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 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 CustomaryInternationalLaw in 2018, decisions of international tribunals serve as a subsidiary means for the ascertainment of rules of customaryinternationallaw. 1 That said, in light of the principle non ultra petita , the real contributors appear to be the claimants who raise discussions for customaryinternationallaw determination before a tribunal, which then decides only
The International Law Commission’s work on the identification of customaryinternationallaw raised the question whether actors other than States may play a role in the formation or expression of customaryinternationallaw. Beyond international organisations whose contribution to the formation of customaryinternationallaw 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
Although it is often argued that international organizations do not contribute to customaryinternationallaw 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 CustomaryInternationalLaw . 1 The document, now submitted to the United Nations General Assembly, contains sixteen conclusions relating to various aspects of the formation and identification of customaryinternationallaw. The basic approach that the document embraces is a traditional one. A rule of customaryinternationallaw 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 customaryinternationallaw. In 2018 the United Nations International Law Commission adopted, on second and final reading, a set of sixteen conclusions (with commentaries) on identification of customaryinternationallaw, 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 provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court. Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes. The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations on the underlying treaties that form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a ‘real-life’ discussion of the type of conduct over which the International Criminal Court may take jurisdiction.
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 customaryinternationallaw. 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
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 customaryinternationallaw. 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 customaryinternationallaw, 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