¹ See Reinisch, August, The Changing International Legal Framework for Dealing with Non-State Actors, in Non-State Actors and Human Rights 75–77 (Philip Alston ed., 2005); Celestino Del Arenal, La nueva sociedad mundial y las nuevas realidades internacionales: Un reto para la teoría y para la política (The new world society and the new international realities: A challenge for theory and policy), in Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz 2001 (Courses of International Law and International Relations of Vitoria-Gasteiz, 2001) 29, 32–34, 36, 52–54 (2002); Sandra Lavenex, Globalization, Global Governance and the Bonnum Commune: A Conceptual Investigation, 6 Eur. J. of L. Ref. 377 (2004).Google Scholar

² See Kingsbury, Benedict, Krisch, Nico & Stewart, Richard, The Emergence of Global Administrative Law, IILJ Working Paper 2004/1, New York University 5; Inge Kaul & Ronald Mendoza, Advancing the Concept of Public Goods, in Providing Global Public Goods 95, 107 (2003); Sandra Lavenex, supra note 1, at 379.Google Scholar

³ Cf. Andrew Clapham, Human Rights Obligations Of Non-State Actors 25–58 (2006).Google Scholar

⁴ According to this maxim, law must take into account features of society. See Antonio Remiro Brotóns, Derecho Internacional (International Law) 46 (2007).Google Scholar

⁵ See Alston, Philip, The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?, in Non-State Actors and Human Rights 75–77 (Philip Alston ed., 2005).Google Scholar

⁶ See Koh, Harold, Why Do Nations Obey International Law?, 106 Yale L.J. 2599, 2624 (1997); Lavenex, supra note 1, at 379.Google Scholar

⁷ Koh, supra note 6, at 2633–2644, 2650, 2653, 2659; Alfred Van Staden & Hans Vollaard, The Erosion of State Sovereignty: Towards a Post-territorial World?, in State, Sovereignty, and International Governance 167–168 (Gerard Kreijen et al. eds., 2002).Google Scholar

⁸ See for example, Lavenex, supra note 1, at 375–376.Google Scholar

⁹ See Noortmann, Math, Non-State Actors in International Law, in Non-State Actors in International Relations 62 (Bas Arts et. al eds. 2001).Google Scholar

¹⁰ See Halliday, Fred, The Romance of Non-state Actors, in Non-state Actors in World Politics 35 (Daphne Josselin & William Wallace eds., 2001).Google Scholar

¹¹ See Jochnick, Chris, Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights, 21 H. R. Quart. 58 (1999); Clapham, supra note 3, at 44.Google Scholar

¹² For instance, as a result of these considerations, from an outdated traditional international human rights conception, no measures are to be adopted if a non-state actor impairs the enjoyment of a human right, and no State is responsible due to it having behaved with due diligence. See e.g., European Court of Human Rights, Case of Mastromatteo v. Italy, Judgment of Oct. 24, 2002, at paras. 67–79 – which leads me to call this situation the “Mastromatteo paradox.”Google Scholar

¹³ See Dubber, Markus Dirk, The Promise of German Criminal Law: A Science of Crime and Punishment, 6 Germ. L. J. 1069-1070 (2005), available at: http://www.germanlawjournal.com/index.php?pageID=11&artID=613 (last accessed: 20 June 2012); Santiago Mir Puig, Legal Goods Protected by the Law and Legal Goods Protected by the Criminal Law as Limits to the State's Power to Criminalize Conduct, 11 New Crim. L. Rev.(2008); Christoph Safferling, Can Criminal Prosecution be the Answer to massive Human Rights Violations?, 5 Germ. L. J. 1472 (2004), available online at: http://www.germanlawjournal.com/index.php?pageID=11&artID=526 (last accessed: 20 June 2012); Inter-American Commission on Human Rights, Report No. 95/08, Admissibility, Nadege Dorzema et al., or “Guayabin Massacre” v. Dominican Republic, at footnote 7 (2008), and Inter-American Commission on Human Rights, Report No. 64/01, Leonel de Jesus Isaza Echeverry and Others v. Colombia, at para. 22 (2001), in connection with Inter-American Court of Human Rights, Case of Durand and Ugarte v. Peru, Judgment of (Aug. 16, 2000) (Merits), at para. 117; Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Argentina, OEA/Ser.L/V/II. 49, chap. II, The Right to Life, para. 1 of section A: General Considerations (1980).Google Scholar

¹⁴ See Bianchi, Andrea, Globalization of Human Rights: The Role of Non-state Actors, in Global Law Without a State, 185, 192–199 (Günther Teubner ed., 1997); Koh, supra note 6, at 2602, 2618, 2646, 2648, 2656–2657.Google Scholar

¹⁵ First of all, the close relationship of law with theology and philosophy that existed for a long period of time implies that many legal principles are rooted in such sciences. Additionally, different fields of knowledge, such as psychology or sociology, may help us to understand why those who are bound comply with the law. Lastly, if one conceives that the study of law is not limited to the implementation of norms and involves lawmaking and other processes, it is necessary to admit that several factors, the understanding of which is facilitated by other sciences, may have impacts in law. About these ideas, see Losano, Mario, Towards a Common Good: A Path to Utopia?: From Philosophy through Legislation to the Dignified Life, 6 Eur. J. of L. Ref. 329 (2004); Koh, supra note 6, at 2603–2604.Google Scholar

¹⁶ See Kaul, Inge, Conceiçao, Pedro, Goulven, Katell Le & Mendoza, Ronald, Why Do Global Public Goods Matter Today?, in Providing Global Public Goods, supra note 2, at 3.Google Scholar

¹⁷ Id. at 13–14; Kaul, Inge & Mendoza, Ronald, Advancing the Concept of Public Goods, supra note 2, at 87, 107; Inge Kaul, Pedro Conceiçao, Katell Le Goulven & Ronald Mendoza, How to Improve the Provision of Global Public Goods, in Providing Global Public Goods, supra note 2, at 25–26.Google Scholar

¹⁸ Both state and other actors may regard themselves as furthering public goals or behaving in a way that implicitly promotes them. See Reinalda, Bob, Private in Form, Public in Purpose: NGOs in International Relations Theory, in Non-State Actors in International Relations 12–13 (2001); Daniel Thüer, The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State, in Non-State Actors as New Subjects of International Law 43 (Rainer Hofmann ed., 1999).Google Scholar

¹⁹ See Thüer, Daniel, supra note 18, at 46–47; Bob Reinalda, supra note 18, at 13; Andrew Clapham & Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, 24 Hastings Int. & Comp. L. J. 347–348 (2001); August Reinisch, supra note 1, at 53, 68, 77; Alexandra Gatto, Corporate Social Responsibility in the External Relations of the EU, in 24 Yearbook of Eur. L. 431 (2005). On some limitations of mechanisms as boycotts, see Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference 186 (Willem Genugten, Michael Scharf & Sasha Radin eds., 2009).Google Scholar

²⁰ About such dimensions, see Antonio Gómez Robledo, Fundadores del Derecho Internacional (Founders of International Law) 14–15 (1989).Google Scholar

²¹ See Fischer-Lescano, Andreas, Global Constitutional Struggles: Human Rights between colère publique and colère politique, in International Prosecution of Human Rights Crimes 19–20 (Wolfgang Kaleck et al. eds., 2007); Andrea Bianchi, supra note 14; Luis Pérez-Prat Durbán, Actores no estatales en la creación y aplicacioón del Derecho International (Non-state actors in the creation and application of International), in La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público: Los actores no estatales: Ponencias y estudios (The impact of globalization on the formation and implementation of Public International Law: Non-state actors: Papers and studies)(Victoria Abellán Honrubia & Jordi Bonet Pérez (dirs.), 2008); Loscano, supra note 15, at 323; Koh, supra note 6, at 2612, 2646, 2656; George Andreopoulos, Zehra Kabasakal Arat & Peter Juviler, Conclusion: Rethinking the Human Rights Universe, in Non-State Actors in the Human Rights Universe 332, 335–336 (George Andreopoulos et al. eds., 2006).Google Scholar

