of direct regulation of collective non-state entities through binding international law, as well as its apparent selectiveness – with only certain such entities becoming addressees of only certain international legal rights and obligations, and only in certain circumstances – I developed the concept of the functional threshold. Specifically, I argue that it is the functionally critical collective non-state entities that have become addressees of binding international law – that is, entities perceived by states to be indispensable for the performance of a particular legal regime’s function and the shared awareness regime’s underlying purpose, such as the maintenance of international peace and security, the protection of victims of armed conflicts, or the equitable exploitation of the deep seabed for the benefit of all mankind.

Can you give examples of the policy relevance of your thesis?

The question of binding international legal regulation of collective non-state entities and their conduct is at the core of multiple ongoing international initiatives, including the Global Pact for the Environment, the International Labour Organization’s discussions on decent work in global supply chains, and the efforts to elaborate a prospective treaty on business and human rights, which are currently taking place within the United Nations Human Rights Council open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. These initiatives are considering whether – and how – to impose direct international legal obligations on collective non-state entities, such as the duty to take care of the environment, the duty to ensure safe working conditions, and the liability for violations of internationally guaranteed human rights committed in the course of transnational business activities. Still, the very possibility of such direct obligations under international law continues to be debated.

My research demonstrates that contemporary international law permits direct regulation of collective non-state entities as a tool to govern such entities’ conduct. Certainly, binding rules may not provide the most appropriate regulatory solution in every context. However, claims of the legal impossibility of such direct international legal regulation are simply inaccurate; rather, such claims are often put forward to obscure the true reasons behind a particular regulatory solution. In this way, my thesis not only intervenes in theoretical debates on the contemporary transformations of international legal ordering, but also aims to impact legal practice and policy that struggle with effective regulation of collective non-state entities’ conduct.

What are you doing now?

I have been appointed assistant professor at the University of Nottingham Law School. In this capacity, I continue to explore the topic of collective non-state entities in contemporary international law, focusing on the regulatory tools available in international law to address global coordination problems prominently involving collective non-state entities, such as global supply chains, financial stability, and disease control. I also continue advising on matters of international law in my private practice.

Klara Polackova Van der Ploeg defended her PhD thesis in International Law in June 2018. Professor Andrew Clapham presided the committee, which included Professor Andrea Bianchi, thesis director, and Associate Professor Jaye Ellis, from the Faculty of Law at McGill University, Montreal, Canada.

Full citation of the PhD thesis:
Van der Ploeg, Klara Polackova. “Collective Non-State Entities in International Law.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2018.

Interview by Nathalie Tanner, Research Office.
Front picture: collage made from Celebration of the declaration of independence of the Kosovo in Vienna, by Tsui [GFDL or CC-BY-SA-3.0], from Wikimedia Commons; Oil platform Gail, Sockeye Offshore Oil Field, near Santa Barbara, Southern California, by employee of the US government [Public domain], via Wikimedia Commons; and Thousands rally and march in Gaza for Palestinian Prisoners’ Day, 17 April 2004, Flickr photo by Joe Catron/CC BY-NC 2.0.