(Research Handbooks in International Law) Brolmann, Catherine - Radi, Yannick - Research Handbook On The Theory and Practice of International Lawmaking-Edward Elgar Publishing (2016)

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RESEARCH HANDBOOK ON THE THEORY AND

PRACTICE OF INTERNATIONAL LAWMAKING
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RESEARCH HANDBOOKS IN INTERNATIONAL LAW

This highly original series offers a unique appraisal of the state-of-the-art of research and thinking in
international law. Taking a thematic approach, each volume, edited by a prominent expert, covers a
specific aspect of international law or examines the international legal dimension of a particular strand
of the law. A wide range of sub-disciplines in the spheres of both public and private law are considered;
from international environmental law to international criminal law, from international economic law to
the law of international organisations, and from international commercial law to international human
rights law. The Research Handbooks comprise carefully commissioned chapters from leading academ-
ics as well as those with an emerging reputation. Taking a genuinely international approach to the law,
and addressing current and sometimes controversial legal issues, as well as affording a clear substantive
analysis of the law, these Handbooks are designed to inform as well as to contribute to current debates.
Equally useful as reference tools or introductions to specific topics, issues and debates, the
Handbooks will be used by academic researchers, post-graduate students, practicing lawyers and
lawyers in policy circles.
Titles in this series include:
Research Handbook on International Energy Law

Edited by Kim Talus
Research Handbook on International Law and Terrorism

Edited by Ben Saul
Research Handbook on the Law Treaties

Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann
Handbook of Space Law

Edited by Frans von der Dunk
Research Handbook on International Law and Cyberspace

Edited by Nicholas Tsagourias and Russell Buchan
Research Handbook on Transnational Labour Law

Edited by Adelle Blackett and Anne Trebilcock
Research Handbook on Jurisdiction and Immunities in International Law

Edited by Alexander Orakhelashvili
Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi
/ Date: 9/2
Research Handbook on the Theory

and Practice of International
Lawmaking
Edited by
Catherine Brölmann
University of Amsterdam, the Netherlands
Yannick Radi
University of Leiden, the Netherlands
RESEARCH HANDBOOKS IN INTERNATIONAL LAW
Cheltenham, UK + Northampton, MA, USA
/ Date: 9/2
© The Editors and Contributors Severally 2016
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.
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Edward Elgar Publishing, Inc.

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A catalogue record for this book

is available from the British Library
Library of Congress Control Number: 2015954316
This book is available electronically in the

Law subject collection
DOI 10.4337/9781781953228
ISBN 978 1 78195 321 1 (cased)

ISBN 978 1 78195 322 8 (eBook)
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Contents
List of contributors xv
Preface xvii
Introduction: International lawmaking in a global world 1

Catherine Brölmann and Yannick Radi
PART I THEORETICAL VIEWS OF INTERNATIONAL LAWMAKING
1. State consent as foundational myth 13

Wouter G. Werner
2. Subjects and actors in international lawmaking: The paradigmatic divides
in the cognition of international norm-generating processes 32
Jean d’Aspremont
3. Transnational lawmaking 56
Dennis Patterson
4. Contemporary theories and international lawmaking 66
Ingo Venzke
PART II INTERNATIONAL LAWMAKING IN AN INTER-STATE SETTING
5. Lawmaking by treaty: Negotiation of agreements and adoption of treaty

texts 87
Kirsten Schmalenbach
6. Lawmaking by treaty: Conclusion of treaties and evolution of treaty
regimes in practice 111
Daniel Costelloe and Malgosia Fitzmaurice
7. The emergence of customary international law: Between theory and
practice 133
Omri Sender and Michael Wood
8. Relying on general principles in international law 160
Beatrice I. Bonafé and Paolo Palchetti
PART III INTERNATIONAL LAWMAKING BEYOND THE STATE
9. Institutional lawmaking: The emergence of a global normative web 179

Ramses A. Wessel
10. International judicial lawmaking 200
Gleider I. Hernández
11. Domestic judicial lawmaking 222
Antonios Tzanakopoulos
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12. Quasi-judicial bodies 242

Mara Tignino
13. International lawmaking by hybrid bodies: The case of financial regulation 262
Michael S. Barr
14. International lawmaking and civil society 286
Barbara K. Woodward
15. Lawmaking by scholars 305
Jörg Kammerhofer
PART IV INTERNATIONAL LAWMAKING IN SELECTED ISSUE AREAS
16. The making of international human rights law 329

Vassilis P. Tzevelekos
17. The making of international criminal law 354
Sergey Vasiliev
18. The making of international trade law 395
Mary E. Footer
19. The making of international environmental law 419
Francesca Romanin Jacur
20. The making of international natural resources law 442
Owen McIntyre
Index 467
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Extended table of contents
List of contributors xv
Preface xvii
Introduction: International lawmaking in a global world 1

1. Taking stock 1
2. Two landscapes 2
2.1 Features of the socio-legal landscape 3
2.2 Features of the theoretical landscape 6
3. The organization of this Handbook 7
PART I THEORETICAL VIEWS OF INTERNATIONAL LAWMAKING
1. State consent as foundational myth 13

Wouter G. Werner
1. Introduction 13
2. Consent, norm evolution and the purposes of law 15
3. Consent and sovereign equality 21
3.1 Consent as instrument to protect sovereign equality 21
3.2 The indeterminacy of sovereign equality 23
4. Territoriality 26
5. Conclusion 30
2. Subjects and actors in international lawmaking: The paradigmatic divides

in the cognition of international norm-generating processes 32
Jean d’Aspremont
1. Introduction 32
2. Empirical concord: The pluralization of international lawmaking 35
2.1 Manifestations of pluralization in the practice of international
lawmaking 35
2.2 Persisting state dominance? 39
3. Conceptual discord: The paradigmatic divides in the cognition of
international lawmaking 41
3.1 Subject and participant as cognitive tools of lawmaking processes 41
3.1.1 Static subject-based approaches to lawmaking 42
3.1.2 Dynamic participation-based approaches to lawmaking 45
3.2 Alternative models for the cognition of lawmaking processes 48
3.2.1 Static pedigree-based approaches to lawmaking 48
3.2.2 Dynamic output-based approaches to lawmaking 51
3.2.3 Dynamic pedigree-based approaches to lawmaking 52
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viii Research handbook on international lawmaking
4. Concluding remarks: Epistemic pluralism and epistemological

self-interests 53
3. Transnational lawmaking 56
Dennis Patterson
1. Introduction 56
2. Transnational legal phenomena 57
3. Causal and normative questions 60
4. Transnational law: International examples 60
5. Beyond positivism: Theorizing transnational law 62
6. Future work 65
4. Contemporary theories and international lawmaking 66

Ingo Venzke
1. Introduction 66
2. From sources to communicative practice 69
2.1 Distinguishing lawmaking from law application 69
2.2 The linguistic turn: Lawmaking in communicative practices 70
2.3 Making law this way? 72
3. The New Haven School 74
4. Theory of transnational legal process 75
5. Systems theory 77
6. Practice theory 79
7. Governance theory 81
8. Outlook: Global administrative law and international public authority 83
PART II INTERNATIONAL LAWMAKING IN AN INTER-STATE SETTING
5. Lawmaking by treaty: Negotiation of agreements and adoption of treaty

texts 87
1. Introduction 87
2. Negotiation of international agreements 88
2.1 Defining international negotiation 88
2.2 Principles and rules of international treaty negotiations 89
2.2.1 Attempts to codify rules of international treaty negotiations 89
2.2.2 Procedural rules on negotiation 90
2.2.3 Substantive rules applicable to negotiations 94
3. Two-party negotiations 97
4. Multiplayer negotiations at diplomatic conferences 97
4.1 Pre-conference phase: Getting organised for formal negotiations 98
4.2 Conference phase: Formal negotiations 99
4.2.1 Decision on rules of procedure 99
4.2.2 Commencement of the formal negotiations 99
4.2.3 Fine-tuning of negotiation text(s) 99
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Extended table of contents ix
4.2.4Managing complexity 100

4.2.5Group and coalition building 101
4.2.6Background factors: Non-state actors, IOs and state
observers 102
4.2.7 Final act 104
4.3 Negotiating international regimes 104
5. Adoption of the treaty text 105
5.1 Procedural placement and significance of the adoption of the text 105
5.2 Voting procedures 106
5.2.1 Conclusion of bilateral treaty negotiations 106
5.2.2 Multilateral treaty negotiations: Article 9 para 2 VCLT 106
5.2.3 International practice: If possible consensus 107
5.2.4 Pragmatic stance: Bypassing consensus 109
6. Conclusion 110
6. Lawmaking by treaty: Conclusion of treaties and evolution of treaty

regimes in practice 111
1. Introduction 111
2. The expression of consent to be bound in the procedure for the
conclusion of a treaty under the VCLT 112
2.1 The forms of a state’s expressing consent to be bound in
lawmaking by treaty 114
2.2 Lawmaking instruments going beyond the requirement of consent
under the VCLT 116
3. Lawmaking through an evolving treaty regime 117
3.1 Lawmaking through tacit acceptance (‘opting out system’) under
a treaty 118
3.2 Lawmaking through the decisions and activities of treaty bodies 118
3.2.1 Bases for the powers of COPs and MOPs to develop a
treaty regime in practice 118
3.2.2 Types of powers typically enjoyed by treaty bodies 121
3.2.3 Instances of lawmaking by COPs and MOPs 123
4. Lawmaking through the evolutionary interpretation of a treaty regime
by a judicial organ 128
5. Lawmaking through subsequent practice 130
6. Conclusions 131
7. The emergence of customary international law: Between theory and practice 133
Omri Sender and Michael Wood
1. Custom as a principal source of international law 134
2. The essential elements: Theory 137
3. The essential elements in practice 145
4. Bringing practice and theory a little closer? The International Law
Commission’s topic ‘Identification of customary international law’ 154
5. Conclusion 157
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x Research handbook on international lawmaking
8. Relying on general principles in international law 160

Beatrice I. Bonafé and Paolo Palchetti
1. Introduction: General principles as a source of international law 160
2. The identification of general principles: A source ultimately based on
consent 162
3. General principles as an autonomous source of general rules 165
4. The role of international courts and tribunals in the development of
general principles 168
5. The role of states in promoting the use of general principles 174
6. General assessment 175
PART III INTERNATIONAL LAWMAKING BEYOND THE STATE
9. Institutional lawmaking: The emergence of a global normative web 179

Ramses A. Wessel
1. Introduction: A diverse collection of normative bodies 179
2. Lawmaking by international organizations 181
2.1 Defining institutional lawmaking 181
2.2 Lawmaking in practice 183
3. Lawmaking by other international bodies 187
3.1 New forms of institutional lawmaking 187
3.2 Informal institutional lawmaking 189
3.3 Delegated institutional lawmaking 191
3.4 Lawmaking by networking 194
4. Conclusion: An institutionalized global normative web 198

1. Introduction 200
3. The International Court of Justice 202
3.1 The formal role of the International Court in international law-
making 202
3.2 Limitations to the International Court’s role in lawmaking 204
3.3 The lawmaking authority of the International Court 205
3.3.1 Beyond persuasive authority? 205
3.3.2 Judicial lawmaking in the application and interpretation
of unwritten law 208
3.3.3 Judicial lawmaking through advisory opinions 209
4. Other international courts and tribunals 212
4.1 European Court of Human Rights and Inter-American Court
of Human Rights 213
4.2 The ad hoc international criminal tribunals 215
4.3 The World Trade Organization Appellate Body 216
4.4 Interaction between international courts and tribunals? 218
5. Conclusion 219
/ Date: 18/3
Extended table of contents xi
11. Domestic judicial lawmaking 222

1. Introduction: Can courts (ever) make law? 222
2. Domestic judicial engagement with international law 224
2.1 The ‘directionality’ of international obligations 224
2.2 The ‘domestication’ of international obligations 226
3. Domestic judicial impact on international law 229
3.1 Formal impact: Domestic court decisions as facts 230
3.2 Actual influence: Domestic court decisions as triggers 231
3.3 Domestic courts as the ‘natural judges’ of international law 237
4. Domestic courts as ‘agents’ of international law development 239
5. Conclusion: Assessing the lawmaking potential of domestic court
decisions 241
12. Quasi-judicial bodies 242

Mara Tignino
1. Quasi-judicial bodies: Shared task, diverse practice 243
1.1 The Aarhus Compliance Committee 243
1.2 The Economic, Social and Cultural Rights Committee 244
1.3 The International Financial Organizations’ investigative
mechanisms 245
2. Quasi-judicial bodies: Leading institutional reform? 246
3. A contribution to common procedural fairness principles? 249
4. Quasi-judicial bodies and the development of substantive international
law 253
4.1 Quasi-judicial bodies as caretakers of their applicable norms 254
4.2 Quasi-judicial bodies as substantive international lawmakers:
How much influence? 257
5. Final remarks 260
13. International lawmaking by hybrid bodies: The case of financial regulation 262
Michael S. Barr
1. Introduction 262
2. The international financial regulatory architecture before the recent
crisis 264
2.1 Phase I: The Bretton Woods System 264
2.2 Phase II: Rise of the networks 267
3. Post-crisis reforms 272
3.1 The G-20 273
3.2 The Financial Stability Board 274
3.3 Procedural reforms 276
3.3.1 More formality 276
3.3.2 A clearer hierarchy 277
3.3.3 More political involvement 279
3.3.4 Stronger peer review 280
4. Conclusion 284
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xii Research handbook on international lawmaking
14. International lawmaking and civil society 286

Barbara K. Woodward
1. Introduction 286
2. Definitions 287
2.1 Civil society 287
2.2 International lawmaking 289
3. Mapping and analysis of CS lawmaking 290
3.1 Conference lawmaking 291
3.1.1 International humanitarian law 291
3.1.2 International human rights law 292
3.1.3 International environmental law 292
3.1.4 International human security and criminal law 293
3.2 UN processes 294
3.2.1 International human rights law 294
3.2.2 International criminal law and state responsibility 295
3.2.3 International security law 296
3.2.4 International economic law 297
3.3 Institutional lawmaking outside the UN 297
3.3.1 UN specialized agencies 297
3.3.2 UN programmes 298
3.3.3 ‘Autonomous Institutional Arrangements’ 299
3.4. Adjudicatory lawmaking 300
3.4.1 Human rights 300
3.4.2 Economic relations 301
4. Considerations of legitimacy and accountability 301
4.1 Legitimacy 302
4.2 Accountability 303
5. Conclusion 304
15. Lawmaking by scholars 305

Jörg Kammerhofer
1. Introduction 305
2. Scholarship in article 38(1)(d) of the ICJ Statute 306
3. The juridical view and its limitations 310
3.1 The sources as basis for assessing the lawmaking faculties of
scholarship 310
3.2 The dangers of admixture 313
3.2.1 The role of legal scholarship: A theory of legal science? 313
3.2.2 Scholarly activism 317
3.3 Can scholarship make law? 320
4. The socio-empirical view and its limitations 320
5. Conclusion 324
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Extended table of contents xiii
PART IV INTERNATIONAL LAWMAKING IN SELECTED ISSUE AREAS
16. The making of international human rights law 329

Vassilis P. Tzevelekos
1. The making of human rights in international law: The short and the
long version of the story to tell 329
2. A methodological impasse and two strands of shortcomings within
international legal positivism 331
3. The role of judicial recognition 338
3.1 Broadening already existing rights and the usefulness in that
respect of tools like soft law or the positive effect of human rights 339
3.2 The case of ethically sensitive questions and the role of consensus 343
3.2.1 Consensus as the basis for custom 345
3.2.2 Consensus versus principles 347
4. Concluding remarks: The main argument, its theoretical foundations
and the quest for legitimacy 349
17. The making of international criminal law 354

Sergey Vasiliev
1. Introduction 354
2. Complexities of lawmaking in ICL 356
2.1 Bridging formalist and realist views 356
2.2 Specialization and profusion: Norms, institutions, sources 357
3. Substantive constraints on lawmaking: legality in a paradox field 363
3.1 Sources of ICL: Legality between positivism and natural law 363
3.2 Interpretation as spectrum: Elucidating, developing, making ICL 373
3.3 Reclaiming legality in the march of progress 378
4. Source orthodoxy in ICL and dynamics of law (re)production 380
4.1 Creation v determination of law: Whither, old formalism? 381
4.2 An (almost) autopoietic system? Legitimacy of international
criminal lawmaking 387
5. Concluding remarks 392
18. The making of international trade law 395

Mary E. Footer
1. Introduction 395
2. Primary lawmaking in the WTO 398
2.1 Negotiation and adoption of WTO treaty instruments 399
2.1.1 The MTN process 399
2.1.2 WTO accession protocols 401
2.2 Modification of WTO treaty obligations 402
2.2.1 Treaty amendment 402
2.2.2 Modification by waiver 403
2.2.3 Authoritative interpretation 405
2.2.4 Subsequent agreement and subsequent practice 406
3. Secondary lawmaking in the WTO 411
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3.1 Framework for analysis of secondary lawmaking 411

3.2 Forms of secondary lawmaking in the WTO 414
3.2.1 Delegated lawmaking 414
3.2.2 Waiver decisions as secondary legal acts 416
4. Conclusions 417
19. The making of international environmental law 419

1. Introduction: The originality of international environmental law 419
2. Lawmaking by multilateral environmental agreements 420
2.1 The normative and institutional architecture: The framework model 422
2.1.1 The decision-making procedures 423
2.1.2 The legal nature of CoPs’ decisions 425
2.1.3 Legitimacy concerns: Loosening or losing state consent? 427
2.2 The development and strengthening of environmental principles 428
3. Judicial lawmaking in the settlement of environmental disputes 429
3.1 The judicial development of environmental law 430
3.2 Judicial lessons in dealing with environmental matters 432
4. Normative developments in environmental matters through trade and
investment law 434
4.1 Environmental matters in trade and investment agreements 434
4.2 The consideration of environmental matters in WTO jurisprudence 435
4.3 The consideration of environmental matters by arbitral tribunals 437
5. Non-State actors’ participation in international environmental
lawmaking: NGOs, private persons and standard-setting associations 438
6. Concluding remarks 440
20. The making of international natural resources law 442

Owen McIntyre
1. Introduction 442
2. Lawmaking in international natural resources law through classic
sources 446
2.1 International conventions 447
2.2 Customary international law 451
2.3 General principles of law 454
2.4 Judicial and arbitral tribunals 456
2.5 Publicists 458
3. Lawmaking in international natural resources law beyond article 38 458
3.1 Reliance on ‘soft law’ 459
3.2 Technical complexity and the role of international institutions 460
3.3 Multi-level governance 461
3.4 Sophisticated participatory processes 462
3.5 Fragmentation vs integration 464
Index 467
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Contributors
Jean d’Aspremont is Professor of International Law at the University of Manchester,

United Kingdom and Professor of International Legal Theory at the University of
Amsterdam, the Netherlands
Michael S. Barr is the Roy F. and Jean Humphrey Proffitt Professor of Law at the
University of Michigan Law School, Professor of Public Policy at the Gerald R. Ford
School of Public Policy, and Faculty Director of the Center on Finance, Law, and
Policy, United States
Beatrice I. Bonafé is Associate Professor of International Law at the Sapienza

University of Rome, Italy
Catherine Brölmann is Associate Professor of International Law at the University of

Daniel Costelloe is Senior Associate at Wilmer Cutler Pickering Hale and Dorr LLP,
London, United Kingdom
Malgosia Fitzmaurice is Professor of International Law at Queen Mary University of

London, United Kingdom
Mary E. Footer is Professor of International Economic Law and Co-Director of the

Nottingham International Law and Security Centre at the University of Nottingham
School of Law, United Kingdom
Gleider I. Hernández is Senior Lecturer in Public International Law and Deputy

Director of the Global Policy Institute at the University of Durham, United Kingdom
Jörg Kammerhofer is Senior Research Fellow/Lecturer in Law at the University of

Freiburg, Germany
Owen McIntyre is Professor of Law at the University College Cork, Ireland
Paolo Palchetti is Professor of International Law at the University of Macerata, Italy
Dennis Patterson is Board of Governors Professor of Law and Philosophy at Rutgers

University. He holds the Chair in Legal Theory and Legal Philosophy at the European
University Institute and the Chair in International Trade and Legal Theory at Swansea
University, Wales, United Kingdom.
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xvi Research handbook on international lawmaking
Yannick Radi is Assistant Professor of International Law at the University of Leiden,

the Netherlands
Francesca Romanin Jacur is Adjunct Professor of International Environmental Law

and Sustainable Development at the University of Milan, Italy
Kirsten Schmalenbach is Professor of Public International Law and European Union

Law at the University of Salzburg, Austria
Omri Sender is Counsel for the World Bank and a consultant in public international
law.
Mara Tignino is Senior Lecturer and Coordinator of the Platform for International
Water Law at the Faculty of Law of the University of Geneva, Switzerland
Antonios Tzanakopoulos is Associate Professor of Public International Law at the

University of Oxford, United Kingdom
Vassilis P. Tzevelekos is Senior Lecturer in Law at the University of Liverpool School

of Law and Social Justice, United Kingdom
Sergey Vasiliev is Assistant Professor of Public International Law at the University of

Leiden, the Netherlands
Ingo Venzke is Associate Professor of International Law at the University of Amster-

dam, the Netherlands
Wouter G. Werner is Professor of Public International Law at the VU University

Ramses A. Wessel is Professor of International and European Institutional Law at the

University of Twente, the Netherlands
Michael Wood is a Senior Fellow at the Lauterpacht Centre for International Law of
the University of Cambridge, a member of the UN International Law Commission, and
a barrister at 20 Essex Street, London, United Kingdom.
Barbara K. Woodward is Researcher in International Law and Consultant, Allentown

