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Human Rights Obligations of Non-State Actors
Human rights activists increasingly address the activity of multinational corporations, the policies of international organizations such as the World Bank and World Trade Organization, and international crimes committed by entities such as armed opposition groups and terrorists. This book presents an approach to human rights which goes beyond the traditional focus on states and outlines the human rights obligations of non-state actors. It finishes with examples of how non-state actors can be held legally accountable for their actions in various jurisdictions and suggests a framework for understanding the limits of human rights in this context.
- GenresScience
648 pages, Paperback
First published March 2, 2006
20 people want to read
About the author
Andrew Clapham
24 books17 followersAndrew Clapham is Professor of Public International Law at the Graduate Institute, Geneva and the Director of the Geneva Academy of International Humanitarian Law and Human Rights. He teaches international human rights law and public international law. Prior to coming to the Institute in 1997, he was the Representative of Amnesty International at the United Nations in New York. Andrew Clapham has worked as Special Adviser on Corporate Responsibility to High Commissioner for Human Rights Mary Robinson, and Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq.
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January 8, 2018On page 6 then, what does "...international law is almost exclusively about inter-state relations it is useless to expect this legal order to be of much use in regulating the behaviour of non-state actors." assume? In fear of potentially tripping over the content presenting later in the book, what sort of normative arrangements may be available to underpin the legal framework that applies to non-state institutions that operate across jurisdictions? What else may be relevant with respect to the general features of how the desirable functionality of such (a) framework(s) may be nurtured and developed (and similarly how any nefarious features can either be brought through proper judicial processes or otherwise removed from the public space)? (The International Law Commission's draft of the articles on the responsibility of international organizations was published subsequently in 2011.)
#aphids - p10, p12, p19, p22
On p19, concerns with circular reasoning need to be addressed at,in an appropriate time, setting. Considering the trivialization argument on pp33-4, to what extent does the non-verbalised question run along the lines of what-are-the-we-amongst-us-over-here-going-to-do-about-those-dreadful-people-over-there, and to the extent that it does, what sort of arrangements are required to ensure that jus cogens instances do not fall down the gap? What else may be significant in this context?
On p56 - "Why not imagine a system where human rights obligations attach both to states and to non-state actors?" Indeed. What else appears to be significant in this context?
Considering the arguments around international subjects, duties and rights on pp61-3, to what extent is it usually true that cases in this field present because the plaintiff subject has an axe to grind with the defendant subject's choice and execution of an active or passive verb? What else appears to be significant in this context? On p64, considering "...the definition of a subject of international law as 'an entity capable of possessing international rights and duties and having capacity to maintain its rights by bringing international claims' is circular...[in the three contexts of]...'capacity to make claims in respect of breaches of international law; capacity to make treaties and agreements valid on the international plane; and the enjoyment of privileges and immunities from national jurisdictions.", which modalities could/should be/are available to make sure that there is good structure/process of duties, rights, privileges, and immunities that does not yield ossified circularity that risks breakdowns enabling lawlessness?
Concerning the issues on p71, viz '...does the entity have the requisite legal capacity directly to acquire rights and obligations under international law?...in what circumstances do these actors have the capacity to be party to a claim (either as claimant or defendant) at the international level?' What else appears to be significant with respect to the arguments presented on p71? With respect to 'How to determine whether particular non-state actors have been subjected to international obligations is a difficult question.', considering a situation where principal A in country B stands behind intermediary C based in country D whose client E based in country F requires intermediary C to sponsor, facilitate and-or execute in some combination harms meted out on person G working for intermediary C's client H in country I. What claims does G have on C, and to what extent does G require the consent of A specifically not be tortured? What else may be particularly relevant in this context? To the extent that the arguments around exercising and waiving privileges and immunities can be addressed and resolved satisfactorily, to what extent could some of these answers shine a light on the conundra on pp134-5?
