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This collection of chapters provides the most comprehensive study of the theory and practice on the contribution of international organisations and non-State actors to the formation of customary international law. It offers new practical and theoretical perspectives on one of the most complex questions about the making of international law, namely the possibility that actors other than states contribute to the making of customary international law. Notwithstanding the completion by the International Law Commission of its work on the identification of customary international law, the making of customary international law remains riddled with acute practical and theoretical controversies which have been left unresolved and which continue to be intensively debated in both practice and scholarship. Making extensively reference to the case-law of international law courts and tribunals as well as the practice of treaty-monitoring bodies while also engaging with the most recent scholarly work on customary international law, this new volume provides innovative tools and guidance to legal scholars, researchers in law, law students, lecturers in law, practitioners, legal advisers, judges, arbitrators, and counsels as well as tools to address contemporary questions of international law-making.
This book examines some of the challenges which globalisation throws up for the international community from a legal perspective. It focuses on two aspects of the treatment of foreign investment by states: the general rules concerning access, operation and expropriation of foreign investment and the lex specialis of international taxation. The book describes the implications for developing states which have in the past resisted the international law rules relating to expropriation of foreign investment and sought instead the development of a new international economic order including inter alia the establishment of binding rules addressing the behaviour of transnational corporations. It traces the development of new legal concepts and techniques in different contexts and locations: in bilateral relations, in multilateral conventions and negotiations and in regional economic integration systems. The wide scope of the Uruguay Round and the linking of the separate agreements in the WTO 'package' serve to illustrate how the battle between old and new ideological strands can be played out simultaneously in different ways in different locations and with different results; it serves to highlight how ideology drives the transfer and leakage of legal concepts and principles from one field to another. Many developing states have signed up to the WTO Agreements and have embraced the free trade orthodoxy in other areas. But recent and future developments in relation to the treatment and taxation of foreign investment will constitute in some areas an assault on long-held ideological constructs hitherto shielded from or accommodated within other free trade developments.
societal structures’. 4 Thus, it is difficult to say that science fiction cinema can produce a ‘credible account’ of known international law due to the radically transformed nature of the ‘international’ society. Then is writing as legal scholars on international law in science fiction cinema an impossibility? Did the editors of this book fail to notice that science fiction movies do not deal with any of our current world international legal institutions or rules? Or are we in an alternate universe where publishers give free rein to authors to write without following
The present volume is a timely addition to the vast (and still growing) literature on customary international law. In 2018 the United Nations International Law Commission adopted, on second and final reading, a set of sixteen conclusions (with commentaries) on identification of customary international law, thus bringing to completion a six-year study of the topic. 1 Throughout that time, the question whether, and if so how, the practice of international (intergovernmental) organizations may contribute to the formation and identification of customary
The International Law Commission’s work on the identification of customary international law raised the question whether actors other than States may play a role in the formation or expression of customary international law. Beyond international organisations whose contribution to the formation of customary international law is covered in detail in the Special Rapporteur’s third report, the role of ‘other non-State actors’ such as non-governmental organisations and even individuals was only briefly invoked by the Special Rapporteur. Indeed, scholar works
International lawmaking is no longer a privilege exclusively reserved for States. As mentioned by the International Law Commission in its Conclusion 13(1) on the Identification of Customary International Law in 2018, decisions of international tribunals serve as a subsidiary means for the ascertainment of rules of customary international law. 1 That said, in light of the principle non ultra petita , the real contributors appear to be the claimants who raise discussions for customary international law determination before a tribunal, which then decides only
The international law premises of the policy school Both natural law and positivism endeavour to normativise human reality through hypostatisation or abstractionism. There is an underlying fear that law will otherwise cease to function as a framework for ordering and adjudicating a whimsical reality neutrally and objectively. The realist school
Critical theory of international law As has been seen above, realism argued against the traditional emphasis by legal systems on determinacy, objectivity and apoliticism as a means of containing the subjectivity of individual interests and sustaining legal comprehensiveness and certainty. 1 Law for the realists is a matter of choice not
The book explores the relationship between violence against women on one hand, and the rights to health and reproductive health on the other. It argues that violation of the right to health is a consequence of violence, and that (state) health policies might be a cause of – or create the conditions for – violence against women. It significantly contributes to feminist and international human rights legal scholarship by conceptualising a new ground-breaking idea, violence against women’s health (VAWH), using the Hippocratic paradigm as the backbone of the analysis. The two dimensions of violence at the core of the book – the horizontal, ‘interpersonal’ dimension and the vertical ‘state policies’ dimension – are investigated through around 70 decisions of domestic, regional and international judicial or quasi-judicial bodies (the anamnesis). The concept of VAWH, drawn from the anamnesis, enriches the traditional concept of violence against women with a human rights-based approach to autonomy and a reflection on the pervasiveness of patterns of discrimination (diagnosis). VAWH as theorised in the book allows the reconceptualisation of states’ obligations in an innovative way, by identifying for both dimensions obligations of result, due diligence obligations, and obligations to progressively take steps (treatment). The book eventually asks whether it is not international law itself that is the ultimate cause of VAWH (prognosis).
planetary species by categorizing these living creatures as ‘products’. 4 This author is not of the opinion that current international law is entirely anthropocentric. As the botanist in the above-mentioned movie, international law can sometimes be characterized as biocentric, which means that some of its rules embrace the vision according to which each species has an equal right to live on the planet. It is the case of numerous conventions protecting whales or other species from commercial predation, for instance. 5 Other rules of international law aim at protecting