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 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
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.
Although it is often argued that international organizations do not contribute to customary international law in the same manner as States, this position ignores situations where an international organization assumes the governance of a State or territory. In these cases, the usual paradigm distinguishing states from international organizations fails and the organization takes on the function of a State. A survey of citations shows that International Territorial Administrations, where an organization functions as a State government, do contribute to customary
In 2018, the United Nations International Law Commission adopted, on second reading, a set of Conclusions on Identification of Customary International Law . 1 The document, now submitted to the United Nations General Assembly, contains sixteen conclusions relating to various aspects of the formation and identification of customary international law. The basic approach that the document embraces is a traditional one. A rule of customary international law emerges when there is ‘a general practice that is accepted as law ( opinio juris )’ . 2 The practice is
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
This book is the collective use of force within the framework of the Charter, whose ambitious project is based on the premise that armed force can be resorted to exclusively in the common interest. It begins with a short discussion of the powers granted to the Security Council for the discharge of its primary responsibility for the maintenance of international peace and security, and the conditions under which these powers may be exercised. The United States, supported by its NATO allies, or at least some of them, openly challenged the authority of the Security Council and attempted to downgrade its authorisation from a legal requirement to a matter of political convenience. The book deals with the use of force by States either individually or jointly. Through the lenses of the interaction between the Charter and customary international law, it considers the evolution of the right to self-defence, the only exception expressly provided for in the Charter, and the possible re-emergence of other exceptions. The book focuses in particular on the controversial question concerning the legality of the threat or use of nuclear weapons in self-defence and of the pre-emptive military action against threats posed by these weapons. Often referring to the recent Iraqi crisis, it further deals with the collective and unilateral means at the disposal of the United Nations and its members to enforce disarmament obligations and tackle the proliferation of weapons of mass destruction.
adoption of influential treaties 6 and declarations that have promoted customary principles, 7 they have triggered unilateral actions of States, 8 and their conduct can sometimes be attributed to States in terms of international responsibility. 9 And yet, there is no consensus as to whether non-State actors can actually make or contribute to the making of customary international law. It is the aim of this chapter to shed some light on the matter by showing that, by nature, it would not be possible to provide a precise answer to those questions from traditional
International lawyers relish telling stories about customary law, its contents, and its modes of ascertainment. There is hardly a question of international law that has continuously attracted as much passionate story-telling as customary international law. The present volume contributes to such scholarly self-indulgence. Yet, it does so by presupposing that there exists an approach to custom-forming that is adverse to the central role of international organisations and non-State actors and which it calls the dominant orthodoxy. According to this projected
As other chapters in this volume confirm, the role of international organisations in the formation and expression of rules of customary international law, as well as the extent of such a role, remains controversial in legal doctrine and practice. This chapter explores several aspects of the practice of the Secretariat of the United Nations as a specific example in an attempt to identify significant points that may inform the general debate on the issue. In so doing, it follows a practical approach based on the recent work of the International Law Commission