²² See Peters, Anne, Humanity as the A and Ω of Sovereignty, 20 (3) Eur. J. of Int. L. (2009); Concurring Opinion of Judge Antônio Augusto Cançado Trindade to Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of Aug. 28, 2002, Juridical Condition and Human Rights of the Child, at paras. 10–20.Google Scholar

²³ See Nijman, Janne, Non-State Actors and the International Rule of Law: Revisiting the ‘Realist Theory’ of International Legal Personality, Amsterdam Center for International Law Research Paper Series 2, 7–19, 39–40 (2009), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract id=1522520; Benedict Kingsbury, The Concept of ‘Law’ in Global Administrative Law, 20(1) Eur. J. of Int'l l. 32–33, 55 (2009); Kaul & Mendoza, supra note 2, at 91, 101; Kaul, Conceiçao, Le Goulven & Mendoza, Why Do Global Public Goods Matter Today? supra note 16, at 15; Kaul, Conceiçao, Le Goulven & Mendoza, How to Improve the Provision of Global Public Goods, supra note 17, at 21, 26–36; Lavenex, supra note 1, at 382–384, 386–391.Google Scholar

²⁴ See, for example, Robledo, Gómez, supra note 20, at 15; Koh, supra note 6, at 2626–2627.Google Scholar

²⁵ See Kaul, Conceiçao, Goulven, Le & Mendoza, Why Do Global Public Goods Matter Today?, supra note 16, at 9–10, 16; Janneke Nijman, Sovereignty and Personality: A Process of Inclusion, in State, Sovereignty, and International Governance 133 (Gerard Kreijen ed., 2002).Google Scholar

²⁶ On these issues, see norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, E/CN.4/Sub.2/2003/12/Rev.2, Aug. 26, 2003, at para. 1; Human Rights Committee, Concluding Observations on Kosovo (Serbia), CCPR/C/UNK/CO/1, Aug. 14, 2006, at paras. 4, 8-22; Articles 4, 43 and 44 of the Convention on the Rights of Persons with Disabilities (Dec. 13, 2006), available at: http://www.un.org/disabilities/default.asp?id=150 (last accessed: 16 June 2012).Google Scholar

²⁷ See Kingsbury, Krisch & Stewart, supra note 2, at 9–10, 12–13; Kingsbury, supra note 23, at 52–55, 57; del Arenal, supra note 1, at 53; Koh, supra note 6, at 2624, 2631.Google Scholar

²⁸ It can be considered that the expression “international community of States” merely stresses the way in which international law is traditionally formally created, whereas the expression “international community” can encompass a broader set of actors. This is one of the possible interpretations of: International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Paragraph (18) of the Commentary to Article 25.Google Scholar

²⁹ See International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Paragraph (7) of the Commentary to Article 12; Paragraphs (3), (4) and (7) of the commentary to Chapter III; Remiro Brotóns, supra note 4, at 67; Santiago Villalpando, The Legal Dimension of the International Community: How Community Interests are Protected in International Law, 21 Eur. J. of Int'l L. 394–407 (2010).Google Scholar

³⁰ See the Preamble and Articles 1, 22 and 23 of the Universal Declaration of Human Rights; Carlos Villán Durán, Curso de Derecho Internacional de los Derechos Humanos (Course on International Human Rights) 63, 92 (2006).Google Scholar

³¹ In this regard, Markus Dirk Dubber comments that criminal law responses are appropriate to the extent that they are employed to protect certain interests, and that otherwise, their use could be deemed by some as illegitimate—although not unconstitutional, he argues. This evinces the possibility of employing the concept of legal goods both from a descriptive approach, identifying what interests are protected by law, and from a critical standpoint. Additionally, Santiago Mir Puig has clarified the fact that legal goods are not only found in criminal law, but may be present in a legal system in general, and that only when some conditions are met, is it proper to employ criminal law mechanisms to protect those legal goods. Additionally, this author has argued that alongside a formal approach that identifies legal goods protected by the law, a substantive conception asks the question of what legal goods deserve legal protection, and that among them, only in some cases, should protection be through criminalization. As can be seen, this conception has also inspired the two approaches to legal goods shown above in the main text. Let it be further said that Christoph Safferling posits the idea that the protection of some core human rights by criminal means amounts to the protection of some legal goods, illustrating how protecting human dignity, which is the foundation of human rights, is a value that can be regarded as a legal good. Finally, interpreting the case-law of the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights has considered that the “juridical interests” being protected by the law are legal goods, or that some human rights are protected by municipal law given their status as legal goods. On all these issues, see Dubber, Dirk, supra note 13; Mir Puig, supra note 13; Safferling, supra note 13, at 1472; Inter-American Commission on Human Rights, Report No. 95/08, and Inter-American Commission on Human Rights, Report No. 64/01, supra note 13, at para. 22, in connection with Inter-American Court of Human Rights, Case of Durand and Ugarte v. Peru, supra note 13, at para. 117; Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Argentina, supra note 13.Google Scholar

³² See the reference to a statement issued by the President of the European Court of Human Rights in footnote 131, infra. Google Scholar

³³ See Puig, Mir, supra note 13.Google Scholar

³⁴ Thomas Franck provided a valuable insight that distinguishes procedural and material elements of fairness of norms, which do not necessarily appear simultaneously. Franck identified legitimacy with the procedural component and distributive justice with the material one. I consider that the distinction is highly valuable, although I must confess that I disagree with holding distributive justice as the sole criterion of material justice and with the ethical relativism I perceive in his analysis of material justice. On the distinction put forward by Franck, see Franck, Thomas, Fairness in International Law and Institutions 3-24 (1998).Google Scholar

³⁵ See Arenal, del, supra note 1, at 32–34.Google Scholar

³⁶ See Kingsbury, Krisch & Stewart, supra note 2, at 9–10, 12–13; Kingsbury, supra note 23, at 52–55, 57; del Arenal, supra note 1, at 53; Koh, supra note 6, at 2624, 2631.Google Scholar

³⁷ See Cassese, Antonio, Remarks on Scelle's Theory of “Role Splitting” (dédoublement fonctionnel) in International Law, 1 Eur. J. of Int'l L., 225–231 (1990).Google Scholar

³⁸ On the internationalization of human rights, see Buergenthal, Thomas, The Evolving International Human Rights System, 100 Amer. J. of Int'l L. 804–806 (2006) 787, 789-790; Felipe Gómez Isa, International Protection of Human Rights, in International Protection of Human Rights: Achievements and Challenges 24, 31 (Felipe Gómez Isa & Koen De Feyter eds., 2006); Stephan Hobe, Individuals and Groups as Global Actors: The Denationalization of International Transactions, in Non-State Actors as New Subjects of International Law 120 (Rainer Hofmann (ed.), 1999); Villán Durán, supra note 30, at 68–75; Concurring Opinion of Judge Cancado Trindade, supra note 22, at 15–34.Google Scholar

