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.
, transnational corporations, etc., presently participate in international law, as do indigenous
peoples and minority groups. This ﬂexibility is reﬂected only to a limited
extent in current articulations of sourcesofinternationallaw.6 The entities
do not all participate in the same way: State rights are not the same as for
After N. Bobbio, The Age of Rights (Cambridge, Polity Press, 1996).
Article 4.1 of the UN Charter.
In a vast literature, one of the best general accounts remains that by A. Cassese,
Self-Determination of Peoples: A Legal Reappraisal (Cambridge
International organisations are a central component of modern international society. This book provides a concise account of the principles and norms of international law applicable to the intergovernmental organisation (IGO). It defines and explains inter-governmentalism and the role of law in its regulation. The book presents case studies that show how the law works within an institutional order dominated by politics. After a note on the key relationship between the IGO and its member states, it examines the basic relationship between the UN and states in terms of membership through admissions, withdrawal, expulsion, suspension, and representation. The debate about the extent of the doctrine of legal powers is addressed through case studies. Institutional lawmaking in the modern era is discussed with particular focus on at the impact of General Assembly Resolutions on outer space and the Health Regulations of the World Health Organization. Non-forcible measures adopted by the UN and similar IGOs in terms of their legality (constitutionality and conformity to international law), legitimacy and effectiveness, is covered next. The different military responses undertaken by IGOs, ranging from observation and peacekeeping, to peace enforcement and war-fighting, are discussed in terms of legality and practice. The book also considers the idea of a Responsibility to Protect and the development of secondary rules of international law to cover the wrongful acts and omissions of IGOs. It ends with a note on how the primary and secondary rules of international law are upheld in different forms and mechanisms of accountability, including courts.
will be whether IGOs, in exercising their autonomous competence, have the potential to produce laws in their own right, irrespective of whether their output then feeds into the traditional sourcesofinternationallaw – treaties, custom or general principles. If resolutions adopted by IGOs, matching certain legislative criteria, can be laws per se, it is unnecessary to wait to see if they are accepted in practice so as to become custom, but rather practice should be examined in order to evaluate the impact of those laws on the internal legal orders of organisations
malfunctioning of the dominant approach of custom as a ‘source’ ofinternationallaw, 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 International Court of Justice, it can be defended that the two elements of custom, namely, practice
Commission plays in international law today, as it is argued below in this chapter, remains to be seen.
12 International Law Commission, A/CN.4/672 (n 3), 2/68, fn 6.
13 Sir RY Jennings , ‘ What Is International Law and How Do We Tell When We See It ’ in Martti Koskenniemi (ed), The Library of Essays in International Law: SourcesofInternationalLaw ( Ashgate 1981 ) 60 .
14 International Law Commission, A/71/10 (n 7), 81.
15 ibid 101.
16 Once the General Assembly has taken action in relation to a final draft of the Commission, such as by
practice of the community of international lawyers who construct social arrangements that orientate the way in which an emerging customary rule can be argued. That would include, among others, the use of a technical legal language that takes into account the orthodox discourse on the sourcesofinternationallaw, preferably (and ironically) including the orthodox two-element approach of practice and opinio juris ; reference to the rule being the product of State consent or acquiesce as well as arguments trying to prove its present; 90 as well as harmony between the
character seems, in the eyes of the author of this chapter, rather overblown. The first construction is the very principle that non-State actors contribute to the formation of custom. Since the inception of international law, they have been playing a crucial role in the making of norms, including customary norms. 4 Whilst such a role has never been captured by the modern categories of the doctrine of the sourcesofinternationallaw, there seems to be no reason why recognising their cardinal (albeit informal or indirect) contribution to the custom-making process ought to
principle will provide a consensual starting point for future debates. Lastly, by offering some tentative thoughts as to the relationship between subjects and sourcesofinternationallaw, the chapter suggests there are good legal grounds why the International Law Commission should leave behind a State-centric view of the sourcesofinternationallaw and recognise the autonomous lawmaking power of international organisations.
1 It is generally accepted that international organisations possess, explicitly or otherwise, the power to conclude treaties, J Klabbers
contrast to legalists, interventionists
argue that human rights are first and foremost protected by political and military action by great powers and that legal institutions should play a secondary
role. This idea is closely linked to the interventionist view on the sourcesofinternationallaw. For them, established customary law represents the basic
The interventionist discourse
point of reference for the negotiations of the Rome Statute. This implies that
the entity to which the codification of legal rules refers is the international society of states rather than