PA, United States
/ Date: 14/3
Preface
International lawmaking has expanded and diversified greatly over the past decades.
This has led us to the view that there would be room for a book that takes stock – at the
conceptual and the empirical level – of the instruments, processes, and participants
involved in the creation of international normativity today. This Handbook aims to do
just that.
We are grateful to the scholars and experts who have contributed excellent chapters
that offer overviews and analytical insights in contemporary international lawmaking.
The plan for the Handbook was heartily supported by Edward Elgar Publishing. We
are indebted to the editorial staff of Edward Elgar for their unflinching assistance. We
also thank Ms Annika van Beek, LLM UvA, for valuable editorial assistance.
Gratitude is finally due to our home institutions, the University of Amsterdam and
the University of Leiden, for providing the institutional setting which has enabled us to
work on this project.
Catherine Brölmann
Yannick Radi
June 2015
xvii
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Introduction: International lawmaking in a global

world
1. TAKING STOCK
International lawmaking in the past 70 years has become increasingly varied and has
come to involve different loci of authority, levels of governance and shades of
normativity. The perception that our time is very different from the early days of the
United Nations era has inspired for example the well-known psychedelic image of
[a] brave new world of international law where transactional actors, sources of law, allocation
of decision function and modes of regulation have all mutated into fascinating hybrid forms.
International Law now comprises a complex blend of customary, positive, declarative and soft
law.1
That picture is quite unlike the doctrinal framework usually found in textbooks.
Scholars and practitioners have sought new ways to explain and understand the
continuities and dynamics in the creation of normativity in international affairs,2 and
that process is ongoing. ‘Linguistic instability is one sign of a changing world’,3 and
the word ‘lawmaking’ is indeed used with various and divergent meanings – depending
on one’s premises, as set out below. This makes the term limited in theoretical vigor but
flexible enough to describe the multifaceted normative practice that is observed by
policy-makers and lawyers today.
Against this background we have considered there is room for a project aimed at
taking stock at the conceptual and the empirical level of the various instances of
‘international lawmaking’. This comprehensive objective brings with it an inductive
approach, which takes as a starting point apparent signs of creation of international
normativity, rather than rules on the creation of normativity prescribed by the ‘system’
of international law.
As in Harold Koh’s ‘brave new world’, which is presented as the ‘fourth era of
international law’ (in time located after the Cold War), today’s international legal
sphere is frequently represented by contrasting it to another period or paradigm –
1
H Koh, ‘A World Transformed’ (1998) 20 Yale Journal of International Law ix, xi.
2
See in this regard the study by A Boyle and C Chinkin, The Making of International Law
(OUP 2007), and earlier of GM Danilenko, Law-Making in the International Community
(Nijhoff 1993).
3
N Onuf, ‘Review of GM Danilenko, Law-Making in the International Community (Nijhoff
1993)’ (1995) 89 American Journal of International Law 661, 661.
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‘post-national’4 and ‘post-ontological’5 being two categories especially relevant also for
our subject matter. The current project, however, is placed in the context of a ‘global
world’,6 so as to delineate the outer boundaries of the field under study, without
excluding domestic and transnational societies, and without evoking a particular
doctrinal or theoretical angle.
About the lawmaking prism a number of observations can be made. First, it puts the
focus on the ways and means, and in some cases techniques, used to create norms. This is
to say that the primary concern is not with what ‘law’ is, but rather and specifically how
its creation comes about. Obviously, a focus on lawmaking must also engage with the
theory and doctrine of sources of international law, which are generally understood as
referring, ultimately, to recognized processes of law creation.7 Otherwise, a qualification
is called for in that if ‘law’ is conceptualized as a dynamic process (see section 2.2
below), the distinction between ‘law’ and its ‘making’ collapses. At a conceptual level an
investigation into lawmaking as a separate phenomenon makes sense only if law is taken,
at least partly, as a static body of rules. Especially in practice this is, in fact, the
perspective generally adopted. The analysis of lawmaking is then geared to the actual
ways and methods, and in some cases techniques, of creating law, while it does not
primarily engage with ontological definitions of ‘law’ or with sources doctrine as such.
In line with the approach set out above, this project’s working definition of ‘law’ is a
broad one. It does not proceed from a binary classification in ‘law’ and ‘non-law’, but
takes legal normativity as a sliding scale.8 ‘Making’ refers to different degrees of
agency: it can involve ‘conscious lawmaking’9 as with the conclusion of treaties, but
comprises also diffuse processes of interaction between legal actors and involuntary
crystallization of normativity.10 ‘International’, finally, signifies normative authority
whose effect transcends the boundaries of the national legal domain, while the term is
not limited to the classic inter-state framework.
2. TWO LANDSCAPES
Who seeks to gain an understanding and analytical overview of international law-
making, moves through at least two ‘cognitive landscapes’: one might be called the
‘socio-legal landscape’ and the other the ‘theoretical landscape’. The socio-legal
landscape is made up by features such as types of stakeholders, economic
4
cf ‘The Architecture of Postnational Rulemaking’, Project of the University of Amsterdam
<http://acil.uva.nl/research/research-projects/current-projects/current-projects/current-projects/
content/folder/the-architecture-of-postnational-rulemaking-architecture.html>.
5
See Th Franck, Fairness in International Law and Institutions (OUP 1995).
6
cf S Pryke, Nationalism in a Global World (Palgrave Macmillan 2009).
7
S Besson, ‘Theorizing the Sources of International Law’ in S Besson and J Tasioulas
(eds), The Philosophy of International Law (OUP 2010) 163.
8
CM Chinkin, ‘The Challenge of Soft Law: Development and Change in International
Law’ (1989) 38 International and Comparative Law Quarterly 850.
9
O Schachter, ‘Scientific Advances and International Law Making’ (1967) 55 California
Law Review 423.
10
See Danilenko (n 2).
tion: 2 / Date: 14/3
Introduction 3
developments, social challenges, legal practices, changing power-structures and devel-

opments in legal doctrine. The theoretical landscape is constituted by different
theoretical views on international law and lawmaking, as well as meta-theories on such
theoretical views. To visualize the cognitive background of jurists concerned with
international lawmaking in terms of two ‘landscapes’ is a helpful analytical tool. But of
course, it leaves the understanding that the social and the theoretical realm in truth
cannot be separated; and that on a practical level one’s (conscious or unconscious)
theoretical outlook on law and lawmaking will determine the features encountered in
social reality. As these landscapes constitute the background for any exploration into
the making of international law, a brief sketch is warranted.
2.1 Features of the Socio-legal Landscape
The first cognitive landscape typically consists of facts that are: 1) ‘social’ (for example
a change in the number or type of participants in the international arena); or 2) ‘legal’
(for example the fact that in our days more treaties are concluded by simplified
signature than 70 years ago); or what we term 3) ‘doctrinal’ (for example a change in
international law doctrine regarding the attribution of legal personality). Thus, while
these categories cannot always easily be separated, we are dealing with distinct features
(sometimes subsumed in the notion of ‘globalization’) which are each a factor in
contemporary international affairs including international lawmaking.
Social facts include the growing interdependency between states, and between states
and other legal actors, as well as the growing cooperation in the international arena.
While the international society has always been characterized by ‘co-existence’ and
‘cooperation’, since the Second World War emphasis has been on the latter.11 States are
more and more interdependent and willing to cooperate in order to promote their
common interests, for instance in the area of environmental protection. The trend
towards cooperation has gained an additional dimension by the growing number and
variety of actors in international affairs, such as international intergovernmental
organizations, non-governmental organizations (NGOs), and multinational corporations.
Especially intergovernmental organizations, after having come of age as legal actors in
the past two decades, have assumed a prominent role. In our global world, all these
actors are interacting and cooperating more and more, in fields as diverse as the
economy, finance, climate change, culture, security, science and sport. The ensuing
network of relations is, however, also marked by conflicts and contestation, as
illustrated for example by the recurring criticism expressed by NGOs on financial
institutions12 and multinational corporations.13
11
See W Friedmann, The Changing Structure of International Law (1964 Columbia
University Press); PM Dupuy and Y Kerbrat, Droit international public (Dalloz 2014), 386.
12
On the interaction between NGOs and financial institutions, cf Global Policy Forum,
‘NGOs and the Bretton Woods Institutions’ available at <https://www.globalpolicy.org/
social-and-economic-policy/the-three-sisters-and-other-institutions/ngos-and-the-bretton-woods-
institutions.html>.
13
On the interaction between NGOs and multinational corporations, cf M Yaziji and J Doh,
NGOs and Corporations (CUP 2009).
These are a few of the social facts that impact the practice of international
lawmaking, a practice which as such pertains to the category of ‘legal facts’. In that
category we find the phenomenon of lawmaking by international organizations, which
has been on the rise together with the aforementioned rise of the institutional
dimension of the international society. Organizations create normativity both in their
relations with third parties and vis-à-vis their member states. Notably in the latter case
we can observe a shift from the contractual to the institutional paradigm with elements
of centralized lawmaking such as majority decisionmaking.14
This category furthermore comprises the ‘legalisation’ (or ‘juridification’) of inter-
national life in the sense of ‘law’s expansion and differentiation’.15 Nowadays, there
simply is more international law than 70 years ago, and it moreover spans an increasing
number of issue areas. This fact, coupled with the notoriously decentralized nature of
the international legal order, has in turn increased the impact of the ‘fragmentation’ of
international law into separate regimes that is considered the late-modern condition
of international legal affairs.16
Other legal facts worth mentioning include the often composite nature of prominent
legal (mainly treaty) regimes. Many such regimes are made up of more than one legal
instrument, linked on the basis of content, as in the case of a Framework Agreement
and a number of Protocols. The field of environmental law shows how such a setup
secures the continuous development of the legal framework and essentially supersedes
classic temporal rules such as lex posterior.17 Such frameworks are by now a familiar
tool in the public domain for on-going processes of policy-making and normative
development in a particular issue area. An example is the UN Framework Convention
on Climate Change and its protocols, tied together and dynamized by annual COPs
and MOPS and ensuing ‘decisions’. At the same time the last decades have witnessed
a trend of ‘informalisation’ in legal relations. This move away from formal require-
ments in the creation of normativity – illustrated in treaty practice for example by a
trend to use simplified signature in lieu of ratification procedures – is fundamentally
related to the theoretical discourse of ‘deformalisation’ mentioned below. In a practical
sense it might been seen as one consequence of the aforementioned intensification of
international (legal) relations.
Finally, alongside legalisation we find, especially since the end of the Cold War, a
proliferation of international courts and tribunals in different areas of international law
such as the law of the sea, trade law, criminal law, human rights law and investment
14
As in the case for example of the United Nations Security Council enacting ‘legislative’
resolutions or the International Health Regulations of the WHO; see C Brölmann, ‘International
Organizations and Treaties: Contractual Freedom and Institutional Constraint’ in J Klabbers (ed),
Research Handbook on International Organizations (Edward Elgar Publishers 2011) 285.
15
LC Blichner and A Molander, ‘Mapping Juridification’ (2008) 14 European Law Journal
36, 42ff.
16
A Fischer-Lescano and G Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity
in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999.
17
See J Pauwelyn who conceptualizes the WTO treaty, multilateral human rights treaties or
environmental treaties as ‘continuing treaties’ in ‘The Role of Public International Law in the
WTO: How Far Can We Go?’ (2001) 95 American Journal of International Law 535, 546.
Introduction 5
law. This proliferation18 is coupled with a ‘judicialisation’ of international affairs.

Nowadays a number of courts, tribunals, and quasi-judicial mechanisms such as
complaint procedures supervized by treaty bodies, can be said to engage with
international lawmaking. Even if the inextricable link between application and creation
of law has always existed,19 the increase in number of international courts and tribunals
– and of the number of disputes submitted to them – amplifies the normative impact of
the international judiciary.
Next to social and legal facts there is a category of ‘doctrinal facts’ relevant for
issues of lawmaking. Thus, related to the abovementioned judicialization of inter-
national affairs, a change can be observed in doctrine’s appraisal of (quasi-)judicial
pronouncements. Many jurists today, also those who take a doctrinal approach to
international law, assign an important role to the judiciary’s application of international
law that goes well beyond the subsidiary role in the traditional theory of sources.20
As a relevant doctrinal fact also figures the flexible model for according legal
personality which has developed in international law doctrine, and which has to some
extent captured the increase in international actors next to states. Rather than a
threshold set by a system of law that a priori settles which entities have legal
personality and which do not (as it was up until the second half of the twentieth
century), international law discourse now attributes ‘legal personality’ and (often used
interchangeably) ‘subjectivity’ to any entity showing signs of apparent legal capacity on
some counts. The notion of international legal personality, although still a key concept
in legal doctrine, has become an ex-post predicate and all-purpose word, and in that
sense can be said to retain little value as an analytical tool. This said, the new form has
enabled the conceptualization of non-state entities as international legal persons.
The doctrinal validation of certain non-state entities also signifies the end of the
international normative monopoly of the state. Doctrine has conceptualized certain
instruments stemming from actors that are not the traditional international lawmakers
as ‘soft law’. This includes for example instruments issued by (organs of) organizations
that do not have the competence to take binding decisions, but also instruments through
which actors self-regulate their activities, for instance multinational corporations that
issue codes of conduct.21 The concept of ‘soft law’ is otherwise used to capture
obligations whose normative content is open, such as an obligation of conduct or a
programmatic norm; and finally to refer to softness qua form – the aforementioned
COP and MOP decisions are an example of normative instruments whose form and
consequent legal status is subject to debate, while their persuasive authority and
18
See T Buergenthal, ‘Proliferation of International Courts and Tribunals: Is It Good or
Bad?’ (2001) 14 Leiden Journal of International Law 267.
19
cf Y Radi, La standardisation et le droit international – Contours d’une théorie
dialectique de la formation du droit (Bruylant 2014).
20
cf Y Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence of
a New International Judiciary’ (2009) 20 European Journal of International Law 73.
21
See N Gunningham and J Rees, ‘Industry Self-Regulation: an Institutional Perspective’
(1997) 19 Journal of Law and Policy 363; D Richemond-Barak, ‘Can Self-Regulation Work?
Lessons from the Private Security and Military Industry’ (2014) 35 Michigan Journal of
International Law 773.
normative effect is undisputed. Notwithstanding it being challenged,22 the soft law

discourse can be said to have been hugely successful.
2.2 Features of the Theoretical Landscape
The theoretical landscape that is the backdrop for scholars who reflect on lawmaking,
is patchy, and consensus on the notions of ‘international law’ and ‘lawmaking’ is
lacking. The definitions depend to some extent on factors such as the professional
capacity (practitioner, practice-oriented academic, theory-oriented academic) in which
one addresses the issue;23 one’s own research agenda; and, more fundamentally, on the
theory from which one proceeds – consciously or unconsciously – to think about
(international) law.
That said, a number of concepts appear as prominent elements of the theoretical
landscape. Four opposing pairs deserve brief mention, as they form conceptual axes
often present in theoretical reflections on lawmaking. This is so even if the terms are
not always used explicitly, and the concepts may be linked to differing elements of
lawmaking. The axes are: ‘formal’ vs ‘informal’; ‘static’ vs ‘dynamic’; ‘society’ vs
‘community’; and ‘pluralism’ vs ‘constitutionalism’.
The axis between ‘formal’ and ‘informal’ is used in relation to at least two elements
of international lawmaking: the normative output and the actors involved. As to the
normative output, at the formal end of the spectrum it is considered that formalities
have to be met for the rules and instruments to be regarded as part of international law
(cf the classic theory of sources). At the informal end of the spectrum, the impact of the
normative output and the recognition of its authority constitute the key requirement for
rules and instruments to be characterized as international law.24 When the degree of
formality is linked, not to the output but to the actors, at the formal end of the spectrum
a fixed catalogue of actors is validated as lawmakers (exemplified by the pre-war
doctrine on international legal persons). At the informal end of this spectrum are
mentioned next to states and organizations, bodies and networks involved in law-
making,25 as well as non-traditional diplomatic actors, such as domestic regulators or
agencies.26
22
See J Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International
Law 167; P Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 American
Journal of International Law 413.
23
On international legal professions, cf A Nollkaemper ao (eds), International Law as a
Profession (CUP forthcoming).
24
See eg A von Bogdandy, P Dann and M Goldmann, ‘Developing the Publicness of Public
International Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9
German Law Journal 1375.
25
See eg B Kingsbury, N Krisch and R Steward, ‘The Emergence of Global Administrative
Law’ (2005) 68 Law and Contemporary Problems 15.
26
See eg J Pauwelyn, ‘Mapping the Action and Testing Concepts of Accountability and
Effectiveness’ (2011) Project Framing Paper available at <http://www.hiil.org/data/
sitemanagement/media/HIIL_n23198_v1_INLAW_Framing_Paper_Pauwelyn_June_2011.pdf>.
Introduction 7
A second axis in the theoretical landscape is the one that runs between ‘static’ and
‘dynamic’.27 For one, this axis is helpful in the mapping of the different approaches to
the concept of ‘law’. At the static end of the spectrum we find law as ‘rules’. The
classic theory of sources constitutes the embodiment of this approach. At the dynamic
end the notion of law is conceived of as a ‘process’, as famously illustrated by the New
Haven school.28
A third pair that needs to be mentioned is the axis between, at the one end, the
conceptualisation of the international sphere as a ‘society’ and, at the other end, its
conceptualization as a ‘community’.29 Especially since the 1990s the debate on the idea
of communal norms and needs to be protected by international law, has intensified.30
Such a communal or ‘public’ legal sphere31 would inevitably prevail over individual
interests and legal will. Moving along this conceptual axis – as the formal/informal and
the static/dynamic axes – naturally affects the role of consent as a basis for legal
obligation.
The fourth axis runs between ‘pluralism’ and ‘constitutionalism’. It is specifically
geared to the content of the law that is created and, as indicated by the suffix ‘–ism’, to
a particular normative agenda concerning the plurality of the legal universe32 or, on the
other hand, unity and ‘constitutionality’33 of the international law system.
3. THE ORGANIZATION OF THIS HANDBOOK

This cognitive background is clear also in the present volume, which, in the way of a
handbook rather than a monograph, aims to provide a comprehensive and current guide
to the theory and practice of international lawmaking. In accordance with the project’s
working definitions set out above, it takes ‘law’ and ‘lawmaking’ in a broad sense, with
no separate chapters envisaged on for example ‘soft law’ or ‘informal law’.
The Handbook is divided in four parts. Part I – Theoretical Views of International
Lawmaking addresses certain key conceptual and theoretical aspects of international
27
On static and dynamic approaches, see J d’Aspremont, ‘Herbert Hart in Today’s
International Legal Scholarship’ in J Kammerhoffer and J d’Aspremont (eds), International
Legal Positivism in a Post-Modern World (CUP 2014) 114.
28
See MS McDougal and WM Reisman, International Law in Contemporary Perspective
(New Haven Press 1980).
29
Following the distinction of Ferdinand Tönnies in Gemeinschaft und Gesellschaft fre-
quently used in international law (1887 – Ch P Loomis tr Harper & Row 1957).
30
B Simma and A Paulus ‘The “International Community”: Facing the Challenge of
Globalization’ 1998 (9) European Journal of International Law 266; U Fastenrath ao (eds), From
Bilateralism to Community Interest. Essays In Honour Of Bruno Simma (OUP 2012).
31
B Kingsbury and M Donaldson, ‘From Bilateralism to Publicness in International Law’ in
Fastenrath ao (eds), ibid 79.
32
N Krisch, Beyond Constitutionalism – The Pluralist Structure of Postnational Law (OUP
2010).
33
For an early treatment of this approach, see E de Wet in ‘The International Constitutional
Order’ (2006) 55 International and Comparative Law Quarterly 51, 51; cf J Klabbers, A Peters,
and G Ulfstein, The Constitutionalization of Public International Law (OUP 2011).
lawmaking. It explores the role of consent (primarily of states) in contemporary

international lawmaking in relation to the classic voluntarist view of consent as a
necessary basis for the binding nature of obligations (Werner). It also looks into the
role and status of different participants in international lawmaking, and considers the
main parameters for theorizing lawmaking and actors (d’Aspremont). It then focuses on
the theoretical foundations of transnational lawmaking (Patterson). The first Part closes
with a chapter on contemporary theories of international law and their particular take
on international lawmaking – introducing ‘classic’ schools of thought, such as the New
Haven school and the Global Administrative Law perspective, as well as more recent
research projects (Venzke).
The chapters in Part II – International Lawmaking in an Inter-State Setting focus on
the classic vehicles for lawmaking in an inter-state context – notably treaty, custom and
principle – which however may lead to more complex legal structures than was
traditionally the case. This Part starts out by addressing the current practice of
treaty-making, taking into account bilateral and multilateral treaty processes. It treats
the first of two main stages in the treaty-making process which are of particular
relevance in the context of lawmaking, that is, the negotiations on the normative
content of a treaty and the adoption of the text (Schmalenbach). The subsequent chapter
looks into the second stage in the treaty-making process, viz. the creation of binding
force and the life of the treaty as it evolves through its application. Account is taken of
bilateral and multilateral treaty processes, and phenomena such as regime-building by
several cumulative treaties (Costelloe and Fitzmaurice). The next chapter is a treatment
of the making of customary law; it focuses both on the process(es) of creating
customary international law and on customary norms as such. In addition, it considers
issues such as the distinction between codification and progressive development and the
distinction between the identification and the creation of customary norms (Sender and
Wood). The final chapter addresses general principles in international law, and among
others tackles the question of the autonomy of general principles in respect of other
sources of law, and examines their actual and potential use by states and international
courts and tribunals in processes of lawmaking (Bonafé and Palchetti).
Part III treats instances of International Lawmaking Beyond the State in that it moves
beyond the state-centered image of international lawmaking. Accordingly, this Part
starts with a consideration of lawmaking processes in the context of intergovernmental
organizations and informal public frameworks such as the G20, addressing both
rule-making within such institutions and legal interaction among them (Wessel). The
Handbook goes on to analyze lawmaking by international judicial bodies, ranging from
the ICJ to the ICTY (Hernandez); the contribution of domestic judicial bodies to
international law-making (Tzanakopoulos); and the creation of international law by
quasi-judicial bodies through monitoring, compliance and follow-up mechanisms
(Tignino). The next chapter addresses the role of private and hybrid actors in the
creation of international law – the Basel Committee and the financial sector serving as
an example – inquiring into the self-regulation practices of these actors (Barr). The
book continues with a look at the role of international civil society in the making of
international law in settings where members of civil society, especially NGOs, are
important stakeholders; it examines the contribution of these NGOs in the making of
international law at the formal stage of both creation and enforcement and it addresses
Introduction 9
issues of legitimacy and representativeness raised by this contribution (Woodward).

