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.
The dominant modem Western account
of international law is a liberal one. The international order is seen
as being based on subjective, sovereign consent,
just as a national order is based on a social contract negotiated by
individuals. The state is a member of the international community
similar to the
this aspect of the movement seriously and think about its
significance. It therefore seems appropriate to relate our research on the English
context generally, and English folk music specifically, to the burgeoning literature
on the study of indigeneity.
No clear definition of the term seems to predominate, but the concept is of
great importance within a number of disciplines, including the fields of cultural
geography, internationallegaltheory and anthropology. The approach taken by
legal theorists stems from a pragmatic enterprise to establish
international courts and tribunals. 40
It is argued here that, in their hunt for practice, international lawyers have thus espoused lethal all-embracing construction whereby practice and opinio juris , behavioural practice and interpretative practice, and declarative and constitutive processes are two elements of the same dialectical process, if not two faces of the same coin. This conflation between the declarative, the constitutive, and the interpretative can only be fatal for the two-element doctrine of customary law in internationallegaltheory and practice. By
Claims to universality and charges of particularism
redress this. The notion of
“universalism” is perhaps the most essential element in the ideology of international law. 58 Although the
concept of universalism is by no means unique to European thought,
the genealogy of the universalist strand in internationallegaltheory is rooted in Enlightenment rationalism. 59 It is broadly accepted that the
“Public Law of Europe” was “geographically
Mehmed Cavid Bey, politics and finance in the global Middle East, 1908–14
’in Hatıralari’, Tanin (7 September 1943): n. 1; diary entry
for 7 May 1909, Tanin (8 September 1943); Aykut Kansu,
Politics in post-revolutionary Turkey, 1908–13 (Leiden: Brill, 1999):
148–51; M. Naim Tufan, Rise of the Young Turks (New York, London: I. B.
Tauris, 2000); BOA, i.DUiT 8/4.
U. Özsu, ‘Ottoman Empire, the origins of
extraterritoriality, and internationallegaltheory’, in A. Ordorf and F. Hoffman
(eds), The Oxford handbook of the theory of international law
Article IX of the Agreement Establishing the
WTO. See also for example J. Jackson, The World Trading
System , MIT Press, 1989 , at p.
See A. H. Qureshi, The internationallegaltheory of IMF conditionality – an alternative approach
state and those within it. This is exemplified externally
by the principles of non-intervention 6 and non-interference in the domestic affairs
of states 7 and internally
by doctrines of immunity and non-justiciability. Internationallegaltheory has little to say about national decision-making processes,
providing limited constraints on national action mainly through human
rights principles. 8 It is
dynamics of power. (2006: 187)
Habermas devotes rather more space to the refutation of arguments derived
from the internationallegaltheory of Schmitt, which argue against the further
juridification of international politics and for the post-Westphalian emergence
of two mutually antithetical imperial hemispheres (2006: 188).5 However,
Habermas’s reasons for refuting this interpretation of contemporary world politics are very much the same as for his rejections of the other two. Habermas
traces Schmitt’s claims about international law to their grounding in moral
Taking the role of non-governmental organisations in customary international lawmaking seriously
NGOs: Reflections on A Dialogue Between Practitioners and Theorists ’ ( 2004 ) 26 Human Rights Quarterly 300 – 29 .
141 F Kratochwil, ‘Legalism and the “Dark” Side of Global Governance’ in Liivoja and Petman (n 97) 46.
142 D Kennedy , ‘ One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream ’ ( 2007 ) 3 New York University Reviews of Law and Change 646 ; cited by Andrea Bianchi , InternationalLegalTheories ( Oxford University Press 2017 ) 243 .
143 On the need for explicitness in the example of the Maastricht