³⁹ On the different availability of resources in different levels, see Knox, John, Horizontal Human Rights Law, Amer. J. of Int'l L. 2, 19, 44 (2008) 2, 19, 44. About the principles of complementarity, subsidiarity, effectiveness of remedies, and the related figure of the exhaustion of domestic remedies, see Articles 17 of the Rome Statute of the International Criminal Court, 2.3 of the International Covenant on Civil and Political Rights, 2 of the Optional Protocol to the International Covenant on Civil and Political Rights, or 25 and 46 of the American Convention on Human Rights, among others. Additionally, see Inter-American Court of Human Rights, Case of Ivcher-Bronstein v. Peru, Judgment of February 6, 2001, Merits, Reparations and Costs, paras. 135-137; Inter-American Court of Human Rights, Case of Las Palmeras v. Colombia, Judgment of Dec. 6, 2001, at paras. 58, 60; Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 21(1) Crim. L. For. 2010. Altogether, these principles presuppose that the exhaustion of domestic remedies is not required in order to resort to international remedies when domestic remedies are ineffective, inadequate, too burdensome, or access to them is extremely difficult. See European Court of Human Rights, Case of Opuz v. Turkey, Application no. 33401/02, Judgment of Jun. 9, 2009, at paras. 112, 116, 127, 152–153, 159, 175, 201; Inter-American Court of Human Rights, Advisory Opinion OC-11/90, Exceptions to the Exhaustion of Domestic Remedies, Aug. 10, 1990, at paras. 31, 35; Article 15 of the Draft Articles on Diplomatic Protection (2006).Google Scholar

⁴⁰ On the figure of the margin of appreciation, see Oren Gross & Fionnuala Ní Aoláin, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 23 Hum. Rts. Quart. (2001).Google Scholar

⁴¹ See Jackson, John, Sovereignty, the WTO, and Changing Fundamentals of International Law 73–76 (2006).Google Scholar

⁴² Different legal regimes and systems, and a myriad of legal practices of various actors, can meet in emerging legal spaces. For the Global Administrative Law account of this, see Kingsbury, Krisch & Stewart, supra note 2, at 12–18; Rafael Domingo, ¿Qué es el derecho global? (What is the Correct Global?) 108 (2007).Google Scholar

⁴³ See Martín, Araceli Mangas & Diego Liñán Nogueras, Instituciones y Derecho de la Unión Europea (Institutions and European Union Law) 432–433 (2004); Thomas Buergenthal, supra note, at 806.Google Scholar

⁴⁴ See Calame, Pierre, Non-state actors and world governance 19–20, 22–23 (2008), available at: http://www.world-governance.org/spip.php?article297 (last accessed: 16 June 2012); Pérez-Prat Durbán, supra note 21, at 26–38; International Law Association, The Non-State Actors Committee, First Report of the Committee on Non-State Actors, The Hague Conference 10 (2010).Google Scholar

⁴⁵ See Clapham, supra note 3, at 535.Google Scholar

⁴⁶ Non-state normative manifestations, similar to what happens with soft law in regard to hard law, can be incorporated by State-endorsed legal systems, become customary law if supported by lawmakers in other legal systems, become part of a different normative regime, become an integral part of a binding instrument by virtue of reference or inclusion (making it necessary to interpret the latter in light of the former), become authoritative interpretations of binding instruments, or be opposable to their author or some other entity that endorses them or appears to do so somehow by virtue of the protection of third parties in application of general principles. In the Non-State Actors Committee of the International Law Association it was discussed thatGoogle Scholar

⁴⁷ On this criterion of interpretation, see, for example, Article 31.1 of the Vienna Convention on the Law of Treaties, 1969.Google Scholar

⁴⁸ See Reinisch, supra note 1, at 72–74.Google Scholar

⁴⁹ See the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Prosecutor v. Anto Furundzija, Judgement, Dec. 10, 1998, at para. 155.Google Scholar

⁵⁰ In this article, the term humanitarian is used in a broad sense, not to be confused with the branch of international law devoted to the regulation of armed conflicts.Google Scholar

⁵¹ About human rights and dimensions of the protection of human dignity as public goods, see Kaul, Conceiçao, Goulven, Le, & Mendoza, supra note 17, at 37, 44; Kaul & Mendonza, supra note 2, at 95 82–83, 84, 86, 97–98, 100, 106.Google Scholar

⁵² Different legal regimes and systems, and a myriad of legal practices of various actors, can meet in emerging legal spaces. For an example, see Kingsbury, Krisch & Stewart, supra note 2, at 12–18.Google Scholar

⁵³ See Dunoff, Jeffrey & Trachtman, Joel, A Functional Approach to Global Constitutionalism, Harvard Public Law Working Paper No. 08–57, 31; Nico Krisch, Global Administrative Law and the Constitutional Ambition, LSE Law, Society and Economy Working Papers 2 (10/2009).Google Scholar

⁵⁴ See Goodman, Ryan & Jinks, Derek, Incomplete Internalization and Compliance with Human Rights Law, 19(4) Eur. J. of Int'l L. (2008); Koh, supra note 6, at 2645–2659.Google Scholar

⁵⁵ See Articles 5 of the International Covenant on Civil and Political Rights, 5 of the International Covenant on Economic, Social and Cultural Rights, 29 of the American Convention on Human Rights, or 53 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Álvaro Francisco Amaya Villarreal, El principio pro homine: Interpretatión extensiva vs. el consentimiento del Estado (Thepro homine principle: extensive interpretation vs. tate consent), in International Law: Revista Colombiana de Derecho Internacional 356, 361, 374–375 (2005).Google Scholar

⁵⁶ For example, see Explanation for Withdrawal from Amnesty and Establishment of the Benenson Society, available at: http://www.docstoc.com/docs/31582041/Withdrawal-from-Amnesty-and-establishment-of-the-Benenson-Society (last accessed: 16 June 2012).Google Scholar

⁵⁷ See Bianchi, supra note 14, at 185, 191–195, 201–203.Google Scholar

⁵⁸ See Thürer, supra note 18, at 46.Google Scholar

⁵⁹ See Halliday, supra note 10, at 36.Google Scholar

⁶⁰ Treaties that do not have a heading textually mentioning human rights or that deal mainly with other aspects may nonetheless contain rights recognized or granted to individuals that qualify as human rights. Likewise, human rights are such as long as they directly protect dignity and are directly recognized to individuals by a legal system, rather than being such in accordance with their formal label. See Inter-American Court of Human Rights, Advisory Opinion OC-1/82 of September 24, 1982, “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), para. 34; Inter-American Court of Human Rights, Advisory Opinion OC-16/99 of October 1, 1999, 'The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law', paras. 71–87; International Court of Justice, LaGrand Case (Germany v. United States of America), Judgment of 27 June 2001, para. 77; Inter-American Commission on Human Rights, Report No. 112/10, Inter-State Petition IP-02, Admissibility, Franklin Guillermo Aisalla Molina at para. 117 (2010); Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations 65–66 (1998).Google Scholar

⁶¹ See Than, Claire de & Shorts, Edwin, International Criminal Law and Human Rights 12–13 (2003); Andrew Clapham, Human Rights: A Very Short Introduction 42 (2007); Hersch Lauterpacht, International Law and Human Rights 36 (1950).Google Scholar