This Part concludes by a treatment of lawmaking by scholars, examining to what extent
academic discourses shape and make international law (Kammerhofer).
Part IV addresses International Lawmaking in Selected Issue Areas with chapters
that analyze means and ways of lawmaking in specific, ‘regulation-intensive’ fields of
international law, notably human rights law (Tzevelekos), international criminal law
(Vasiliev), trade law (Footer), international environmental law (Romanin Jacur) and
natural resources law (McIntyre).
PART I
THEORETICAL VIEWS OF
INTERNATIONAL LAWMAKING
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2 / Date: 5/2
1. State consent as foundational myth

Wouter G. Werner
1. INTRODUCTION
Throughout history, the conclusion of treaties based on the consent of states has been
an important feature of international life. Today, the role of consent in international law
is arguably more important than ever, with an unprecedented number of treaties in
place, mostly created through the expressed will of states. Even where non-state actors
have assumed a pivotal role in the creation and application of treaties, ‘the treaty
paradigm generally continues to be pre-conditioned on the presence of state consent’.1
Consent also continues to play an important role in areas other than the law of treaties,
such as customary law or the regime regulating the legality of foreign intervention.2
From the nineteenth century, however, the consent of states has become more than a
way of validating treaties, legitimizing customary law or legalizing foreign interven-
tions. Increasingly, state consent has been portrayed as the sole foundation or defining
characteristic of international law as a whole. International law, in the Lotus dictum of
the Permanent Court of International Justice, is an order resting on the express and tacit
consent of states: ‘International law governs relations between independent states. The
rules binding upon them therefore emanate from their own free will (…)’.3 The Lotus
case thus understood international law as grounded in the consent of particular entities
(territorially defined, independent states) and only binding upon those states that had, in
one form or the other, bound themselves through consent. Under the Lotus reading of
international law, all rules binding upon states are the product of lawmaking; they are
not pre-given, but result from the freely expressed will of states, either explicitly or
tacitly.4
1
D Hollis, ‘Why Consent Still Matters: Non-State Actors, Treaties and the Changing
Sources of International Law’ (2005) 23 Berkeley Journal of International Law 1, 4.
2
For a discussion see E Lieblich, ‘Intervention and Consent: Consensual Forcible Interven-
tions in Internal Armed Conflicts as International Agreements’ (2011) 29 Boston University
International Law Journal 337, 339–82.
3
SS Lotus (France v Turkey) [1927] PCIJ Series A No 10 available at <http://
www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm> accessed 25 June 2012.
4
Take, for example, the position adopted by Kooijmans in 1964, that stands in sharp
contrast to the Lotus idea and the belief that all law is the product of lawmaking: ‘The directives
are given by the Eternal God, and man will never be able to fully fathom their magnitude. Only
in so far as they touch upon life in this created world, can man, through his reason, deduce the
necessary rules for society. He discovers the norms, he does not draw them up.’ PH Kooijmans,
The Doctrine of the Legal Equality of States: an Inquiry into the Foundations of International
Law (AW Sijthoff 1964), 13.
13
1 / Date: 5/2
While the Lotus reading of international law was controversial at the time,5 the idea
that the international legal order is the product of lawmaking and ultimately based on
some form of state consent has survived up to the present day.6 Higgins, for example,
states that ‘we have in international law a system in which norms emerge either through
express consent or because there is no opposition […] to obligations being imposed in
the absence of such specific consent’.7 In similar fashion, Sweetser regards consent ‘as
constitutive of the international legal order; treaties and even customary international
law are based on norms of state consent, whether explicit or tacit’.8 Even when authors
readily admit the limits of the consensual paradigm, they often fall back on consent as
the sine qua non for the existence of international law. Shaw, for example, while
admitting the existence of some legal obligations that do not rest on state consent, still
contends: ‘In a broad sense, states accept or consent to the general system of
international law, for in reality without that no such system could possibly operate.’9 In
similar terms, Weil argues: ‘Absent voluntarism, international law would no longer be
performing its functions.’10 The constitutive value or functional necessity of consent is
reaffirmed in several general introductions to international law.11
This chapter focuses on the core argument articulated by the different authors
mentioned above: international law as a whole rests on the tacit or express consent of
states. According to these approaches lawmaking is not just a process through which
norms are produced; rather, international law as a whole is defined as being made
through the will of sovereign states. Following Koskenniemi, I will treat this family of
approaches to international law as ‘consensualism’, whose ‘normative sense […] is […]
in its claim to override some other view because this does not give required effect to
5
In Brierly’s much quoted criticism the Lotus decision is characterized as being ‘based on
the highly contentious metaphysical proposition of the extreme positivist school that the law
emanates from the free will of sovereign independent States’. JL Brierly ‘The ‘Lotus’ Case
(1928) 44 Law Quarterly Review 154, 155.
6
The rest of this paragraph is taken from W Werner, ‘Security and International Law’ in Ph
Bourbeau (ed), Security, Dialogue Across Disciplines (CUP 2015).
7
R Higgins, Problems and Process: International Law and How We Use It (OUP 1994) 16.
8
C Sweetser, ‘Humanity as Alpha & Omega of International Law, Four Replies to Anne
Peters’ (2009) 20 European Journal of International Law 545, 550, available at <http://
www.ejil.org/pdfs/20/3/1851.pdf>.
9
M Shaw, International Law (CUP 2003), 10. While Shaw discusses several legal
obligations that bind states without their consent, he still uses consensualism as a foundational
principle for the international legal order as a whole.
10
P Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 American Journal
of International Law 413, 420.
11
For an overview see A Guzman, ‘The Consent Problem in International Law’ (2011)
Berkeley Law School, University of California, (fn 1 and 2), available at <http://
www.escholarship.org/uc/blewp>; see also OA Elias and CL Lim, The Paradox of Consensual-
ism in International Law (Kluwer 1998), xi. While acknowledging the paradoxical nature of
state consent, still hold on to consensualism: ‘[…] seeking to impose some conception of the law
as being distinct from the actual claims of states fails for a number of reasons […] (because)
[t]here is no better evidence of international law doctrine than that which is expressed by States
as a reflection of their legal expectations’.
2 / Date: 14/3
State consent as foundational myth 15
what States will’.12 I will argue that this use of ‘state consent’ is part of a foundational
myth that presents international law as more coherent, unitary and encompassing than it
actually is. While it is indeed impossible to make sense of contemporary international
law absent the notion of lawmaking; and impossible to make sense of lawmaking
without using the notion of state consent, grounding the international legal order as a
whole on the consent of states is only possible if one accepts the paradoxes and blind
spots that come with it. This chapter seeks to elucidate these paradoxes and blind spots
at three different levels. First, the inherently paradoxical nature of state consent as a
foundational principle itself. As critical legal scholars have pointed out, invoking state
consent as the basis of international law yields paradoxical results because ‘consent’ as
a validating principle in law presupposes the validity of some non-consensual prin-
ciples and necessarily assumes that legal norms created through consent exist independ-
ently from the actual will of states. This point will be further explained and concretized
through an analysis of the case law of the International Court of Justice, the European
Court of Human Rights and the International Tribunal for the Former Yugoslavia.
Secondly, the idea of sovereign equality that underlies consent-based readings of
international law. Consensual understandings of international law generally presuppose
the legal equality between states. The justifications given for the legal equality of states,
however, can easily be turned against the idea that consent is constitutive of inter-
national law. I will turn to the paradoxical nature of legal equality in Section 2. Thirdly,
the assumption of the state as privileged and unitary actor that underlies consent-based
readings of international law. Theories that understand international law as grounded in
the free will of states assume that the territorial division of the world in unitary
sovereign states is (still) the most important background condition for international law.
While this assumption has never been accepted uncritically in legal scholarship,13 it has
become even more controversial today. Alongside territoriality, functionality has
emerged as an operating principle, giving rise to new forms of political organization
and lawmaking. The effects of the rise of functionality as operating principle in law and
politics will be discussed in Section 3.
2. CONSENT, NORM EVOLUTION AND THE PURPOSES OF LAW

As has been observed by many scholars, the will of states as such cannot be the basis
of a system of law.14 For one, it would assume that norms can be based on facts (acts
12
M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(CUP 2005), 310 fn 14 (italics in original).
13
See for example the attitude and assumptions of the founding fathers of the first
international law institutes and journals as discussed in M Koskenniemi, The Gentle Civilizer of
Nations: The Rise and Fall of International Law 1870–1960 (CUP 2002).
14
In analytical positivism this point was made by HLA Hart, The Concept of Law (OUP
1994), 225: ‘For, in order that words, spoken or written, should in certain circumstances function
as a promise, agreement, or treaty, and so give rise to obligations and confer rights which others
may claim, rules must already exist providing that a state is bound to do whatever it undertakes
by appropriate words to do.’ See also H Kelsen, Reine Rechtslehre (Deuticke Wien 1960).
Kelsen’s pure theory is based on the impossibility of deriving norms from facts alone. For a
3 / Date: 5/2
of will) alone – a logical fallacy.15 Grounding law on consent, in other words, requires
the existence of non-consensual rules stipulating that the freely expressed will of states
counts as law. The classical example is the principle of pacta sunt servanda; without
assuming the validity of this principle it is impossible to regard consent as the basis for
treaty-making. Secondly, there need to be rules of recognition that spell out which
utterances or acts by states count as lawmaking acts of will.16 Examples of such rules
can be found in article 11 of the Vienna Convention on the Law of Treaties (setting out
the ways in which consent to a treaty can be expressed)17 or in legal doctrines positing
that absence of protest against customary rules counts as tacit consent. It is impossible
to ground all such rules of recognition in the consent of states; this would only beg the
question how we know what counts as lawmaking acts of will by states in the first
place.18 Thirdly, acts of will are supposed to produce legal norms whose meaning is
accessible to others, not just arbitrary expressions of the intentions of states at different
points in time. These legal norms obtain an independent validity, need to be interpreted
by others and can also be held against the state that has consented to them, even if that
state has changed its mind since the creation of the norms in question. For international
law to be possible at all, processes of norm-finding cannot therefore be made wholly
dependent on the whims of states. It should, in principle, be possible that someone else
successfully claims that she knows better what a state has consented to than that state
itself. In other words, state consent can only function as a basis for international
obligation if ‘the movement is from consent into something more, or other than that’.19
The inherently paradoxical nature of consent plays out in all areas of international
lawmaking.20 However, with the creation of so-called ‘world (or regional) order
treaties’ the problems of consent-based readings of international law have become more
more recent articulation see Hollis (n 1); see also C Reus-Smit, ‘Politics and International Legal
Obligation’ (2003) 9 European Journal of International Relations 591.
15
The first part of this paragraph is taken from Werner (n 6).
16
For the idea that ‘rules of recognition’ eventually reside in social practices rather than acts
of will, see Hart (n 14).
17
Article 11 reads as follows: ‘The consent of a State to be bound by a treaty may be
expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance,
approval or accession, or by any other means if so agreed’ (Vienna Convention on the Law of
Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT)).
Note that the last phrase (any other means if so agreed) raises the question how states then know
what counts as one of the ‘other means agreed’; which rules of recognition tell us what the
‘other means so agreed’ are?
18
As Koskenniemi has noted, this is precisely one of the reasons why state intent fails to
provide determinate guidance for legal interpretation as well: ‘Intent can only be known in its
manifestations- which manifestations (text, behavior, teleology etc) count, depend on whether
they express intent […] the argument is hopelessly circular’ (Koskenniemi (n 12), 337). See also
the way in which theories of interpretation have oscillated between ‘intent as it is expressed’ and
‘original or actual intent’, J d’Aspremont, Formalism and the Sources of International Law: A
Theory of the Ascertainment of Legal Rules (OUP 2011), 180–81.
19
Koskenniemi (n 12), 309. See also Elias and Lim (n 11), 241: ‘[…] the logic of
consensually-derived law entails the “objectivation” of the law and its consequent detachment
from the subsequent claims of a State as to what it had “actually” or “in fact” willed’.
20
D Kennedy, International Legal Structures (Nomos Verlag 1987); Koskenniemi (n 12).
4 / Date: 5/2
acute. World order treaties are characterized by two elements: a broad – and sometimes
quasi-universal – membership, and the fact that they aim to protect community values
that transcend the interests of individual states, such as peace and security, human
dignity, the environment or economic development.21 Examples are the Charter of the
United Nations (UN), the International Covenant on Civil and Political Rights or the
Geneva Conventions. World order treaties thus go beyond the establishment of
reciprocal obligations between states, instead establishing a communal regime ‘towards
the world rather than towards particular parties’.22 While these treaties are of course
initially created through the expressed consent of states, the treaty provisions take a life
of their own and are interpreted in light of different considerations. Below I will
illustrate this point by means of four examples taken from the world order treaties
mentioned above: (a) the UN Charter; (b) the European Convention of Human Rights;
(c) the Geneva Conventions; and (d) treaties regulating areas beyond state sovereignty.
The first example concerns the way in which the International Court of Justice has
interpreted the UN Charter in the classic Reparation for Injuries Advisory Opinion.23
As may be recalled, the Court was called on to determine whether the UN enjoyed
(objective) legal personality under international law; a question not explicitly settled in
the text of the Charter. In order to determine the legal personality of the UN, the Court
begins by asking what kind of organization the Charter purported the UN to be (‘what
characteristics it was intended thereby to give to the Organization’). While this seems
like an approach that rests on consensualism, the next step of the Court was a general
observation on the interplay between international law and international society. The
Court argued:
Throughout its history the development of international law has been influenced by the
requirements of international life, and the progressive increase in the collective activities of
States has already given rise to instances of action upon the international plane by certain
entities which are not States. This development culminated in the establishment in June 1945
of an international organization whose purposes and principles are specified in the Charter of
the United Nations. But to achieve these ends the attribution of international personality is
indispensable.
The Court thus combines a logic based on consent (the establishment of the UN by
states) with a functional, teleological logic (the need to achieve its purposes) and an
evolutionary logic (the evolving requirements of international life). The legal personal-
ity of the UN is said to follow from the intentions of the Charter and its founders, as
inferred from the principles and purposes of the UN, read against the background of an
ever-changing international society. In the Court’s perspective, in other words, the
21
For a discussion see W Werner, ‘The Never-Ending Closure: Constitutionalism and
International Law’ in N Tsagourias (ed), Transnational Constitutionalism (CUP 2007) 329.
22
C Brölmann, ‘Limits to the Treaty Paradigm’ in M Craven and M Fitzmaurice (eds),
Interrogating the Treaty: Essays in the Contemporary Law of Treaties (Wolf Legal Publishers
2005) 24, 28, quoting Second Report on the Law of Treaties by Sir Gerald Fitzmaurice, UN doc.
A/CN.4/107, YILC 1956, Vol. II, at 54.
23
Reparation for injuries suffered in the service of the United Nations (Advisory Opinion)
[1949] ICJ Rep 174.
5 / Date: 14/3
functional and teleological considerations regarding the nature and function of the UN
served as sufficient basis to determine what the founding states must have intended. In
this way, the Court provides a telling illustration of the paradoxical nature of consent.
While the UN Charter is based on the consent of states, it subsequently turns into
something beyond consent; a legal regime that is treated as having its own purposes,
organizing principles, identity and interactions with socio-political life. It is up to
others, including the Court, to construct the will of states against the background of
such considerations. This point is nicely captured in Gautier’s understanding of
constituent treaties of international organizations in general: ‘Once a treaty is con-
cluded it leads its own life. States are not free to lay down the law; their acts and
conduct do not escape the consequences to be drawn from them by international law.’24
International lawmaking based on consent, in other words, results in something that
cannot be fully explained in terms of the consent of states.
The second example concerns a form of interpretation that the Reparation Opinion
already hinted at a form of interpretation that is often used in the context of world order
treaties, the so-called evolutionary approach that regards treaties as ‘living instruments’.
As Brölmann has pointed out, the evolutionary approach is different from a teleological
approach grounded in the principles, powers and purposes laid down in a constitutive
treaty. The evolutionary approach, by contrast, is ‘not triggered by a problem in the
interpretation of the text, but primarily by a changing social reality’.25 When courts
apply an evolutionary approach they reread the treaty in question in light of changing
social conditions. Brölmann illustrates this point by reference to the Matthew’s Case
where the European Court of Human Rights downplayed the lack of express consent by
states as a ‘mere fact’ that cannot prevent the Court from applying the Convention to
unforeseen situations: ‘The mere fact that a body was not envisaged by the drafters of
the Convention cannot prevent that body from falling within the scope of the
Convention.’26
In the evolutionary approach, consent recedes even further than in traditional
teleological approaches. The explicit absence of consent is bypassed in the name of
what the Court believes to be the function of the Convention in society. Of course, this
function is still construed on the basis of a text that has come into existence through the
express will of states. In addition, the Court generally seeks to ground its conclusions
in its reconstruction of the opinions of states. However, it is not the will of states on a
particular issue that forms the basis of decisions, but rather the Court’s interpretation of
what kind of living instrument states have created (or rather: must have meant to create)
through their consent. This interpretation determines how the Court applies the treaty to
new and unforeseen developments in society.
The third example highlights that sometimes courts or tribunals deviate even more
radically from a consensual understanding of international law, arguing that treaties and
customary law have moved international law as such to a stage beyond consent and the
interests of states. A prime example can be found in the first case before the
24
P Gautier, ‘The Reparation for Injuries Case Revisited: The Legal Personality of the
European Union’ (2000) Max Planck Yearbook of United Nations Law 331, 335-36.
25
Brölmann (n 22), 33.
26
Matthews v United Kingdom App no 24833/94 (ECtHR 18 February 1999), para 39.
6 / Date: 5/2
International Criminal Tribunal for the Former Yugoslavia (ICTY). In the Tadic case,
the ICTY presented its reading of the impact of human rights law on the nature and
function of international law in general. The ever-expanding body of human rights
norms, the Tribunal argued, has moved the international legal order beyond its
state-centric foundations: ‘A State-sovereignty-oriented approach has been gradually
supplanted by a human-being-oriented approach. Gradually the maxim of Roman law
hominum causa omne jus constitutum est (all law is created for the benefit of human
beings) has gained a firm foothold in the international community as well.’27
The ICTY subsequently used this reading of international law to reconsider some
basic provisions of the law of armed conflict. In the case of the Čelebići prison camp,
for example, the ICTY had to determine the scope of the Fourth Geneva Convention,
protecting civilians who are under enemy control.28 According to article 4, the
Convention protects persons who find themselves ‘in the hands of a Party to the
conflict or Occupying Power of which they are not nationals’. The ICTY, however,
found this emphasis on nationality unsatisfactory in the context of the armed conflict in
Bosnia. It deviated from the nationality requirement laid down in article 4 based on two
principal grounds. The first was that in the Bosnian conflict conceptions of enmity were
primarily structured along ethnic lines, not along statist lines. This approach could still
be regarded as based on an evolutionary approach, which adapts international treaty
law to new circumstances. The Tribunal, however, added a second ground which
concerned the very nature and identity of the laws of armed conflict itself. The ICTY
regarded the primary aim of the law of armed conflict to be the protection of
individuals, not the facilitation of state interests. The result was that the category of
protected persons under the Fourth Geneva Convention was broadened so as to include
those who were regarded as enemies on ethnic grounds – a broadening that the ICTY
regarded as in line with the increasing emphasis on human rights law since 1945.
The three examples mentioned above illustrate the transformative nature of consent
in international lawmaking. In order to function as the basis of legal obligations,
consent has to give rise to something else, to something beyond the actual consent of
states. It is then up to interpreters to make sense of the legal instruments that states
have produced through their consent. As the cases discussed above demonstrate,
making sense of law can involve recourse to principles and purposes of legal
instruments, to theories about the function of legal instruments in evolving societal
conditions, or even to non-consensual theories about the very nature and identity of
legal instruments or international law as a whole. Consent can play a paradoxical role
27
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v
Tadic, IT-94-1, ICTY, 2 October 1995, para 97. The ICTY was not alone in its proclamation of
a new normative basis for international law. A year after Tadic, the President of the International
Court of Justice stated in similar terms: ‘The resolutely positivist, voluntarist approach of
international law still current at the beginning of the century […] has been replaced by […] a
law more readily seeking to reflect a collective juridical conscience and respond to the social
necessities of States organized as a community’ (Legality Of The Threat Or Use Of Nuclear
Weapons (Advisory Opinion) [1996] ICJ Rep 227, Declaration of President Bedjaoui, para 13).
28
Judgment, Prosecutor v Delalic, IT-96-21-T, ICTY, 16 November 1998.
7 / Date: 5/2
in these processes at best; as the ground that needs to be transformed into something
else in order to function as the basis for legal argumentation.29
The fourth example emphasizes that the paradox of consent in international law-
making is even more outspoken in treaties that build on concepts such as ‘mankind’ or
‘humanity’.30 Since the Second World War, the invocation of such concepts has
proliferated in international treaty law. For example, in areas such as the law of the sea,
the regulation of outer space or the preservation of cultural heritage states have
acknowledged that ‘mankind’ has interests that are worth protecting through inter-
national lawmaking. Against the backdrop of rapid technological developments and
increasing concerns about the gap between rich and poor countries, the concept of
mankind was introduced to prevent over-exploitation and to ensure that the exploitation
of territories such as the sea bed, the ocean floor, Antarctica or outer space would not
only benefit powerful nations. Following the ideas of the Maltese representative
Pardo,31 the seabed and ocean floor were declared ‘common heritage of mankind’ in
the 1982 Law of the Sea Convention, which also set out that ‘all rights in the resources
of the Area are vested in mankind as a whole’ (articles 136–137). In order to ensure
that the exploitation of the seabed and ocean floor would take place for the benefit of
humanity, a specific authority was created; the International Seabed Authority.32 The
idea that areas beyond sovereign jurisdiction should be exploited for the benefit of
mankind as a whole was taken up in other branches of international law as well. Article
1 of the Outer Space Treaty, for example, states that ‘[t]he exploration and use of outer
space,[…] shall be carried out for the benefit and in the interests of all countries, […]
and shall be the province of all mankind’, with astronauts being elevated to the status
of ‘envoys of mankind’ (article 5).33 The preamble of the Antarctic Treaty speaks of the
29
See for example the interesting re-reading of world order treaties by E Hey. According to
Hey state consent still matters in relation to world order treaties. What states consent to,
however, is not an identifiable set of obligations, but rather an underdetermined normative
development. Consent is thus turned into a ground that can be used as a justificatory claim
against an objecting state. E Hey, Teaching International Law: State-Consent as Consent to a
Process of Normative Development and Ensuing Problems (Kluwer Law International 2003).
See also Koskenniemi’s discussion of the paradoxes inherent in theories of tacit consent;
Koskenniemi (n 12), 325–33.
30
W Werner, ‘Mankind’s Territory and the Limits of International Law-Making’ in R Liivoja
and J Petman (eds), International Law Making Essays in Honor of Jan Klabbers (Routledge
2013) 103.
31
See Pardo’s proposal in 1967 which led to the adoption of the ‘Declaration and treaty
concerning the reservation exclusively for peaceful purposes of the seabed and the ocean floor
underlying the seas beyond the limits of present national jurisdiction, and the use of the
resources in the interest of mankind’ UNGA Res 2340 (XXII) (18 December 1967) UN Doc
A/6695 (1967).
32
For more information on the International Seabed Authority, see <http://www.isa.org.jm/
en/home>.
33
See also Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies (adopted 5 December 1979, entered into force 11 July 1984) UNGA Res 3468, art 4,
ensuring that ‘[t]he exploration and use of outer space, including the moon and other celestial
bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of
their degree of economic or scientific development, and shall be the province of all mankind’.
8 / Date: 5/2
‘interests of mankind’ that are at stake in ensuring that Antarctica is used solely for
peaceful purposes. Notions such as the ‘common heritage of mankind’ even gained a
foothold in areas other than the law of non-sovereign territory. The Cultural Heritage
Convention, for example, regards parts of the cultural or natural heritage as ‘part of the
world heritage of mankind as a whole’ (Preamble) and seeks to protect it accordingly,
while in the field of bio-law attempts have been made to protect the human genome as
the ‘common heritage of humanity’.
The invocation of ‘mankind’ within the traditional paradigm of treaty-law, however,
creates a paradoxical situation. Following the structures of the law of treaties, its
validity, scope of application and meaning derives largely from the express or tacit
consent of states. The pacta tertiis formula, for example, would stand in the way of
attempts to create worldwide obligations for the sake of mankind through treaty
provisions. At the same time, including terms such as ‘mankind’ in international treaties
seeks to do exactly that; to go beyond the rights and interests of individual states by
presenting an encompassing world community or set of core values that transcend the
confines of state sovereignty. This is also how the concept of ‘mankind’ has tradition-
ally been invoked in international law: as reference to a pre-given encompassing
community that exists independently of the lawmaking activities of states.34 If the very
same concept appears in modern treaty-law, there seem to be two opposite ways of
reading ‘mankind’. Either one sticks to consensualism, arguing that the validity, scope
and meaning of ‘mankind’ is ultimately dependent upon the free will of states. This
reading, however, would undermine the performative force of the concept of mankind;
its claim to go beyond the will and interests of individual states. Alternatively, one
regards ‘mankind’ as a pre-existing community that is legally recognized – but not
created – in treaty law. This interpretation, however, undermines the consensual
understanding of international law and the very idea that legal provisions are ultimately
the product of lawmaking by states.
3. CONSENT AND SOVEREIGN EQUALITY

