The traditional state-centric structure of international law is being seriously undermined by the increasing number of non-state actors with consistent territorial authority, like the Taliban in Afghanistan and the Houthis in Yemen. Even though they demonstrate elements of effective administration, their legal status is still questionable. This article examines three interrelated dimensions, the conditions under which non-state actors may be recognized and acknowledged as legitimate governments, the extent to which their actions are regulated according to international humanitarian law (IHL) and international human rights law (IHRL), the attribution of international accountability for violations that were committed within their jurisdiction.
The subject matter explores deeper into the manner in which the United Nations addresses these entities, emphasizing upon the way their legal identity as well as obligations are influenced by Security Council non-recognition principles, human rights policies, and interconnections to international criminal accountability intersect to shape their legal personality. The article argues about the dynamic interpretation of international law in circumstances of fragmented sovereignty through exploring concerns regarding recognition, legitimacy, along with responsibility under the wider framework of UN rules.
By accomplishing this, the article demonstrates how legal personality and sovereignty are changing on a global level. It underlines the UN’s role in negotiating these shifting circumstances by establishing a balance between state sovereignty principles and the requirements of peacekeeping, human rights protection, and conflict resolution. By emphasizing on these overlapping aspects, the conversation illustrates the continuous evolution of international law as it confronts the actualities of governance beyond conventional state borders, which opens the door for fresh perspectives on legitimacy, norms, and justice in an internationally recognized order that continues to grow more and more disintegrating.
Keywords: Non-state actors, Subjects of International law, Recognition of Governments, United Nations and Non-Recognition, International responsibility.
Introduction
The concept of sovereign equality among the nations, that preserves the state as the sole and exclusive subject of rights and responsibilities under international law, is the fundamental basis of the Westphalian conception of international law. The increasing prominence of non-state actors, such as the Taliban in Afghanistan, the Houthis in Yemen, and other armed organizations that perform essential governmental tasks, constitutes an increasing danger to this traditional state-centric structure.These entities generally have the qualities of governance, such as public administration, taxes, and law enforcement, however they are not granted the same statutory status as states or other officially recognized governments. A fundamental normative lacuna in the prevailing international legal framework is made apparent by the challenge of effective control without recognition[1].
The constitutive theory, which emphasizes recognition as essential to a state or government’s legal existence, and the declaratory theory, which defines recognition as merely acknowledging the existing factual condition, have historically served as the two main approaches to government recognition. ² However, neither theory adequately confronts modern institutions that sustain de facto authority over territory while ignoring core human rights principles or jus cogens norms[2].The modern trend toward “legitimacy-based recognition” emphasizes the growing significance of sustaining international norms as contrasted with merely achieving military or constitutional goals[3].
In the meantime, the generally recognized scope of international humanitarian law (IHL) and international human rights law (IHRL) has gradually broadened to incorporate non-state entities who participate in armed conflicts. The ICRC’s 2023 Guidance on the Implementation of IHL to Armed Groups Holding Territorial Control emphasises the fact that organizations that perform governance responsibilities have an obligation to uphold humanitarian norms and fundamental human rights to the greatest extent of their abilities[4].This trend has been strengthened by decisions from international tribunals which include the European Court of Human Rights (Ilascu and Others v. Moldova and Russia, 2004), which considered de facto authorities accountable when they fail to enforce effective jurisdiction over populations[5]. The status of non-state entities exercising territorial control is complicated by the issue of international responsibility. The Draft Articles on State Responsibility (2001) of the International Law Commission (ILC) ascribe conduct to states primarily through their organs or agents, but they are unclear when these actors operate outside of state authority. The question of whether the territorial state, the non-state entity, or both are accountable for violations in areas under their control has been raised by this unpredictability. The United Nations, by its non-recognition policy and limited engagement with de facto regimes, demonstrates a pragmatic yet inconsistent equilibrium between legal principle and political requirements.
This article highlights three interconnected issues when non-state actors may be recognised as legitimate governments. The extent of their obligations under international humanitarian law and human rights law increasingly depends on observance to international obligations rather than mere effective control. The article by examining these dynamics within the framework of United Nations emphasizes how recognition, legitimacy and accountability once exclusive to states are now shared with non-state entities revealing the transformation of sovereignty and responsibility in contemporary international law.
[1]Malcolm N. Shaw, International Law, 9th ed. (Cambridge: Cambridge University Press, 2021), 159–161.
[2]Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947).
[3]Erika de Wet, “Reappraising Recognition: Legitimacy and Effectiveness in International Law,
[4]International Committee of the Red Cross (ICRC), Guidance on the Application of International Humanitarian Law to Armed Groups Exercising Territorial Control, 2023.
[5]ilascu and others v. Moldova and Russia, App. No. 48787/99, Judgment (ECHR, 8 July 2004).