⁶² Taking into account that International Humanitarian Law (“IHL”) is designed, among other considerations, to protect civilians from the effects of warfare and combatants under some circumstances, which is explained given the position of human dignity as one foundation of IHL, it is no surprise then that such dignity is violated when many norms of IHL are breached by any actor bound by that law, which includes non-state armed actors. About these ideas, see Kalshoven, Frits & Zegveld, Liesbeth, Constraints on the Waging of War: An Introduction to International Humanitarian Law, ICRC 12, 14, 70 (2001); Common Article 3 to the Geneva Conventions of 1949; Andrew Clapham, Human Rights Obligations of Non-State Actors, supra note 3, at 46–53. On the regulation of the participation of non-state actors in armed conflicts, see common article 3 to the Geneva Conventions of 1949; articles 1.4, 4, and 96.3 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1); Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II); Marko Milanovic, Lessons for human rights and humanitarian law in the war on terror: Comparing Hamdan and the Israeli Targeted Killings case, 89 Int'l Rev. of the Red Cross 377–381 (2007).Google Scholar

⁶³ Such as the norms that deal with piracy, slavery, illicit traffic in narcotic drugs or psychotropic substances, or the failure to render assistance. See United Nations Convention on the Law of the Sea, Dec. 10, 1982, Articles 98, 99, 100, 101, 102, 103, or 105, 106, 107, or 108, available online at: http://www.un.org/Depts/los/convention agreements/convention overview convention.htm (last accessed: 16 June 2012).Google Scholar

⁶⁴ See Annan, Kofi, Foreword, United Nations Convention against Transnational Organized Crime and the Protocols Thereto, United Nations Office on Drugs and Crime iii-iv (2004), available at: http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf (last accessed: 16 June 2012).Google Scholar

⁶⁵ A discussion on the different opinions regarding this problem can be found in Constantine Antonopoulos, Force by armed groups as armed attack and the broadening of self-defence, LV Neth. Int'l L. Rev. 162–172 2008).Google Scholar

⁶⁶ See Kingsbury, Krisch & Stewart, supra note 2, at 29, 32, 34; Immanuel Kant, Perpetual Peace, A Philosophical Essay 119, 139, 142, 157, 166 (M. Campbell Smith, tr., 1917)Google Scholar

⁶⁷ For an interesting theory about the importance of law striving for the well-being of human persons, see Finnis, John, The Priority of Persons, in Oxford Essays in Jurisprudence, Fourth Series 12, 13 (Jeremy Horder ed., 2002).Google Scholar

⁶⁸ See Kaul & Mendoza, supra note 2, at 80–88, 95–99; Lavenex, supra note 1, at 385.Google Scholar

⁶⁹ See Lavenex, supra note 1, at 381, 388; Del Arenal, supra note 1, at 29; Cassese, supra note 37, at 216; Reinalda, supra note 18, at 12–15; Thürer, supra note 18, at 46–47. Noam Chomsky has considered, for instance, that “states are not moral agents. They act in their own interests. And that means the interests of powerful forces within them.” See Gunness, Christopher, Rogue States Draw the Usual Line: Noam Chomsky Interviewed by Christopher Gunness, Agenda (2001), available at: http://www.chomsky.info/interviews/200105–.htm (last accessed: 16 June 2012).Google Scholar

⁷⁰ Unfortunately, on occasions the discourse of human rights has been resorted to with double standards, hypocrisy, and with the purpose of serving different goals in practice. See Reinisch, supra note 1, at 61; Eric Posner, The Perils of Global Legalism 204 (2009).Google Scholar

⁷¹ See Lavenex, supra note 1, at 385.Google Scholar

⁷² See Losano, supra note 15, at 328–331, 334–335.Google Scholar

⁷³ On these considerations, see Peters, supra note 22; Concurring Opinion of Judge Cançado Trindade, supra note 22, at paras. 10–20; Domingo, supra note 42, at 91, 110, 158–159.Google Scholar

⁷⁴ See, among others, Inter-American Commission on Human Rights, Preliminary Observations of the Inter-American Commission on Human Rights after the visit of the Rapporteurship on the Rights of Afro-Descendants and against Racial Discrimination to the Republic of Colombia, OEA/Ser.L/V/II.134, Doc. 66, 27 March 1999, at para. 46; Ilias Bantekas & Susan Nash, International Criminal Law 14 (2003); Inter-American Court of Human Rights, Case of Velasquez-Rodriguez v. Honduras, Judgment of July 29, 1988, at paras. 166, 172; Inter-American Court of Human Rights, Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants, September 17, 2003, par. 140; Inter-American Court of Human Rights, Case of Castillo-Petruzzi et al. v. Peru, Judgment of May 30, 1999, para. 89; Clapham, supra note 3, at 43–44, 47–53, 56–58, 70–73; Human Rights Committee, Concluding Observations, CCPR/C/UNK/CO/1, 14 August 2006, para. 4; Committee Against Torture, Communication No 120/1998: Australia, CAT/C/22/D/120/1998, 25 May 1999, para. 6.5; Inter-American Commission on Human Rights, Resolution 03/08, Human Rights of Migrants, International Standards and the Return Directive of the EU; Inter-American Commission on Human Rights, Press Release No 06/09, IACHR Condemns Killings of Awá Indigenous People by the FARC; Jochnick, supra note 11; Jordan Paust, The Other Side of Right: Private Duties Under Human Rights Law, 5 Harv. Hum. Rts J. (1992); Reinisch, supra note 1. On the labels of destruction and abuse of human rights; Robert Dufresne, Review of: Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law, 15 Eur. J. of Int'l Law 227 (2004). Furthermore, as the Special Tribunal for Lebanon considered in a Decision issued by its Appeals Chamber on 10 November 2010 in the Case CH/AC/2010/02, just as there are express and implied powers, when there are none of these and one such capacity is required for an organ as an international tribunal to fulfill its functions, protect human rights and/or achieve goals inherent to it, it can have such functions. If non-state actors have the factual—yet legally relevant—potential to offend dignity, they must have the inherent duty to refrain from these legally relevant factual violations, or else relevant goals of the legal system will be left unprotected, contrary to the absolute nature of the core peremptory norms involved. Domestic, international, and transnational action that responds to those violations “evinces” those inherent duties. On the aforementioned Decision, see Special Tribunal for Lebanon, Appeals Chamber, Case No. CH/AC/2010/02, of 10 November 2010, paras. 44–49. Navi Pillay, UN High Commissioner for Human Rights, mentioned that human rights abuses were committed by all sides in conflicts in Cote d'lvoire, reflecting how violations can be equally committed by state and non-state entities. See Release, Press, United Nations Office of the High Commissioner for Human Rights, Human rights situation in Côte d'lvoire “deteriorating alarmingly” – Pillay, Mar. 10, 2010, available at: http://wwwohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10831&LangID=E (last accessed: 16 June 2012).Google Scholar

⁷⁵ This is so because it may well happen that there are cases in which states do not generate the risk of a non-state violation and strive with due diligence to prevent or punish one such violation, and yet the violation is committed with impunity due to the incapacity of the state system to deal with it. In such an event, neither domestic nor international law will be able to hold the state involved accountable. An example of this can be found in: European Court of Human Rights, Case of Mastromatteo v. Italy, Judgment, 24 October 2002, paras. 67–79.Google Scholar

⁷⁶ The International Military Tribunal for the Trial of German Major War Criminals declared, for instance, that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” See the Rome Statute of the International Criminal Court, available at: http://untreaty.un.org/cod/icc/general/overview.htm (last accessed: 16 June 2012). This consideration, coupled with how in practice violations are also easier to be perpetrated by groupings of individuals that can be legally addressed in conjunction with its individual members in order to increase the likelihood of measures protective of victims—potential and actual—being effective requires also that groupings of individuals and non-state actors have negative capacities—duties or procedural mechanisms.Google Scholar

