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Between mental states and institutional objects
Sufyan Droubi

This chapter addresses the role of international organisations in the formation of customary international law from a specific viewpoint: whether international organisations, which knowingly have many instruments to shape the behaviour of States, are also capable of shaping the opinio juris of States. For instance, would an international organisation such as the United Nations be able to promote, or at least influence the formation of opinio juris that is consistent with findings and recommendations of the Intergovernmental Panel on Climate Change? To develop my argument, I organise the chapter in two main parts – a study into the concept of opinio juris, and a study into the ability of international organisations to promote opinio juris with a desired content. This work concludes by playing down the possibility that international organisations are able to coordinate international processes in a manner to shape opinio juris pursuant to desired standards.

in International organisations, non-State actors, and the formation of customary international law

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.

A mosaic of resistance

Latin America has been a complex laboratory for the development of international investment law. While some governments and non-state actors have remained true to the Latin American tradition of resistance towards the international investment law regime, other governments and actors sought to accommodate said regime in the region. Consequently, a profusion of theories and doctrines, too often embedded in clashing narratives, has emerged. In Latin America, the practice of international investment law is the vivid amalgamation, not uniform but sharply fragmentary, of the practice of the governments sometimes resisting sometimes welcoming the mainstream approaches; the practice of the lawyers assisting foreign investors from outside and within the region; and the practice of civil society, indigenous peoples, and other actors in their struggle for human rights and sustainable development. Latin America and international investment law describes the complex roles that governments have played vis-à-vis foreign investors and investments, the refreshing but clashing forces that international organizations, corporations, civil society, and indigenous peoples have imprinted to the field; the contribution that Latin America has made to the development of the theory and practice of international investment law – notably in fields in which the Latin American experience has been traumatic: human rights and sustainable development. The authors are not only lawyers but also political scientists, not only academics but also practitioners. To the theory of international investment law, Latin American scholars have been contributing for over a century – and resting on the shoulders of true giants, Latin America and international investment law aims at pushing this contribution a little further.

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Stories about international organisations, non-State actors, and the formation of customary international law
Sufyan Droubi
and
Jean d’Aspremont

This chapter shows that the dominant approach to custom-forming has remained adverse to the idea that international organizations and non-State actors contribute to the formation of customary international law. This orthodoxy promotes an image of these actors with which we, and the subsequent contributors to this volume, engage. From the perspective of the dominant approach, international organizations are often understood as having very restricted formal participation in the formation of customary international law. More generally, this traditional perspective holds that international organizations and non-State actors only have an instrumental or merely accidental participation in custom-formation. In some variants of this perspective, the role of non-State actors in custom-formation is even denied. This dominant approach offers a convenient starting point for this discussion attempted in this volume. It simultaneously provides a sounding board for reflecting anew on the possible ways in which international organizations and non-State actors can be seen as contributing to the formation of customary law. This chapter also introduces the contributions in this volume and comments on the suggestions that the process of formation of customary international law be understood beyond the static, formal rule-making framework.

in International organisations, non-State actors, and the formation of customary international law
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A mosaic of resistance and accommodation
Sufyan Droubi
and
Cecilia Juliana Flores Elizondo

International law, and in particular international investment law, has been shaped by the struggles of resistance between the diversity of material realities and worldviews within and beyond regions. Rather than a threat to the universality of international investment law, the diverse – sometimes clashing – approaches to, and interpretations of, international investment law, both from states and non-state actors, as well as scholars, has greatly contributed to the development of the field. In this regard, the Latin America and the Caribbean region has been a complex laboratory for the development of international investment law. On the one hand, some actors, such as non-governmental organizations, indigenous peoples, local communities, and of course governments, have remained true to the region’s tradition of resistance towards the international investment law regime that derives from investment treaties that follow the models that originate in the Europe-North America region. On the other hand, new actors such as corporations, international investment lawyers, and again governments, sought to accommodate said regime in the region. Consequently, a profusion of theories and doctrines – which, notably, come embedded in different, often clashing narratives – has emerged. This mosaic of clashing actors and narratives – too complex to be fully apprehended in this introduction and, alas, in this volume – has been resisting and accommodating the international investment law regime, as defined above, and has been Latin America’s major contribution to international investment law. In this introduction, we offer some initial thoughts about this mosaic, and about the forces of resistance and accommodation that emerge in it, to frame a debate that fourteen chapters will carry out.

in Latin America and international investment law
Resistance and accommodation
Sufyan Droubi
,
Cecilia Flores Elizondo
, and
Raphael Heffron

Chapter 9 defines the invisibility and inequality that affect indigenous peoples as a problem also for international investment law. The chapter argues that the international investment law regime perpetuates both invisibility and inequality. The regime perpetuates invisibility because it is firmly grounded on the principle that governments represent all the peoples in its territory, and inequality, on the strong protection of investors. From this perspective, the authors argue, two questions arise for the international investment lawyer: what to do when the facts of a case, for instance mounting resistance, make it clear that the local government does not represent indigenous peoples; and what to do when the promotion of sustainable development for indigenous peoples clashes with the protection of investors. The chapter addresses these questions through the deconstruction of the mainstream concept of statehood and of the neoliberal belief that the protection of investors reverts to continuous development for all. The chapter draws on critical statehood scholarship, on critical development theories, and on energy justice studies to bring visibility and justice to indigenous peoples and to affirm them as full participants, on their own terms, in international investment law. On a theoretical level, this is a conceptual chapter that falls within socially informed critiques to international law.

in Latin America and international investment law