What are non-state actors?

Non-state actors as defined by the Oxford Dictionary are individuals or organizations that have significant political influence but are not allied to any particular country or state. This drops down to the various ever sprouting NGO’s and international organizations and the various corporate organizations.

The Preamble of the Universal Declaration of Human Rights proclaims that:

Every individual and every organ of society shall strive by teaching and education to promote respect for these [human] rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of the Member States themselves and among other peoples of territories under their jurisdiction.

Every individual and every ‘organ of society’ has a duty to contribute to an environment favorable to the enjoyment of human rights. This obligation is universal and concerns all state and non-state actors. The primary responsibilities and obligations in the field of human rights enjoyment remain with the state. This does not, however, mean that non-state entities do not have responsibilities, they are expected not only to advocate for human rights compliance by states, but also to abide by these same rules themselves.[1]

There exist different forms of non-state actors: NGOs, both national and international; indigenous and minority groups; human rights defenders; terrorists; paramilitary groups; internationalized territories; multinational enterprises; and, finally, individuals. Many of these groups promote human rights while others, on the contrary, condone crimes or even commit crimes in violation of human rights of individuals.

A. The role of Non-governmental human rights organizations

Before examining the work of NGOs at the international and regional level, it is important to address what a human rights NGO is. It is difficult to define NGOs because they come in very different shapes and sizes. There is, however, consensus on certain characteristics. What distinguishes human rights NGOs from other private associations is that NGOs are private non-profit-seeking organizations independent from governments, both financially and politically. With regard to the financial aspect, ECOSOC (which is the United Nations Economic and Social Council) resolution 1996/31 concerning consultative status for NGOs explains that NGOs can accept some government funding, but it should not form the main source of income.

Some of the NGOs have long history: Anti-Slavery Society was founded in 1838, the French Ligue des Droits de I’Homme was created in 1898 in the wake of the Dreyfus affair. However most NGOs were created in the 1960s and the 1970s which was also when the monitoring by United Nations started after the two 1966 covenants came into force.

During the drafting of the UN Charter, NGOs played an important role in pressing for the inclusion of human rights provisions. They also pushed for a system that would give them official standing before UN organs. As a result, Article 71 was included in the UN Charter, which provides that the ECOSOC ‘may make suitable arrangements for consultations with non-governmental organizations which are concerned with matters within its competence’

NGOs are also involved in the drafting of resolutions and international treaties. Examples include Amnesty International’s role in the drafting of the Convention against Torture; the impact of NGOs working for children’s rights on the text of the Convention on the Rights of the Child, and the pressure exerted by, inter alia, the International Commission of Jurists, Amnesty International and Human Rights Watch for the treaty establishing the International Criminal Court.

NGOs help to safeguard human rights against government infringement through techniques such as diplomatic initiatives, fact-finding missions, reports, public statements and mobilization of public opinion. These techniques have proven successful, since in most circumstances, NGOs are more independent from political forces than States or Intergovernmental organizations and thus are more able to identify and criticize human rights violations. Once NGOs bring a problem to a State’s attention it becomes more difficult to ignore human rights violations. Most NGOs publicly report the results of their missions and thus provide valuable information about violations of human rights. Publicity is an important factor in the enforcement of human rights.

NGOs have come to play an important role under the UN treaty-based system, especially with strengthening of reporting mechanisms. As it is impossible for the Committees supervising the implementation of the UN Conventions to be experts on the human rights situation of every country, they rely on NGOs to counter-balance information provided by states. NGOs serve to provide them with dependable information on the human rights situation and main areas of concern in specific countries. For those treaties establishing individual complaints mechanisms, NGOs play a vital role in assisting victims to bring complaints.

Organizations like UNESCO give NGOs consultative status and allow them to lodge complaints of alleged violations of rights that fall under the field of expertise of UNESCO without themselves having to be the victim.

Under the AU, NGOs play a crucial role and have provided substantial support to the African Commission. The African Charter recognizes the role of NGOs in several articles even though it does not always mention them specifically. Article 45(1) (a) requires the Commission to promote human and peoples’ rights by encouraging ‘national and local institutions concerned with human rights’ and Article 45(1)(c) states that the Commission should ‘co-operate with other African and international institutions concerned with the promotion and protection of human rights’. Moreover, Article 55 allows NGOs to submit communications to the African Commission without requiring that the organization itself be the victim of the alleged violation. Furthermore, many NGOs have been granted observer status that allows them to participate in the sessions of the Commission, access documentation and information and propose items for the Commission’s agenda.