3.1 Consent as Instrument to Protect Sovereign Equality
On what grounds have consensual readings of international law and international

lawmaking been defended? In international legal scholarship, at least two (partly
contradictory) answers to this question have been put forward. The first is that
grounding international law in consent links it with international practice and sets it
apart from normative positions unrelated to the actual will and behavior of states. In
addition, basing international legal obligations on consent would foster compliance as
states are more likely to carry out obligations that they have voluntary undertaken than
obligations that have been imposed upon them in the name of some abstract normative
theory. Sticking to consent, in other words, would ensure the reality of international
34
Despite their fundamental differences on many points, thinkers such as Vitoria, Grotius
and Vattel all regarded ‘mankind’ as a natural law concept whose validity is independent from
and predates lawmaking by states. For an analysis see Werner (n 21).
9 / Date: 5/2
law. If the push towards reality is taken too far, however, consensualism would become,
in Koskenniemi’s words, ‘a non-normative apology, a mere sociological description’,35
that ‘would lack critical distance from state behavior, will or interest’.36 Not surpris-
ingly, therefore, a second, non-apologetic justification has been offered for a consensual
reading of international law. This justification maintains that reliance on consent is a
part of a counter-hegemonic strategy; a way of protecting the sovereignty of weaker
states against political and normative projects pursued by the more powerful states.
Notwithstanding differences in power and wealth, one state cannot make laws that are
binding upon another state without its consent. In this line of argumentation, consen-
sualism is a normative project aimed at preserving the sovereign equality of states.
An articulation of this position can be found in Brad Roth’s recent defense of
sovereign equality.37 Roth’s defense of equality between states should be read against
the background of recent attempts to bypass sovereignty in the name of liberal projects
such as human rights protection, democratization and ending impunity; attempts that
seek to set limits to the freedom of states to create binding rules through lawmaking.
While not arguing against the pursuit of human rights, democracy or accountability for
international crimes per se, Roth argues that such projects endanger the possibilities of
international cooperation and the protection of weaker states that find themselves
labelled as violators of hegemonic norms. Given the plurality of interests and moral
values across different political communities, Roth believes sovereign equality to be the
best articulation of the political morality in international life.38 Roth’s plea for
sovereign equality is not based on a radical value skepticism, but rather derives from
considerations of prudence that political communities should have ‘an ample, though
not unlimited, moral right to be wrong about justice’.39 Neither is it based on naïve
positivistic assumptions about the possibility to somehow impartially find ‘the law as it
is’ on the basis of the will and practice of states. Instead, it is based on a moral reading
of international law as providing a common vocabulary that should be able to mediate
between competing conceptions of justice and to help protecting weaker political
communities against hegemonic ambitions. In this context, Roth pays tribute to the
principle of consent, alongside principles of territorial integrity and political independ-
ence.40 Grounding international law on the consent of states, however paradoxical and
notional this consent may be, offers the best starting point for legal analysis, according
to Roth. The idea that a state is only bound through its own free will remains the
35
Koskenniemi (n 12), 17.
36
ibid, 20.
37
B Roth, Sovereign Equality and Moral Disagreement, Premises of a Pluralist Inter-
national Legal Order (OUP 2011).
38
ibid, 11, referring to Dworkin’s idea that hard cases should be decided on the basis of the
best justifications available in the principles of political morality of a particular society as a
whole.
39
ibid, 5. Roth adds: ‘outsiders, even when objectively correct in condemning internal
practices, have a presumptive moral obligation not to interfere coercively […]’.
40
ibid, 8–9.
10 / Date: 5/2
‘default position, that a claim of international obligation must, by some authoritative

justification, overcome’.41
3.2 The Indeterminacy of Sovereign Equality
Roth’s analysis provides some strong moral and prudential justifications for sticking to
the principle of sovereign equality as the rebuttable position in international legal
argument. At the same time, however, his defense of consent as instrument for the
protection of sovereign equality results in yet another set of paradoxes for consensual
theories of international law. For one, the equality of states cannot, by definition, be the
result of the consent of free and equal states – this would only beg the question why
the consent of each state would have to count equally. It cannot, in other words, be the
product of lawmaking based on state consent. Here again, consensual understandings of
international law have to rely on non-consensual arguments. In addition, the notion of
sovereign equality itself is quite indeterminate; what equality implies largely depends
on dominant beliefs regarding the nature and function of states in international
society.42 Take for example the regulation of the use of force in international law. In the
Jus Publicum Europaeum the notion of sovereign equality implied that no state had a
right to judge the lawfulness of the causes of a war waged by another sovereign; it was
for each state itself to decide whether waging a war was justified and necessary.43
Under the UN Charter, by contrast, the notion of sovereign equality forms the basis for
the prohibition on the use of force. Sovereign equality no longer implies the prerogative
to decide for oneself on the necessity and justness of a war; it implies a protection
against the use of force by other states. The prohibition on aggressive wars has now
even been lifted to the status of a peremptory norm of international law and under the
revised ICC Statute aggression is treated as an international crime.
The indeterminate character of sovereign equality has direct consequences for the
link between the equality of states and consensualism. Theories that assume states to be
equally sovereign do not necessarily embrace a purely consensual reading of inter-
national law. A case in point is the legal theory of Emerich de Vattel (1714–1767), who
is often invoked for his forceful expression of the idea that the equality between states
is a dictate of nature:
Since men are by nature equal, and their individual rights and obligations the same, as
coming equally from nature, Nations […] are by nature equal and hold from nature the same
obligations and the same rights. Strength or weakness, in this case, count for nothing. A
41
ibid, 8. Note that Roth here defends a position that comes close to Koskenniemi’s
description of consensualism, whose ‘normative sense […] is […] in its claim to override some
other view because this does not give required effect to what States will’; Koskenniemi (n 12),
310 fn 14.
42
C Reus-Smit, The Moral Purpose of the State, Culture, Social Identity and Institutional
Rationality in International Relations (Princeton University Press 1999).
43
C Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum
Europaeum (Telos Press 2006); S Neff, War and the Law of Nations, A General History (CUP
2005). See, however, the continued relevance of just war criteria in measures short of war during
the nineteenth century, as discussed by Neff, 215.
11 / Date: 5/2
dwarf is as much a man as a giant is; a small Republic is no less a Sovereign State than the
most powerful Kingdom.44
For Vattel, however, the presumed equality between states did not automatically
translate into an exclusively consensual reading of the positive law of nations.
Alongside conventional law (based on the idea of lawmaking through express consent)
and customary law (based on tacit consent) Vattel identified a third category of
‘positive law’, the so-called ‘voluntary law’ based on the presumed consent of states.45
The latter category consists of those rules ‘to which the natural law obliges Nations to
consent; so that we rightly presume their consent, without seeking any record for it; for
even if they had not given their consent, the Law of nature supplies it, and gives it for
them […]’. While for modern readers the term ‘voluntary law’ thus suggests a basis in
the expressed or tacit will of states, it is actually grounded in something beyond the
consent of states. One of the most important rights that Vattel located in the voluntary
law of nations was the right to use force against those states that threaten the ‘laws of
the society which Nature has established between them, or who directly attacks the
welfare and safety of that society’.46 Vattel, in other words, emphasized the importance
of non-consensual branches of international law in order to protect the society of free
and equal states.
The brief discussion of Vattel’s work illustrates that there is no necessary connection
between sovereign equality and consensualism. Even if one is keen on protecting the
equality between states, it may be possible, or even inevitable, to invoke non-
consensual bases for the validity of international legal norms. A more contemporary
example of the need to invoke non-consensual arguments can be found in the rules
regulating the obligations for newly independent states. For states already existing, the
creation of a new state transforms their rights and obligations; there are borders to be
respected, immunities to be granted, jurisdictions to be reckoned with, etc. If
international law is indeed based on the free will of states, such alterations of the rights
and duties of existing states should not be brought about without their consent. On the
other hand, however, newly created states are equally entitled to be bound only by
those rules to which they have freely consented. If international law is indeed based on
the free will of states, the newly born states could not be bound by rules to which they
had not previously consented. In other words, consensualism can be invoked to argue
either in favour or against constitutive effects of recognition and both to support and to
reject the principle that newly created states are automatically bound by existing
international rules. Whatever position is taken, it is unavoidable that some states are
presumed to be bound by rules that do not derive from their consent.47
The relation between sovereign equality and consensualism has become even more
complex due to processes associated with globalization. Globalization and the develop-
ment of a world risk society have created an increasing number of problems that
44
E de Vattel, The Law of Nations or the Principles of Natural Law (1758), para 18
available at <http://files.libertyfund.org/files/2246/Vattel_1519_LFeBk.pdf>.
45
ibid, para 27: ‘These three kinds of law of nations, the Voluntary, the Conventional, and
the Customary, together constitute the Positive Law of Nations’.
46
ibid, para 22.
47
For a more elaborate discussion see Koskenniemi (n 12), 272–82.
12 / Date: 14/3
surpass the boundaries of sovereign states.48 Problems such as global warming, nuclear
risk regulation, the vulnerability of financial markets or global terrorism are simply not
the issue of one state alone. In this context, understanding state equality in terms of
consensual international law creates a dilemma: if states are only obliged to act upon
these problems if they have given their consent, what happens to the legal position of
other states that are affected by those global problems? In this context, normative
pluralism alone is of little help. If respecting the freedom of one state means that other
states, against their will, are confronted with global problems, recourse to pluralism and
independence only begs the question. It is not surprising, therefore, that different modes
of governing and different rationales have been developed to deal with global issues.
One recurring argument here is that states cannot be viewed as the unproblematic
starting point of international legal argument (as in Lotus) but should rather be treated
as instruments for the protection of world order.49 Examples can be found in areas such
as climate change and biodiversity regimes, where international legal regimes ‘concep-
tualize states as functional actors, acting in the interest of individuals and groups in
society, including future generations’.50 In an even more radical fashion, one could
argue that linking normative pluralism to a purely consensual understanding of
international law could be self-defeating. The protection of normative pluralism, after
all, requires a broader societal and legal framework. If states assume the liberty to
undermine this broader framework in the name of their freedom under law, it would be
self-contradictory to defend this freedom on the basis of normative pluralism. This
point was driven home by Judge Weeramantry’s separate opinion to the Nuclear
Weapons Advice. According to Weeramantry, answering questions regarding the
legality of nuclear weapons exclusively from the assumption of state freedom and state
equality are doomed to fail. The use of nuclear weapons, after all, could destroy the
very legal and societal framework that protects the freedom and equality of states in the
first place. Just as Vattel made room for non-consensual forms of law in order to protect
an international society of sovereign states, Weeramantry argues that in contemporary
society, the freedom of states should presumed to be limited in order to protect the
foundations of international law:
It is implicit in ‘Lotus’ that the sovereignty of other States should be respected. One of the
characteristics of nuclear weapons is that they violate the sovereignty of other countries who
have in no way consented to the intrusion upon their fundamental sovereign rights, which is
48
U Beck, World Risk Society (Polity Press 1999).
49
This position goes back a long way and has been articulated by Judge Alvarez in his
individual opinion in 1949:
Today, owing to social interdependence and to the predominance of the general interest, the
States are bound by many rules which have not been ordered by their will. The sovereignty of
States has now become an institution, an international social function of a psychological
character, which has to be exercised in accordance with the new international law.
Corfu Channel Case (UK v Albania) (Judgment) [1949] ICJ Rep 15, Separate Opinion of Judge
Alvarez, 43.
50
E Hey, ‘Addressing the Market or the Hard Work of Developing a Regime to Protect
Humanity’s Interest in a Good’ in B van Beers ao (eds), Probing the Boundaries of Humanity
(currently under review, document on file with author).
13 / Date: 14/3
implicit in the use of the nuclear weapon […]. An individual’s right to defend his own
interests is a right he enjoys against his opponents. In exercising that right, he cannot be
considered entitled to destroy the village in which he lives […]. it can scarcely be contended
that any legal system can contain within itself a principle which permits the entire society
which it serves to be thus decimated and destroyed.51
4. TERRITORIALITY
The idea of consent as constitutive of international legal obligations emerged in a
particular context: the rise of territorial units that presented themselves as the highest
authority.52 Within this context, express or tacit consent came to be viewed as the
representation of the norm-creating will of the state. Territoriality, however, has never
been the only way in which political communities were formed nor the only way
through which boundaries between insiders and outsiders were drawn.53 Territoriality
always had to compete with principles such as dynastical ties or balance of power
considerations that could require territorial redistribution.54 With the acceleration of the
process of globalization since the 1990s, territoriality has come under renewed strain.
Alongside the territorial distribution of the world, functionality emerged as a leading
principle in different areas.55 While territoriality as a dividing principle came with the
authority of the state, functionality comes with the authority of the expert and
conceptual boundaries between different fields. This tendency is reflected in inter-
national law curricula. General courses on international law (where the territorial
division of the world is the starting point) are more and more being replaced by
specialized courses in functional areas such as environmental law, humanitarian law,
economic law, etc.56 In contemporary international law, it is not only important to know
which states are part of a legal regime, but increasingly also which expert-language one
needs to speak in order to be heard. As Koskenniemi has put it: ‘Political intervention
is today often a politics of re-definition, that is to say, the strategic definition of a
situation or a problem by reference to a technical idiom so as to open the door for
applying the expertise related to that idiom, together with the attendant structural
bias.’57
51
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep
227, Dissenting Opinion of Judge Weeramantry, 494, 464 and 471 respectively.
52
F Kratochwil, ‘Sovereignty as “Dominium”: Is there a Right of Humanitarian Interven-
tion?’ in M Mastanduno, G Lyons (eds), Beyond Westphalia? National Sovereignty and
International Intervention (Johns Hopkins University Press 1995), ch 2. For a critique of
Kratochwil’s theses, see B Holland, ‘Sovereignty as Dominium? Reconstructing the Construc-
tivist Roman Law Thesis’ (2010) 54 International Studies Quarterly 449.
53
For an analysis of the rise of territorial jurisdiction and cartography, see R Ford, ‘Law’s
Territory (A History of Jurisdiction)’ (1998-99) 97 Michigan Law Review 843.
54
For an analysis of balance of power, dynastical considerations and territoriality in the
context of the Treaty of Utrecht, see Reus-Smit (n 42).
55
N Luhmann, Das Recht der Gesellschaft (Suhrkamp Taschenbuch 1995).
56
M Koskenniemi, ‘The Politics of International Law: 20 Years Later’ (2009) 20 European
57
ibid, 11.
14 / Date: 5/2
In a system dominated by sovereign states, it is important to know what represents

the will of the state; in a system dominated by experts, representation takes a different
form. It is the representation of knowledge and expertise that counts. The rise of
functionality has impacted upon the role of consent in at least two ways:
+ It has led to a disaggregation of the state and the rise of international agencies
+ It has spurred the creation of legal regimes beyond the state.
In international law, the idea of the state as a unitary actor was never meant as an
accurate description of reality; no-one would be so naïve as to assume that the state is
indeed one monolithic bloc. The idea of the state as a unitary actor instead functioned
as an assumption that was deemed necessary for the proper functioning of international
law.58 In the area of state responsibility, for example, states are presented as if they
were unitary actors; whatever level or branch of government violates the rights of other
international legal persons, it is the state as such that bears responsibility. There is no
doubt that the unity of the state in this sense is still important in international law. At
the same time, however, states are disaggregating in unprecedented ways. As Slaughter
has pointed out, governments are more and more organized in transnational networks,
both horizontally (networks between national regulators, judges and legislators) and
vertically (between national and supranational officials).59 This has led to forms of
transnational governance based on agreement and custom between, for example, groups
of regulators instead of treaties under international law, concluded between unitary
states. One of the driving forces between the establishment of such networks is the turn
from territoriality to functionality; the increased specialization and expertization of
contemporary societies: ‘[…] two hallmarks of modern industrialized society are
specialization and regulation. The result? Legions of regulators with specialized
expertise – expertise that often guarantees a measure of deference from judges,
legislators, and fellow regulators’.60 The same logic of specialization, regulation and
abundance of expert-knowledge has spurred the formation of global networks between
judges and even, albeit to a lesser degree, legislators.61
Slaughter has portrayed the rise of transnational government networks as a move to
a new, more just and more efficient world order.62 There is no need, however, to buy
into Slaughter’s optimistic liberal agenda to be convinced by her empirical evidence
that the state is indeed partly transforming into a network of networks, both horizon-
tally and vertically. What is more, the turn from territoriality towards functionality has
not only spurred bottom-up cooperation between states. At the level of international
58
In this sense, the idea of the state as a unitary actor fulfills a function that is comparable
to the assumption of legal equality; this too is not a description of a pre-given reality, but rather
a presentation of reality that presses upon the legal community to be acted upon.
59
A Slaughter, A New World Order (Princeton University Press 2004).
60
ibid, 39.
61
See for example, Slaughter’s discussion of the role of global databases and specialization
in judicial cooperation, ibid, 71–5.
62
ibid, ch 6.
15 / Date: 14/3
organizations, it has led to the creation of specialized, technocratic agencies, that

sometimes create new, even more specialized bodies themselves.63 As Wessel has set
out:
[…] here also, the tendency towards functional specialisation because of the technical
expertise required in many areas may be a reason for the proliferation of such bodies and
for their interaction with other international organizations and agencies, which some-
times leads to the creation of common bodies. […] It is not entirely uncommon for
international organizations to establish bodies with public law functions.64
In similar fashion, Dunoff has argued that the unprecedented powers of lawmaking
currently arrogated by international organizations and international agencies has
transformed international law fundamentally.65 The core question for international law,
Dunoff observes, shifts from relations between equal states and their consent to ‘the
normative results when international organisations interact among each other’.66
The disaggregation of the state and the rise of technical agencies question the
usefulness of consent-based readings of international law. Sure, it may still be possible
to portray rule-making in transnational government networks as somehow resting on
the tacit acceptance by states. Bringing in the consent of unitary states in this context,
however, sounds more like the invocation of a magic formula than as an attempt to
grasp the way in which international legal rules are made, interpreted and applied.
Nineteenth century imageries of consent as the representation of the will of the unitary
state are too far removed from the realities of rule-production in transnational networks,
where functional imperatives and expert-knowledge are pivotal. Alternative foun-
dational formulas such as the ‘collective conscience of states’, a ‘sense of right’ or
‘membership of a society of sovereign states’ would be as informative (or rather
uninformative) as consent in this context.67
Consent-based readings of international law have ascribed to a particular understand-
ing of law; legal rules are validated through the freely expressed or tacit consent of
states. This almost exclusive focus on the state as lawmaking agency, however, has
come at a price. For one, it has made international law more vulnerable than necessary
to the charge that it is a marginalized form of law, or no law at all.68 If law can only
originate from the will of an agent which has monopolized force domestically, the lack
of enforcement mechanisms at the international level is an obvious trump card for those
63
For an overview of new forms of lawmaking in international organizations, see J Alvarez,
International Organizations as Law-Makers (OUP 2005).
64
R Wessel, ‘Informal International Law-Making as a New Form of World Legislation?’
(2011) 8 International Organizations Law Review 253, 258.
65
J Dunoff, ‘Is Sovereign Equality Obsolete? Understanding Twenty-First Century Inter-
national Organisations’ (2013) 44 Netherlands Yearbook of International Law 99. Dunoff refers
to a variety of activities by international organizations, including binding decisions, standard
setting, external referencing, administrative decisions, adjudication and supervision.
66
ibid, 26.
67
For a discussion of the different proposed foundations for international law see H Koh,
‘Review Essay: Why Do Nations Obey International Law’ (1997) 106 Yale Law Journal 2599
available at <http://digitalcommons.law.yale.edu/fss_papers/2101>.
68
J Goldsmith and E Posner, The Limits of International Law (CUP 2005).
16 / Date: 5/2
who are skeptical about the legal nature of international law.69 This is not to say, of
course, that the skeptics are correct. International lawyers have routinely – and rightly
– pointed out that the reality of international law resides in its actual use by a variety of
actors, including governments, courts, international organizations, NGOs, etc. What
counts is that international law is treated as a system of binding (and non-binding) legal
rules, even if it is often not possible to enforce those rules through sanctions. Factors
such as perceived long-term interest, habitualization, internalization, identity, lobbying
by domestic interest groups etc. all contribute to the use of international law.70
Saying that the reality of international law consists in its actual use reinforces a more
general insight from legal sociology: law only functions if it is ‘a constitutive part of
culture, shaping and determining social relations’;71 if it is used as ‘a distinctive
manner of imagining the real’.72 If law primarily works as a particular way of
imagining the real, however, there is no reason to exclude a-priori legal norms that do
not originate in the (assumed) will of states.73 What matters then is not whether the
validity of norms can be traced back to one single ultimate ground (such as state
consent), but rather what is accepted as law in different social practices. If there are
different social practices, different sources of law will emerge – and overlaps,
reinforcements and conflicts between norms of different origin will become unavoid-
able.
And indeed international law always had to deal with alternative forms of legality,
for example in the form of canon law or the rules of lex mercatoria. Processes of
globalization, specialization and expertization have reinforced this to an unprecedented
extent. In contemporary global society, global private regimes have emerged in
different functional areas, simply bypassing traditional sources of domestic or inter-
national lawmaking. One only needs to think of the regulation of the internet (lex
digitalis), fisheries law74 or the codes governing transnational construction (lex
constructionis) to realize important normative regulation takes place outside the
confines of traditional international law.75 These private regimes often contain the three
hallmarks of law that have been identified in Hart’s analytical legal positivism:76
69
For this argument see also P Berman, ‘From International Law to Law and Globalization’
(2005) 43 Columbia Journal of Transnational Law 487, 492.
70
For an overview see Koh (n 67).
71
Berman (n 69), 494.
72
ibid, 493–4.
73
This point has been made over and over again in pluralist scholarship. See eg B
Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law (OUP 1999);
J Griffiths, ‘What Is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism and Unofficial
Law 1.
74
For a discussion see T Hale, ‘Marine Stewardship Council’ in T Hale and D Held (eds),
Handbook of Transnational Governance: Institutions and Innovations (Polity Press 2011),
308–14.
75
For a discussion see A Fischer-Lescano and G Teubner, ‘Regime-collisions: The Vain
Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of
76
Hart (n 14). For a discussion of the private regimes in Hartian terms see Fischer-Lescano
and Teubner, ibid.
17 / Date: 5/2
+ They constitute a unity of primary rules (rules of conduct) and secondary rules
(rules of change, adjudication and recognition);
+ The primary rules of the regimes are generally obeyed by private citizens;
+ The rules of change, adjudication and recognition are generally accepted by
officials (although, by contrast to Hart’s notion of law, these officials need not
necessarily be public officials).
The proliferation of private functional regimes has contributed to new forms of

collision and conflict in transnational law. Instead of disputes between territorially
separated units, conflicts now arise between functional areas because the private
regimes ‘inevitably reproduce, albeit in a different form, the structural conflicts existing
between the various functional systems within the law’.77
Global private legal regimes challenge the traditional understanding of international
law in perhaps the most fundamental way. They bring home points made by pluralist
scholarship for quite some time and force international lawyers to reimagine their
discipline as a form of global law, grounded in different social practices rather than in
a single ultimate foundation such as the consent of states. Of course, within many
social practices (such as the conclusion of treaties) the will of states remains an
important point of reference. It is not possible, however, to somehow transcend these
practices and ground the system as a whole in the consent of states.
5. CONCLUSION
As has been demonstrated in this chapter, consensualism alone cannot provide a stable
foundation for the validity international legal obligations. Arguments that start out from
consensualist assumptions constantly need to refer back to non-consensual arguments
in order to bridge gaps between ‘is’ and ‘ought’, ‘will’ and ‘norm’, law-creation and
law-application, etc. With the advent of so-called ‘world order treaties’, the paradoxes
of consensualism have become even more acute. Treaties such as the UN Charter or the
Geneva Conventions contain provisions that are difficult to square with the traditional
inter-state paradigm that underlies consensualism. In these contexts, sticking to state
consent as the ultimate basis of international law (further) detaches theoretical
reflection from actual developments in international life. In addition, consensualism is
often wrongly portrayed as the logical corollary of the principle of sovereign equality.
While sticking to the consent of states may in concrete cases indeed help to protect the
equality between states, sovereign equality can also be used to argue against consen-
sualism. The need to protect an international society of free and equal states, for
example, may be invoked to argue for the validity of obligations binding upon states
even without or against their will. While this insight was already developed in early
77
Fischer-Lescano and Teubner, ibid., 1013. At the same page the authors mention as
examples of such conflicts ‘standard contracts within the lex mercatoria reflecting the economic
rationality of global markets (… colliding …) with WHO norms that derive from fundamental
principles of the health system. The lex constructionis … (colliding …) with international
environmental law’.
18 / Date: 14/3
scholarship (eg by Vattel), the development of a world risk society has given the call for
non-consensual obligations new meaning and force. Finally, limiting international legal
analysis to inter-state law blinds us for the development of legal regimes beyond the
state. Here again, processes associated with globalization have provided new challenges
to state consent as the ultimate basis for international law. The disaggregation of the
state, the rise of international agencies and the increasing importance of global private
regulation put the continued relevance of state consent as ultimate foundation of
international law in question.
Now this all does not mean that ‘state consent’ has become irrelevant or that we
should start looking for alternative foundations of international law. For one, alternative
foundational approaches come with their own paradoxes, blind spots and limits.78
Moreover, state consent still plays an important role in international legal discourses on
the creation, interpretation and application of law. There is no point in theorizing state
consent away because it is unable to provide a coherent and encompassing foundation
of international law as a whole. State consent remains pivotal if one wants to
understand the construction of international legal arguments, however paradoxical and
limited these arguments may be. It is necessary, however, to free ourselves from state
consent as a foundational myth; of the idea that ultimately international law can be
traced back to one single formula. State consent matters as part of the often inchoate
and paradoxical argumentative practices of international law, not as the principle that
allows us to transcend these practices.
78
For an analysis of the limits of international constitutionalism see: Werner (n 21).
19 / Date: 14/3
2. Subjects and actors in international lawmaking:

