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.
international courts and tribunals. 40
It is argued here that, in their hunt for practice, international lawyers have thus espoused lethal all-embracing construction whereby practice and opinio juris , behavioural practice and interpretative practice, and declarative and constitutive processes are two elements of the same dialectical process, if not two faces of the same coin. This conflation between the declarative, the constitutive, and the interpretative can only be fatal for the two-element doctrine of customary law in internationallegaltheory and practice. By
Taking the role of non-governmental organisations in customary international lawmaking seriously
NGOs: Reflections on A Dialogue Between Practitioners and Theorists ’ ( 2004 ) 26 Human Rights Quarterly 300 – 29 .
141 F Kratochwil, ‘Legalism and the “Dark” Side of Global Governance’ in Liivoja and Petman (n 97) 46.
142 D Kennedy , ‘ One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream ’ ( 2007 ) 3 New York University Reviews of Law and Change 646 ; cited by Andrea Bianchi , InternationalLegalTheories ( Oxford University Press 2017 ) 243 .
143 On the need for explicitness in the example of the Maastricht