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.
question must be undertaken with a sense of legal right of obligation’, 5 implies that the relevant opinio juris is that of the actors whose practice counts, that is, again, of States and, sometimes, international organizations.
The place that the International Law Commission reserves to non-Stateactors in the formation of customary international law is therefore a marginal one. Their conduct does not count as the general practice ( usus longaevus ); their views do not qualify as the acceptance of the binding nature of the practice ( opinio juris ). At most, their
, what the Commission did and did not say with regard to the role of international organizations and that of ‘non-Stateactors’, since some of the contributions in this volume (like one or two States in the UN General Assembly’s Sixth Committee) seem not to have fully appreciated what was said within the Commission or what the Commission itself actually said in its second reading texts. The Commission’s second reading in 2018 involved a detailed review of the earlier draft conclusions and commentaries (adopted on first reading in 2016) in light of comments received
The question of the role of non-Stateactors in custom-forming processes has recently resurfaced in international lawyers’ discourses. We have been here before. In fact, the contribution of non-Stateactors to international customary law – that is to behaviourally self-generated law – has already been the object of innumerable discussions and scholarly exchanges over the last decade. 1 Previously, scholarly interest for the question had been kindled by the International Committee of the Red Cross’s study on customary humanitarian law and, especially by some of
The influence of non-Stateactors in international law is almost uncontested. 1 It is commonly recognized that non-Stateactors have definitely revolutionized the traditional State-centric perspective of international law as they have permeated multiple international legal dynamics and institutions. 2 Accordingly, non-Stateactors are nowadays addressees of rights and obligations contained in international treaties 3 and customary law, 4 they have appeared before international courts, 5 they have promoted massive international summits that have led to the
Stories about international organisations, non-State actors, and the formation of customary international law
Sufyan Droubi and Jean d’Aspremont
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-Stateactors and which it calls the dominant orthodoxy. According to this projected
This chapter seeks to shed light on the role of non-Stateactors in custom-making processes. It does so by repudiating the dominant understanding of opinio juris and practice as they are found in the two-element variant of the doctrine of customary law that has informed practice and scholarship since the 1920s. It shows that dominant approaches to opinio juris and practice are indifferent to the role of non-Stateactors by virtue of constructions that are highly questionable.
Section 1 sketches out the dominant understanding of two elements 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-Stateactors’ such as non-governmental organisations and even individuals was only briefly invoked by the Special Rapporteur. Indeed, scholar works
Taking the role of non-governmental organisations in customary international lawmaking seriously
As States and intergovernmental organisations (IGO) face a range of new challenges, non-governmental organisations are playing an increasingly important role in global governance. 1 Non-governmental organisations have led the development of a range of international treaties, triggered the domestication of international norms in a host of states, and documented abusive State and non-Stateactor practices in the most perilous environments. Non-governmental organisations are commonly referred to as norm entrepreneurs, but a substantial number of actors consider
participatory nature of the international legal system, see J d’Aspremont , ‘ International Law-Making by Non-StateActors: Changing the Model or Putting the Phenomenon into Perspective? ’ in M Noortmann and C Ryngaert (eds), Non-StateActor Dynamics in International Law – From Law-Takers to the Lawmakers 171 (Routledge 2010 ).
2 Also in this regard see International Law Commission, Michael Wood, Special Rapporteur, First report on formation and evidence of customary international law, UN Doc A/CN.4/663, paras 13–15 (17 May 2013); International Law