The paradigmatic divides in the cognition of
international norm-generating processes
Jean d’Aspremont
1. INTRODUCTION
It has long been claimed that international lawmaking has grown pluralized in the sense
that it allegedly moved away from the so-called Westphalian and state-centric model of
lawmaking. New norm-generating processes outside traditional diplomatic channels
and involving non-state actors are now said to qualify as lawmaking properly so-called
and the products thereof are supposedly ascertainable as genuine legal rules. There is
no doubt that the idea of a pluralization of international lawmaking has turned into a
vernacular model in contemporary legal scholarship with the result that studies failing
to give it sufficient emphasis would be demoted to antediluvian knowledge.
This uncontested prejudice in favor of pluralistic representations of lawmaking
processes1 calls for a preliminary remark that will inform the argument subsequently
made in this chapter. It does not seem controversial to contend that the mere finding
that international lawmaking is now more heterogeneous, accommodates new forms of
law-generating processes and gives a say to new types of actors presupposes that
international lawmaking has some day been monolithic and state-centric. Said differ-
ently, the claim of a pluralization of international law rests on a strong prejudice about
the state of the pre-pluralizion era.2 In that sense, the empirical finding of a
pluralization of international lawmaking, albeit being almost unanimously shared
among observers and scholars, manifests consensus on some preconceived data, that is
the preexistence of something like the Westphalian order. Needless to say such
preconceived data is itself the expression of a construction.3 That being said, it is
certainly not the aim either of these introductory considerations or of this chapter to
shed a radical skeptical veil on all attempts to make sense of international lawmaking.
While acknowledging the prejudices informing the conceptualizations of lawmaking in
the literature, the foregoing only means to recall the – undisputed – relativity of any
basic empirical as well as conceptual finding. Such an elementary reminder seems
1
Section 2 will offer a brief overview of the state of the literature in this respect. See also
my critical remarks in J d’Aspremont, ‘The Doctrinal Illusion of the Heterogeneity of
International Lawmaking Processes’ in H Ruiz Fabri ao (eds), Select Proceedings of the
European Society of International Law vol 2 (Hart Publishing 2010), 297–312.
2
S Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’
(1996–97) 18 Michigan Journal of International Law 183.
3
See generally A McIntyre, Whose Justice? Which Rationality? (Duckworth 1988), 333
(‘There are no preconceptual or even pretheoretical data’).
32
1 / Date: 8/2
Subjects and actors in international lawmaking 33
inevitable, for one cannot seriously engage with the theories of lawmaking – as this
chapter is supposed to do – without bringing to mind such an elementary observation.
It seems that there is nowadays no-one to dispute that the way in which lawyers
construct, not only the legal rules, but also the facts is contingent on the cognitive lens
through which one has – consciously or unconsciously – chosen to look at international
law.4
If one applies the abovementioned elementary epistemological remarks to the
question of international lawmaking discussed in this chapter, the story would go as
follows. If one wants to make sense and – as most international legal scholars will try
to do – systematize international lawmaking processes, one needs to elect a paradigm
by virtue of which one will be able to construct the reality of norm-generating
processes in international law and, correlatively, the contours of the international legal
order originating therein. A few dominant paradigms seem to have emerged in the
literature about lawmaking processes. They ought to be briefly sketched out at this
introductory stage before they are further examined in the paragraphs that follow.
When it comes to cognizing international lawmaking, one of the most dominant
paradigms found in the literature has been the subjecthood paradigm. Indeed, subject-
hood was once an important cognizing value of all the practices of international
norm-generating processes in international law. Processes that could not be captured by
virtue of the concept of subjecthood would not qualify as international lawmaking.
Subjecthood was a static model for the apprehension of international lawmaking
processes. International legal scholarship on lawmaking has also given rise to another
form of static conceptualization of lawmaking, namely those grounded in the pedigree
of the norm produced. According to this paradigm, a lawmaking properly so-called
would be any process that leads to the creation of a norm that can be ascertained as a
legal rule by virtue of its pedigree. Such a form of staticism has proven more formal
than the approach based on subjecthood, for, in this case, international lawmaking has
been ascertained by virtue of a doctrine of formal sources.5
As is well known, the paradigm of subjecthood or that of formal pedigree came
under the fire of the New Haven school whose disciples contended that subjecthood and
the pedigree must be abandoned, because their inherent staticism does not allow to
apprehend international lawmaking processes. International norm-generating processes
need not to be apprehended on the basis of static and arbitrary concepts like
subjecthood or pedigree. Rather, more dynamic cognitive tools, like that of partici-
pation, offer better instruments to make sense and grasp (the dynamics of) international
lawmaking processes and their actors.6 The emergence of this new model brought about
a schism between staticism – associated with subjecthood and pedigree – and
dynamism – associated with participation. This schism has perpetuated itself for the last
decades and fuels immense controversies.
4
The relativity of the cognitive tool is one of the paradigms of the inquiry carried out in J
d’Aspremont (ed), Participants in the International Legal System (Routledge 2011).
5
For an outline of the emergence and evolution of that paradigm in international legal
scholarship, see J d’Aspremont, Formalism and the Sources of International Law (OUP 2011),
esp ch 3.
6
See below section 3.3.
2 / Date: 14/3
It is noteworthy that, against the backdrop of seemingly irreconcilable tensions

between staticism and dynamism in scholarly models of international lawmaking,
endeavors to develop other perspectives on international lawmaking have been wit-
nessed. For instance, new conceptualizations have attempted to apprehend lawmaking
from the standpoint of the impact of its input. This is the cognitive twist found in
approaches informed by Global Administrative Law or the Heidelberg Project on the
Exercise of Public Authority. Others, coming to terms with the abiding divide between
the abovementioned static and dynamic approaches, have attempted to overcome the
debate between subjecthood, pedigree and participation by advocating a neo-statist and
neo-formalistic pedigree-based approach to lawmaking. The main difference with the
classic static approach originates in the pedigree being itself in constant evolution and
flux, constantly allowing new norm-generating processes to be elevated in lawmaking
properly so-called.7
The aim of this introductory overview of the dominant paradigms by which
international lawyers have tried to apprehend lawmaking processes is to show that the
international legal scholarship has been riven by a twofold cognitive divide. A first
obvious tension has been witnessed between static and dynamic cognitive models. A
second tension, equally fundamental, can be observed between those models centered
on subjects and participants and those models which use other cognitive tools like
pedigree or output. The first tension probably epitomizes better the circular moves
observed in the literature and it offers a better standpoint if one wants to decipher the
chronological evolution of the scholarship on lawmaking. While duly acknowledging
the first, this chapter will nonetheless be structured along the second cognitive tension
found in the literature. Indeed, in seeking to shed some light on the reasons guiding
scholars when choosing one of these paradigms through which one makes sense of
lawmaking, this chapter will distinguish between the approaches that cognize law-
making processes on the basis of the subjects and the participants on the one hand and
the approaches that apprehend lawmaking processes on the basis of other tools on the
other. In focusing on the second cognitive divide found in the scholarship, this chapter,
rather than providing a chronological account of the changes of scholarly models of
cognition, will offer some insights on the upsides and downsides of modes of
apprehension of lawmaking processes that are based on subjects and participants.
After a brief outline of the mainstream empirical construction of current norm-
generating processes in international law (2) this chapter offers a detailed description of
the main cognitive choices found in international legal scholarship through which
international lawmaking processes have been apprehended (3). It eventually formulates
some critical remarks on the politics of empiricism and cognition (4).
7
This is what I have tried to defend in my dynamic theory of sources, see d’Aspremont
(n 5), esp ch 8.
3 / Date: 8/2
2. EMPIRICAL CONCORD: THE PLURALIZATION OF

This section recalls the main traits of the contemporary pluralization of international
lawmaking as it is empirically depicted in the mainstream scholarship. While there
seems to be a consensus on the principal characteristics of the move away from the
Westphalian state-centric lawmaking blueprint (2.1.), some disagreement persists
regarding the extent of the resilience of states as the principal legal actor (2.2.). All in
all, however, the phenomenon of pluralization has not been disputed. As the subsequent
section will demonstrate, the major source of disagreement among experts does not
pertain to their empirical model to apprehend the practice but rather lies with the
paradigm through which they apprehend international lawmaking as a whole.
2.1 Manifestations of Pluralization in the Practice of International Lawmaking
The mainstream view is that, in practice, the making of modern international law has
witnessed a growing pluralization ratione personae, for states have incrimentally been
joined by other actors in the lawmaking processes. As the story goes, states have ceased
to be (perceived as) the only actors in charge of international lawmaking. While not
being an utterly new phenomenon,8 this pluralization ratione personae of international
lawmaking has, over the last few decades, reached an unprecedented degree. As a
result, it has become uncontested nowadays that lawmaking processes at the inter-
national level involve a myriad of actors, regardless of whoever may eventually
formally hold the rights and obligations created thereby. As a result, normative
authority is seen as being no longer exercised by a closed circle of high-ranking
officials acting on behalf of states, but has instead turned into an aggregation of
complex procedures involving non-state actors.9 In that sense, public authority is now
exercised at the international level in a growing number of informal ways which are
estranged from the classical international lawmaking processes.10
Compelling empirical evidences are usually produced to underpin such conclusions.
On the basis thereof, it is submitted that, over the two last decades, non-state actors
have been boosting their say in international lawmaking processes and that they also
8
Charnovitz (n 2), 183; see also the brief outline of A Boyle and C Chinkin, The Making
of International Law (OUP 2007), 42–3.
9
This has sometimes been called ‘verticalization’. See J Klabbers, ‘Setting the Scene’, in
J Klabbers, A Peters and G Ulfstein, The Constitutionalization of International Law (OUP
2009), 14.
10
See M Goldmann, ‘Inside Relative Normativity: From Sources to Standard Instruments
for the Exercise of International Public Authority’ (2008) 9 German Law Journal 1865; See also
A von Bogdandy, P Dann and M Goldmann, ‘Developing the Publicness of Public International
Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9 German Law
Journal, 1375–400.
4 / Date: 14/3
wield some influence in the review11 and amendments12 procedures of conventional

instruments. It is nonetheless acknowledged in the literature that, while the extent of
their influence is probably unprecedented, the role of non-state actors is not entirely
unheard of. In a famous article, Steve Charnovitz has demonstrated that non-
governmental organizations (NGOs) have been involved in international lawmaking for
more than 200 years.13 It is also often recalled that NGOs have aroused the initiative or
have been granted a formal participatory role in various international lawmaking
conferences since as early as the nineteenth century. To name but a few, mention is
frequently made of the role of the American Peace Society in the first plan for the
Permanent Court of Arbitration;14 the role of the Geneva Public Welfare Society in
the adoption of the 1864 Geneva Convention for the Amelioration of the Condition of
the Wounded in Armies in the Field;15 the role of all the peace societies which sent
representatives to the First and Second Hague Peace Conferences;16 the role of the
Inter-Parliamentary Union and the World Court League in the establishment of the
Permanent Court of International Justice;17 and the occasional role of NGOs in
the committees and conferences of the League of Nations.18 A similar role played by
the private sector in the same period in the meetings of the International Telegraph
Union,19 the annual conferences20 of the International Labour Organization21 or the Pan
American Conferences22 is also invoked.
Although international legal scholars would usually recognize that the role of
non-state actors in international lawmaking processes is not entirely new, they will
stress that the extent of their contribution to lawmaking has undergone a noteworthy
11
See art 12 of the Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer or Anti-Personnel Mines and on Their Destruction (adopted 18 September 1997,
entered into force 1 March 1999) 36 ILM 1507; see also Dublin Convention on Cluster
Munitions (adopted 30 May 2008, not yet in force) CCM/77.
12
See Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or
Anti-Personnel Mines and on Their Destruction ibid, art 13.
13
Charnovitz (n 2).
14
Ibid.
15
See generally A Bennet, The Geneva Convention: the Hidden Origins of the Red Cross
(Sutton 2005).
16
See generally S Rosenne (ed), The Hague Peace Conferences of 1899 and 1907 and
International Arbitration: Reports and Documents (TMC Asser Press 2001).
17
See generally MO Hudson, The Permanent Court of International Justice, 1920–1942, a
Treatise (MacMillan 1943).
18
See generally A Zimmern, The League of Nations and the Rule of Law 1918–1935
(MacMillan 1939).
19
P Meyers, ‘Representation in Public International Organs’ (1914) 8 American Journal of
International Law 81; GA Codding, The International Telecommunication Union: An Experi-
ment in International Cooperation (EJ Brill 1952).
20
Article 7.1 of the Constitution of the International Labour Organization (28 June 1919, as
amended lastly per 1 November 1974) available at <http://www.ilo.org/public/english/bureau/leg/
download/constitution.pdf> (ILO Constitution).
21
CW Jenks, ‘The Significance for International Law of the Tripartite Character of the
International Labour Organisation’ (1937) 22 Transactions of the Grotius Society 45–7.
22
J Crawford, ‘The International Law Association from 1873 to the Present’ (1997) 2
Uniform Law Review 68.
5 / Date: 14/3
increase.23 To buttress that contention, reference is made to how their formal presence
and participation in international lawmaking processes has swollen, as is demonstrated
by their (potential) involvement within the framework of the UN Economic and Social
Council (ECOSOC),24 the UN Global Compact, the UN Human Rights Council,25 the
UN Security Council26 (to a very limited extent), the World Trade Organization
(WTO)27 and within the cooperation policies of the European Community with the
Group of African, Caribbean and Pacific Countries (ACP countries).28 Mention is
moreover made of some notorious recent convention-making conferences having also
weathered a renewed NGO involvement29 as is illustrated by the conferences leading to
the adoption of the 1997 Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer or Anti-Personnel Mines and on Their Destruction,30 the 2008
Convention on Cluster Munitions31 or the well-known examples of the processes
23
See generally G Breton-Le Goff, ‘NGO’s Perspectives on Non-State Actors’ in
d’Aspremont (n 4) 248; TG Weiss and L Gordenker (eds), NGOs, the UN & Global Governance
(Brown University Press 1996).
24
M Noortmann, ‘Who Really Needs Article 71? A Critical Approach to the Relationship
Between NGOs and the UN’ in W Heere (ed), From Government to Governance: The Growing
Impact of Non-state Actors on the International and European Legal System (Martinus Nijhoff
Publishers 2003), 320–32.
25
UN General Assembly Res 60/251 (3 April 2006) UN Doc A/RES/60/251.
26
This is the so-called Arria formula devised in 1993 whereby Security Council members
are allowed to invite other members to an informal meeting which they chair with a view to
receiving information from the NGO concerned on a specific issue. For an example, see UN
Security Council Res 1325 on Women and Peace and Security (31 October 2000) UN Doc
S/RES/1325.
27
See art V (2) of the Agreement Establishing the World Trade Organization (adopted 15
April 1994) 33 ILM 1125; see also the Guidelines for Arrangements on Relations with
Non-Governmental Organizations (23 July 1996) WTO Doc WT/L/162.
28
See art 4 of the Partnership Agreement between the members of the African, Caribbean
and Pacific Group of States of the one part, and the European Community and its member
States, of the other part (signed 23 June 2000) [2000] OJ L 317.
29
K Anderson, ‘The Ottawa Convention Banning Landmines: The Role of International
Non-Governmental Organizations and the Idea of International Civil Society’ (2000) 11
European Journal of International Law 91; M Cameron ao (eds), To Walk Without Fear, The
Global Movement to Ban Landmines (OUP 1998).
30
See Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or
Anti-Personnel Mines and on Their Destruction (n 11) preamble:
Stressing the role of public conscience in furthering the principles of humanity as evidenced
by the call for a total ban of anti-personnel mines and recognizing the efforts to that end
undertaken by the International Red Cross and Red Crescent Movement, the International
Campaign to Ban Landmines and numerous other nongovernmental organizations around the
world. On this convention and the role of non-State actors see Anderson (n29).
31
See Convention on Cluster Munitions (n 11), preamble:
Stressing the role of public conscience in furthering the principles of humanity as evidenced
by the global call for an end to civilian suffering caused by cluster munitions and recognising
the efforts to that end undertaken by the United Nations, the International Committee of the
Red Cross, the Cluster Munitions Coalition and numerous other non-governmental organ-
isations around the world.
6 / Date: 14/3
leading to the adoption of 1984 Torture Convention,32 the 1990 Convention on the
Rights of the Child,33 and the 1999 Rome Statute of the International Criminal Court.34
It is said that, in these situations, it can hardly be denied that non-state actors, through
their formal role, have left their imprint in the substance of the rules finally adopted.
The same allegedly holds with respect to the International Law Commission (ILC)
which has engaged in regular consultations with NGOs, as is illustrated its work on the
Protection of Persons in the Event of Disaster.35
In the mainstream accounts of contemporary international lawmaking, the major role
of non-state actors is not limited to treaty-making procedures. According to them,
non-state actors can also be instrumental in the tentative codification of new rules of
customary international law as is exemplified by the International Committee of the
Red Cross (ICRC) study on Customary International Humanitarian Law36 and the
report of the International Commission on Intervention and State Sovereignty.37 While
the potential impact of the latter still remains unclear and subject to deep questioning,38
the role of the former has been particularly remarkable, however controversial its
methodology may have been.39
Besides the abovementioned pluralization ratione personae of lawmaking at the
international level, other types of pluralization are mentioned in the literature. For
instance, international lawmaking processes are said to have undergone a diversification
of the types of instruments through which norms are produced at the international level,
a diversification which has been perceived as either the reflection of a healthy pluralism
or a daunting fragmentation.40
32
Boyle and Chinkin (n 8), 67–68.
33
C Price Cohen, ‘The Role of Non-Governmental Organizations in the Drafting of the
Convention on the Rights of the Child’ (1990) 12 Human Rights Quarterly 137.
34
See for instance the role of the Coalition for the International Criminal Court available
at <www.iccnow.org/?mod=icchistory>.
35
See UNGA ‘Preliminary Report on the protection of persons in the event of disasters’ (5
May 2008) UN Doc A/CN.4/598 (2008), para 6; see UNGA ‘Second Report on the protection of
persons in the event of disasters’ (7 May 2009) UN Doc A/CN.4/615 (2009), paras 10–12.
36
JM Henckaerts, ‘Study on Customary International Humanitarian Law, a Contribution to
the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87 International
Review of the Red Cross 175.
37
See generally G Evans and M Sahnoun, ‘The Responsibility to Protect’ (Report of the
International Commission on Intervention and State Sovereignty) vol 1 (2001); for some critical
remarks, see C Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm’
(2007) 101 American Journal of International Law 99.
38
See the Proceedings of the Société Française pour le Droit International, La respons-
abilité de protéger – Colloque de Nanterre (Pédone 2008).
39
For a criticism of the methodology of the ICRC, see J d’Aspremont and J de Hemptinne,
Droit international humanitaire (Pédone 2012), ch 2.
40
On the discourses about the pluralization of the substance of law see M Koskenniemi,
‘The Fate of Public International Law: Between Technique and Politics’ (2007) 70 Modern Law
Review 1; see also M Koskenniemi, From Apology to Utopia (CUP 2005), 392–94; M Prost, ‘All
Shouting the Same Slogans: International Law’s Unities and the Politics of Fragmentation’
(2007) 17 Finnish Yearbook of International Law 131 or M Prost, The Concept of Unity in
7 / Date: 14/3
2.2 Persisting State Dominance?
While there seems to have been a consensus among authors and experts about the
empirical manifestations of the pluralization of international lawmaking, some have
argued that the abovementioned types of pluralization of norm-making at the inter-
national level – and especially the growing participation of non-state actors – should
certainly not obfuscate the fact that states have retained a very strong grip over global
lawmaking processes.41 According to this view, the pluralization of lawmaking pro-
cesses is not necessarily leading to a retreat of the state. They submit that, in at least
some contexts, states have conversely bolstered their clout. Such a reinforced state
dominance, according to that view, may take various forms. First, it may be the result
of more intensive lawmaking activity through the classical state-centric convention-
making system.42 This is also manifest in the unprecedented resort to existing
institutional lawmaking mechanisms within international organizations where states
still wield a sweeping clout and, in particular, a more frequent use by states of the UN
Security Council to create wide-ranging binding rules,43 including regulating activities
of non-state actors themselves.44 This idea of resilience of the state amidst pluralization
of international lawmaking is also said to be not limited to a greater use of the classical
channels of lawmaking. The emergence of new forms of lawmaking, outside the normal
abovementioned blueprints, has arguably also contributed to reinforcing the dominance
of states. Illustrations thereof are found in the practice according to which individual
government agencies and actors nowadays negotiate directly with their foreign coun-
terparts and that these intercourses are the source of new transnational regulatory
frameworks (TRNs).45 TRNs can be construed as illustrating
Public International Law (Hart Publishing 2012); see also AC Martineau, ‘The Rhetoric of
Fragmentation: Fear and Faith in International Law’ (2009) 22 Leiden Journal of International
Law 1.
41
A Clapham, Human Rights Obligations of Non-State Actors (OUP 2006), 5–6; see also
d’Aspremont (n 1). This is also acknowledged by A Peters, T Förster and L Koechlin, ‘Towards
Non-state Actors as Effective, Legitimate, and Accountable Standard Setters’ in A Peters ao
(eds), Non-State Actors as Standard Setters (CUP 2009), 496–97; d’Aspremont (n 4).
42
See for instance the area of international economic law (eg the overhaul of the
international economic order through the Final Act of the 1986–1994 Uruguay Round of trade
negotiations) or the United Nations Framework Convention on Climate Change (adopted 9 May
1992, entered into force 21 March 1994) 1771 UNTS 107.
43
See eg UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373. On this issue, see
generally S Talmon, ‘The Security Council as World Legislature’ (2005) 99 American Journal of
44
See UNSC Res 942 (1994) – Bosnian Serb; or UNITA in Angola – UNSC Res 864
(1993). On this practice of the Security Council and its ability to create obligations for non-state
actors, see Accordance with international law of the unilateral declaration of independence in
respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 2010, paras 116–17.
45
See eg AM Slaughter, A New World Order (Princeton University Press 2004); AM
Slaughter, ‘Global Government Networks, Global Information Agencies, and Disaggregated
Democracy’ (2002-2003) 24 Michigan Journal of International Law 1041; see also K Raustalia,
‘The Architecture of International Cooperation: Transgovernmental Networks and the Future of
International Law’ (2002–2003) 43 Virginia Journal of International Law 1. For some recent
8 / Date: 14/3
how the power of states has been thriving outside traditional lawmaking frameworks.
This can allegedly be traced back to a deliberate attempt by states to design norms or
standards outside the classical lawmaking processes46 with a view to escaping the
rigidity as well as the – although limited – accountability constraints that accompany
formal rules of international law.47 Whatever its origins, the pluralization of the
exercise of public authority at the international level has thus been understood as a
reinforcement of states’ powers, for it allows states to be even more present and
influential, even in areas traditionally adverse to it and without being subject to
accountability mechanisms.48 It is noteworthy that those recognizing the resilience of
state dominance do not necessarily see a contradiction between the unprecedented
involvement of non-state actors in lawmaking processes and this continuous state
dominance over these processes. According to them, these two simultaneous phenom-
ena may simply reflect an unprecedented complexity.49
The idea of resilient state dominance remains controversial. At the empirical level, it
is probably where most controversies are located. Yet, such limited controversies on the
remaining clout of states do not suffice to obfuscate the overall consensus according to
which, from an empirical perspective, international lawmaking processes have under-
gone dramatic pluralization. This consensus at the empirical level is however where the
scholarly concord ends. Indeed, at the conceptual level, when it comes to making sense
of international lawmaking as a whole, the international legal scholarship is riven by
deep conceptual disagreements. It is the object of the following paragraphs to spell out
some of these paradigmatic divides.
critical reappraisal, see PH Verdier, ‘Transnational Regulatory Networks and Their Limits’
(2009) 34 Yale Journal of International Law 113; see also G Shaffer, ‘Transnational Legal
Process and State Change: Opportunities and Constraints’, Institute for International Law and
Justice Working Paper 2010/4 available at www.iijl.org.
46
In the same sense, see E Benvenisti, ‘Coalitions of the Willing and the Evolution of
Informal International Law’, in C Calliess ao (eds), Coalitions of the Willing – Avantgarde or
Threat? (Heymann 2007) 2; see also Verdier ibid.
47
Compensating for the lack of accountability of these new forms of lawmaking is
precisely the aim of projects like Global Administrative Law (GAL) or the project on Informal
International Public Policy Making (IIPPM). On Global Administrative Law, see generally B
Kingsbury, N Krisch and R Steward, ‘The Emergence of Global Administrative Law’ (2005) 68
Law and Contemporary Problems 15, 29; C Harlow, ‘Global Administrative Law: The Quest for
Principles and Values’ (2006) 17 European Journal of International Law 187, 197–214; on
Informal International Public Policy Making, see J Pauwelyn, ‘Mapping the Action and Testing
Concepts of Accountability and Effectiveness’ (2011) Project Framing Paper available
at <http://www.hiil.org/data/sitemanagement/media/HIIL_n23198_v1_INLAW_Framing_Paper_
Pauwelyn_June_2011.pdf>.
48
J d’Aspremont, ‘Non-state actors in International Law: Oscillating Between Concepts
and Dynamics’ in d’Aspremont (ed) (n 4) 1.
49
ibid.
9 / Date: 14/3
3. CONCEPTUAL DISCORD: THE PARADIGMATIC DIVIDES IN

