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.
J. Gruhl, C. Spohn and S. Welch, ‘Women
as policy makers: the case of trial judges’, 25 American
Journal of Political Science (1981) 308.
On the process of reaching judgment in the ICJ
see R. Higgins, ‘Remedies and the InternationalCourtofJustice: an introduction’, in M. Evans (ed
reflects its capacity to autonomously contribute to the formation of customary international law. The aim of the following pages will be to describe an alternative framework able to reconcile these two faces of the same coin.
Consider this paradox: while certain institutional organs play a major part in the identification and application of customary law, they refuse to acknowledge the role of their organization. For instance, the InternationalCourtofJustice actively contributes to the identification of customary law while avoiding taking a stance on the role of the
dissents in the 1998 Lockerbie cases. Judge Schwebel stated that ‘it does not follow from the fact that the decisions of the Security Council must be in accordance with the Charter, and that the InternationalCourtofJustice is the principal judicial organ of the UN, that the Court is empowered to ensure that the Council’s decisions do accord with the Charter’. 76 He argued strongly against judicial review by stating that such a development would not be ‘evolutionary but revolutionary’. He stated that it is not possible to imply such a power for the ICJ as it would
The facts that the UN and other similar inter-governmental organisations (IGOs) are operational and that their decisions affect the lives of millions, have led to greater demands for accountability of IGOs and access to justice for victims when they have caused. This chapter looks at how the primary and secondary rules of international law are upheld in different forms and mechanisms of accountability, including courts. The inadequacies of the International Court of Justice as a constitutional court have led to victims seeking justice before regional and national courts. The chapter explores the practicalities of accountability both at an institutional level and at a more local level. It concludes with an examination as to how far the UN has evolved in terms of accountability for wrongs committed by those working for it by considering sexual abuse committed by peacekeepers in the Democratic Republic of Congo.
Kosovo advisory opinion, the InternationalCourtofJustice found that UNMIK regulations are not to be considered domestic acts of Kosovo, but legislation imposed by the United Nations on the basis of the United Nations Charter, i.e. from international law obligations. 19 However, this view was not unanimous. Cançado Trindade took a different approach, concluding that Kosovo under UNMIK was a trusteeship. 20 Yusuf went further and concluded that UNMIK regulations were the domestic law of Kosovo. 21 In his view, we can distinguish between the authority to govern
output of the International Law Commission. Such output does, however, merit special consideration in the present context. As has been recognized by the InternationalCourtofJustice and other courts and tribunals, a determination by the Commission affirming the existence and content of a customary rule may have particular value ; as may a conclusion by it that no such rule exists. This flows from the Commission’s unique mandate from States to promote the progressive development of international law and its codification, the thoroughness of its procedures
relevant discussion was permeated by a purely State-centric view of international lawmaking. Scholars have debated whether international organisation resolutions may be constitutive of State practice or opinio juris . 6 The debate was sparked by the jurisprudence of the InternationalCourtofJustice and mainly the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) judgment 7 and the Legality of the Threat or Use of Nuclear Weapons advisory opinion. 8 In the former case, the Court held that: ‘ opinio juris may, though with
imposed by the Security Council, by virtue of Article 103 of the Charter. Two case studies featuring judicial decisions on the primacy of UN obligations by the InternationalCourtofJustice in the Lockerbie cases of 1992 and 1998, and the European Court of Human Rights in the Al-Jedda case of 2011, serve to illustrate the controversies surrounding constitutionalism.
Chapter 4: International legal personality: the key to autonomy
This chapter addresses the legal construction that helps to answer the question of how the UN and similar IGOs are separate and
malfunctioning of the dominant approach of custom as a ‘source’ of international law, and suggests avenues to refresh international lawyers’ reflections on customary international law.
1 Opinio juris and State practice in the dominant approach to customary international law
Despite the widespread scholarly inclination to extract the two-element variant of the doctrine of customary law from Article 38 of the Statute of the Permanent Court of International Justice and the InternationalCourtofJustice, it can be defended that the two elements of custom, namely, practice