The Normative Status of Unilateral Ad Hoc Commitments by Non-State Armed Actors in Internal Armed Conflicts: International Legal Personality and Lawmaking Capacity Distinguished

This article examines the normative status of unilateral ad hoc commitments issued by non-State armed groups during internal armed conflicts. The article sketches out the two main approaches to the question of the juridical nature of these instruments to be found in the literature, namely the consent thesis and the customary law thesis. The article notes that both theses rest on certain assumptions regarding the concepts of 'international legal personality' and 'law-making capacity' and proceeds to examine these concepts. It is argued that these concepts, although interrelated, are distinct. International legal personality signifies that international law cognises certain entities as its subjects by bestowing upon them a wide array of rights, obligations and capacities. Lawmaking capacity is best understood as a subspecies of international legal personality that may only be conferred upon a subject on the basis of State consent. The article discusses and rejects the consent thesis since it conflates the distinction between international legal personality and lawmaking capacity; it undermines the existing legal bases underpinning the application of international humanitarian law to non-State armed groups; and rests on shaky evidentiary grounds. The article turns to the customary law thesis and argues that, despite its powerful explanatory force, at this point in time at least, there is very little evidence to support it. The article concludes by stressing the wider implications of the findings reached herein. The distinction between legal personality and lawmaking capacity propounded here may serve as a broader basis for assessing commitments entered into by other non-State actors in different fields of law.