1 H. J. Steiner, ‘Book Review: Human Rights in the Private Sphere, by Andrew Clapham’, (1995) 89 AJIL 844.

2 In 2001 a legal journal was even dedicated to this subject, Non-state Actors and International Law, published by Martinus Nijhoff. Since 2006 this journal has merged with the International Law FORUM du droit international to form a new journal, the International Community Law Review. See, on the growing role of non-state actors, W. P. Heere (ed.), From Government to Governance: The Growing Impact of Non-state Actors on the International and European Legal System (2004).

3 Since the beginning of the twenty-first century several international instruments have been adopted in an effort to regulate the conduct of non-state actors, and in particular transnational corporations, in the human rights sphere. See, for example, the Commission on Human Rights Sub-commission on the Promotion and Protection of Human Rights, Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12 (2003), and the UN Global Compact, launched on 26 July 2000, containing a set of principles to which corporations can voluntarily adhere. In July 2005 the then UN Secretary-General, Kofi Annan, appointed John G. Ruggie as his Special Representative on the issue of human rights and transnational corporations and other business enterprises. The appointment followed a request from the former UN Commission on Human Rights (see Human Rights and Transnational Corporations and Other Business Enterprises, Res. 2005/69 (2005)).

4 Since human rights are concerned, the UN Human Rights Committee's General Comment 31 indirectly addresses the public/private divide of human rights. The committee nevertheless emphasizes that the primary obligations remain with the state: ‘The article 2, paragraph 1 obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.’ (Human Rights Committee, General Comment No. 31 [80], Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004)) See on the relation between human rights and the ‘fading’ boundary between public and private in international investment law, Harten, G. Van, ‘The Public–Private Distinction in the International Arbitration of Individual Claims against the State’, (2007) 56 International and Comparative Law Quarterly 371CrossRefGoogle Scholar.

5 S. Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’, (2006) 19 LJIL 339, at 340.

6 See, on the privatization of prison and security services, and the impact on accountability for human rights abuses, Roseman, N., ‘The Privatisation of Human Rights Violations – Business Impunity or Corporate Responsibility? The Case of Human Rights Abuses and Torture in Iraq’, (2005) 5 Non-state Actors and International Law 77CrossRefGoogle Scholar.

7 Slaughter, A.-M., ‘The Accountability of Government Networks’, (2000–1) 8 Indiana Journal of Global Legal Studies 347Google Scholar.

8 Ratner, S. R., ‘Corporations and Human Rights: A Theory of Legal responsibility’, (2001–2) 111 Yale Law Journal 443, at 494 ffCrossRefGoogle Scholar. Similarly John Ruggie, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, has explicitly decided not to adopt such an approach: ‘Some stakeholders believe that the solution lies in a limited list of human rights for which companies would have responsibility, while extending to companies, where they have influence, essentially the same range of responsibilities as States . . . the Special Representative has not adopted this formula.’ (Human Rights Council, John Ruggie, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Advance Edited Version, UN Doc. A/HRC/8/5 (2008), para. 6)

9 As has been pointed out by V. Leary, in the 1998 ASIL Annual Meeting a panel was called ‘The Accountability of International Organisations to Non-state Actors’, somehow implying that international organizations are not to be considered as non-state actors. See remarks by Leary, V., ‘Wrap-Up: Non-state Actors and Their Influence on International Law’, (1998) 92 American Society of International Law Proceedings 380, at 386Google Scholar.

10 See for example the statement by an official from the UN Office on Drugs and Crime to the UN General Assembly's Third Committee, ‘Human Trafficking, Smuggling of Migrants, Corruption, Drug-Related Violence Highlighted as Debate Begins on Crime Prevention, International Drug Control’, UN Doc. GA/SHC/3848 (2006).

11 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174.

12 Higgins, R., Problems and Process: International Law and How We Use It (1994), 49Google Scholar. See also on the ‘limited value’ of these concepts M. Shaw, International Law (2003), 232.

13 See for instance R. McCorquodale, ‘An Inclusive International Legal System’, (2004) 17 LJIL 477. The authors suggest conceptualizing the international legal system as inclusive rather than exclusive of non-state actors.

14 Schermers, H. G. and Blokker, N. M., International Institutional Law: Unity within Diversity (2003), 992Google Scholar, and Klabbers, J., An Introduction to International Institutional Law (2003), 43Google Scholar.

