Non-Stateactors in official relations with WHO
Report by the Director-General
1. “Official relations” is a privilege that the Executive Board may grant to nongovernmental organizations, international business associations and philanthropic foundations that have had and continue to have a sustained and systematic engagement in the interest of the Organization. The aims and activities of all these entities shall be in conformity with the spirit, purposes and principles of WHO’s Constitution, and they shall contribute significantly to the advancement of public health. 1 2. In accordance with the provisions of the Framework of Engagement with Non-StateActors, 2 entities in official relations with WHO are international in membership and/or scope, have a constitution or similar basic document, an established headquarters, a governing body, an administrative structure and a regularly updated entry in the WHO Register of non-Stateactors, through which such entities provide all the necessary information on their nature and activities.
The confusion over whether the term NSAs covers regime elites is largely due to the lack of legal definition of NSA which is, in itself, something of an ‘empty term’, comprising as it does ‘actors which apparently only have in common that they are not the state, and not governmental’. 12 Whether spouses of Presidents or Prime Ministers of countries are state or non-stateactors is a question that would potentially fill a whole chapter, but the telling question is whether it makes any real difference to whether sanctions may be lawfully imposed on them as well as the legal parameters governing the application of such measures. As has been stated, once international law was supplemented with notions of individual responsibility as well as state responsibility for breaches of international law, there may seem to be no reason to doubt the legality of such measures. However, whereas the vast majority of breaches of international law can give rise to state responsibility there are only specific regimes, such as international criminal law and aspects of others such as international humanitarian law, the violation of which can give rise to individual responsibility. This signifies that if sanctions are imposed on individuals for a violation of international law it can only be for breach of those norms or because the violative conduct of the individual is imputable to the state. It would also have to be established that states or organisations imposing such measures have the right or duty to do so under international law. However, if sanctions are imposed in order to tackle threats to international peace presented by the activities of individuals, or groups of individuals, then there is no need to establish norm violation; the key question is then whether the state or organization imposing sanctions in such circumstances has the right or power to do so.
Due diligence and risk assessment
27. When the possibility of entering into an engagement is being considered, the relevant technical unit in the Secretariat conducts an initial examination in order to establish whether such an engagement would be in the interest of the Organization and in line with the principles of WHO’s engagement with non-Stateactors in paragraph 6 and the priorities defined in the General Programme of Work and Programme budget. If this seems to be the case, the technical unit asks the non-State actor to provide its basic information. Using the Organization-wide electronic tool, the unit then complements this information with a description of the proposed engagement and its own assessment of the benefits and risks involved. This information is then transmitted to a specialized central unit which is responsible for analysing the information provided.
There can be no doubt that non-stateactors (NSAs) have attained an increasingly prominent role in almost all frameworks of a fragmented international legal system. In this respect the framework governing the use of force is no exception. However, while the law on the use of force against NSAs has, as this chapter will demonstrate, gone through a process of development over the past 20 years, the law governing the use of force by NSAs has not witnessed a similar development. In particular, while the norm prohibiting the threat or use of force and the contemporary right of self-defence have a birth date of 1945, 1 their subjects have remained stateactors. Although arguments can be made that the rules and norms of the jus ad bellum apply to certain NSAs, perhaps in the context of what we might call ‘contested states’, 2 it is difficult to find any authority or support for claims that the activities of other NSAs, such as terrorist groups, are now also regulated by them. 3 As we witness frequently, regulation of the forcible activities of these NSAs is still through the criminal law, of both a domestic and international nature. 4
5. Employing non-stateactors in cyberspace operations
As cyberspace, unlike other arenas associated with warfare, provides a high level of anonymity, attackers can carry out actions in this domain with little or no risk of attribution. Nation-states thus have little or no incentive to support a legally binding definition of cyberwar, which would limit their freedom of action, or to formally take responsibility for executed cyberattacks. Furthermore, cyberattacks can be carried out inexpensively, and can, at least in theory, cause extensive damage or at least trigger severe disruptions to ICT-based services. In addition, if a nation-state can covertly initiate, fund, or control such attacks, relying on non-stateactors to carry out the attacks in their stead, they can reduce the already low risk of political implications, and potentially achieve their objectives without the burden of adhering to the Law of Armed Conflict. This gives an attacker a tremendous asymmetric advantage, especially for smaller nations that cannot prevail on a kinetic battlefield. As a result, employment of non-stateactors in cyberspace operations is likely a very attractive option for nation-states or an equivalent body, especially when pursuing limited strategic goals.
