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.
the United Nations Human Rights Treaty Bodies ( ILA 2004 ).
8 International Law Commission, ‘First report on formation and evidence of customary international law’, UN Doc A/CN.4/663 (17 May 2013) (First report on customary international law) paras 24–27. See also A Bianchi , ‘ Human Rights and the Magic of Jus Cogens ’ ( 2008 ) 19 EJIL 491 .
9 McCall-Smith (n 7); K McCall-Smith , ‘ Reservations and the Determinative Function of Human Rights Treaty Bodies ’ ( 2012 ) 54 German YbIL 521 . See , generally, G Ulfstein , ‘ Law-Making by
This chapter argues that international organisations can be conducive to the emergence or consolidation of the customary status of those primary rules of international law which their sanctions are meant to vindicate. It shows that the contribution of sanctions to the formation of custom varies significantly depending on the concrete situation. In cases where international organisations react to breaches of obligations that already have an erga omnes status and their standing to adopt sanctions is uncontested under the law of countermeasures, international organisations contribute to consolidation and clarification of custom. Ironically, however, the potential for customary law-making is greater when the erga omnes status of an obligation towards which an international organisation is reacting to is not yet confirmed. The illegality or legal uncertainty shrouding such sanctions under the law of responsibility does not preclude their potential in customary law-making – in fact, it may maximise their contribution. In discussing these situations, the present chapter makes an important distinction between the act of sanction and the act of protest. This makes it possible to argue that it is protests accompanying the act of sanction that have a role to play in custom-making, rather than the act of sanction itself.
The International Law Commission held that that the conduct of non-State actors ‘is not practice that contributes to the formation, or expression, of rules of customary international law’ for the sake of the identification of customary international law. However, the present chapter argues that the activities of de facto regimes can be considered as properly speaking ‘practice’ that contributes to the formation, or expression, of rules of customary international law under two scenarios. Firstly, the custom-creating or custom-strengthening conduct of the de facto regimes might be attributed to a State, usually to an occupying power or a State supporting in various means the entity by exercising effective control or at least decisive influence over it. Secondly, de lege ferenda, even without attribution, the conduct of de facto regimes should be taken into account as strengthening the practice forming customary international law at least in subject matters governing the rights and obligations of the de facto regimes itself. This chapter argues that in both scenarios the de facto regimes’ law-making capacity and conduct should be taken into account either as relevant sources for identifying the ‘practice’ of States or the conduct of international organisations, or as relevant ‘practice’ as such.
developments that had already proposed a rethinking of the classic State-centred approach giving due regard to the undeniable expansion ratione personae of international law but without granting them lawmaking powers. In this vein, it is worth quoting what d’Aspremont had argued in 2010 when he affirmed that:
There is no doubt that, whatever the influence of these non-State actors may be, States remain the exclusive international law-makers. The upstream influence wielded by some non-State actors can help ignite new law-making initiative or orientate ongoing law-making
contracting parties do not intend to confer any
‘law-making’ function. This is underlined by that fact
that the CETA contracting parties retain some control over the
interpretations of the CETA provisions, since the Joint Committee
can issue binding interpretative notes, which would of course also
bind the Appellate Tribunal. 104
The benefits of an appeal mechanism under the CETA
further he seems hesitant to attribute ‘autonomous law-making power’ to international organisations whatever that signifies. 32 On the other hand, he puts forward his belief that generally international organisation practice may be relevant, especially in cases when it pertains to activities akin to those undertaken by States, and when States have assigned competence to the international organisation. 33 The aforementioned proposal of the Drafting Committee encapsulates in its generality these ideas and so he proposes no amendments to it.
The Commission members
Taking the role of non-governmental organisations in customary international lawmaking seriously
Law 911 .
86 See e.g. T van Boven , ‘ Role of NGOs in International Human Rights Standard Setting: A Prerequisite of Democracy ’ ( 1990 ) 90 California Western International Law Journal. See on the mixed prospects of extraterritoriality: Wilde (n 41) 127 – 75 .
87 See on the relationship between soft law and customary international law: A Pellet , The Normative Dilemma: Will and Consent in International Law-Making (1989) 12 Australian Year Book of International Law 30 .
88 See on non-governmental organisation involvement in the
the International Court of Justice, has often modified and created customary international law.
Similar points were made by Sir Robert Jennings, who stated that the work of the International Law Commission is ‘not limited to drafting and proposing but is, within its limits, genuinely law-making’. 31 Jennings makes a case for a need of international lawyers to detach themselves from domestic legislation analogies, and accept that in the international legal system authority is material, rather than formal. Although the Commission’s work is not binding as a formal
this example to my very first meeting with Professor Jan Klabbers.
34 M Milde , International Air Law and ICAO , vol 4 ( Eleven International Publishing 2008 ); Ludwig Weber , International Civil Aviation Organization ( Wolters Kluwer 2007 ).
35 E Yemin , Legislative Powers in the United Nations and Specialized Agencies ( AW Sijthoff 1969 ) 146 .
36 R Abeyratne , ‘ LawMaking and Decision Making Powers of the ICAO Council: A Critical Analysis ’ ( 1992 ) 41 Zeitschrift fur Luft-und Weltraumrecht 387 .
37 J Carroz