Human Rights Obligations of Non-state Actors. By Andrew Clapham. Oxford, New York: Oxford University Press, 2006. Pp. xxxiii, 613. Index. $110, 68 [pounds sterling], cloth; $49.95, 27.50 [pounds sterling], paper.
It is difficult to know where to begin to review this impressive and ambitious work. Andrew Clapham, professor of public international law at the Graduate Institute of International Studies (Geneva), expands on an earlier book (1) and offers a passionate plea for extending human rights obligations to international organizations, transnational corporations, local companies, and even individuals. Along the way, he offers a comprehensive review of the current state of the law, identifying what he believes is a clear trend toward such an extension.
"The legal argument developed throughout this book is that customary international law, international treaties, and certain non-binding international instruments already create human rights responsibilities for non-state actors" (p. 21). This argument is put forward in a number of different contexts, but most of the examples concern international criminal law, privacy, property, free expression, and nondiscrimination.
Clapham first challenges the traditional categorization of entities as being "subjects" or "objects" of international law. He correctly notes that international organizations have long been considered to have at least a certain degree of international legal personality, including both rights and duties. He also refers to the duties placed on individuals by international criminal law, from Nuremberg to the International Criminal Court. Focusing on capacity rather than function, he observes that if legal persons such as corporations or nongovernmental organizations can enjoy rights under, for example, the European Convention on Human Rights, there is no logical reason why they could not also be subject to duties under international human rights law.
In discussing the characteristics of international human rights law (chapter 3), Clapham identifies its sources as customary law, jus cogens, treaties, erga omnes obligations, international crimes, and "universal standards." While few lawyers would question the first three sources or the erga omnes character of human rights obligations, the last two categories are problematic.
Symptomatic of a conflation of concepts that pervades the book are frequent references to "human rights crimes" (p. 95) without any explanation of what the adjectival characterization of a crime as a "human rights" crime adds to our understanding of recent developments in international law. The identification by the international community of certain acts that are punishable as international crimes (whether or not they are subject to the exercise of universal jurisdiction) certainly demonstrates that international law can impose obligations on individuals. However, such criminal liability predates any concern with international human rights, and it is difficult to see how punishing the pirate, hijacker, drug trafficker, or terrorist- or torturer or war criminal--magically transforms such persons into holders of "human rights" obligations.
"Universal standards" are understood as non-bonding standards "which make up the main corpus of human rights law" (p. 99). With respect to these so-called "soft law" standards, Clapham is certainly right to underscore their impact on state behavior, since guidelines, principles, and General Assembly declarations may be taken seriously by many governments and are certainly relied upon by nongovernmental organizations. At the same time, it seems difficult to accept Clapham's contention that "[w]hether such standards are legally binding or not ... may in many cases simply turn out to be 'academic'" (id.). Here we find another problem that runs through the book, which is the failure to distinguish clearly between legal obligations and obligations of other kinds, be they political, moral, or personal. Clapham interprets "human rights" very broadly, if not loosely, and his including moral precepts about how one ought to treat others does make it easier to argue that "human rights obligations" may and should be imposed on nonstate actors. Nevertheless, such an argument is persuasive only if one ignores the legal, quasi-legal, or nonlegal nature of such obligations.
This confusion renders the foundation of Clapham's argument rather shaky in legal terms, although it does not necessarily diminish the strength of his call for corporations, individuals, and other entities to protect and promote human rights because their doing so is politically and morally preferable to their ignoring them. While it is a nice turn of phrase, Clapham's observation that human rights law is driven "not by the steady accretion of precedents and practice, but rather by outrage and solidarity" (p. 107) may overestimate the value of the latter and underestimate the value of the former, unless the goal is simply to allow activists to feel better...