Abstract
Why do scholars, who generally acknowledge the international legal personality of non-State entities, still question the bindingness of the law of non-international armed conflict on insurgents? This article examines the relationship between the two dominant positivist conceptions of international legal personality and the rights and obligations of insurgents as a matter of positive international law. First, the article illustrates that the evolution of the law of non-international armed conflict corroborates Hans Kelsen's idea that the international legal personality of an entity, be it a State, an armed opposition group, or an individual, is solely contingent upon interpretation of international norms. Second, it shows that the traditional perception of States as exclusive subjects of international law -though never reflected in positive norms governing non-international armed conflict - continues to influence the current debate on the theoretical underpinnings for binding insurgents. The orthodox 'States-only' conception of international legal personality is seemingly so ingrained in the minds of contemporary international lawyers that they inadvertently rely on it when faced with international legal regulation of non-State entities. Finally, the article addresses the implications of these findings for the overall question of international legal obligations of non-State actors.
| Original language | English |
|---|---|
| Journal | Journal of International Humanitarian Legal Studies |
| Volume | 7 |
| Pages (from-to) | 32-62 |
| Number of pages | 30 |
| ISSN | 1878-1373 |
| Publication status | Published - 2016 |