Private Military Companies or PMCs may be the closest existing correlate to my proposed humanitarian non- state actor, and looking into their legal status may shed some light on the intervention legitimacy of the humanitarian non-state actor. P. R. Kalidhass 43 looked into the international legal accountability of PMCs and found that they can fall under 3 categories: “combatants, mercenaries, or civilians “ 44 . Such a state of affairs can lead to civilian-contractors occupying “a relatively ambiguous legal status, which leads to an almost complete absence of legal prosecution even when the accusations of wrongdoing arguably amounts to international crime.” 45 This would be a major problem for an actor working under its own directives in an armed conflict, as accountability is a necessary requirement for maintaining legitimacy (see chapter three). Here lies a conceptual issue: any defender of universal human rights must also uphold human rights in the process, but without accountability there is no instrument for ensuring this will happen. Of course, accountability does not prevent human rights violations, but it can prevent future violations by perhaps disbanding imposing limitations, or preventing that institution from engaging in armed conflict. For these purposes, non-stateactors would most likely need to fall under the legal definition of combatants for humanitarian intervention, as they are certainly not ordinary civilians. Further, unlike mercenaries, they are not hired, but work under they own directives. and are not hired but operate under their own directives, unlike mercenaries. However, this raises another problem.
ing sovereignty interests of the territorial State and the victim State. As for how to strike that balance—and when to permit defensive force—the liter- ature is conflicted. Essentially three grounds for permitting such force are plausibly available: (1) the territorial State actively harbors or supports the non-Stateactors, or lacks governance authority in the area from which they operate, (2) the territorial State is unable or unwilling to address the threat that the non-Stateactors pose, and (3) the threat is located in the territorial State. To be clear, each of these grounds for permitting defensive force has some interpretive space and overlaps with the others. The three are best conceived as concentric circles; as one moves from the first ground to the third, the scope of permissible defensive actions expands. Treating the three as distinct is analytically useful, then, because it exposes the variations in the practice as the application of Article 51 broadens. As I explain in the next Section, any of these grounds for permitting defensive force might be further restricted by other conditions that attach to Article 51.
13. ABSTRACT (maximum 200 words)
This thesis provides a capabilities-based approach to assessing the bioterrorism threat from non-stateactors. Through comparative case study, prior bioterrorism attacks are analyzed to assess capability in the three areas necessary to complete a biological weapons attack: obtaining or isolating a pathogen, weaponizing the agent, and employing or disseminating the weapon. The three cases are the Rajneeshee cult in 1984, the Aum Shinrikyo cult in the early 1990s, and the United States Postal System anthrax attacks of 2001. In contrast to current wisdom that employing biological weapons is too difficult for non-stateactors, this thesis reveals a broad spectrum of capability in all studies in the areas necessary to culminate an attack. Application of these findings must be used to assess risk generally rather than against specific groups because capability is deemed to be extremely difficult to track. The thesis finds that a significant threat exists but not large enough to be over-hyped above other national security concerns. In light of this, recommendations are provided for U.S. biodefense policy emphasis in the areas of the nonproliferation regime, attribution capabilities, and defending against the changing nature of future attacks with a particular emphasis on the public health system.
O THER CHALLENGES POSED BY NON - STATEACTORS
There are two other ways in which non-stateactors raise interesting questions about the uses and misuses of access to outer space.
One challenge is posed by non-stateactors using commercial satellites for communications or imaging. Following the 11 September 2001 terrorist attacks against the United States, some observers worried that terrorists might use commercially available satellite images to aid in planning attacks, although terrorists arguable require more timely and detailed information than is available from commercial imagery. 15 Commercial availability of images and communications is widely accepted as a beneficial development; nevertheless, a sensible dialogue about the peaceful uses of outer space should reflect the potential for misuse of such services. In the months before Operation Enduring Freedom in Afghanistan, the United States purchased exclusive access to commercial images taken by Space Imaging’s Ikonos satellite, at least in part to deny those images to the Taliban.