THE COGNITION OF INTERNATIONAL LAWMAKING
The previous section has argued that, notwithstanding the limited controversies as to
the actual extent of the resilience of state dominance, the finding that international
lawmaking is undergoing a sweeping pluralization has mustered a wide consensus
among observers, experts, scholars and practitioners. How they make sense of it,
however, shows great divergences among them. Indeed, despite concurring on their
empirical findings, observers, experts, scholars and practitioners disagree in the way
they apprehend international lawmaking as a whole and, in particular, in the way they
cognize the multiplicity of actors whose participation has been empirically acknow-
ledged. This section seeks to outline some of the main cognitive discrepancies found in
the literature.
As was mentioned in the introductory observations of this chapter, five main
approaches to lawmaking seem to permeate the literature: a static approach grounded in
the concept of subjecthood; another static understanding informed by the concept of
pedigree; a dynamic conception of lawmaking based on participation; a dynamic
conception based on the exercise of public authority; and, eventually, a perspective
which, while primarily static, aims at bridging a pedigree-based conception of
lawmaking with social processes. These approaches will not be introduced here in the
chronological order of their emergence in international legal scholarship. Nor will they
be examined along the lines of the tension between static and dynamic approaches.
Although recognizing the fundamental divide between static and dynamic approaches,
this section will discuss each of the abovementioned cognitive models by distinguish-
ing between approaches that cognize lawmaking processes on the basis of subjects and
the actors on the one hand and the approaches that apprehend lawmaking processes on
the basis of other tools on the other. Accordingly, the approaches according to which
the subject or the participant constitutes the central tool through which lawmaking
processes are cognized will be discussed first (3.1). The attention will then turn to
alternative approaches where subject and actors have not deemed an appropriate
cognitive tool to apprehend lawmaking processes (3.2). By focusing on the cognitive
divide found in the scholarship between cognitive models based on subjects and actors
and other cognitive models, this chapter, rather than providing a chronological account
of the changes of scholarly frameworks of cognition, will offer some insights on the
upsides and downsides of modes of apprehension of lawmaking processes that are
based on subjects and actors.
3.1 Subject and Participant as Cognitive Tools of Lawmaking Processes
Albeit being slightly reductive, the presentation made in the following paragraphs
distinguishes between a static subject-based approach (3.1.1) and a dynamic
participant-based approach to lawmaking (3.1.2). The first is undoubtedly more
traditional while the second emerged as a specific reaction to static understandings of
international law and its making.
10 / Date: 15/3
3.1.1 Static subject-based approaches to lawmaking

The subject-based approach to lawmaking seems to have been ingrained in the very
early systematization of international law.50 Indeed, the appellation ‘international law’
directly refers to its main ‘fabricants’, for, as is well known, it is this reference to
nation states as the makers of international law that prodded Bentham’s An Introduction
to the Principles of Morals and Legislation to coin the expression ‘international law’.51
According to this approach, the makers of international law were deemed –
originally the sole – subjects of international law in that they enjoy legal personality. A
correlation was thus quickly established between states as the makers of international
law and subjecthood. In this sense, ‘International Law is conceived of as horizontal law,
in which the subjects of the law are also the makers of the law’.52 The kinship so
established between prominence in lawmaking and subjecthood constituted a prejudice
that permeated the legal scholarship for more than a century. As a result thereof,
lawmaking processes had always been perceived – despite being a common object
of study in political science and international relations53 – as falling outside the scope
of legal scholarly inquiries.54 In fact, lawmaking was seen as a matter of subjects of
international law. An entity not qualifying as a subject could not claim to be
participating in lawmaking. Interestingly, it is this very kinship between the prominent
lawmaking role of states and subjecthood that long barred the recognition of an
international legal personality to international organizations.55 Indeed, for several
decades, scholars and judges resisted the claim that international organizations could
enjoy subjecthood for reasons pertaining to the abovementioned lawmaking prejudice.56
It is in this sense that, in the opinion of the author of these lines, a liberating effect can
be attributed to the 1949 ICJ advisory opinion on the Reparation for Injuries Suffered
in the Service of the United Nations (hereafter Reparation). This opinion can be
construed as constituting a ‘constitutionalizing’57 breaking point as lawmaking and
subjecthood came to be severed from one another, for, in the case of international
50
For a historical account of the concept of subject, see the fascinating work of J Nijman,
The Concept of International Legal Personality: An Inquiry into the History and Theory of
International Law (CUP 2004).
51
J Bentham, An Introduction to the Principles of Morals and Legislation (first published
1781, Kessinger Publishing Co 2005), 326.
52
P Allott, ‘The True Function of Law in the International Community’ (1997–98) 5 Global
Legal Studies Journal 391, 404.
53
R Keohane and J Nye (eds), Transnational Relations and World Politics (Harvard
University Press 1972); J Nye and J Donahue (eds), Governance in a Globalizing World
(Brookings Institution Press 2000); J Rosenau and EO Czempiel (eds), Governance without
Government: Order and Change in World Politics (CUP 1992); J Rosenau, The Study of World
Politics: Globalization and Governance (Routledge 2006).
54
See J d’Aspremont, ‘Non-state Actors from the Perspective of Legal Positivism: The
Communitarian Semantics for the Secondary Rules of International Law’ in d’Aspremont (ed)
(n 4) 23.
55
DJ Bederman, ‘The Souls of International Organizations: Legal Personality and the
Lighthouse at Cape Spartel’ (1996) 36 Virginia Journal of International Law 275.
56
R Collins, ‘Classical Positivism in International Law Revisited’ in J d’Aspremont and J
Kammerhofer (eds), International Legal Positivism in a Post-Modern World (CUP 2012).
57
Bederman (n 57).
11 / Date: 14/3
organization, subjecthood was no longer derived from its lawmaking role but rather, as
is well known, from its functions (the objective school) or the will of its creators (the
subjective school). The severance between lawmaking and subjecthood operated in the
mid-twentieth century bore two main consequences that ought to be mentioned here.
First, as a result of the disconnection of legal personality from lawmaking, the
question of subjecthood came to arise with respect to all kinds of other actors who did
not directly participate in lawmaking. Besides internationally personified international
organizations, some non-state actors came to be recognized as international legal
persons, although this has been less construed as the outcome of a direct conferral of
international legal personality upon non-state actors than an indirect consequence
stemming from them having rights and duties.58 This has thus not put into question the
state-centricism of the pre-Reparation era. Indeed, it was not contested that the rights
and duties that non-state actors may now hold have arguably remained the result of a
state-centric lawmaking process. Above all, it was continuously said that these actors
may well now have a formal international legal personality derived from their rights
and duties but that has not endowed them with any formal and actual lawmaking
powers.59 Thus, the severance between legal personality and lawmaking allowed the
recognition of a legal personality to actors deprived of any major lawmaking powers.
The second consequence of the mid-twentieth century dissociation between lawmaking
and subjecthood is the exact opposite. It is not that legal personality was recognized to
actors without lawmaking powers. It is rather that a lawmaking role was recognized for
a new range of actors not necessarily endowed with legal personality. In the post-
Reparation era, participation in lawmaking does not turn the actor concerned into a
new legal subject.60
It must be acknowledged here that, while the severance between lawmaking and
subjecthood quickly gained widespread acceptance, some reactionaries continued to
deduct legal status from participation in lawmaking, not in the form of subjecthood, but
rather in the form of a formal lawmaker status. This ‘light subjecthood thesis’ is at the
heart of these legal scholars who inferred from developments of a new international
lawmaking framework described in section 2 a formal status of lawmaker.61 In the same
58
See generally, C Dominicé, ‘La personnalité juridique internationale du CICR’ in C
Swinarski (ed), Etudes et essais sur le droit international humanitaire et sur les principes de la
Croix-Rouge en l’honneur de Jean Pictet (CICR 1984) 663; in the context of the debate about
the responsibility of transnational corporations, see O de Schutter (ed), Transnational Corpor-
ations and Human Rights (Hart Publishing 2006). This has led scholars to deem that the
question of international legal personality was described as ‘circular’, ‘sterile’ and boiling down
to an ‘intellectual prison’. See A Reinisch, ‘The Changing International Legal Framework for
Dealing with Non-State Actors’ in Ph Alston (ed), Non-State Actors and Human Rights (OUP
2005) 37, 69–72; Clapham (n 43), 60.
59
See eg G Abi-Saab, ‘Cours général de droit international public’ (1987–VIII) 207 Recueil
des cours de l’Académie de droit international, 39.
60
On this point, d’Aspremont (n 1).
61
G Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in G Teubner (ed),
Global Law Without a State (Dartmouth 1997), 3; M Reisman, ‘Unilateral Action and the
Transformation of the World Constitutive Process: “The Special Problem of Humanitarian
Intervention”’ (2000) 11 European Journal of International Law 30; MT Kamminga, ‘The
12 / Date: 14/3
vein, a significant group of scholars, while acknowledging that contemporary law-

making processes are still fundamentally state-centric, have come to the conclusion that
granting a lawmaking status to non-state actors should be at least advocated and
promoted.62 Many international legal scholars thus prove, in one way or another,
amenable to the idea of a lawmaking role of non-state actors.63 This continuous
scholarly attraction for the junction between lawmaking and personality has however
remained isolated and marginal. This is why it is not further explored here.
For the sake of the argument made here, the main outcome of a subject-based
approach for the cognition of international lawmaking is that pluralization mentioned in
section 2 can be cognized short of legal personality. International lawmaking can be
said to have grown more heterogeneous without any structural change to the configura-
tion of the international legal order in terms of subjects. Said differently, the
subject-based model, once severed from lawmaking, has allowed its proponents to more
easily recognize the pluralization of international lawmaking processes.
Yet, even when severed from legal personality, such a subject-based approach
remained burdened with cognitive deficiencies, which explains its limited success in
the literature. It is not only that such an approach fails to capture norm-generative
activities between subjects that are not legal persons, it is also that, even with respect to
these norm-generating processes between legal persons, the cognitive value of subject-
hood is limited. Indeed, it has always been close to impossible to formally certify the
existence of subjects of international law, for the identification of subjects of inter-
national law has inextricably remained immune from any formal capture, which is as
much the cause and the consequence of the utterly political nature of subject-
identification processes on the international plane. For instance, as far as the identifi-
cation of states is concerned, international law continues to be dependent on
recognition. International legal scholars – who classically resent such political contin-
gencies – have nonetheless long tried to convince themselves that the determination of
the subjects of international law is, to some extent, governed by international law.64
This has been the illusion at the heart of the scholarly construction of the three- (or
four-) element doctrines of statehood. Although it is true that some international legal
rules, like those pertaining to self-determination, human rights and democracy may
occasionally impinge on the formation of new subjects and the gender of the new
Evolving Status of NGOs under International Law, a Threat to the Inter-State System?’ in P
Alston (ed), Non-State Actors and Human Rights (OUP 2005) 93.
62
See generally C Arend, Legal Rules and International Society (OUP 1999); R Falk and A
Strauss, ‘On the Creation of a Global Peoples Assembly, Legitimacy and the Power of Popular
Sovereignty’ (2000) 36 Stanford Journal of International Law 191.
63
It is also particularly well illustrated by the fact that we have witnessed the creation of a
special law journal devoted to the question (Non-State Actors and International Law – published
by Brill from 2000 until 2006) or that of a book series initiated by Math Noortmann (Non-State
Actors in International Law, Politics and Governance) and published by Ashgate.
64
See eg J Crawford, The Creation of States in International Law (OUP 2006), 40ff; see
also M Forteau, ‘L’Etat selon le droit international: une figure à géométrie variable?’ (2007) 111
Revue générale de droit international public 737.
13 / Date: 14/3
born,65 this illusion – which I call the ‘Montevideo mirage’66 – has not sufficed to
formalize the identification of the subjects of international law and rein in the politics
of subject-certification. As far as non-state actors are concerned, their identification
may be even more elusive. It is not difficult to understand that this impossibility to
formally certify the existence of subjects of international law, aggravated by the
overarching determinative role of recognition and the illusion of formalism behind the
doctrines of statehood, have reinforced the move away from the subject-based approach
to lawmaking and paved the way for other approaches to lawmaking.
3.1.2 Dynamic participation-based approaches to lawmaking

The explanatory and descriptive handicap of the static approach to lawmaking, whether
based on subjecthood or pedigree, have led, in the second half of the twentieth century
a move away from any formal category to describe lawmaking. Such a turn –
sometimes described as the instrumentalist turn67 – came to be embodied by the famous
scholars of the Yale Law School (New Haven). The New Haven school is premised on
the inability of formal concepts – whether subjecthood or pedigree – to describe the
multiple facets of lawmaking and capture the great variety of legal actors involved
therein. Scholars affiliated with New Haven invite us to back away from any quest for
a determination of the subjects of international law (and the correlative concept of legal
personality) and, rather, to embrace the – far more complex – idea that what should be
looked at are the participants in the process of international lawmaking. They argue that
the static concept of subject as well as that of pedigree are too restrictive to encapsulate
the multiple dimensions of that process and that a more dynamic concept like that of
participation is needed to unravel these various fluxes in which law originates or which
it contributes to generate. It is well known that the invitation to look at participants
rather than subjects or pedigree made by these scholars did not come out of the blue. It
was inherent in their presupposition that law is primarily an authoritative process of
decision-making rather than a defined set of rules and obligations.68 According to
Myres S. McDougal, international law is:
65
J d’Aspremont, ‘Regulating Statehood: The Kosovo Status Settlement’ (2007) 20 Leiden
Journal of International Law 649; J d’Aspremont, ‘Post-Conflict Administrations as Democracy-
Building Instruments’ (2008) 9 Chicago Journal of International Law 1; J d’Aspremont,
‘Legitimacy of Governments in the Age of Democracy’ (2006) 38 NYU Journal of International
Law and Politics 877; J d’Aspremont, ‘La création internationale d’Etats démocratiques’ (2005)
109 Revue générale de droit international public 889.
66
By reference to the famous 1933 Montevideo Convention on the Rights and Duties of
States, which, for the sake of the Convention, elaborates on the criteria an entity should satisfy
to be considered a state.
67
M Koskenniemi, ‘What is International Law For?’ in MD Evans, International Law (4th
edn, OUP 2014) 29, 36.
68
See MS McDougal, ‘International Law, Power and Policy’, (1952) 83 HR, 133; MS
McDougal, H Lasswell and WM Reisman, ‘Theories about International Law: Prologue to a
Configurative Jurisprudence’ (1968) 8 Virginia Journal of International Law 188; MS
McDougal, ‘International Law and the Future’ (1979) 50 Mississippi Law Journal 259; H
Lasswell and MS McDougal, Jurisprudence for a Free Society (New Haven Press 1992); MS
McDougal and WM Reisman, International Law in Contemporary Perspective (New Haven
Press 1980) 5.
14 / Date: 14/3
a comprehensive process of authoritative decision in which rules are continuously made and
remade; that the function of the rules of international law is to communicate the perspectives
(demands, identifications and expectations) of the peoples of the world about this compre-
hensive process of decision; and that the national application of these rules in particular
instances requires their interpretation, like that of any other communication, in terms of who
is using them, with respect to whom, for what purposes (major and minor), and in what
context.69
Worded differently, international law is ‘a flow of decisions in which community

prescriptions are formulated, invalidated and in fact applied’.70 In the same vein,
Rosalyn Higgins sees international law as ‘the whole process of competent persons
making authoritative decisions in response to claims which various parties are pressing
upon them, in respect of various views and interests’.71 In sum, international law is
accordingly regarded as a comprehensive process of decision-making rather than as a
defined set of rules and obligations.72 In the context of this chapter, it will not come as
a surprise that, if law is envisaged as a process, scholars are brought to observe a more
complex field of inquiry that requires a different type of sophistication and more
dynamic concepts, like that of participation.
As is well known, while it successfully prompted a new wave of interest in
process-based approaches and the cross-disciplinary perspectives that it involves, the
New Haven School approach quickly became the object of criticism. Some of these
objections may explain why the policy-oriented approach could be said to have failed
to significantly overturn the adherence to formal law-ascertainment found in main-
stream international legal scholarship, at least until recently.73 Most of the criticism
levelled against the process-based approach of New Haven is based on the suspicion
that it was in collusion with the American foreign policy decision-makers. According to
that view, the New Haven School places a veil of legitimacy over ideological American
foreign policy.74 In that sense, the New Haven School proves vulnerable to the same
criticisms as naturalism.75 It has also been claimed that the New Haven approach does
69
MS McDougal, ‘A Footnote’ (1963) 57 American Journal of International Law 383.
70
MS McDougal, ‘International Law, Power, and Policy: A Contemporary Conception’
(1953-I) 82 Recueil des cours 133, 181.
71
R Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17
International and Comparative Law Quarterly 58, 59.
72
See McDougal, ‘International Law, Power and Policy’ (n 70); McDougal, Lasswell and
Reisman (n 70); McDougal, ‘International Law and the Future’ (n 70); Lasswell and McDougal,
Jurisprudence for a Free Society (n 70); McDougal and Reisman, International Law in
Contemporary Perspective (n 70).
73
See the remarks by RA Falk according to whom New Haven cannot survive the vision of
its founders. See RA Falk, ‘Casting the Spell: The New Haven School of International Law’
(1995) 104 Yale Law Journal 1991, 1997.
74
This has been famously explained by J Hathaway, ‘America, Defender of Democratic
Legitimacy’ (2000) 11 European Journal of International Law 121. See also J Hathaway, Rights
of Refugees under International law (CUP 2005), 20. In the same sense, see C Tomuschat,
‘General Course on Public International law’ (1999) 281 Recueil des cours 9, 26–9.
75
N Purvis, ‘Critical Legal Studies in Public International Law’ (1991) 32 Harvard
International Law Journal 81, 86. See also Hathaway, ‘America, Defender of Democratic
Legitimacy’ ibid, 129 or Hathaway, Rights of Refugees under International Law ibid, 21.
15 / Date: 8/2
not provide enough guidance as to whether a behaviour is wrongful or not.76 Because

the policy-oriented school construes the ‘authoritative’ character of the process so
broadly, international law ends up indiscriminately encompassing any decision made by
any international decision-maker,77 thereby fuelling a lot of uncertainty. Such uncer-
tainty strips international law of the ‘certainty required for meaningful accountabil-
ity’.78 The resulting arbitrariness cannot be avoided without returning to a rule-based
approach.79
Whatever the actual success of New Haven, its legacy, when it comes to cognizing
lawmaking is dramatic. Indeed, the sweeping move towards the study of lawmaking as
a set of processes rather than through the lens of formal subjects or lawmaker is a move
that can partly be traced back to the influence exerted by schools of thought like New
Haven.80 In fact, subject to the specific difficulties of treaty-making processes and
lawmaking, by international organizations and other limited exceptions, lawmaking
processes, according to the static approaches described above, had always been
perceived – despite being a common object of study in political science and
international relations81 – as falling outside the scope of legal scholarly inquiries.82 In
that sense, the spectrum of cognition brought about by New Haven dramatically
outpaced that of the static subject- and pedigree-based approaches mentioned above.
The consequences of such a new cognitive approach have been wide-ranging. Indeed,
once scholars espousing a participants-based approach eventually elevated lawmaking
processes – or standard setting83 – into a noble topic worthy of scholarly inquiry,84 its
attention became automatically drawn to the participation of actors which do not
qualify as formal legal subjects. This is why, in only a few decades, international legal
scholars massively delved into the study of the phenomenon of non-state actors.
Certainly, this came at the price of a deformalization of international law-ascertainment
criteria,85 which is not without consequences for the authority and normative character
76
J Hathaway, Rights of Refugees under International law (n 76), 22. See the tentative
rebuttal of that type of criticism by R Higgins, Problems and Process: International Law and
How We Use It (OUP 1995), 8.
77
A D’Amato, ‘Is International Law Really Law?’ (1984–85) 79 Northwestern University
Law Review 1293, 1302.
78
J Hathaway, Rights of Refugees under International Law (n 76), 18.
79
M Koskenniemi, ‘International Law in a Post-Realist Era’ (1995) 16 Australian Yearbook
of International Law 1.
80
A Chayes, T Ehrlich and AF Lowenfeld, International Legal Process (Little Brown & Co
1968). See ME O’Connell, ‘New International Legal Process’ (1999) 93 American Journal of
International Law 334. See also HH Koh, ‘Why Do Nations Obey International Law?’ (1999)
106 Yale Journal of International Law 2599 and HH Koh, ‘Bringing International Law Home’
(1998) 35 Houston Law Review 623.
81
Keohane and Nye (n 55); Nye and Donahue (n 55); Rosenau and Czempiel (n 55);
Rosenau (n 55).
82
See d’Aspremont (n 56).
83
Peters, Förster and Koechlin (n 41).
84
For some classical studies on international lawmaking processes, see, R Wolfrum and V
Röben (eds), Developments of International Law in Treaty Making (Springer 2005) or A Boyle
and C Chinkin (n 8).
85
See eg Peters, Förster and Koechlin (n 41), 550–51.
16 / Date: 14/3
of international law as well as the ability of the legal scholarship to produce meaningful
knowledge.86 Yet, whatever its consequences in terms of the authority and normativity
of international law and upon the international legal scholarship, it is this move away
from a scholarship strictly centred on static concepts that has allowed international
legal scholarship to focus its attention on this whole range of new participants in
international lawmaking processes.87
3.2 Alternative Models for the Cognition of Lawmaking Processes
Like subject-based and participant-based approaches, alternative approaches encapsu-

late both static and dynamic frameworks of cognition of lawmaking processes.
Probably the most traditional and static cognitive framework that has been resorted to
in the literature to make sense of lawmaking processes which is not based on
subjecthood is the cognitive model grounded in the pedigrees of rules (3.2.1). Such a
traditional, and static, approach has been contested and gave rise to the antagonist
approaches in the form of output-based cognitive framework (3.2.2.). More recently,
more dynamic models of cognition of lawmaking trying to preserve the role of the
pedigree of rules have been proposed and must be mentioned here (3.2.3.).
3.2.1 Static pedigree-based approaches to lawmaking

