Fragmentation in Two Dimensions: The ICJ's Flawed Approach to Non-State Actors and International Legal Personality

By Green, Fergus | Melbourne Journal of International Law, May 2008 | Go to article overview

Fragmentation in Two Dimensions: The ICJ's Flawed Approach to Non-State Actors and International Legal Personality


Green, Fergus, Melbourne Journal of International Law


[Non-state actors have a profound and growing impact on international affairs. In light of their international influence, it is unsurprising that certain types of non-state actors have also been involved in high-profile international legal disputes. Yet, despite their relevance to international law, international lawyers have struggled to integrate non-state actors into the state-centric constructs of the discipline. This article analyses the decisions of one international legal body, the ICJ, that involve non-state actors. The article discusses the arbitrary and incoherent approaches taken by the Court when confronted with legal issues which bear upon the rights and obligations of various non-state actors and analyses the implications for states of the Court's problematic jurisprudence, arguing that international law is in a resultant state of fragmentation ratione personae. The article advances an alternative, coherent framework for addressing non-state actors which avoids the legal complications, ambiguities and lacunae caused by the current approaches and is more attuned to the realities of international life.]

CONTENTS

I    Introduction
II   Personality and Participation: The Theoretical
     Context
        A   Positivism, Realism and State-Centrism
        B   Natural Law and Anthropocentric Theories
        C   Policy-Oriented and Pragmatic Theories
        D   Theory as Practice
III  The Resolution of Non-State Actor Disputes in
     the ICJ
        A   The Reparations Opinion, International
            Organisations and the Birth of ILP
               1   The Court's General Approach to Non-State
                   Actors
               2   The Court's Conception of ILP: Untangling
                   the Complex Threads
                     (a)  Preconditions of ILP
                     (b)  Consequences of ILP
        B   Non-State Groups: From Self-Determination to
            Fragmentation
               1   Post-Colonialism and Self-Determination
               2   East Timor and the Fragmentation of
                   Sovereignty
                     (a)  Self-Determination, Participation
                          and Multiple Sovereignties
                     (b)  Non-State Actor Rights and the
                          Enforcement of General Obligations
               3   The Israeli Wall Opinion and the Conceptual
                   Crisis of Non-State Actors
                     (a)  The Non-State Actors Issue
                     (b)  The Internal/External Attack Issue
IV   Non-State Actors in International Dispute
     Settlement: Beyond Fragmentation
        A   A New Conceptual Framework for Non-State Actors
               1   International Legal Personality
               2   Factual Capacity
               3   Recognition and Conferral of Rights and
                   Responsibilities
              4 Advantages of a Universal Framework
        B   Overcoming the Procedural Hurdle: A Presumption
            of Access
V    Conclusion

[T]he progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. (1)

1 INTRODUCTION

'Fragmentation' has become the defining metaphor of early 21st century scholarship on international dispute settlement, encapsulating widespread anxiety about the implications of the proliferation of specialist international dispute resolution fora. (2) There exists a common concern that this proliferation is entrenching divisions between the different international legal issue-areas in a manner which undermines the coherence and interdependence of international law, leading to exclusion and inconsistency. (3) We might call this type of fragmentation 'horizontal fragmentation' or 'fragmentation ratione materiae'. This article examines a different type of fragmentation. Its concern is not with the separation of international issue-areas, but with the divisions between different types of international actors--a phenomenon we might call 'vertical fragmentation' or 'fragmentation ratione personae'. …

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