⁷⁷ This has been acknowledged in doctrine and jurisprudence and is demonstrated by the fact that States may be complicit to crimes committed by non-state actors or by the possibility of holding both a state agent and a State simultaneously responsible for breaches of international law. See International Court of Justice, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, parsa. 419-420; Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 EJIL 864 (2002); Inter-American Court of Human Rights, Advisory Opinion OC-14/94, International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention, December 9, 1994, para. 56.Google Scholar

⁷⁸ Regarding the horizontal protection of human rights by States, which are obliged to carry it out, see Inter-American Court of Human Rights, Advisory Opinion OC-18/03, Juridical Conditon and Rights of the Undocumented Migrants, September 17, 2003, par. 140; Inter-American Court of Human Rights, Advisory Opinion OC-17/2002, Juridical Condition and Human Rights of the Child, August 28, 2002, pars. 87, 90–91. Additionally, case-law references occasionally, implicitly, acknowledge that non-state actors may violate human rights, as can be seen, for instance, in the following passages of the Inter-American Court of Human Rights: There are “certain criminal acts that constitute, in turn, grave violations of the human rights”, extracted from: Inter-American Court of Human Rights, Case of the Pueblo Bello Massacre v. Colombia, Judgment of 31 January 2006, para. 148; or “[the] State is obligated to prevent, investigate and punish human rights violations” [even if they are not] “carried out by an act of public authority or by persons who use their position of authority” [and the act] “is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified)”, extracted from: Inter-American Court of Human Rights, Case of Velasquez-Rodríguez v. Honduras, Judgment of July 29, 1988 (Merits), para. 172. Regarding the State duty of protection, even against threats emanating from non-state actors, see also: European Court of Human Rights, Case of Mastromatteo v. Italy, Judgment of 24 October 2002, paras. 67–68, 88–96; European Court of Human Rights, Case of Rantsev v. Cyprus and Russia, Judgment of 7 January 2010, paras. 207, 232–234, 242, 288, 307-309; Theodor Meron, The Humanization of International Law 466–470 (2006). The Inter-American Commission on Human Rights has said, in turn, thatGoogle Scholar

⁷⁹ See Clapham, Human Rights Obligations of Non-State Actors, supra note 3, at 59–63, 70; José Manuel Cortés Martín, Las Organizaciones Internacionales: Codificación y Desarrollo Progresivo de su Responsabilidad Internacional 109–110 (2008).Google Scholar

⁸⁰ Clapham, supra note 3, at 70–73.Google Scholar

⁸¹ See European Court of Human Rights, Case of Kononov v. Latvia, Judgment of 17 May 2010, paras. 185, 187, 235–237.Google Scholar

⁸² See Meron, supra note 78, at 40.Google Scholar

⁸³ See, for example, Than, de & Shorts, Edwin, supra note 61, at 257.Google Scholar

⁸⁴ See Noortmann, supra note 9, at 66–67; Koen De Feyter, The International Financial Institutions and Human Rights. Law and Practice, in International Protection of Human Rights: Achievements and Challenges, University of Deusto 561- 562 (Felipe Gómez Isa & Koen De Feyter eds., 2006)Google Scholar

⁸⁵ See Cheng, Bing, General Principles of Law as Applied by International Courts and Tribunals 233–234 (2006); Paragraph 15 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (A/RES/60/147).Google Scholar

⁸⁶ See Arat, Zehra Kabasakal, Looking beyond the State But Not Ignoring It, in Non-State Actors in the Human Rights Universe, supra note 21, at 6. Moreover, the aim of the dimension of the universality of human rights—ergo, of human dignity protection—that is usually or traditionally discussed is the protection of individuals and their inherent rights everywhere, i.e. regardless of what State they are in or what State exercises authority or power over them—the territorial dimension. As a consequence, it has been considered that the prevalent culture in some States—let us remember that practices and customs are to be tried to be modified by States in order to adjust them to human rights standards, as can be seen and inferred in Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women and Article 2 of the American Convention on Human Rights—can have some elements that are somehow contrary to the full respect and protection of human rights. Thus, it has been considered that cultural arguments should not be employed against binding human rights norms—this is a subtle matter, for sometimes States are not bound by some non-peremptory human rights norms, and in other occasions the human rights discourse endorses ideas that are not really hard law and are arguably against reasonable cultural matters, ignoring the need to allocate power among several levels in accordance with democratic ideas and with the maxim that those affected by something should regulate it if they have the capacity and willingness to do so. As a result, we jump from territoriality concerns to cultural ones, evincing the way in which universality comprises multiple dimensions, not only territorial ones. And if so, we can go another step forward: If some cultural or non-cultural practices and patterns can be contrary to human dignity, is it not a fallacy to hold that only State-endorsed practices can run counter to that dignity? That is to say, it is possible that for instance one same practice of the majority of the population in one State, endorsed by it, is adopted by the minority of the inhabitants of another State, not being supported officially in any way whatsoever, but the fact that the practice is one and the same reflects how a universal and equal non-discriminatory protection should address both situations and contexts, as the problems are generated by one identical factor. Therefore, non-state actors carrying out that practice that are individuals of a minority in one State, not engaging its responsibility, must be made somehow to respect dignity, always in accordance with legality and the respect of their fundamental rights, because violators also have them. Hence, we have that for universality what matters is a complete protection of dignity in all dimensions: Territoriality regarding every potential and possible threat, and that non-state actors can pose the same challenges to its protection and respect that States can present.Google Scholar

⁸⁷ In the Vienna Declaration and Programme of Action, for example, it was stated thatGoogle Scholar

⁸⁸ See Criddle, Evan & Fox-Decent, Evan, A Fiduciary Theory of Jus Cogens, 34 Yale J. of Int'l L. 365, 369 (2004); Clapham, supra note 79, at 535.Google Scholar

⁸⁹ See Jochnick, supra note 11, at 60–61.Google Scholar

⁹⁰ About such right, see among others paragraphs 22(b) and 24 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147.Google Scholar

⁹¹ Powerful informal networks or groupings may impose their decisions on third parties while eluding liability by invoking their “informality” or legal “non-existence”. Yet, their power and legal impact call for their accountability. About such groups, see Kingsbury, Krisch & Stewart, supra note 2, at 7–8, 21–22, 28; Kaul, Conceiçao, Le Goulven, & Mendoza, supra note 17, at 27, 32, 53–54.Google Scholar

⁹² See Lavenex, supra note 1, at 373, 387–388.Google Scholar

⁹³ See Reinisch, supra note 1, at 54–55.Google Scholar

⁹⁴ Inter-American Court of Human Rights, Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants, September 17, 2003, paras. 97–101.Google Scholar

⁹⁵ See Almqvist, Jessica, Facing the Victims in the Global Fight Against Terrorism, Working Paper 18, FRIDE, 10–17 (2006).Google Scholar

⁹⁶ See the Preamble of the Rome Statute of the International Criminal Court; Vienna Declaration and Programme of Action, World Conference on Human Rights, A/CONF.157/23, 12 July 1993, pars. II.60, II.91; de Than & Edwin Shorts, supra note 61, at 12–13. It must be noted that there is a trend to hold every actor who violates principles considered important by the international community accountable. See Cortés Martín, supra note 79, at 56–58.Google Scholar

⁹⁷ About the need of inclusion of participants and the definition of what they are, see Noortmann, supra note 9, at 62–63; Meron, supra note 78, at 317; Nijman, supra note 23, at 138–139.Google Scholar

⁹⁸ It is important to note that the purpose of a norm, its context, and complementary legislation are to be considered when interpreting it. See Article 31 of the Vienna Convention on the Law of the Treaties, 1969.Google Scholar