1 CHAPTER 1 INTRODUCTION
Non-stateactors (NSAs) play an increasingly prominent role in the use of armed force. The frequency with which NSAs engage in the use of force is alarming. Previously held realist observations that states have a monopoly on the use of force have quickly and tragically been undermined. Twenty-first century warfare is unique in that for the first time since the advent of the modern state system, the threat of real attack and a disturbance of international order do not come solely from other states. As the tragedy of 9/11 made clear, warfare has a new face. The wars in Iraq and Afghanistan are but one example of the realities of modern warfare. In each arena, the United States is fighting against an NSA, al- Qaeda in Iraq and the Taliban in Afghanistan. 1 Interestingly in these wars, the US employs more private military contractors, 19% more to be exact, than uniformed personnel. 2 Here we have an example of an NSA fighting an NSA. Consider also Hezbollah and Hamas. In the July 2006 conflict, Hezbollah launched some 150 rockets per day into Israel. 3 While Hezbollah is an officially recognized political party in Lebanon, the use of force in the July War was not representative of Lebanon as a state. Hamas is in a similar situation. While Hamas is a political party, the Palestinian Authority is technically not a state. Yet, Hamas
The most active and vocal non-Stateactors in the cultural heritage domain are non-governmental organizations (NGOs), private companies, and non-State armed groups.
It is beyond doubt that these actors have an ambivalent role. On the one hand, NGOs, pri- vate companies and, arguably, non-State armed groups, contribute to the protection of cul- tural assets and the development of law and policy. On the other hand, these entities may have a deleterious impact on the integrity of cultural treasures. UNESCO –in cooperation with other bodies– is currently developing a top-down strategy to engage these non-Stateactors to respect the key obligations set forth in cultural heritage treaties. The international community’s aspiration to protect cultural treasures for the sake of present and future gen- erations will be compromised if UNESCO and the other authorities overseeing the imple- mentation of the existing legal regime fail to devise effective arrangements to reduce non-compliance and violations.
sists that non-state groups comply with any previous commit- ments that they made to follow human rights law. 88 An addi- tional technique consists of identifying human rights norms that conventional law specifically extends to non-stateactors. 89 In some instances, the U.N. Security Council is relied upon as a substitute for a treaty. 90 The difficulty with this approach is that the language of the resolutions does not prescribe human rights for the actors by its own legal act; instead, the resolutions usu- ally conclude that the group violated human rights law, suggest- ing that the law was somehow already in existence and applica- ble to the actor at the time of the violation. 91 The final technique asserts that all actors are held to jus cogens norms whether or not the groups are subject to human rights law in the same way as states. 92 Since the list of jus cogens norms is indeterminate, this approach could include a wide spectrum of human rights protections. 93 The more controversial approach includes assimi- lating the non-state actor to a state and designating it as a de facto, state-like entity, while also denying that it is a state, thus requiring it to comply with human rights norms just like a state. 94 After all, non-state armed groups are considered to have
Hybrid threats and warfare analysis are born by looking at the enemy 6 , Western defence planners and experts created the term describing non-Western war behaviour in the recent armed conflict, in Iraq, Afghanistan, Lebanon, Chechnya, Ukraine. In particular, the American perspective on the rise of hybrid warfare interprets the superiority of the American military force as an incentive for non-stateactors to develop alternative military and non-military tactics to overcome their inferiority. As described in the Joint Operating Environment 7 “The continued dominance of America’ s armed forces in large-scale force-on-force warfare provides powerful incentives for adversaries to employ methods designed to offset our strengths. From non-stateactors using highly advanced military technology and sophisticated information operations, to states employing unconventional technologies, to the improvised explosive devices that pose grave threats to our troops, smart adversaries will tailor their strategies and employ their capabilities in sophisticated ways.” And more about Western vision in the words of US Army Colonel Brown 8 : “One could argue that hybrid warfare emerged because of the United States
Assuming, arguendo, that non-Stateactors can mount armed attacks as a matter of law, the question becomes how to respond to cyber attacks launched by non-Stateactors from abroad when the State from which they are operating either cannot or will not terminate those operations.