NGOs have changed the ways in which local, national, regional and international public policy is formulated. Through persuasion, persistence and widespread media exposure, NGOs have ensured and continue to ensure that humanitarian and human rights concerns are a major focus before the global community. Indeed, throughout the history of the United Nations, NGOs have played a leading role in the creation of international standards and legally binding treaties that incorporate these standards. Furthermore, NGOs have and will continue to be central in the process of developing implementing organs to these treaties and, completing the cycle, in providing the essential documentary evidence to bring these organs to life. [2] In a nutshell NGOs raise public awareness of human rights issues and bring attention to those responsible.

B.    The role of transnational corporations

At the dawn of the 21st century, one of the most significant changes in the human rights debate is the increased recognition of the link between business and human rights. States are to a greater extent being held responsible for breaches of obligations under international human rights law. Women’s rights activists have long fought for ‘private sphere human rights’ with regard to state obligations to prevent domestic abuse; and in an era of privatization of public services, private entities are taking on roles previously held by the state. More than half of world’s 100 largest economies are now transnational corporations (TNCs); local and international companies can wield immense power and have a direct impact on governmental policies and the enjoyment of human rights. This has led to the recognition that business has an obligation to contribute to the promotion and protection of human rights.

The UN Code of Conduct on Transnational corporations[3] defines TNCs as an enterprise comprising   entities in two or more countries, regardless of the legal form and field of activity of these entities, which operates under a system of decision making, permitting coherent policies and a common strategy through one or more decision making centers, in which the entities are so linked, by ownership or otherwise, that one or more of them may be able to exercise a significant influence over the activity of the others and, in particular, to share the knowledge, resources, resources and responsibilities with the others.

Companies have responsibilities towards:

a) Their employees: rights of employees must be safeguarded, for instance, freedom from discrimination, the right to life and security, freedom of association and collective bargaining, the right to join and form trade unions, freedom from slavery, fair working conditions and abolition of child labor for both companies and their business partners.

b) Those that are affected by their operations: for example, many TNCs engage the services of private security companies and they have a duty to ensure that the security personnel working for them do not violate human rights. They also have a duty to address the impact of their operations on vulnerable groups such as indigenous peoples and migrant laborers.

In addition, issues such as corruption and bribery serving to deprive persons of their human rights need to be addressed. Corporate responsibility is premised on a notion of responsibility towards those within a company’s ‘sphere of influence’ and in terms of complicity in the human rights violations of other actors. The OHCHR has defined a company’s sphere of influence to include those people to whom the business has certain political, contractual, economic or geographic proximity. Complicity may be direct or indirect and occurs when a company authorises, tolerates or purposely ignores human rights abuses committed by actors associated with it, or knowingly assists in or encourages human rights abuse.

Furthermore, companies influence governments’ policies on various issues and have a moral if not legal responsibility to use this influence to further policies and actions promoting human rights; with greater power comes greater responsibility.

The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) set out in their preamble that states have the primary responsibility to promote, secure and protect human rights, but that: 

Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups. 

Similarly, the ‘Global Compact’, launched by UN Secretary-General Kofi Annan in 1999, calls upon business to ‘support and respect the protection of international human rights within their sphere of influence and to make sure their own corporations are not complicit in human rights abuses’.

In recent years, a number of companies have responded to the call for increased accountability by beginning to incorporate concern for human rights into their daily operations. This development is demonstrated through several recent trends such as:

a) The propagation of corporate codes of conduct protecting human and labor rights of workers. This could be seen as a new form of ‘privatization’ of human rights; to allude to the increased self-regulation instead of state regulation. This means adopting human rights norms in the forms of voluntary codes of conduct without state sanction.[4]

 b) The inclusion of human rights and references to the UDHR into business principles;

c) Growing attention paid by human rights organizations, consumers and the media to the impact multinationals have on human rights;

d) Increased dialogue between companies and stakeholders groups concerned with human rights; and

e) The discourse about possible imposition of trade sanctions on nation’s grossly disregarding international human rights standards.

C.    The role of human rights defenders (Individuals)

Positive growth in the field of human rights are to a large extent the result of the unrelenting efforts of thousands of individuals who, through their activism, through raising their voice, through their active membership of NGOs and through their personal courage, have defended human rights and brought the issue to the attention of the world.

[1]Edwin Berry, ‘The Role Of Non-State Entities’ (ICELANDIC HUMAN RIGHTS CENTRE) <http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-actors/the-role-of-non-state-entities> accessed 4 November 2017.

Promoting respect for human rights in countries where severe violations take place is often a dangerous enterprise. Human rights defenders risk their lives, sometimes disappear or are tortured; nevertheless, thousands of individuals around the world put their lives at stake every day for the protection and promotion of human rights and fundamental freedoms. These courageous individuals come from all spheres of society: lawyers who seek to ensure that human rights violations do not go unpunished; journalists who denounce crimes in which their government or military are involved; doctors who treat victims of torture and want to bring the perpetrators to justice; trade unionists, representatives of churches and religious communities, mothers, students, victims and indigenous groups. The Mothers of Argentina’s Plaza de Mayo in the 1980s and the trade unionists in Gdansk, Poland, the demonstrators in Prague in 1989, the students at the Tiananmen Square in 1989 and in the streets of Jakarta in 1998, Liu Xiabo, Sarah Khan an also some history respects such as Malcolm X and the likes of Martin Luther King Junior.[5] Kenya is not left behind as we have the controversial Boniface Mwangi and others such as Okiya Omtata, all of them show that initiatives by individuals can bring about peaceful change and improvement of human rights and fundamental freedoms.