15 See Reparation for Injuries, supra note 11, para. 90.

16 See on this Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989), 94Google Scholar; and American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States (1987), para. 702.

17 Hannum, H., ‘The Status of the Universal Declaration of Human Rights in National and International law’, (1995–6) 25 Georgia Journal of International & Comparative Law 287, at 322Google Scholar. See also T. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46, at 61. See, for a more cautious approach, R. Ergec, Protection européenne et internationale des droits de l'homme (2006), 27 and 35.

18 Human Rights Committee, Report Submitted by the United Nations Interim Administration Mission in Kosovo to the Human Rights Committee on the Human Rights Situation in Kosovo since June 1999, UN Doc. CCPR/C/UNK//1 (2006), paras. 123–124 (emphasis added).

19 See Cogen, M., ‘Human Rights, Prohibition of Political Activities and the Lending-policies of World Bank and International Monetary Fund’, in Chowdhury, R. S., Denters, E. G., and de Waart, P. J. I. M. (eds.), The Right to Development in International Law (1992), 379Google Scholar.

20 See for instance Matthews v. United Kingdom, Application No. 24833/94, 18 February 1999, ECHR, Rec. 1999-I, paras. 31–35.

21 See for instance A. Boyle and C. Chinkin, The Making of international law (2007), in particular ch. 2.

22 See Ruggie, supra note 8, paras. 50 ff.

23 See, on the potential negative implications of the Alien Tort Statute on foreign investments, Hufbauer, G. C. and Mitrokostas, N. K., ‘International Implications of the Alien Tort Statute’, (2004) 7 Journal of International Economic Law 245CrossRefGoogle Scholar.

24 Report of the International Law Commission, 53rd session (2001), Draft articles on Responsibility of States for Internationally Wrongful Acts, G. A. Off. Recs, Suppl. No. 10 (A/56/10), Ch. IV, Art. 4, para. 1.

25 Ibid., Art. 8.

26 See Lowe, V., ‘Jurisdiction’, in Evans, M. (ed.), International Law (2006), 247Google Scholar.

27 Brownlie, I., Principles of Public International Law (2003), 65Google Scholar.

28 See also Ratner, supra note 8, at 477 ff.

29 See, for a similar conclusion, Bornstein, H. R., ‘The Alien Tort Claims Act in 2007: Resolving the Delicate Balance between Judicial and Legislative Authority’, (2007) 82 Indiana Law Journal 1007, at 1077, 1092Google Scholar.

30 Art. 3 of the OECD Conventions, as cited by Weissbrodt, D. and Kruger, M., ‘Human Rights Responsibilities of Businesses as Non-state Actors’, in Alston, P. (ed.), Non-state Actors and Human Rights (2005), 314, 329, n. 72Google Scholar.

31 One has to bear in mind that the ATS is a national instrument, which in addition is subject to much criticism in the United States itself. See, for the official US position on the ATS, J. B. Bellinger III, ‘Enforcing Human Rights in US Courts and Abroad: The Alien Tort Statute and Other Approaches’(2008), The 2008 Jonathan I. Charney Lecture in International Law, available at www.state.gov/s/l/rls/103506.htm. See also Ketchel, A., ‘Deriving Lessons for the Alien Tort Claims Act from the Foreign Sovereign Immunities Act’, (2007) 32 Yale Journal of International Law 191Google Scholar.

32 See also the decision of the US Supreme Court in the case Sosa v. Alvarez-Machain, 542 U.S. (2004), 23 ff.

33 Ibid.

34 See Bornstein, supra note 29, at 1077, 1087.

35 See, for a similar critique, Vazquez, C. M., ‘Direct vs. Indirect Obligations of Corporations under International Law’, (2004–5) 43 Columbia Journal of Transnational Law 927Google Scholar.

36 Ibid.

37 Report of the Preparatory Committee on the Establishment of an International Criminal Court, Part I: Draft Statute for the International Criminal Court, UN Doc. A/CONF.183/2/Add.1 (1998).

38 See for instance P. Weil, ‘Towards Relative Normativity in International Law?’, (1983) 77 AJIL 413; Klabbers, J., ‘The Undesirability of Soft Law’, (1998) 67 Nordic Journal of International Law 381CrossRefGoogle Scholar.

39 See Ratner, supra note 8, at 486.