Responding with a cyber or non-cyber operation at the use of force level would violate the sovereignty of the State where such non-Stateactors are located, thereby bringing that right into conflict with the victim State’s right of self-defence. Some scholars are of the view that respect for the sovereignty of other States is such a foundational principle of international law that it cannot yield even to another State’s right of self-defence in such circumstances. 74 Nevertheless, as one of the present authors has explained more fully elsewhere, when international law rights clash, the better approach is to balance those rights in a fashion that most effectively preserves the object and purpose of each. 75 In this case, such a balance would allow for cyber or non-cyber operations at the use of force level against into the State from which the non-Stateactors are operating if that State is unwilling or unable to terminate the armed attack. 76 It must be emphasized that the balancing requires the State to proceed cautiously and in a limited fashion. For instance, if feasible, it must first warn the State to take action to terminate the activities and its operation must not exceed what is required to put an end to them.
In pursuit of this objective this article is structured as follows. Section 2 identifies the obligation to prevent transboundary harm as a general obligation under customary international law. Section 3 argues that this obligation actually contains two distinct duties, one requiring states to possess a minimum legal and administrative apparatus capable of preventing non-stateactors from using their cyber infrastructure to commit injurious transboundary conduct and, the other, requiring states to utilise this apparatus diligently to suppress threats emanating from their territory. Section 4 argues that the first duty integrated into the obligation to prevent principle is an obligation of result and explores the legislative and administrative features that a state must exhibit in order suppress malicious cyber conduct. Section 5 argues that second duty built into the obligation to prevent is an obligation of conduct and identifies the factors that are used to inform the standard of due diligence to which a state will be held when utilising its resources to address cyber threats emanating from its cyber infrastructure. Section 6 offers some concluding remarks on the utility of the obligation to
The most classical standpoint, from the area of political theory, tends to base the concept of ’Public Diplomacy’ on the subject who develops it and considers that this must be the state. These authors emphasize the close connection between diplomacy and the foreign politics of a nation, and take ‘Public Diplomacy’ as a specific diplomatic practice, embracing the public communication of that politics. The revision of the definition of ‘Public Diplomacy’ accepted by this perspective is limited to adding new practices and interlocutors to the enunciation, but holds that the state is still the indisputable protagonist of this action. Therefore, although it does recognize their strength and capacity for influence, this viewpoint dose not agree that non‐stateactors can carry out true ‘Public Diplomacy’: it goes so far as to state that the only single point that differentiates ‘Public Diplomacy’ form other communication strategies, such as marketing, public relations or lobbying, is, precisely, the subject that develops them. But other perspectives, more in agreement with the so‐called ‘new public diplomacy’, do not hesitate to admit the possibility that it may be carried out by other actors apart from the state. In these cases, ‘Public Diplomacy’ is defined from the objective proposed by the political actors, state or non‐state, in their actions. There is a clear consensus in describing this objective as the desire to defend their political interests in the international area by influencing the development and application of legislation, in collaboration with other political actors. Thus, the character of the author who develops ‘Public Diplomacy’ is of no importance; what is decisive is that they defend the international (global) interests of a representative group of citizens in a politically striking, stable and lasting way. That is, they must intend to establish norms and practices that will direct the international order in accordance with a certain type of ideas and values. And to do so, they mobilize sectors of public opinion that support them and create alliances with other political actors who share the same aims. Some authors, such as Gregory, believe the ‘core concepts’ of ‘Public Diplomacy’ are not just the objectives but also the practices used to achieve the former: in his case, understanding, planning, engagement, and advocacy (Gregory, 2010).