⁹⁹ Jurisprudence has interpreted international norms by bearing in mind the legal system in which they are located. See Inter-American Court of Human Rights, Advisory Opinion OC-17/2002, Juridical Condition and Human Rights of the Child, August 28, 2002, at paras. 23–24; European Court of Human Rights, Grand Chamber Decision as to the Admissibility of Application no. 71412/01 and Application no. 78166/01, 2 May 2007, at para. 122.Google Scholar

¹⁰⁰ See Articles 5 of the International Covenant on Civil and Political Rights, 5 of the International Covenant on Economic, Social and Cultural Rights, 29 of the American Convention on Human Rights, and 53 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Álvaro Francisco Amaya Villarreal, supra note 55, at 356, 361, 374–375 (2005).Google Scholar

¹⁰¹ See José Pastor Ridruejo, Curso de Derecho Internacional Público y Organizaciones Internacionales (Course of International Law and Organizations) 65–67 (2008).Google Scholar

¹⁰² See Bianchi, supra note 14, at 185, 194-197; Francesco Francioni, International Law as a Common Language for National Courts, 36 Texas Int'l L. J. 589–590 (2001); Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, (102) Amer. J. of Int'l L. 248 (2008).Google Scholar

¹⁰³ The International Organization for Standardization (ISO), for example, is a Non-Governmental Organization, and its standards can be taken into account in the context of the World Trade Organization (WTO). See Kingsbury, supra note 23, at 36–37; ISO, ISO in Brief: International Standards for a Sustainable World, available at: http://www.iso.org/iso/isoinbrief 2008.pdf (last accessed: 16 June 2012).Google Scholar

¹⁰⁴ About (global) public opinion (or civil society), its problems and features, see Bianchi, Andrea, supra note 14, at 200-202; Halliday, supra note 10, at 34.Google Scholar

¹⁰⁵ See, for example, the Alien Tort Claims Act (ATCA) of the United States, which has been applied even against actions of non-state actors committed abroad. Regarding this Act, see Mireia Martínez Barrabés, La responsabilidad civil de las corporaciones por violación de los derechos humanos: Un análisis del Caso Unocal (The liability of corporations for violation of human rights: An analysis of Unocal Case), in La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Publico: Los actores no estatales: Ponencias y estudios (The impact of globalization on the formation and implementation of Public International Law: Non-state actors: Papers and studies) 232–248 (Victoria Abellán Honrubia & Jordi Bonet Pérez (trs.), 2008). About ATCA and other domestic norms that may bind non-state actors or even be applied extraterritorially, see Reinisch, supra note 1, at 55–58.Google Scholar

¹⁰⁶ About this phenomenon, see Reinisch, supra note 1, at 55–60; Gómez Isa, supra note 38, at 46–47.Google Scholar

¹⁰⁷ See Francioni, supra note 102, at 588, 598.Google Scholar

¹⁰⁸ About the process of acculturation, see Goodman & Jinks, supra note 54, at 726–728. On internalization, see Koh, supra note 6, at 2645–2646, 2649–2651, 2656–2659.Google Scholar

¹⁰⁹ In practice, several factors interact simultaneously, and only by taking all of them into account, as well as their respective impacts, is it possible to understand the motivation and reasons for compliance. See Goodman & Jinks, supra note 54, at 727, 731; Koh, supra note 6.Google Scholar

¹¹⁰ On different methods of identifying which norms that protect human dignity belong to jus cogens, and the recognition of some of those norms, see Antonio Gómez Robledo, El ius cogens internacional, Estudio histórico-crítico (The ius cogens: A historical-critical study) 169–170 2003; Criddle & Fox-Decent, supra note 88, at 339–340, 352, 364, 368-369; Inter-American Court of Human Rights, Advisory Opinion OC-18/03, Juridical Condition and Rights of the Undocumented Migrants, September 17, 2003, paras. 97–101; International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Prosecutor v. Anto Furundzija, Judgement, 10 December 1998, paras. 153-155; Lee Caplan, State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory, 97 Amer. J of Int'l L. 742, 772 (2003).Google Scholar

¹¹¹ Bartsch, Kerstin & Elberling, Björn, Jus Cogens vs. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al. v. Greece and Germany Decision, 4(5) Germ. L. J. 485–488 (2003); Nicolás Carrillo Santarelli, La inevitable supremacía del ius cogens frente a la inmunidad jurisdictional de los Estados (The inevitable supremacy of jus cogens against the jurisdictional immunity of States), 18 Revista Jurídica de la Universidad Autónoma de Madrid 74–76 (2009).Google Scholar

¹¹² This power of depriving contrary norms of effects that occurs in the international legal plane is one aspect of jus cogens—whose application is therefore neither limited to the field of the law of treaties nor to the generation of nullity and termination of contrary norms. About this, see International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Prosecutor v. Anto Furundzija, Judgement, 10 December 1998, par. 155; See Santarelli, Carrillo, supra note 111, at 61–63.Google Scholar

¹¹³ Domestic legal systems that incorporate peremptory norms in an implicit or explicit manner may accommodate the same effects that peremptory norms have in the international level. Additionally, the powerful expressive function of jus cogens is of no little consequence. See Nicolás Carrillo Santarelli, Los retos del Derecho de Gentes -Ius Cogens- 188–196, 210–216, 229–236, 243, 245 (2007).Google Scholar

¹¹⁴ Just like International Organizations may have implied powers or functions necessary for accomplishing their goals and performing their functions, the goal of the international community as a whole of preserving and protecting peremptory norms, along with the absolute and unconditional prevalence of such norms in practice, binds every actor on the global scene to their respect, because otherwise the goals of the community would be impracticable, making it thus necessary to bind every potential perpetrator. About implied powers of International Organizations, see Cortés Martín, supra note 79, at 30, 37, 132-133; José Pastor Ridruejo, Curso de Derecho International Público y Organizaciones Internacionales (Course of Public International Law and International Organizations) 672–673 (2003). On the effects of jus cogens regarding their prevalence over possible outcomes contrary to them, see Nicolás Carrillo Santarelli, supra note 111.Google Scholar

¹¹⁵ See Caplan, supra note 110, at 772.Google Scholar

¹¹⁶ See supra, footnote 110.Google Scholar

¹¹⁷ Id. Google Scholar

¹¹⁸ See Food and Agriculture Organization of the United Nations, The State of Food Insecurity in the World: Economic crises - impacts and lessons learned, Rome, 2009, Key messages (heading).Google Scholar

¹¹⁹ See Nations, United, A more secure world: Our shared responsibility, Report of the High Level Panel on Threats, Challenges and Change, A/59/565, 2 December 2004, paras. 21, 22, 27, 45, 145, and 148.Google Scholar

¹²⁰ On these factors, applied to the examination of State behavior, but in my opinion equally applicable to the supervision of non-state entities, see Inter-American Court of Human Rights, Case of the Pueblo Bello Massacre v. Colombia, Judgment of January 31, 2006 (Merits, Reparations and Costs), paras. 125–126.Google Scholar

¹²¹ About these notions, see Koh, supra note 6, at 2641-2644; Franck, supra note 34, at 3-24 (I must mention that while I find Franck's insight on the distinction between legitimacy and material or substantive justice fascinating, I disagree with his conception of the latter, which to my mind may have more ethical aspects).Google Scholar

¹²² See Lavenex, supra note 1, at 371, 386–389.Google Scholar

¹²³ See Kingsbury, supra note 23, at 30–33, 55.Google Scholar

¹²⁴ Id. at 57.Google Scholar

¹²⁵ Cooperation is an important element in the production of global public goods, too. See Kaul, Conceiçao, Goulven, Le & Mendoza, supra note 17, at 48.Google Scholar