On p74, Clapham quotes Rosalyn Higgins: the arguments developed on p53 of 'Problems & process: international law and how we use it' and Lauterpacht's argument on the same page should be addressed at,in an appropriate time,setting. In the 2017 context, what sort of bridging arrangements are required for international subjects presenting in front of flat screens having a USB device or ethernet cable plugged into the back of their computer which may have the capacity and potential to act as an extension of the user's optic nerve?
In sec 2.8 on pp81-2, with respect to the standing of non-state actors, under which circumstances would it be appropriate for an individual to bring a case to the ECtHR? And how are any inconsistencies between state and ecclesiastical law interpreted properly? What else appears to be significant in this context? The argument in the last paragraph of p83 appears to be axiomatic.
In chapter seven in general and on p279 in particular, there appear to be difficulties with the conception of the narrative framework by the we-amongst-us-over-here: in the first instance, it may be seemly to formalise the normative characteristics that belligerent parties to a conflict or dispute can subscribe to in the basic texts, and that may help to manage, address and resolve difficulties of classification. The arguments in chapter seven appear not yet to recognise that armed conflicts can sometimes present where (a) belligerent(/s) are not fighting substantially for territory and are doing so across cyberspace in culture wars etc. P280: OK - what else appears to be particularly relevant in this context? (the possibility of a radical rethink is suggested on p288) On p284 to what extent does Lindsay Moir assume that it is only national and local government that is capable of sponsoring, facilitating and executing torture? The difficulties around arguments in support of the presentation of mercenary accountability through markets and related matters on p303-7 should be addressed at,in an appropriate time, setting.
Considering the arguments on pp340-6, which interventions are available in the first instance to make torture processes stop?
There appear to be some basic difficulties arising from the arguments on p350 that need to be addressed at,in an appropriate time,setting. And in sec 9.1.1, which arrangements are required to enable citizens to secure their assets, obtain timely and properly priced credit lines and to have access to the court system to exercise basic rights etc? What else appears to be particularly relevant in this context? On p370, with respect to 'Perhaps the most that can be said at the moment is that the scope of the positive obligations on the state with regard to the right to life is greater than the duties that individuals and other non-state actors may have to protect the right to life.", the arguments prefaced by on the other hand... need to be presented and addressed at,in an appropriate time,setting.
On p374, 'In respect of the means to ensure adequate protection against rape, states undoubtedly enjoy a wide margin of appreciation. In particular, perceptions of a cultural nature, local circumstances and traditional approaches are to be taken into account.' which means what with respect to making sure minors and vulnerable adults are not trafficked? What else may be relevant in this context?
On pp380-1, ICTY highlights factors to determine enslavement carried out by non-state actors: 'control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force, coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.' To what extent do these factors constitute violations of jus cogens rights; which remedies are available, and, separately, to the extent they present and are relevant, how are matters related to obligations erga omnes to be handled, addressed and resolved satisfactorily?
With respect to the world of professional footballers referred to on p383, what would be required to refute the suggestion that a player who may wish to transfer from club A to club B 'freely chose to become a professional football player knowing that he would, in entering the profession, be affected by the rules governing the relationship between his future employers'? Would it matter whether the business of either or both of club A and club B are front companies for cross-border organised crime? How would a communications intercept along the lines of 'I assume they'll kill him sometime during 2010' be handled? To what extent are contracts of employment shadow title deeds of ownership of the person employed? What else appears to be relevant in this context?
The issues and arguments presenting on p390 need to be addressed at,in an appropriate time,setting.
The arguments on pp394-5 need to be addressed at/in an appropriate time, setting. In the context of this decade, to what extent is it clear where the boundary conditions are relating to the use of smart phones and to what extent is the right of the user to make use of them anywhere at anytime absolute? Would a person going about their daily life have the right not to have a smart phone pointed in their direction? What else may be relevant in this context? Considering the arguments on p396, to the extent that the merits of an overriding public interest are debatable, what sort of venue is/could be made available for such arguments between the public and (social)media footage collectors and content formers to be presented and resolved before going to press or otherwise clicking the post button?
