Governance Without Government? Non-State Actors and International Law

So far, public international law doctrine has discussed questions of governance mainly with respect to institutions of global governance. As concerns areas of limited statehood, viz. weak and fragile states or post-conflict situations, the focus has been on international organizations providing governance. Yet, such international intervention occurs only in exceptional cases. In the vast majority of cases, governance is provided without governments’ direct or indirect (i.e. through international organizations) participation. Instead, different non-state actors exercise authority and often provide governance. Although the past two decades have witnessed growing interest of public international law in non-state actors, there is little legal analysis of their activities that focuses on their governance functions and takes them as a starting point. It is before this background that this paper will explore whether and to what extent non-state actors performing governance functions are bound by public international law rules concerning governance and how compliance with these rules can be ensured. It will first show that such rules can be found especially in human rights, which not only require specific procedures for political decision-making, but also the enactment of laws for particular purposes and the provision of certain collective goods (II.). The paper will then analyze whether and to what extent these public international law rules are, or can become, binding on non-state actors performing governance functions (III.). Finally, the paper will examine how compliance with these rules can be ensured and, in particular, to what extent states are necessary in ensuring enforcement-in other words whether their providing a “shadow of hierarchy” is needed (IV.). In its conclusion, the paper will bring together these three strands of ideas and thus aims at contributing, from a normative perspective, to answering the question of how much government is necessary to render governance legitimate (V.).