Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law

46 Pages Posted: 21 Apr 2011 Last revised: 3 Apr 2012

See all articles by Anthea Roberts

Anthea Roberts

School of Regulation & Global Governance (RegNet)

Sandesh Sivakumaran

University of Nottingham

Date Written: April 20, 2011

Abstract

This article considers a novel and potentially controversial issue: whether non-state armed groups can, do and should play a role in the creation of international humanitarian law applicable in non-international armed conflicts.

International law was traditionally understood as the law created by, and binding upon, states and states alone. It is now broadly accepted that international law regulates the rights and obligations of many non-state actors as well as those of states. Yet any corresponding suggestion that non-state actors could or should play a role in international law-making remains highly contentious. In analyzing the potential role that such actors could play in law creation, we reject the traditional state/non-state distinction underlying the doctrine of sources in favor of a tripartite framework of states, state empowered bodies (such as international courts and international governmental organizations), and non-state actors (such as individuals, businesses, NGOs and armed groups). Focusing on the last category, we explore various theories for justifying some or all non-state actors playing a role in international law-making.

In particular, we assess the merits of giving armed groups a role in the creation of international humanitarian law applicable in non-international armed conflicts. Drawing on a wide range of rarely discussed practice, we demonstrate that armed groups already participate in law-making in a number of circumstances. Building on these developments, we contend that it is possible to move away from the traditional statist approach to sources, which denies armed groups any role in law-making, without moving to the extreme position of giving such groups complete control over their obligations or equal law-making powers with states. Accordingly, we put forward a theory of hybrid sources under which armed groups could be permitted to recognize existing international obligations or undertake new ones, without raising concerns about placing armed groups and states on a par or downgrading international legal standards.

Keywords: Public international law, international law, creation, sources, armed groups, non-state actors, statist, treaties, custom, unilateral declarations, hybrid sources

Suggested Citation

Roberts, Anthea and Sivakumaran, Sandesh, Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law (April 20, 2011). 37 Yale Journal of International Law 107 (2011). Available at SSRN: https://ssrn.com/abstract=1815853

Anthea Roberts (Contact Author)

School of Regulation & Global Governance (RegNet) ( email )

Canberra, Australian Capital Territory 0200
Australia

Sandesh Sivakumaran

University of Nottingham ( email )

University Park
Nottingham, NG8 1BB
United Kingdom

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