Those who defend the rights of others often become victims of human rights violations themselves. Human rights defenders and their families risk to be defamed, threatened, expelled, arbitrarily arrested, and convicted of ‘subversive’ activities, mentally and physically tortured or even murdered. Some people who are considered ‘undesirable’ disappear forever.

The UNGA paid tribute to the commitment of human rights defenders in 1998, when it adopted the ‘Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms’. The work on this declaration was initiated in 1984 by the UN Commission on Human Rights. It is the first UN instrument setting out existing international standards and applying them to the work and protection of human rights defenders, as well as recognizing the legitimacy of their work. To support the implementation of the Declaration, the Commission on Human Rights established in 2000 a mandate on the situation of human rights defenders. In 2008, the Human Rights Council decided to continue the mandate for a period of three years (resolution 7/8). The Special Representative of the Secretary-General on the situation of human rights defenders has a broad mandate, inter alia: to seek, receive, examine and respond to information on the situation of human rights defenders; to establish co-operation and conduct dialogue with governments and other interested actors on the promotion and effective implementation of the Declaration; and to recommend effective strategies better to protect human rights defenders and follow up on these recommendation. The mandate- holder presents annual reports to the Human Rights Council and the General Assembly on particular topics or situations of special importance regarding the promotion and protection of the rights of human rights defenders, undertakes country visits and takes up individual cases of concern with governments.

Many states recognize the importance of the role of individuals in the promotion of human rights. Individual governments intervene regularly (through démarches (a political step or initiative) and political pressure) on behalf of individuals. Well-known are, for example, the cases of Nelson Mandela (South Africa), Aung San Su Kyi (Myanmar) and Salman Rushdie (Iran/UK). International fora often intervene on behalf of individuals, particularly if the individual(s) concerned show outstanding courage and initiative, or fulfil a symbolic function. In its first twenty years, the UN Commission on Human Rights discussed only serious violations and the naming of individuals or even states was avoided; this has now changed. In 1983, the Commission adopted a resolution on an individual case for the first time, asking for the release of Malawians Mr. Orton and Mrs. Vera Chirwa. Mr Orton was abducted from Zambia in 1981 where he lived as a refugee. He was sentenced to death by a ‘traditional’ court, tortured and kept in jail until he died in prison in November 1992. On 24 January 1993 Vera Chirwa was finally released from prison after pleas from NGOs and diplomats for more than ten years. For Orton Chirwa international efforts did not have much effect, but he will be remembered as his actions were exemplary and his distressing fate prompted the Commission to include individuals in its deliberations.[6]

Lastly, mention should be made of NGOs who work to protect human rights defenders themselves. Amnesty International and Reporters without Borders both send appeals and petitions on behalf of individual human rights defenders facing specific threats in order to protect them and to send an important signal to policy makers.

Procedures and processes used by Non-Sate Actors

In traditional human rights law, everyone thought that human rights violations could only be committed by states against individuals. Over the last half century a shared understanding has developed that human rights are inherent and inalienable rights which means they are no longer at the disposal of states but form part of international law giving rights and entitlements directly to individuals. A number of theoretical and practical trends are possibly the cause of this conceptual change: the questioning of the public/private divide, the debate on ‘third party effects’ or Drittwirkung of human rights, the ‘good governance’ discussion and transfer of power from state to non-state actors, be it through privatization or by shifting power to international organizations. These trends seem to have contributed to the need to protect human rights not only from the powerful state against the weak individual but to include protection against increasingly powerful non-state organs.[7]

Conventionally, human rights issues were addressed through procedures that were based on treaty obligations by which states agreed to have rights record debated, discussed and scrutinized. Such procedures included the obligation to file state reports with a treaty body and accepting individual complain through ‘communications’. Today, a judicial system that allows victims to exercise their direct right to bring claims against states is in place.[8] Some international organizations developed non treaty based methods of exercising at least some form of human rights supervision. For example the Economic and Social Council Resolution 1235 (XLII)[9] and Economic and Social Council Resolution 1503 (XLVIII)[10] procedures.