Quoth the European Court on p396: "The formation of opinions and entertainment are not opposities." Exactly what that means, and its consequences (especially for developments in opinio juris) need to be addressed at,in an appropriate setting.
The issues and arguments on p401 need to be handled with care and addressed at/in an appropriate setting, as well as the opposite half of the question that is posed.
The corollaries of the argument at the bottom on p404 appear to require further development. The arguments on p406 need to be addressed at,in an appropriate time,setting. On p407, there appear to be particular difficulties with "One can surmise that, with regard to infringements by non-state actors on a company's premises, the human rights obligations will be diminished as compared to invasions of an individual's residence" that require measures to cut across the activities of cross-border, organised criminal gangs.
The points of view proffered on p408 need to be given due consideration at the earliest opportunity.
The issues and arguments on p409 need to be handled carefully and addressed formally at the earliest opportunity at a suitable venue.
The concerns related to what is described in inverted commas as the galleries in inverted commas should be addressed without headbanging outside of the inverted commas at, in an appropriate time/setting. To what extent might the essence in inverted commas of the argument on p413 miss a critical point or two or three? Which other factors relating to the structure of the so-called gig economy appear to be relevant concerning the arguments on p414?
So, which issues and arguments may present around wilful obstruction, arising from a type of blockade presenting in inverted commas on p415? On pp414-5, to what extent is it clear which object(s) the court has its institutional fingers wrapped around?
On p 418, with respect to "This review of the case-law of the ECHR has not exhausted the possibilities for finding that a state has failed to protect a victim from human rights abuses committed by a non-state actor.", what do citizens in general and corporate staffers in particular need to do to get to the end of the day/week/month/year/2-year period etc without being trafficked, taken hostage and tortured (and also wrt the arguments on pp18-9 and pp31-2)? Is there anything in 9.1.13 that can contribute to a part of a satisfactory answer to that question? To what extent might better opportunities present in the context of Brexit to address such concerns satisfactorily (see e.g. p511 - the sentences attached to footnotes 291-293), and what arrangements can be put in place to follow up instances where the Red Cross in London doesn't register cases? Some of the language in 9.1.12 may be complex, ie that basic rights are mentioned in a way that provides enabling cover for them to be dismissed. How concerned should the we amongst us be about that (see also concerning the arguments in paragraph 177 on p426)?
On p441, what does "Human rights complaints against non-state actors acting in a non-governmental way" mean? To the extent that a failure of duty may form a component of such a complaint, what else appears to be significant in this context[qm]
On p511, which interpretation(s) should be put on "More revealing, for present purposes, are the policy arguments which are thrown up to counter the suggestion that the courts, as public/government authorities, should ensure respect for human rights in private disputes?"
#aphids - p10, p12, p19, p22
On p19, concerns with circular reasoning need to be addressed at,in an appropriate time, setting. Considering the trivialization argument on pp33-4, to what extent does the non-verbalised question run along the lines of what-are-the-we-amongst-us-over-here-going-to-do-about-those-dreadful-people-over-there, and to the extent that it does, what sort of arrangements are required to ensure that jus cogens instances do not fall down the gap? What else may be significant in this context?
On p56 - "Why not imagine a system where human rights obligations attach both to states and to non-state actors?" Indeed. What else appears to be significant in this context?
Considering the arguments around international subjects, duties and rights on pp61-3, to what extent is it usually true that cases in this field present because the plaintiff subject has an axe to grind with the defendant subject's choice and execution of an active or passive verb? What else appears to be significant in this context? On p64, considering "...the definition of a subject of international law as 'an entity capable of possessing international rights and duties and having capacity to maintain its rights by bringing international claims' is circular...[in the three contexts of]...'capacity to make claims in respect of breaches of international law; capacity to make treaties and agreements valid on the international plane; and the enjoyment of privileges and immunities from national jurisdictions.", which modalities could/should be/are available to make sure that there is good structure/process of duties, rights, privileges, and immunities that does not yield ossified circularity that risks breakdowns enabling lawlessness?