At the same time, the complexity of cyber operations—in terms of characterizing the nature of the operations, identifying the main players and developing appropriate options in response—opens up an equally complex legal environment for analyzing the parameters of and framework for such responses. This legal environment includes the law of armed conflict (LOAC), the law governing the resort to force (jus ad bellum) and human rights law, along with national security law and domestic criminal law. Cyber operations can be used both in armed conflict and in the absence of armed conflict, which is, of course, part of the complex nature of the legal inquiry. A host of interesting questions arise from the use of cyber capabili- ties by States and non-Stateactors, including when cyber acts trigger the international law regime governing the use of force and/or LOAC and the nature of self-defense in response to cyber acts, in particular, against non- Stateactors, and the contours of a cyber battlespace, to name a few. Fur- thermore, both jus ad bellum and LOAC pose challenging questions regard- ing the appropriate application of the law and the parameters of the legal paradigm at issue. This article will focus on the international legal frame- work that governs defense against cyber threats from non-Stateactors, specifically LOAC and the law governing the resort to force. In doing so, it will identify both essential paradigms for understanding options for re- sponse to cyber threats from non-Stateactors and key challenges in those paradigms. Section II addresses jus ad bellum and how it applies to and pro- vides guidance for State responses to cyber actions by non-Stateactors. Section III analyzes when and how LOAC applies to non-State cyber acts and examines some of the specific challenges cyber acts pose for such anal- ysis. Finally, Section IV highlights broader crosscutting issues, such as the challenges of multiple overlapping legal paradigms and the role and power of rhetoric, in exploring how States can and do respond to cyber threats from non-Stateactors.
A network approach on the other hand permits inter- organizational interactions of exchange, concerted action, and joint production in a more or less formal manner. The composition of such networks vary from domain to domain, but they are likely to consist of government agencies at different levels, key legislators, pressure groups, relevant private companies and civil society organizations such as Non Governmental Organizations (NGOs) and Community Based Organizations (CBOs) (Keeley and Scoones, 1999 in Oosterveer (2009). Network governance arrangements intend to achieve their objectives through the combined efforts of these different sets of actors, but their respective roles and responsibilities remain distinct without the state being the sole locus of authority (Black, 2008). These non-stateactors start developing their own sets of rules or standards to fill ‘institutional voids’ where rules to guide behavior are needed but not provided by the state. The national government remains an important political actor and a point of orientation for citizens but must today compete with others and can no longer assume a monopoly on legitimate political rule. Network-based views are criticized for the lack of legitimacy of the actors involved. Unlike state-based regulators, whose actions can be legitimized via formal, representative democratic procedures and supported by law, non-stateactors cannot rely on legal authority to motivate people, nor derive legitimacy from their position in a wider official order. Network forms of governance are furthermore inherently weaker than state bureaucracies because they need to coordinate activities through continuous negotiation, coordination, monitoring, holding third-parties accountable, and writing and enforcing contracts (Brinton Milward and Provan, 2000).
The non-stateactors profiled in this paper can potentially bring not only fresh resources but also fresh thinking on how to meet global development goals, for example through the promotion of new investment models and the expansion of market-oriented aid instruments. However, there is a danger that new entrants to the development field may not adequately internalize lessons learned from the decades of experiences that have accumulated within the traditional donor community. The diversification of the giving landscape presents a burden for longstanding aid donors to transfer their knowledge to rising actors about how assistance can be distributed in a more effective and equitable manner. Efforts to provide outreach to avoid repeating past mistakes can lead to the diffusion of standards of best practice which may have a broader impact on the behaviour of actors (especially firms) in developing countries. In the process of intensifying dialogue with emerging non-stateactors, European donors themselves have the prospect to gain valuable know-how, which will be of special relevance in stimulating entrepreneurship and private sector development.
be justifiable, is the Kenyan operation legal? In more general terms, can military measures against non-stateactors be considered legitimate self-defence under international law and, if so, in what circumstances? Are the measures which do not comply with the parameters of self-defence necessary unlawful, or could there be other legal justification for them? Al-Shabaab is obviously not a state and its acts cannot be attributed to the weak Somali Transitional Federal Government since the latter is engaged in an armed conflict with this armed group. Al-Shabaab is an armed non-state group operating within a territorial entity which has been recognised as an independent state by the international community but in fact does not possess many of the attributes of an effectively governed state capable of entering into relations with other international law subjects. Is the fact that Al- Shabaab at some point in time controlled and, to a certain extent, administered large parts of south Somalia at all relevant? How does the ‘failed state’ setting affect the rules regarding use of force in self-defence in international relations? The above questions constitute the core of the subject matter to be extensively examined through this thesis. In late September 2012 Kenyan forces claimed to have taken over Kismayu, the last stronghold of Al-Shabaab in Somalia. 22 Despite some success of Kenyan armed forces, the militants’ attacks continued and, although recognised by an increasing number of countries, 23 Somali Federal Government faces a long struggle before regaining effective control over the entire states’ territory. A number of other African countries similarly suffer from the lack