Either from the very beginning or as a result of the abovementioned severance of
lawmaking power and subjecthood, many international legal scholars have long shied
away from approaching international lawmaking from the vantage point of the legal
personality. Rather, they argue that it is only as soon as the normative product of a
process is identified as law that the process can be considered a lawmaking process
properly so-called. In that sense, qualifying as lawmaking process hinges on the
normative product thereof. Only when the latter is identified by virtue of its pedigree as
law can the norm-generating process concerned be considered lawmaking. This
approach to lawmaking, albeit not the initial one, can be considered the dominant one.
This view came to prevail in the twentieth century international legal scholarship.
Scholars of the twentieth century, resolutely retreating from the dualism of natural law,
endorsed a rule-approach or source-based approach of law-identification.88 The great
86
I have had the opportunity to evaluate this deformalization of law-ascertainment
elsewhere. See J d’Aspremont, ‘The Politics of Deformalization in International Law’ (2011) 3
Goettingen Journal of International Law 503.
87
M Noortmann and C Ryngaert (eds), Non-State Actor Dynamics in International Law:
From Law-Takers to Law-Makers (Ashgate 2010); Peters, Förster and Koechlin (n 41); A
Bianchi (ed), Non State Actors and International Law (Ashgate 2009). In the French literature,
see R Ben Achour and S Laghmani, Acteurs non étatiques et droit international (Pédone 2007).
88
D Anzilotti, ‘Il diritto internazionale nei giudizi interni’ (1905), reprinted in Scritti di
diritto internazionale pubblico (CEDAM 1956–57), 318; TJ Lawrence, The Principles of
International Law (7th edn, McMillan 1923), 1–14; L Oppenheim, ‘The Science of International
Law: Its Task and Method’ (1908) 2 American Journal of International Law 313 and L
Oppenheim, International Law: A Treatise (1st edn, Longmans, Green and Co 1905–06), esp 92;
G Schwarzenberger, International Law (3rd edn, Stevens and Son 1957); P Guggenheim, ‘What
is Positive International Law?’ in G Lipsky (ed), Law and Politics in the World Community:
17 / Date: 14/3
majority of these twentieth century scholars did not shed the idea of their predecessors
that international law rests on the consent of the primary lawmakers. Subject to a few
exceptions,89 they agreed that natural law does not constitute a source of law per se,
although the content of rules may reflect some principles of morality.90 The consensus
on the idea that the will of the state is the most obvious material source of law91
remained unchallenged.92 The main difference between nineteenth and twentieth
century international legal scholars lies in the fact that the latter tried to devise formal
law-ascertaining criteria with which to capture state consent.93 This is precisely how
twentieth century scholars ended up grounding the identification of international legal
Essays on Hans Kelsen’s Pure Theory and Related Problems of International Law (University of
California Press 1953), 15. For an overview of that period, see WG Grewe, The Epochs of
International Law (De Gruyter 2000), 601–5.
89
See eg L Le Fur, ‘Philosophie du droit international’ (1921) 28 Revue générale de droit
international public 565 or L Le Fur, ‘La théorie du droit naturel depuis le XVIIème siècle et la
doctrine moderne’ (1927-III) 18 Recueil des cours 259. For an understanding of natural law as a
formal source of law, see G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of
International Law’ in Symbolae Verzijl (Martinus Nijhoff 1958), 161–8.
90
C Rousseau, Principes généraux du droit international public vol 1 (Pédone 1944), 32–3;
J Basdevant, ‘Règles générales du droit de la paix’ (1936) 58 Recueil des cours, 477–8. See also
A D’Amato, ‘What ‘Counts’ as Law?’ in NG Onuf (ed), Lawmaking in the Global Community
(Carolina Academic Press 1982) 83, 90. This came to be reflected in the case law as well. See
the statement of the ICJ in South West Africa Case: ‘a court of law can take account of moral
principles only in so far as these are given sufficient expression in legal form’ South West Africa
Case (Second Phase, Judgment) [1966] ICJ Rep 1966, para 49. This idea was not fundamentally
challenged in the early twenty-first century. See PM Dupuy, ‘L’unité de l’ordre juridique
international: cours général de droit international public’ (2002) 297 Recueil des cours 9, 31–2
and 200–202. See J Verhoeven, ‘Considérations sur ce qui est commun’ (2008) 334 Recueil des
cours 15, 110. A Orakhelashvili, The Interpretation of Acts and Rules in Public International
Law (OUP 2008), 51ff. See, however, the natural law overtones found in some constitutionalist
approaches, below section 3.2.3.
91
On the distinction between material and formal sources, see generally L Oppenheim,
International Law: A Treatise vol 1 (8th edn, Longmans 1955), 24. See the remarks of PE
Corbett, ‘The Consent of States and the Sources of the Law of Nations’ (1925) 5 British
Yearbook of International Law, 20–30; Rousseau (n 92), 106–08; Fitzmaurice (n 91), 153ff; G
Abi-Saab, ‘Les sources du droit international. Essai de déconstruction’ in Le Droit international
dans un monde en mutation: liber amicorum en hommage au Professeur Eduardo Jimenez de
Arechaga (Fundación de Cultura Universitaria 1994) 29, 30ff; see also the controversial account
of this distinction made by G Scelle, ‘Essai sur les sources formelles du droit international’ in
Recueil sur les sources en l’honneur de Francois Gény vol 3 (Sirey 1935) 400; P Dailler and A
Pellet, Droit international Public (6th edn, LGDJ 1999), 111–12.
92
One of the first most complete expressions of this formal consensual understanding of
international law, has been offered by D Anzilotti, Corso di diritto internazionale (Athenaeum
1923), 27. For a more recent manifestation of the voluntary nature of international law, see P
Weil, ‘Vers une normativité relative en droit international’ (1982) 87 RGDIP 1, 5. For a judicial
expression of that idea, see SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ Ser A No 10,
18.
93
See the refinement of the theory of consent by OA Elias and CL Lim, The Paradox of
Consensualism in International Law (Kluwer 1998).
18 / Date: 14/3
rules in a doctrine of allegedly formal sources94 – a construction which continues to

enjoy a strong support among twenty-first century scholars.95 In their view, inter-
national legal rules stem from the will of states expressed through one of the formal
sources of international law. The systemic character of the theory of the sources which
they elaborated proved instrumental in their vision of international law as constituting a
system.96 It simultaneously allowed international lawmaking to be captured through
prisms alien to legal personality, for only the formal source of law – and the relevant
pedigree associated with each source – is relevant for the apprehension of international
lawmaking.
It is true that, among those scholars who abide by such a source-based approach to
lawmaking, there has not been a consensus on the exact sources – the pedigree inherent
in each of them – that ought to be recognized as the main cognitive tool to capture
international lawmaking. Although being a mere list of the applicable law of a given
judicial body,97 the endless debate about the ambit, meaning and authority of the list of
admitted sources of article 38 of the Statute of the Permanent Court of International
Justice and later of the International Court of Justice98 has been very symptomatic of
these remaining disagreements. Certainly, here is not the place to revisit these
controversies.
More important is to emphasize the consequences of such a – dominant –
pedigree-based approach to the cognition of international lawmaking. Like the subject-
hood perspective, the pedigree-based angle is very exclusionary. As long as the norm
produced is not formally ascertainable as law properly so-called, the process of its
creation will not be recognized as a formal lawmaking process – and its epistemic
interest will be deemed very limited.
Likewise, it is worth realizing that such an approach to lawmaking rests on an ex
post facto reconstruction. In fact, it is only once a given rule is recognized as a rule of
law that the process leading thereto will be endowed with the status of lawmaking
process. For instance, if an agreement is recognized as a treaty, the negotiations and the
– formal or informal – process preceding that agreement will be elevated into a
treaty-making process.
It is not difficult to understand that, as a result of these cognitive effects of the
pedigree-based approach to international lawmaking, the explanatory virtue of such a
static approach to lawmaking, irrespective of its other merits – for instance in terms of
94
See generally A Pellet, ‘Cours Général: le Droit International Entre Souveraineté et
Communauté Internationale’ (2007) 2 Anuário Brasileiro de Direito Internacional 12, esp 15, 19
and 31. See also G Buzzini, ‘La Théorie des sources face au droit international général’ (2002)
106 Revue générale de droit international public 581, esp 584–90.
95
See eg Orakhelashvili (n 92).
96
Likewise, it cannot be excluded that the practice of law-applying authorities will itself
yield contradictions. That does not bar that practice from providing a meaning to law-
ascertainment criteria. See eg Martineau (n 40), 7–8.
97
In the same vein, see A Pellet, ‘Article 38’ in A Zimmermann ao (eds), The Statute of the
International Court of Justice: A Commentary (CUP 2006) 693.
98
On the controversies during the drafting process of art 38, see T Skouteris, The Notion of
Progress in International Law Discourse (LEI Universiteit Leiden 2008), later published as The
Notion of Progress in International Law Discourse (TMC Asser Press 2010).
19 / Date: 14/3
rule-ascertainment,99 remain limited. As is well known, it is these explanatory and

descriptive deficiencies that led to the emergence of more dynamic approaches
grounded in the concept of participation and which have already been mentioned
above.100
3.2.2 Dynamic output-based approaches to lawmaking

Against the backdrop of the cognitive limitations of the approaches to international
lawmaking based on the subject, pedigree or even those, more dynamic, grounded in
participation, new models of cognition of international lawmaking have emerged in the
literature focusing on the output of norm-generating processes.101 Although not directly
centred on international law but on the new forms of contemporary norm-making, this
is also the understanding found in the Heidelberg research project on the Exercise of
Public Authority by International Institutions102 and Global Administrative Law103
which cognize norm-generating processes by virtue of the impact of the norm.
From such an output-based perspective, what matters is ‘whether and how the
subjects of norms, rules, and standards come to accept those norms, rules and standards
[…] [and] if they treat them as authoritative, then those norms can be treated as […]
law’.104 In their view, any normative effort to influence international actors’ behaviour,
if it materializes in the adoption of an international instrument, should be viewed as
part of international law. Such an effect- (or impact-) based conception of international
law entails a shift from the perspective of the norm-maker to that of the norm-user.
International lawmaking is accordingly identified by its end, ie the use of the norm by
its addressee.
99
On the question of law-ascertainment, see generally d’Aspremont (n 5), esp chs 1 and 2.
100
See above section 3.1.2.
101
For a few examples see, JE Alvarez, International Organizations as Law-makers (OUP
2005); J Brunnée and SJ Toope, ‘International Law and Constructivism, Elements of an
International Theory of International Law’ (2000–01) 39 Columbia Journal of Transnational
Law 19, 65. These effect-based approaches must be distinguished from the subtle conception
defended by Kratochwil based on the principled rule-application of a norm which refers to the
explicitness and contextual variation in the reasoning process and the application of rules in
‘like’ situations in the future. See F Kratochwil, Rules Norms and Decisions: On the Conditions
of Practical and Legal Reasoning in International Relations and Domestic Affairs (CUP 1989),
206–8. See also F Kratochwil, ‘Legal Theory and International Law’ in D Amstrong (ed),
Routledge Handbook of International Law vol 1 (Routledge 2009), 58.
102
See also Goldmann (n 10), 1865 and Von Bogdandy, Dann and Goldmann (n 10), 1375.
103
See Kingsbury, Krisch and Steward (n 49); Harlow (n 49). According to Kingsbury,
global administrative law rests on an ‘extended Hartian conception of law’ which elevates
publicness to a constitutive element of law. According to that view, publicness is a necessary
element in the concept of law under modern democratic conditions. By publicness, Kingsbury
means the claim made for law that it has been wrought by the whole society, by the public, and
the connected claim that law addresses matters of concerns to the society as such. See
Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 European Journal
of International Law 1, 23 and 29–31.
104
On that approach, see the remarks of J Klabbers, ‘Lawmaking and Constitutionalism’ in
J Klabbers ao (eds), The Constitutionalization of International Law (OUP 2009).
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Output-based approaches resemble pedigree-based cognition in the sense that law-

making processes are retroactively reconstructed. It is once the product of a norm-
generating process has impacted its addressees’ behaviours that such a process is turned
into a lawmaking process. Output-based perspectives nonetheless differ from pedigree-
based ones in that it is not the normative product that comes to elevate the process in
lawmaking but its impact. Looking at lawmaking from the vantage point of its output
thus comes with a behaviourist dimension which makes it more dynamic than
pedigree-based approaches to lawmaking. Indeed, conceptualizations of lawmaking
evolve together with the impact of norms.
These approaches to international lawmaking have proved rather popular among
international legal scholars as a result of their cognitive advantages. In fact, like
participation-based approaches, they allow the capture of dimensions of international
lawmaking which subject-based and pedigree-based perspectives would leave aside.
Likewise, their dynamism permits a constant rejuvenation and allows them to accom-
modate new forms of exercise of public authority at the international level. It must
nonetheless be stressed that they are not without problems, especially in terms of the –
albeit sometimes temporary – deformalization of law which they bring about.105 This is
a conceptual drawback which a fifth and last take on international lawmaking has tried
to contain, while trying to preserve dynamism.
3.2.3 Dynamic pedigree-based approaches to lawmaking

It is argued here that looking at international law from the vantage point of
participation is, however, not inherently linked to New Haven. Arguing that law is a
process is not necessarily incompatible with a pedigree-based approach. Indeed, a last
category of scholars need to be mentioned as they have ventured to embrace a more
formal pedigree-based conception of lawmaking without rejecting any exploration of
lawmaking from the vantage point of participation.
Certainly, attempts to reconcile the process-based approach of the New Haven
School and more static conceptions of international law are not new.106 It is not certain
that such a reconciliation has always been successful.107 The author of these lines has
himself tried to reconcile the static pedigree-based approach to law (and lawmaking)
with more dynamic social processes in the law.108 In fact, while acknowledging that
approaching international law from the standpoint of its sources corresponds to a
formal conception of law focused in on law as a product, I have argued elsewhere that
105
This is an aspect I have studied elsewhere. See d’Aspremont (n 88).
106
See eg Abi-Saab (n 61); see also Pellet (n 96), 12. According to Martti Koskenniemi, this
also was the ambition of Virally in his general course, Recueil des cours (1983 V) and Schachter
in his general course Recueil des cours vol 178 (1982 V); Koskenniemi, From Apology to Utopia
(n 42), 159; see also O Schachter, ‘Towards a Theory of International Obligation’ (1967–68) 8
Virginia Journal of International Law 300. See also the earlier attempts by CW Jenks, The
Common Law of Mankind (Stevens 1958) or GJH Van Hoof, Rethinking the Sources of
International Law (Kluwer 1983), 44.
107
According to Rosalyn Higgins, it is highly questionable that these authors have attempted
to float a conciliatory understanding of international law. See Higgins (n 78), 8.
108
This is the ambition of the book by d’Aspremont, Formalism and the Sources of
International Law (n 5), esp ch 8.
21 / Date: 14/3
such a pedigree-based approach does not need to be completely static. According to

that argument, doctrines of sources, if grounded in the social practice of law-applying
authorities can change – and can be changed. This is the so-called social thesis –
borrowed from English analytical jurisprudence109 – which provides dynamism of a(n)
– otherwise entirely static – product-centred conception of law. In the specific context
of international law, such a conceptualization makes it possible to argue that the social
practices of law-applying authorities have long ceased to reflect the practices which the
ancestral article 38 of the ICJ Statute was meant to reflect. This is why approaching the
sources of international law from the standpoint of article 38 no longer makes much
sense as it does not reflect the current consensus among its main important law-
applying authorities. Instead, such a theory of sources ought to radically depart from
the static pedigree-determining blueprints found in the mainstream literature and be
shaped as a dynamic model of rule-ascertainment grounded in an ever-evolving social
practice. On top of advocating a move away from article 38 – and especially the
abandonment of the law-ascertaining role of state intent for the identification of treaties
and unilateral promises identification like those conveying illusions of formalism in the
delimitation of customary international law – this approach also calls for a more
pluralistic conception of law-applying authorities which ought not be restricted to
domestic and international courts and tribunals. New actors have come to produce
social practice determinative of the ascertainment indicators contained in the doctrine
of sources of international law. The virtues of such a dynamic pedigree-based approach
also rests in the abstract possibility to apprehend the international normative activity
nowadays taking place outside the ambit of traditional international law, which a
strictly static approach would fall short of capturing. Indeed, if the social practices that
give rise to the criterion of identification allows their capture as lawmaking properly
so-called, nothing precludes their elevation into lawmaking.110
4. CONCLUDING REMARKS: EPISTEMIC PLURALISM AND

EPISTEMOLOGICAL SELF-INTERESTS
Making sense of international lawmaking has long been an ambition of international
legal scholars. In that endeavour, they have been resorting to a wide variety of cognitive
tools: subject, pedigree, participant and actor, public authority, or a blend of several of
109
J d’Aspremont, ‘Herbert Hart in Post-Modern International Legal Scholarship’ in J
d’Aspremont and J Kammerhofer (eds), International Legal Positivism in a Post-Modern World
(CUP 2014) available at <http://ssrn.com/abstract=2155629>.
110
I have simultaneously challenged the urge of international lawyers to apprehend these
normative phenomena through their own cognitive instruments with a view to necessarily
including them in their scope of expertise and elevate them in legal materials. In that sense, I
have called for some critical self-reflection as to the gluttony of international lawyers who
systematically – and almost obsessively – seek to label as law every phenomenon they want to
apprehend and claim exclusive ownership on. See d’Aspremont (n 88).
22 / Date: 14/3
them. Each of these approaches has generated a different picture of international

lawmaking. According to the approach chosen, international lawmaking appears as a
more or less formal, systematized, inclusive, and state-centric process. In particular,
those approaches whose cognitive framework is centered on subjects or participants
convey a – static or dynamic – reflection of lawmaking at the international level as an
inter-personal process, the dynamic models among them allowing a better grasp of the
fluxes authority at play therein but creating more conceptual instability.
It is certainly not the aim of these concluding remarks to vindicate one of these
cognitive choices, and certainly not those grounded in subjects or participants. There is
probably not one cognitive choice trumping the others. They all constitute a paradigm
that has its own merits as the previous sections have tried to demonstrate. Yet, it seems
of importance, when one grapples with issues of lawmaking, that one consciously
assumes one’s cognitive choices. Assuming such choices, however, presupposes aware-
ness, not only of the underlying cognitive choice behind any study of international
lawmaking, but also of the parameters informing it. Indeed, cognitive choices, like
those pertaining to the understanding of international lawmaking, are not neutral.111
They are informed by an array of different parameters. When it comes to foundational
topics like international lawmaking, one of these parameters is certainly the observer
informing it. Cognitive choices, like those pertaining to the understanding – at least
assuming cognitive and methodological consistency – determine the cognitive tool to
which one resorts to make sense of international lawmaking. Another parameter –
probably very pregnant in choices determining approaches to international lawmaking –
rests in one’s research interest. In the author’s view, it can hardly be denied that one
necessarily embraces an approach or a method that fits with the type of research that
one is interested in carrying out. The choice of one of the cognitive tools mentioned
above can also be read as an expression of preference for one given dimension of
international lawmaking – and for a given dimension of international law. For instance,
those solely interested in the formal sources of international law might favour a
pedigree-based approach to international lawmaking, which will lead them to focus on
a very narrow dimension of that process. Because of their extremely narrow cognitive
scope, pedigree-based approaches to international lawmaking could even be seen as the
manifestation of a general lack of interest for international lawmaking. On the contrary,
participant- and actor-based understandings of international lawmaking reflect the
observer’s interest in norm-generating processes rather than formal sources and the
identification of subjects.
It is argued that awareness of such epistemological self-interest allows greater mutual
coexistence between the various approaches to international lawmaking that have been
outlined in this article. But awareness of the influence of our epistemological
self-interest on our cognitive choices in studies of international lawmaking also calls
for some relativism. Epistemological interests in one dimension of international
lawmaking and, thus, the cognitive choices that they inform, necessarily reflect a given
epoch – the epoch in which the observers find themselves. The various cognitive
111
L Murphy, ‘Better to See Law This Way’ (2008) 83 NYU Law Review 1088; See M
Greenberg, ‘How Facts Make Law’ (2004) 10 Legal Theory 157 (UCLA School of Law
Research Paper no 05-22 available at <http://ssrn.com/abstract=797125>).
23 / Date: 14/3
choices behind studies of international lawmaking inevitably have an epochal dimen-

sion. Such an epochal anchorage of scholarly approaches to international lawmaking is
what ineluctably condemns the scholarship on international lawmaking to a Sisyphean
cognitive repetition.
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3. Transnational lawmaking
Dennis Patterson
1. INTRODUCTION
Transnational lawmaking is a burgeoning field of research, both in its empirical and its
theoretical aspects. This chapter is devoted largely to the theoretical dimensions of
transnational law. The appearance and growth of new legal phenomena cannot be
denied.1 From the European Union to transnational legal orders, new forms of legality
are making their presence known and their impact felt. How, from a theoretical point of
view, are we to make sense of these new phenomena? How are they to be theorized?
Can they be theorized with existing theoretical tools or must new forms of theorizing
be fashioned? These are the central questions addressed in this chapter.
Transnational law arises out of and against the background of the classic bifurcation
of law, that of domestic and international law. Domestic law is the law of sovereign
states. Conceived in terms of the Westphalian nation-state, law is the product of a
sovereign. Its scope is limited to the domestic sphere (jurisdiction) and within that
sphere, the state is supreme. By contrast, international law is law between sovereign
states. Matters of territory, jurisdiction and migration (to name a few) are traditional
subjects as are war and human rights. It is this nation-state conception of law that must
be rethought in a way that assimilates transnational legal phenomena.
As mentioned, the focus of this chapter is the theory of transnational law (both
public and private).2 To understand and appreciate why the nation-state model of law
no longer suffices, it is necessary first to detail the two principal accounts of the
nation-state conception of law. These are the theories of Kelsen and Hart. After a
review of their approaches to foundations of law (especially international law), I shall
return to the question at hand with a close look at one approach to theorizing
transnational law.
At the core of the nation-state conception of law are two key notions: the Grundnorm
(Kelsen)3 and the Rule of Recognition (Hart).4 Each of these ideas was developed to
solve the same problem, that of the validity of law. For a norm to be a valid norm of a
legal system or legal order, it must derive its validity from another norm. Legal systems
are comprised of hierarchies of norms (ie, propositions), all of which are grounded in a
1
Widely discussed phenomena include: lex mercatoria, lex digitalis, lex sportiva, commer-
cial arbitration, safety and food quality standardization regimes, Internet governance and
environmental protection.
2
There is some excellent work on the empirical dimensions of transnational law. See eg, F
Cafaggi, Enforcement of Transnational Regulation: Ensuring Compliance in a Global World
(Edward Elgar 2012).
3
See H Kelsen, Pure Theory of Law (Max Knight tr, Lawbook Exchange 2002).
4
See HLA Hart, The Concept of Law (2nd edn, OUP 1994).
56
1 / Date: 8/2
Transnational lawmaking 57
basic norm from which all others flow – a norm, for instance, governing the production
of new norms through a legislative process.
In terms of ‘form’, there is little significant difference between Kelsen’s5 and Hart’s
approaches to the ultimate basis of a legal order and what difference does exist is
largely metaphysical. Kelsen’s Grundnorm is a neo-Kantian, transcendental product
whereas Hart’s Rule of Recognition is a sociological phenomenon: it exists as a social
practice amongst officials. Apart from these differences, there is a great deal of overlap
between the two theorists’ accounts of the structure of a legal system.
What is the function of the Rule of Recognition in a legal order? Hart saw the Rule
of Recognition as providing the criteria of legality. A rule was a valid legal norm if it
passed all of the tests of validity found in the Rule of Recognition. The validity tests –
the criteria of legality – are grounded solely in an inter-subjective practice among
officials. As a social practice, nothing grounds the Rule of Recognition in the same way
as other legal rules are grounded and it is itself neither valid nor invalid.
The context of transnational law may be an instance in which a new challenge to the
explanatory power of the Rule of Recognition could be arising. To assess this
possibility, it will first be necessary to address three questions regarding transnational
legal phenomena. First, what are transnational legal phenomena? Second, what are the
jurisprudential problems posed by transnational legal phenomena? Finally, what
happens to the core positivist idea of a Rule of Recognition in the context of
transnational law?
From the Hartian/Kelsenian perspective, cross-border law was largely international
law. The sovereign state controlled the domestic municipal sphere while the state, by
virtue of its sovereignty, created treaty relations with other sovereign states. The form
of bilateral joinder is the treaty which, as critics of international law never tire of
pointing out, cannot be enforced against an uncooperative sovereign. As the conven-
tional wisdom dictates, state sovereignty lies at the root of both the domestic (ie,
municipal) legal order and the international legal order.
In light of these introductory remarks, this chapter analyzes the transnational legal
phenomena and their impact on the concept of law, specifically the question of whether
the positivist accounts of Kelsen and Hart can accommodate transnational legal
phenomena.
2. TRANSNATIONAL LEGAL PHENOMENA