Concerning the issues on p71, viz '...does the entity have the requisite legal capacity directly to acquire rights and obligations under international law?...in what circumstances do these actors have the capacity to be party to a claim (either as claimant or defendant) at the international level?' What else appears to be significant with respect to the arguments presented on p71? With respect to 'How to determine whether particular non-state actors have been subjected to international obligations is a difficult question.', considering a situation where principal A in country B stands behind intermediary C based in country D whose client E based in country F requires intermediary C to sponsor, facilitate and-or execute in some combination harms meted out on person G working for intermediary C's client H in country I. What claims does G have on C, and to what extent does G require the consent of A specifically not be tortured? What else may be particularly relevant in this context? To the extent that the arguments around exercising and waiving privileges and immunities can be addressed and resolved satisfactorily, to what extent could some of these answers shine a light on the conundra on pp134-5?
On p74, Clapham quotes Rosalyn Higgins: the arguments developed on p53 of 'Problems & process: international law and how we use it' and Lauterpacht's argument on the same page should be addressed at,in an appropriate time,setting. In the 2017 context, what sort of bridging arrangements are required for international subjects presenting in front of flat screens having a USB device or ethernet cable plugged into the back of their computer which may have the capacity and potential to act as an extension of the user's optic nerve?
In sec 2.8 on pp81-2, with respect to the standing of non-state actors, under which circumstances would it be appropriate for an individual to bring a case to the ECtHR? And how are any inconsistencies between state and ecclesiastical law interpreted properly? What else appears to be significant in this context? The argument in the last paragraph of p83 appears to be axiomatic.
In chapter seven in general and on p279 in particular, there appear to be difficulties with the conception of the narrative framework by the we-amongst-us-over-here: in the first instance, it may be seemly to formalise the normative characteristics that belligerent parties to a conflict or dispute can subscribe to in the basic texts, and that may help to manage, address and resolve difficulties of classification. The arguments in chapter seven appear not yet to recognise that armed conflicts can sometimes present where (a) belligerent(/s) are not fighting substantially for territory and are doing so across cyberspace in culture wars etc. P280: OK - what else appears to be particularly relevant in this context? (the possibility of a radical rethink is suggested on p288) On p284 to what extent does Lindsay Moir assume that it is only national and local government that is capable of sponsoring, facilitating and executing torture? The difficulties around arguments in support of the presentation of mercenary accountability through markets and related matters on p303-7 should be addressed at,in an appropriate time, setting.
Considering the arguments on pp340-6, which interventions are available in the first instance to make torture processes stop?
There appear to be some basic difficulties arising from the arguments on p350 that need to be addressed at,in an appropriate time,setting. And in sec 9.1.1, which arrangements are required to enable citizens to secure their assets, obtain timely and properly priced credit lines and to have access to the court system to exercise basic rights etc? What else appears to be particularly relevant in this context? On p370, with respect to 'Perhaps the most that can be said at the moment is that the scope of the positive obligations on the state with regard to the right to life is greater than the duties that individuals and other non-state actors may have to protect the right to life.", the arguments prefaced by on the other hand... need to be presented and addressed at,in an appropriate time,setting.
On p374, 'In respect of the means to ensure adequate protection against rape, states undoubtedly enjoy a wide margin of appreciation. In particular, perceptions of a cultural nature, local circumstances and traditional approaches are to be taken into account.' which means what with respect to making sure minors and vulnerable adults are not trafficked? What else may be relevant in this context?
On pp380-1, ICTY highlights factors to determine enslavement carried out by non-state actors: 'control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force, coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.' To what extent do these factors constitute violations of jus cogens rights; which remedies are available, and, separately, to the extent they present and are relevant, how are matters related to obligations erga omnes to be handled, addressed and resolved satisfactorily?