Traditionally, International Organizations (IOs) could count on the support of NGOs in advocating human rights in exposing state practice that is in violation of human rights. Today, NGOs sometimes conflict with IOs by criticizing the latter.[11] On the other hand, transnational corporations are trying to get NGOs on board in their human rights code of conduct campaigns to advance their own standing- they are relying inter alia on NGOs and other independent professional expertise for social accounting. IOs also co-opt NGOs for example; the UN has tried to get NGOs on board by changing the system of NGO consultative status,[12] by using their aid delivery services through UN subcontracting.[13]

NGOs like Amnesty International use procedures like urgent action appeals to put pressure on governments. This consists of supporting the case of human rights violations by sending protest letters to the duty holders and all relevant authorities, so as to pressure them to redress the damage caused and ultimately change their policies.

Mobilizing shame (mankind conscience) has also worked in other international organizations, such as the International Labor Organization (ILO)[14]. Codes of conduct are increasingly being applied to non-state actors. This can be interpreted to be seen as a new form of privatization of human rights where privatization means adopting human rights norms in the form of voluntary codes of conduct without state interference. With codes of conduct legally non-binding rules are adopted voluntarily by corporations to act as a guide to their operations. They may contain issues other than human rights and may be adopted by any non-state actor.

A growing trend in dealing with violations of human rights is the tendency to turn against ‘accomplices’ in cases where the main perpetrators cannot be held accountable. Legal devices are usually applied to induce compliance through indirect sanctioning. The rationale and message of the accountability of companies complicit in direct HRs violation is clear ultimately, TNCs will be deterred from investing or conducting their operations in countries where they might be responsible for acts of that state or for being accomplices. The combination of extraterritoriality and vicarious liability has produced some examples based on the philosophy: ‘if you can’t get the direct perpetrators, put pressure on those who collaborated with them or profited from the acts’. For instance, in the Unocal litigation where the direct action against Myanmar, the alleged direct human right violator, appears unfeasible because, on the traditional inter-state plane, there is no sufficient leverage and because state immunity would prevent a direct claim against Myanmar in US courts.[15] Even if jurisdiction were upheld by national courts, the chances of enforcing an eventual judgement would be low. Thus it makes sense to seek redress against corporate accomplices to state actions.[16]

Use of non-legal means of enforcing human rights compliance. The most common method is the use of consumer boycott on Transnational Cooperation to induce human rights compliance. The threat of lost sales of products produced in disregard of core labor standards or having negative human rights implications has proved to be an effective deterrent against such activities. Its effectiveness however depends upon a growing awareness and sensitivity of consumers. The goodwill, reputation and publicity attaching to a company’s HRs performance has become an important intangible business asset which is closely guarded.[17]

Another non-legal means used by TNCs is ‘socially responsible investing’ which has developed from a policy of excluding investment in certain sectors such as arms productions.

Today, human rights compliance may be the subject of litigation before national courts, it may be a topic in shareholder meeting, it may be extensively discussed in the media or addressed by NGOs in a campaign to stop certain labor practices.

Bibliography.

1. Edwin Berry, ‘The Role Of Non-State Entities’ (ICELANDIC HUMAN RIGHTS CENTRE) <http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-actors/the-role-of-non-state-entities> accessed 4 November 2017.
2. UN ESCOR, U.N. Doc. E/1988/39/add. 1 (1998)
3. Philip Alston, Non-State Actors And Human Rights (Oxford University Press 2011) 42, 43
4. Doe v. Unocal Corp, 963 F. Supp. 880 (C.D. Cal. 1997)
5. NGO criticism of the IMF and IBRD as well as the EU by ‘statewatch’ (http://www.statewatch.org/) and of theUN by ‘unwatch’ (http://www.unwatch.org/)

[2] ibid

[3] UN ESCOR, U.N. Doc. E/1988/39/add. 1 (1998)

[4] Philip Alston, Non-State Actors And Human Rights (Oxford University Press 2011) 42, 43

[5] Berry (n 1)

[6] ibid

[7] Alston (n 4) 38

[8] Ibid 41

[9] 42 U.N. ESCOR Supp. (No.1) at 17, U.N. Doc. E/4393 (1967)

[10] 48 U.N. ESCOR ( No.1A) at 8, U,N. Doc. E/4832/Add.1 91970

[11] NGO criticism of the IMF and IBRD as well as the EU by ‘statewatch’ (http://www.statewatch.org/) and of theUN by ‘unwatch’ (http://www.unwatch.org/)

[12] Art 71, UN Charter

[13] Leon Gordenker & Thomas G. Weiss, ‘Devolving Responsibility: A Framework for Analysis NGOs and Services’, in Thomas G. Weiss (ed), Beyond UN Subcontracting: Task-Sharing with Regional Security Arrangements and Service-Providing NGOs (1998) 30.

[14] James Avery Joynce, ‘Mobilization of shame’, in the politics of Human Rights (1978))

[15] Doe v. Unocal Corp, 963 F. Supp. 880 (C.D. Cal. 1997)

[16] Alston (n 4) 65

[17] ibid 68