¹²⁶ See Lavenex, supra note 1, at 383.Google Scholar

¹²⁷ See Lavenex, supra note 1, at 389-391; Halliday, supra note 10, at 34–37; Koh, supra note 6, at 2633–2644.Google Scholar

¹²⁸ See Reinisch, supra note 1, at 53; Gatto, supra note 19, at 431.Google Scholar

¹²⁹ See Benvenisti, Eyal & Downs, George, National Courts Review of Transnational Private Regulation, Working paper, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1742452 (last accessed: 16 June 2012).Google Scholar

¹³⁰ Id. at 4–5.Google Scholar

¹³¹ Abstract discussions of issues of resources available to domestic authorities in comparison with those at the disposal of international ones, commented on before, are not merely theoretical, as can be seen in a “Statement issued by the President of the European Court of Human Rights concerning Requests for Interim Measures (Rule 39 of the Rules of the Court), available at: http://www.echr.coe.int/NR/rdonlyres/B76DC4F5-5A09-472B-802C-07B4150BF36D/0/20110211 ART 39 Statement EN.pdf (last accessed: 16 June 2012), where the President asks both lawyers and applicants to behave responsibly and diligently, and State authorities to cooperate in the protection of human rights, hinting how, after all, there can be said to exist a global single framework of protection in which both national and international authorities and mechanisms are included, and interact mutually, which shows how a global legal space dismisses formal separations as highly artificial in a world of interdependencies, interactions and common goals and normative contents. It is to be noted that the President of the Court addressed both States and non-state entities—applicants, representatives and legal practitioners. Moreover, on the cooperation of national authorities and non-state actors, see Buergenthal, supra note 38, at 804-806; Pérez-Prat Durbán, supra note 21.Google Scholar

¹³² See Nijman, supra note 23, at 132-133; Lavenex, supra note 1, at 383.Google Scholar

¹³³ See Nijman, supra note 23, at 133; See Kaul, Conceiçao, Le Goulven & Mendoza, supra note 17, at 42.Google Scholar

¹³⁴ See Annan, supra note 64, at iii-iv.Google Scholar

¹³⁵ See Pérez-Prat Durbán, supra note 21.Google Scholar

¹³⁶ See Buergenthal, supra note 38, at 804; Bianchi, supra note 14, at 189–190.Google Scholar

¹³⁷ Similarly, it has been pointed out that the participation of non-state actors is, and throughout history has been, crucial for the effective provision of global public goods. On this, See Kaul, Conceiçao, Le Goulven & Mendoza, supra note 16, at 9–10, 13–14, 16; Meghnad Desai, Public Goods: A Historical Perspective, Providing Global Public Goods 63 (2003).Google Scholar

¹³⁸ See Kingsbury, Krisch & Stewart, supra note 2, at 22; Kingsbury, supra note 23, at 25; Daphné Josselin & William Wallace, Non-state Actors in World Politics: A Framework, in Non-state Actors in World Politics 9 (Daphné Josselin & William Wallace eds., 2001).Google Scholar

¹³⁹ See Peters, supra note 22, at 535–536.Google Scholar

¹⁴⁰ See the principles of complementarity, subsidiarity, effectiveness of remedies, and the related figure of the exhaustion of domestic remedies, in Articles 17 of the Rome Statute of the International Criminal Court, 2.3 of the International Covenant on Civil and Political Rights, 2 of the Optional Protocol to the International Covenant on Civil and Political Rights, or 25 and 46 of the American Convention on Human Rights, among others. Additionally, see Inter-American Court of Human Rights, Case of Ivcher-Bronstein v. Peru, Judgment of February 6, 2001, Merits, Reparations and Costs, paras. 135-137; Inter-American Court of Human Rights, Case of Las Palmeras v. Colombia, Judgment of December 6, 2001, Merits, paras. 58, 60.Google Scholar

¹⁴¹ See Jackson, John, Sovereignty, the WTO, and Changing Fundamentals of International Law 73–76 (2006); Domingo, supra note 42, at 217.Google Scholar

¹⁴² In fact, increasingly measures taken within a State affect actors formally outside its legal system. See Kingsbury, Krisch & Stewart, supra note 2, at 5; Kaul & Mendoza, supra note 2, at 95, 107.Google Scholar

¹⁴³ For these reasons, the exhaustion of domestic remedies is not required in order to resort to international remedies when domestic remedies are ineffective, inadequate, too burdensome, or access to them is extremely difficult. See European Court of Human Rights, Case of Opuz v. Turkey, Application no. 33401/02, Judgment, 9 June 2009, paras. 112, 116, 127, 152–153, 159, 175, 201; Inter-American Court of Human Rights, Advisory Opinion OC-11/90, Exceptions to the Exhaustion of Domestic Remedies, August 10, 1990, pars. 31, 35; Article 15 of the Draft Articles on Diplomatic Protection, 2006. As a consequence, international remedies are often truly the “last hope” of victims. See the Concurring Opinion of Judge Cançado Trindade, supra note 22, at para. 35.Google Scholar

¹⁴⁴ On these issues, see Domingo, supra note 42, at 204–208, 217.Google Scholar

¹⁴⁵ See Koh, supra note 6, at 2646, 2649–2650.Google Scholar

¹⁴⁶ See Knox, John, Horizontal Human Rights Law, Amer. J. of Int'l L. 2, 19, 44 (2008); Alicia Cebada Romero & Rainer Nickel, El Tribunal Europeo de Derechos Humanos en una Europa Asimétrica: ¿Hacia el Pluralismo Constitucional? (The European Court of Human Rights in an Asymmetric Europe: Towards Constitutional Pluralism?) 1–2, 9–10, available at: http://www.jura.uni-frankfurt.de/l_Personal/wiss_Ass/nickel/Publikationen/Cebada_y_Nickel ECHR and constitutional pluralism_Sevilla_final.pdf (last accessed: 16 June 2012).Google Scholar

¹⁴⁷ See Buergenthal, supra note 38, at 804-806; Reinisch, supra note 1, at 88–89; Knox, supra note 146, at 44.Google Scholar

¹⁴⁸ See Isidro, Marta Requejo, Transnational Human Rights Claims y acceso a la jurisdicción civil en Europa (Transnational Human Rights Claims and access to civil courts in Europe), 27(11) Revista de Derecho Comunitario Europeo 514–517, 521, 540–541 (2007).Google Scholar

¹⁴⁹ See European Court of Human Rights, Fourth Section, Case of Hajduová v. Slovakia, Judgment of 30 November 2010, para. 36.Google Scholar

¹⁵⁰ See supra, the content of footnote 143.Google Scholar

¹⁵¹ See the Judgment of the International Military Tribunal for the Trial of German Major War Criminals, where it was considered that “Crimes against international law are committed by men, not by abstract entities [States], and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”Google Scholar

¹⁵² On this function, see Goodman & Jinks, supra note 53, at 735; Mauricio García Villegas, De qué manera se puede decir que la Constitutión es importante (How it can be said that the consitution is important), in Doce ensayos sobre la nueva Constitución (12 Essays on the New Constitution) 40 (Álvarez Jaramillo et al., 1991).Google Scholar

¹⁵³ See Peters, supra note 22, at 535; According to Joel P. Trachtman, the principle of subsidiarity can be understood as entailing doing “at the state level what is best done at the state level, and … at the international level what is better done at the international level.” Available at: http://www.globallawbooks.org/reviews/detail.asp?id=627 (last accessed: 16 June 2012), Joel Trachtman, Review of Eric A. Posner: The Perils of Global Legalism (2009).Google Scholar

