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.
with which to investigate it, prior to the renewed interest in natural
and Roman law in the twelfth and thirteenth centuries. 18
International law is more than doctrine, however, and
scholars frequently accept that it has developed in practice over a long
time. 19 Yet, works
examining internationallegalpractice across any historical period are
significantly fewer than those exploring doctrine. The
not have minds of their own like natural persons since States are institutions consisting of various organs and actors. However, these criticisms overlook the role of fiction in internationallegalpractice. This section takes issue with the anthropomorphism of the doctrine of customary international law, and more specifically the fiction this anthropomorphic pattern is built on. This is the fiction according to which States may have positions which can be described as ‘thoughts’ or ‘intention’. In doing so, this section will show how such legal fiction impacts the
historical periods other than the medieval.
One reason for this, as mentioned in the introduction, is that works
examining internationallegalpractice, including that in treaties,
across any historical period are significantly fewer than those
exploring doctrine. In fact, understanding the function, role, and
theory behind particular aspects of treaties, e.g., amnesty or
necessity, in the period 700 to 1200
Taking the role of non-governmental organisations in customary international lawmaking seriously
Notwithstanding this cautionary view, the epistemic force and determinative influence of the activities of non-governmental organisations; the constitutive and generative contribution of these activities to internationallegalpractice, strengthen non-governmental organizations’ contribution to customary international lawmaking.
Non-governmental organisations remain subject to access and other restrictions, but their increasing status and rights within States and in international law is such that the merit of their contribution to the much-needed re-orientation of
The 2008 Italy–Libya Friendship Treaty and thereassembling of Fortress Europe
Chiara De Cesari
, as it were, to the public body of Qadhafi – history and memory
slipped from the radar of global public opinion. The very indistinct and misleading language of the Treaty (referring to chapter or suffering as opposed to crime)
de-materialized or, better, evacuated the utter materiality of dead Libyan bodies.
Reparations as internationallegalpractice
The Treaty consists of two key elements of reparation politics: a formal apology
and substantial material compensations. Yet as commentators have shown (Gazzini
2009), it represents a very peculiar form of reparation
idealism and realism. The discussion of Lockean contractarianism is not an effort to explore the history of the emergence of rights practices or of notions of human rights, although reference is made to that history. Nor is the considerable body of multilateral practice on human rights, particularly United Nations and internationallegalpractice, analysed in any detail.
We commonly grasp human rights issues in terms of a series of deeply entrenched oppositions, most stridently between assertions of universal, or absolute, values and forms of