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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.

Veronika Bílková

In 2018, the United Nations International Law Commission adopted, on second reading, a set of Conclusions on Identification of Customary International Law . 1 The document, now submitted to the United Nations General Assembly, contains sixteen conclusions relating to various aspects of the formation and identification of customary international law. The basic approach that the document embraces is a traditional one. A rule of customary international law emerges when there is ‘a general practice that is accepted as law ( opinio juris )’ . 2 The practice is

in International organisations, non-State actors, and the formation of customary international law
Mirror or looking-glass?
Luíza Leão Soares Pereira

This chapter addresses one specific aspect of the International Law Commission’s work on the identification of customary international law: how it sees its own output in relation to custom. While in the latest Conclusions and Commentary on the Identification of Customary International Law (hereafter ‘the Conclusions’) it dedicates specific sections to ‘teachings of publicists’ and judgments, the Commission chose not to dedicate a discrete sub-heading to its own work, instead mentioning it in passing in the commentary preceding the ‘Significance of certain

in International organisations, non-State actors, and the formation of customary international law
Author: Sara De Vido

The book explores the relationship between violence against women on one hand, and the rights to health and reproductive health on the other. It argues that violation of the right to health is a consequence of violence, and that (state) health policies might be a cause of – or create the conditions for – violence against women. It significantly contributes to feminist and international human rights legal scholarship by conceptualising a new ground-breaking idea, violence against women’s health (VAWH), using the Hippocratic paradigm as the backbone of the analysis. The two dimensions of violence at the core of the book – the horizontal, ‘interpersonal’ dimension and the vertical ‘state policies’ dimension – are investigated through around 70 decisions of domestic, regional and international judicial or quasi-judicial bodies (the anamnesis). The concept of VAWH, drawn from the anamnesis, enriches the traditional concept of violence against women with a human rights-based approach to autonomy and a reflection on the pervasiveness of patterns of discrimination (diagnosis). VAWH as theorised in the book allows the reconceptualisation of states’ obligations in an innovative way, by identifying for both dimensions obligations of result, due diligence obligations, and obligations to progressively take steps (treatment). The book eventually asks whether it is not international law itself that is the ultimate cause of VAWH (prognosis).

Michael Wood

The present volume is a timely addition to the vast (and still growing) literature on customary international law. In 2018 the United Nations International Law Commission adopted, on second and final reading, a set of sixteen conclusions (with commentaries) on identification of customary international law, 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

in International organisations, non-State actors, and the formation of customary international law
Antal Berkes

The International Law Commission’s work on the identification of customary international law raised the question whether actors other than States may play a role in the formation or expression of customary international law. Beyond international organisations whose contribution to the formation of customary international law 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

in International organisations, non-State actors, and the formation of customary international law
Tomoko Yamashita

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 Customary International Law in 2018, decisions of international tribunals serve as a subsidiary means for the ascertainment of rules of customary international law. 1 That said, in light of the principle non ultra petita , the real contributors appear to be the claimants who raise discussions for customary international law determination before a tribunal, which then decides only

in International organisations, non-State actors, and the formation of customary international law
William Thomas Worster

Although it is often argued that international organizations do not contribute to customary international law 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 International organisations, non-State actors, and the formation of customary international law
Michael Byers

Introduction Most of humanity shares two searing memories: the collapse of the World Trade Center on 11 September 2001; and a hooded man standing on a box with wires dangling from his outstretched hands. These images capture the painful truth that both sides in the so-called ‘war on terror’ have violated fundamental rules. But while non-state actors can violate international law, only states are able to change the law, making their breaches of greater potential consequence. In this chapter, I consider how the recent actions of the United States

in ‘War on terror’
Alexis Heraclides and Ada Dialla

Advocates and opponents of humanitarian intervention From the 1860s onwards, international law became an academic discipline in its own right in Europe and the Americas, taught separately from philosophy, natural law or civil law, and came to be written by professional academics or theoretically inclined diplomats. 1 Until then what existed was the droit public de l’Europe or ‘external public law’. Britain in particular had to

in Humanitarian intervention in the long nineteenth century