¹⁵⁴ It has been suggested that non-state actors can develop legal norms outside the frameworks of domestic and international law, due to reiterative processes by which behaviors are labeled as legal or illegal, during the course of processes of hierarchization, temporalization and externalization. About this, see Teubner, Gunther, 'Global Bukowina': Legal Pluralism in the World Society, in Global Law Without a State 12–19 (Günther Teubner ed., 1997); Kingsbury, supra note 23, at 52–55; Domingo, supra note 42, at 108, 159. Denominating as global law the regulations emanating from private entities without reference to State-sponsored legal systems is not wholly accurate because, even if their taking place is reinforced in a global context, alluding to something as global is reminiscent of an all-encompassing category, and therefore “global law“ ought to surpass what just private entities regulate by equally including other entities, such as public actors. Therefore, I agree with Rafael Domingo's suggested label of lex privata. Apart from terminological matters, however, both theories offer interesting insights. Note that lex privata is not a phenomenon exclusively present in the business field, but that is also experienced by non-state entities that strive or pretend to promote altruistic interests, as explained in Andrea Bianchi, op. cit. Henceforth, lex privata manifestations can counter negative regulations of other private actors that do not rely on the support of publicly endorsed law.Google Scholar

¹⁵⁵ See Halliday, supra note 10, at 29; Thürer, supra note 18, at 44–46; Pérez-Prat Durbán, supra note 21, at 22–23; Buergenthal, supra note 38, at 804; Bianchi, supra note 14, at 188- 191; Math Noortmann, Bas Arts & Bob Reinalda, The Quest for Unity in Empirical and Conceptual Complexity, in Non-State Actors in International Relations 301–302 (Arts, B. et. al. eds., 2001).Google Scholar

¹⁵⁶ Regarding the disaggregated analysis of State behavior, see Posner, supra note 70, at 40–41, 71.Google Scholar

¹⁵⁷ See Cassese, supra note 37, at 220–221, 225–231. Moreover, Humanitarian legal issues have a communitarian dimension that is not denied by the not-so integrated and synergic character of many layers of world relations. The international society can have communitarian traits when it is called to operate guided by solidarity. Therefore, the protection of human dignity is a common endeavor that forms part of the community layers of world (global) relations, reinforced by some of its norms being peremptory and generating erga omnes obligations. Concerning these issues, see Manuel Díez de Velasco, Instituciones de Derecho Internacional Público 61 (2001).Google Scholar

¹⁵⁸ Concerning this rule, see Bantekas & Nash, supra note 74, at 9–10. Additionally, see Articles 5, 7 and 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 146 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, or 129 of the Geneva Convention relative to the Treatment of Prisoners of War, among others.Google Scholar

¹⁵⁹ See Demeyere, Bruno, State's Innovative Mechanisms to Prevent Corporate Human Rights Crimes Abroad: Using ‘Due Diligence’ to Complement International Criminal Law's Regulatory Leverage, Criminal Jurisdiction 100 Years after the 1907 Hague Peace Conference, 181–182, 185 (2009); John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, 7 April 2008, A/HRC/8/5, paras. 27 through 32; Amartya Sen, Elements of a Theory of Human Rights, 32 Philosophy & Public Affairs 345 (2004); Reinisch, supra note 1, at 53, 67–68, 77; Thürer, supra note 18, at 46–47; Reinalda, supra note 18, at 13; Clapham & Jerbi, supra note 19, at 347-348; Gatto, supra note 19, at 431.Google Scholar

¹⁶⁰ See Clapham, Andrew, The Role of the Individual in International Law, 21(1) Eur. J. of Int'l L. 29–30 (2010).Google Scholar

¹⁶¹ See supra footnote 7, among others.Google Scholar

¹⁶² See Cassese, supra note 37, at 225–231.Google Scholar

¹⁶³ In the same sense, see Domingo, supra note 42, at 174–181.Google Scholar

¹⁶⁴ See Jessup, Philip, Transnational Law (1956); Koh, supra note 6, at 2626; Gómez Robledo, supra note 110, at 179.Google Scholar

¹⁶⁵ See Nijman, supra note 23, at 36, 40.Google Scholar

¹⁶⁶ The effectiveness of norms and the protection of legal goods that have global dimensions is not possible nowadays with the isolated actions of entities or legal systems, as explained in the case of the actions against transnational crime in: Anna Badia Martí, Cooperatión international en la lucha contra la delincuencia organizada transnational (International cooperation in combating transnational organized crime), in La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público, Los actores no estatales: Ponencias y estudios (The impact of globalization on the formation and implementation of public international law, non-state actors: Papers and studie) 337–338, 342–343 (Victoria Abellán Honrubia & Jordi Bonet Pérez (Dirs.), 2008).Google Scholar

¹⁶⁷ On the expressive function of law, see Goodman, Ryan, Incomplete Internalization and Compliance with Human Rights Law, 19(4) Eur. J. of Int'l L. 735 (2008); Mauricio García Villegas, supra note 152, at 40. For the impact and influence of words in law regarding non-state actors, see Alston, Philip, supra note 5, at 3–4.Google Scholar

¹⁶⁸ It is recognized that non-state actors may prove to be invaluable contributors to the promotion of human rights or may be violators of their content. See Arat, Zehra Kabasakal, Looking beyond the State But Not Ignoring It, in Non-State Actors in the Human Rights Universe 4-18 (George Andreopoulos et. al. eds., 2006); Buergenthal, supra note 38, at 803–806. The Inter-American Commission on Human Rights, for example, has requested both States and non-state actors to answer questionnaires on the same issues, highlighting how the participation of these entities is crucial, and those actors have also filed reports before treaty bodies of the universal human rights system in the United Nations. See Pérez-Prat Durbán, supra note 21, at 35–36, available at: http://www.oas.org/es/cidh/defensores/docs/pdf/Def2011SCEN.pdf and http://www.oas.org/es/cidh/defensores/docs/pdf/Def2011EstEN.pdf (last accessed: 16 June 2012).Google Scholar

¹⁶⁹ See Kingsbury, Krisch & Stewart, supra note 2, at 5, 8–10, 12–13; Kingsbury, supra note 23, at 52–55, 57; del Arenal,supra note 1, at 25, 53.Google Scholar

¹⁷⁰ See McDougal, Myres & Lasswell, Harold, The Identification and Appraisal of Diverse Systems of Public Order, 53 The Amer. J. of Int'l L. 3–5, 11 (1959).Google Scholar

¹⁷¹ See Concurring Opinion of Judge Cançado Trindade, supra note 22, at paras. 15, 19, 25; Nijman, supra note 23, at 136; Janne Elisabeth Nijman, The Concept of International Legal Personality; An Inquiry Into the History and Theory of International Law 473 (2004).Google Scholar

¹⁷² See Arenal, del, supra note 1, at 27–28, 34, 52–53, 64–66; Anna Badia Martí, supra note 166, at 319–320, 324, 336, 342; Francisco Galindo Vélez, Consideraciones sobre la determinatión de la condition de refugiado (Considerations on the determination of refugee status), in Derecho Internacional de los Refugiados (International Refugee Law) 60–61(Sandra Namihas ed., 2001); Lavenex, supra note 1, at 388; Gatto, supra note 19.Google Scholar

¹⁷³ See Lavenex, supra note 1, at 377.Google Scholar

¹⁷⁴ See Clapham & Jerbi, supra note 19, at 339.Google Scholar

¹⁷⁵ About this phenomenon, see Krisch, Nico, Global Administrative Law and the Constitutional Ambition, supra note 53, at 11, 18–19, 21.Google Scholar