With respect to the world of professional footballers referred to on p383, what would be required to refute the suggestion that a player who may wish to transfer from club A to club B 'freely chose to become a professional football player knowing that he would, in entering the profession, be affected by the rules governing the relationship between his future employers'? Would it matter whether the business of either or both of club A and club B are front companies for cross-border organised crime? How would a communications intercept along the lines of 'I assume they'll kill him sometime during 2010' be handled? To what extent are contracts of employment shadow title deeds of ownership of the person employed? What else appears to be relevant in this context?
The issues and arguments presenting on p390 need to be addressed at,in an appropriate time,setting.
The arguments on pp394-5 need to be addressed at/in an appropriate time, setting. In the context of this decade, to what extent is it clear where the boundary conditions are relating to the use of smart phones and to what extent is the right of the user to make use of them anywhere at anytime absolute? Would a person going about their daily life have the right not to have a smart phone pointed in their direction? What else may be relevant in this context? Considering the arguments on p396, to the extent that the merits of an overriding public interest are debatable, what sort of venue is/could be made available for such arguments between the public and (social)media footage collectors and content formers to be presented and resolved before going to press or otherwise clicking the post button?
Quoth the European Court on p396: "The formation of opinions and entertainment are not opposities." Exactly what that means, and its consequences (especially for developments in opinio juris) need to be addressed at,in an appropriate setting.
The issues and arguments on p401 need to be handled with care and addressed at/in an appropriate setting, as well as the opposite half of the question that is posed.
The corollaries of the argument at the bottom on p404 appear to require further development. The arguments on p406 need to be addressed at,in an appropriate time,setting. On p407, there appear to be particular difficulties with "One can surmise that, with regard to infringements by non-state actors on a company's premises, the human rights obligations will be diminished as compared to invasions of an individual's residence" that require measures to cut across the activities of cross-border, organised criminal gangs.
The points of view proffered on p408 need to be given due consideration at the earliest opportunity.
The issues and arguments on p409 need to be handled carefully and addressed formally at the earliest opportunity at a suitable venue.
The concerns related to what is described in inverted commas as the galleries in inverted commas should be addressed without headbanging outside of the inverted commas at, in an appropriate time/setting. To what extent might the essence in inverted commas of the argument on p413 miss a critical point or two or three? Which other factors relating to the structure of the so-called gig economy appear to be relevant concerning the arguments on p414?
So, which issues and arguments may present around wilful obstruction, arising from a type of blockade presenting in inverted commas on p415? On pp414-5, to what extent is it clear which object(s) the court has its institutional fingers wrapped around?
On p 418, with respect to "This review of the case-law of the ECHR has not exhausted the possibilities for finding that a state has failed to protect a victim from human rights abuses committed by a non-state actor.", what do citizens in general and corporate staffers in particular need to do to get to the end of the day/week/month/year/2-year period etc without being trafficked, taken hostage and tortured (and also wrt the arguments on pp18-9 and pp31-2)? Is there anything in 9.1.13 that can contribute to a part of a satisfactory answer to that question? To what extent might better opportunities present in the context of Brexit to address such concerns satisfactorily (see e.g. p511 - the sentences attached to footnotes 291-293), and what arrangements can be put in place to follow up instances where the Red Cross in London doesn't register cases? Some of the language in 9.1.12 may be complex, ie that basic rights are mentioned in a way that provides enabling cover for them to be dismissed. How concerned should the we amongst us be about that (see also concerning the arguments in paragraph 177 on p426)?
On p441, what does "Human rights complaints against non-state actors acting in a non-governmental way" mean? To the extent that a failure of duty may form a component of such a complaint, what else appears to be significant in this context[qm]
On p511, which interpretation(s) should be put on "More revealing, for present purposes, are the policy arguments which are thrown up to counter the suggestion that the courts, as public/government authorities, should ensure respect for human rights in private disputes?"
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