Globalization (or denationalization6) has produced transnational legal phenomena that
challenge the boundaries of traditional legal theories such as positivism. In Legality’s
5
Kaarlo Tuori nicely summarizes the Kelsenian perspective thus: ‘Kelsen’s hierarchical
legal order, Stufenbau, is, above all, the legal order of a nation state: the basic norm crowning
the hierarchy commands obedience to the (historically first) constitution of the nation state,
while the norms on the lower echelons are issued by state organs empowered by this
constitution.’ K Tuori, Towards a Theory of Transnational Law (unpublished 2010).
6
See S Sassen, ‘Globalization or Denationalization?’ (2003) 10 Review of International
Political Economy 1.
2 / Date: 14/3
Borders, Keith Culver and Michael Giudice identify four novel forms of legal order
that challenge the conventional ‘law-state’7 understanding of a legal order. They are:
intra-state legality (eg distributed or shared governance); trans-state legality (ie legality
produced by non-state agents that is somehow ‘binding’ with the law-state); supra-state
legality (eg The European Union); and super-state legality (eg Jus Cogens).8 Each form
of legal order presents its own explanatory challenges to the traditional law-state
conception of a legal order.
Of course, the concept of transnational law starts with Philip Jessup who, in 1956,
described it as ‘all law which regulates actions or events that transcend national
frontiers. Both public and private international law are included, as are other rules
which do not wholly fit into such standard categories.’9 Transnational legal challenges
now fall under the umbrella of ‘global governance’, which, according to Peer
Zumbansen, exhibits ‘frustration over and problematisation of the absence of stable
institutions of norm creation and enforcement outside of the nation state’.10 ‘Global
governance’ identifies a need, that is, a need for regulation. The mode of regulation
under law is norms. Even assuming stable institutions, norm creation outside the nation
state poses a problem of validity or legitimacy. By what authority are norms created by
non-state actors? In virtue of what are those norms valid? Can those norms be
challenged, altered, or extinguished, and by whom? These are just a few of the
challenges posed by normativity outside the bounds of the nation-state.
Before proceeding to consider further theoretical dimensions of transnational law, I
shall provide a few additional examples of the phenomenon of transnational law. These
examples come from the sphere of transnational ‘private’11 regulation (TPR) which
represents a distinct phenomenon. Of interest in this regard are the ways in which the
private sphere has become a source of normativity for regulation. Inverting the
traditional Westphalian picture of the State as the source of regulation, TPR represents
a new development, one in need of theoretical treatment.
Private actors, intergovernmental organizations as well as international organizations
all contribute to the production of norms and standards by which firms produce
7
According to Giudice and Culver, the theories of Hart and Raz are good examples of what
they call the ‘law-state model of legality’. In this model, the nation-state is the source of law, the
state is jurisdictionally limited, and nothing can be ‘law’ that is not produced or at least
sanctioned by the state: ‘[S]tate law exists where there are primary rules of obligation and
secondary rules of recognition, change, and adjudication which in combination and in the hands
of central law-applying officials claim with a certain degree of success to govern comprehen-
sively, supremely, and openly.’ K Culver and M Giudice, Legality’s Borders (OUP 2010), xxiv.
8
ibid, xviii.
9
PC Jessup, Transnational Law (Yale University Press 1956), 2.
10
P Zumbansen, ‘Transnational Legal Pluralism’ (2010) 1 Transnational Legal Theory 141,
142.
11
‘Private’ is in quotes because one could easily argue that there are public dimensions to
the phenomena about to be described. This is part of the challenge in writing about this topic.
The traditional public/private distinction breaks down when, as in these contexts, international
bodies produce norms that govern private transactions.
3 / Date: 14/3
transnational norms. As Cafaggi notes,12 the emergence of TPR forces a rethink of the
relationship between the ‘public’ and ‘private’ sectors when it comes to the production
and legitimation of regulatory norms. While once considered to be an alternative to
public regulation, private regulation now operates both independently and, more often,
in partnership with public regulatory authorities. Further, it is not simply self-interested
trade groups that work with public entities such as states. One finds many examples of
NGOs, just to name one organizational form, working with both public and private
authorities to produce regulatory regimes.
TPR is not a monolithic phenomenon. The easiest way to see this is in the notion of
‘private’: there is no single form of ‘private’ in private regulation. In what follows, I
shall discuss three different contexts in which private regulation has arisen. Each has its
own unique features and, not surprisingly, there are similarities and overlaps between
the different forms. As we shall see, while it is a discernible mode of regulation, TPR
is far from a monolithic phenomenon.
The first model comes from industry. Here, industries promulgate norms for the
regulation of activities among firms. Two familiar examples are accounting standards
and food safety. With respect to the former, stock exchanges have a clear interest in
transparency and consistency in accounting practices. The interest of the exchanges is
shared by anyone who participates in the daily evaluation, purchase and sale of
securities. This consensus of interests is one example of not always found alignment of
interests between the regulator and the regulated. As such, the ‘incentives to monitor in
the interest of the beneficiaries might be weak’.13
A second model is one where the regulators and the regulated are different but the
regulator and (at least some of) the beneficiaries of regulation are the same. Oxfam is
an example here, as it works with NGOs to persuade governments and industries to
improve the quality of many aspects of food production. Similarly, Amnesty Inter-
national seeks to strengthen the human rights practices of governments through its
monitoring activities.
Finally there is the multi-stakeholder model. There are two variants of this model, an
organizational and a contractual model. ICANN is an example of the first. A California
corporation, ICANN boasts both technical and non-technical members of a governing
board with a diverse membership, cutting across governments, firms and consumers. A
second model is ‘contractual’ in nature. Corporate Social Responsibility is the leading
example; here firms sign on to ‘best practices’ which are promulgated by an array of
actors as diverse as consumers, suppliers and producers.
Cutting across each of these examples is the question of legitimacy. By what means
are we to measure the efficacy of standards both in substantive and procedural terms?
Each context presents its own concerns in this regard but the question of legitimacy is
of paramount interest in that the overall context for TPR is that of regulation and
standard setting.
12
See F Cafaggi, ‘New Foundations of Transnational Private Regulation’ (2011) 38 Journal
of Law and Society 20. In what follows, I use Cafaggi’s categories to articulate four different
expressions of the ‘private’ in transnational private regulation.
13
ibid, 33.
4 / Date: 14/3
3. CAUSAL AND NORMATIVE QUESTIONS

There are two different types of questions one might ask about transnational legal
phenomena. These questions usually appear in the form of two different types of
explanation. I have in mind the distinction between causal and normative explanation.
Causal explanation answers a ‘why’ question. For instance: why have private legal
orders appeared?14 Consider Lisa Bernstein’s work on private legal orders.15 Why have
the merchants she describes opted out of the legal system and promulgated and
functioned with their own set of norms? Why has this occurred?
All of these questions seek a causal explanation: we want to know the forces behind
the appearance of this phenomenon. There can be several explanations for the
appearance of a private order. Dissatisfaction with some aspect of the state system is
the most obvious explanation, whether it be time delays, costs, lack of expertise on the
part of the regulator (eg an administrative agency) or some other reason.
Causal explanations can serve as background to legal discussions, but lawyers are
interested in normative or conceptual questions. Typical jurisprudential questions
include border disputes between law and morality and the grounds of legal validity. In
the transnational sphere, our interest lies in the ‘ontology’ of norms. We want to know
whether transnational legal phenomena are of a different kind or order than what we
normally find in the municipal sphere. If these phenomena are different, in virtue of
what are they different? These may sound like empirical questions, but they are driven
by concepts of law, concepts that are largely normative in character.
4. TRANSNATIONAL LAW: INTERNATIONAL EXAMPLES

I now turn to three international examples of ‘public’ transnational law. With each
example, I endeavor to sustain the claim that normativity arises outside a municipal
legal order only to reach inside that legal order with an effect no less efficacious than
domestic legal norms. Obviously, my claim is both empirical and conceptual. The
empirical dimension is a matter of adducing facts in support of my contention that
these phenomena now exist. The conceptual claim is the more difficult one to sustain,
that is, my contention that these phenomena cannot be accounted for by positivist or
post-positivist models of law.
My first example is the North American Free Trade Agreement (NAFTA).16 Under
NAFTA, a ‘foreign’ (vis-à-vis domestic courts) tribunal may pass judgment on the
degree to which domestic courts (ie, US courts) have provided ‘fair process’. The
14
See, eg, RC Ellickson, Order without Law: How Neighbors Settle Disputes (Harvard
University Press 1991) 126–32; EA Posner, Law and Social Norms (Harvard University Press
2002); BD Richman, ‘Firms, Courts, and Reputation Mechanisms: Towards a Positive Theory of
Private Ordering’, (2004) 104 Columbia Law Review 2328, 2338–48.
15
See, eg, L Bernstein, ‘Opting Out of the Legal System: Extralegal Contractual Relations
in the Diamond Industry’ (1992) 21 The Journal of Legal Studies 115.
16
North American Free Trade Agreement (adopted 17 December 1992, entered into force
1 January 1994) (1993) 32 International Legal Materials 605.
5 / Date: 14/3
NAFTA Treaty does not permit NAFTA tribunals to overturn or alter domestic
judgments. However, the treaty does enable the tribunals to impose financial sanctions
(eg fines) against the federal governments of domestic states.
Thus, in the Loewen case,17 a Mississippi State Supreme Court decision was found to
violate due process norms. As mentioned, the tribunal enjoys only the power of
financial sanction (against the Federal Government, not the State of Mississippi). Is this
decision part of the law of Mississippi? Will it serve as a precedent? If it does serve as
a precedent, under what account of precedent would such a decision be made part of
Mississippi law? I submit that there are no easy answers to these questions.
A second example is that of EU law. There is an important distinction between
so-called primary and secondary law. The EU treaties, which are adopted by the
Member States, constitute primary law.18 By contrast, secondary law, eg, Directives and
Regulations, are derived from the EU Treaties and adopted by the EU institutions.19
While primary law can be labeled ‘acts of the Member States’, secondary law can be
described as ‘Union acts’.20 It is sometimes argued that the ability to adopt secondary
norms, which are binding and directly applicable, is a feature that distinguishes the EU
from international organizations.21 Indeed, the Court of Justice of the EU characterizes
the EU legal order as an ‘autonomous legal system’, distinct from both international
law and national (municipal) law.22 But as Kaarlo Tuori points out, EU law is not just
intertwined with the legal systems of Member States: ‘when national courts apply EU
17
Loewen Group, Inc. v United States (Award) [1984] ICSID Case No. ARB(AF)/98/3.
18
In addition to the EU treaties, primary law consists of protocols and annexes (which
according to art 51 TEU form an integral part of the treaties) and the acts of accession.
19
The EU Treaties provide a set of legal acts: regulations, directives and decisions,
recommendations and opinions, art 288 Treaty on the Functioning of the European Union
(Lisbon Treaty) (adopted 13 September 2007, entered into force 1 December 2009); OJ C326/1.
20
Trevor Hartley makes this distinction in The Foundations of European Union Law (OUP
2010). In EU law, general principles and international agreements are often described as separate
sources of law. In the hierarchy between primary law and secondary law, they are placed
somewhere in between.
21
As Bruno de Witte notes, there are different views on what kind of ‘creature’ the EU is.
Some scholars argue that the EU has evolved and moved beyond the status of an international
organization. In their view, the EU is a sui generis order which does not fit into the dichotomy
between international organizations and the traditional notion of a state. They emphasize the
EU’s ‘supranational’ decision-making procedures, its extensive scope of competence, its
effective judicial enforcement, and its direct effect and primacy in the national legal orders.
Other scholars, mainly in the field of public international law, prefer to describe the EU as a
highly developed international organization. See B de Witte, ‘The European Union as an
international legal experiment’, in G de Búrca and JHH Weiler (eds), The Worlds of European
Constitutionalism (CUP 2011) 19.
22
In 1964, in the landmark case Costa v ENEL, the Court held that Community law was
autonomous in relation to the law of its Member States: ‘The law stemming from the Treaty, an
independent source of law’: see Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. A similar
formulation is found in Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125 [3].
See also the Kadi judgment, where the Court referred to the autonomy in relation to international
law; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council [2008] ECR
I-06351 [282], [316].
6 / Date: 14/3
norms, they act simultaneously as institutions of both the municipal and the EU legal
system’.23
My third and final example is similar to that of EU law. It is the law of the World
Trade Organization (WTO). Like the European Union, WTO law is treaty-based. The
institutional structure of the WTO is such that disputes are settled by panels (dispute
settlement panels), whose decisions may be appealed to the Appellate Body. Again
quoting Tuori, ‘[t]hese organs also produce normative material specifying and comple-
menting treaty provisions’.24 It is these decisions and their normative content that are
both (1) produced in a manner ‘beyond’ the international treaty and (2) binding within
the municipal orders of all signatory states.
Each of these examples is ‘transnational’ in the following sense: norms or normativ-
ity is produced outside the state but has direct effect within the state. The EU is the
clearest example. The EU is not a state, yet it produces normativity that can be
described as treaty-based (eg EU primary norms) and normativity that is not treaty-
based (eg EU secondary norms).25 Both sets of norms have direct effect within Member
States. But only one set of norms (ie EU primary norms) can be said to have been
produced in a way that fits within traditional conceptions of the legal system. Therein
lies the uniqueness of transnational phenomena in the ‘public’ realm.
5. BEYOND POSITIVISM: THEORIZING TRANSNATIONAL LAW

In Legality’s Borders, Giudice and Culver provide a superb start on moving positivism
from a theory of sovereign states to one capable of addressing the complexities of
transnational law. They begin with a critique of Raz’s account of the nature of law
(legality). For Raz, Culver and Giudice raise what they see as ‘two principal sources of
doubt’26 regarding the adequacy of Raz’s account of legality. The first concerns the
ability of Raz’s theory ‘to determine adequately the borders of legal systems that might
display characteristic features of comprehensiveness, supremacy, and openness’.27 The
second deficiency is the failure of Raz’s theory to sustain a central tenet that by its
nature law claims supremacy over other normative domains.28
Culver and Giudice embrace the work of Neil MacCormick in laying the groundwork
for their own views. They start with this summary of MacCormick’s core thesis: ‘In
MacCormick’s view, law exists wherever there is a set of practiced norms that articulate
an ideal for social practice, supplemented by distinct institutional agencies that serve to
settle disputes, create by deliberate act new rules, and enforce decisions and rules.’29
The only objection Culver and Giudice have to this view is MacCormick’s unrepentant
23
Tuori (n 5), 6.
24
ibid.
25
I owe this point to Tuori.
26
Culver and Giudice (n 7), 47.
27
ibid.
28
Culver and Giudice reprise criticisms of Raz’s view by Andrei Marmor and Brian
Tamanaha in fashioning their critique. cf A Marmor ‘The Rule of Law and Its Limits’ (2004) 23
Law and Philosophy 1; B Tamanaha, On the Rule of Law (CUP 2004).
29
Culver and Giudice (n 7), 96–97.
7 / Date: 14/3
reliance on the state and state-like contexts in his articulation of his theory of law. The
pressure on MacCormick’s position is to show how a legal order amounts to a legal
system, that is, something ‘beyond the mere sharing of beliefs, ideals, and values … .’30
Culver and Giudice take as their starting point the perspective ‘of the ordinary person
in the developed world, a world of interconnection and interdependence’.31 The
ordinary person’s perspective is deepened with the recognition that the normativity of
law arises out of the social bases of institutions. Legal normativity is ‘something like an
emergent property of an institution, conditional on a number of other institutional facts
holding together in a kind of narrative regarding that legal institution, and recognizable
only once the institution is “in play” within a legal order … .’32 The concept of law that
emerges eschews ‘a set of necessary and sufficient conditions for application of the
concept of law’33 in favor of a ‘narrative’ account, one that gives due consideration to
the role of time in the emergence of legal normativity.
The first step in building the inter-institutional theory takes a page out of Raz’s
theory of law. The following are the three categories of normative power used by norm
subjects but not limited to ‘officials’ (in Hart’s sense):
(i) Powers to determine legal-normative situations. These powers enable authoritative

findings of law and legally relevant facts and enable resolution of disputes.
Powers of this kind include the powers of courts, tribunals, arbitration (both
voluntary and mandatory) and mediation boards, police officers, and university
petitions committees.
(ii) Powers to alter legal-normative situations. These are powers to introduce, repeal,
modify, debate, etc., legal norms or legal arrangements which form part of a legal
situation. Powers of this kind include the powers wielded by legislatures, public
servants, courts, and citizens in, eg, assertion of constitutional rights contra
infringing legislation.
(iii) Powers to enforce legal-normative situations. These are powers to compel
compliance with laws or alert others to the need to enforce laws. Powers of this
kind are exercized by, among others, state security services, private security
services, police officers, and citizens. (116)34
MacCormick’s work is revisited for the next important element of the inter-institutional
theory, that of an ‘institution of law’. As they employ the term, Culver and Giudice root
their conception of legal institution ‘in an explanation of use of legal-normative powers
addressed to peremptory, content-independent norms’.35 A number of examples are
provided, but one is particularly intriguing. The following is an August 2008 Minis-
terial Statement from Canada’s federal Department of Fisheries and Oceans:
30
ibid, 99.
31
ibid, 105.
32
ibid, 108.
33
ibid,110.
34
A second dimension, that of force, is also detailed. It exhibits three characteristics: scope,
duration and assertion of institutional force, ibid, 116–17.
35
ibid, 123.
8 / Date: 14/3
The Honourable Loyola Hearn, Minister of Fisheries and Oceans, today issued the following
statement:
‘I want to extend my personal congratulations to the Association of Seafood Producers, who
after almost two years of hard work have seen the northern prawn trawl fishery become the
first Canadian fishery certified by the Marine Stewardship Council.
In addition to being the first in Canada, I am proud to note that this is the largest MSC
certified shrimp fishery in the world.
Our government has made important investments to ensure responsible and sustainable
management decisions are taken by the Department of Fisheries and Oceans (DFO), but
government is only one part of the big picture. That’s why it’s so important to recognize
efforts by private industry and independent third parties who share our commitment to
conservation and sustainable use of the fishery’.36
What is it about this small example that makes the authors’ point about institutions and
legality? It is a case of private norm production being underwritten by the authority of
the state, but that is not all. It is the interactive quality that Culver and Giudice make so
much of. A ‘low intensity’ reference by government to a privately created norm gives
that norm a legal character which, over time, will be firmed up into what the average
person would see as ‘law’.
Mutual reference and intensity in the institutional context has the effect, over time, of
blurring the boundaries between law and non-law. A content-independent peremptory
norm is created through the interaction of a private norm creator and the state. Culver
and Giudice characterize this as supporting their claim that ‘identification of discrete
legal orders is the result of post facto choices of explanatory category applied to
particular variegated patterns of intense mutual reference among a particular set of legal
institutions’.37
But do Culver and Giudice really have a ‘general jurisprudence’, or is theirs simply
an account of idiosyncratic legal phenomena that could be explained with modest
revisions to the tools of traditional analytical jurisprudence? They meet this challenge
by contrasting their view with a type of legal pluralism.38 On the view they identify,
36
ibid, 128.
37
ibid, 129.
38
They quote the following from Brian Tamanaha as representative of the view:
What law is and what law does cannot be captured in any single concept, or by any single
definition. Law is whatever we attach the label law to, and we have attached it to a variety of
multifaceted, multifunctional phenomena: natural law, international law, state law, religious
law, and customary law on the general level, and an almost infinite variety on the specific
level, from lex mercatoria to the state law of Massachusetts and the law of the Barotse, from
the law of Nazi Germany to the Nuremberg Trials, to the Universal Declaration of Human
Rights and the International Court of Justice. Despite the shared label ‘law’, these are diverse
phenomena, not variations of a single phenomenon, and each one of these does many
different things and/or is used to do many things. There is no law … there are these kinds of
law and those kinds of law; there are these phenomena called law and those phenomena
called law; there are these manifestations of law and those manifestations of law … No
wonder, then, that the multitude of concepts of law circulating in the literature have failed to
9 / Date: 14/3
normative systems identified as ‘law’ are simply too diverse to be reduced to a single
definition.
While rejecting a ‘necessary and sufficient conditions’ approach to identifying the
content of concepts,39 Culver and Giudice do insist that an analytical theory of law
(which they are offering) must identify ‘core features of legality’40 if it is to be
successful. Throughout their account, Culver and Giudice stress how important it is for
a legal theory to identify the ‘nature’ of law. It is obvious that they offer this view as an
alternative to the pluralist view that ‘law is whatever is called law.’41 What is unclear is
how they do more than draw attention to different features of various legal orders
without showing how certain features of those orders are ‘necessary’ to an account of
the ‘nature of law.’42 Culver and Giudice may, indeed, give a ‘better’ account of certain
legal orders than does legal pluralism, but that success is descriptive rather than
analytical. In short, despite using words that would indicate the presence of a
‘conceptual’ argument,43 no such argument is clearly made.
6. FUTURE WORK
In this chapter, I have approached the theorization of transnational law largely from the
point of view of analytic legal positivism. I have done this for two reasons. First, the
analytic tradition has provided two superb accounts of the relationship of municipal law
to international law. This relationship is grounded in the Westphalian nation-state,
which is the core ontological unit of analysis in the era prior to the rise of transnational
legal phenomena. The second reason is that this tradition has made the most progress in
providing a wide-ranging account of the fundamental features of transnational legal
phenomena. Of course, this claim would be regarded as tendentious by some, as the
prospects of Global Administrative Law (GAL), legal pluralism or even global
constitutionalism appear to some to be equally productive. This chapter evinces a
different view.
capture the essence of law – it has no essence.

B Tamanaha, A General Jurisprudence of Law and Society (OUP 2001), 193–94.
39
Culver and M Giudice (n 7), 139.
40
ibid, 146.
41
ibid, 175.
42
They describe their approach this way: ‘[O]ur account is meant to operate in radar-like
fashion, identifying markers or indicators of legality that combine in various ways to form legal
orders in emerging, settled, and decaying forms including but not limited to the law-state.’ Ibid,
139–40.
43
For discussion of the limits of conceptual arguments, see D Patterson, ‘Alexy on Necessity
in Law and Morals’ (2012) 25 Ratio Juris 47.
10 / Date: 14/3
4. Contemporary theories and international

lawmaking
Ingo Venzke*
1. INTRODUCTION
Many contemporary theories approach international lawmaking with a shift in emphasis
from the sources of law towards the communicative practices in which a plethora of
actors use, claim and speak international law. Whereas earlier approaches would look at
the sources as the singular moment of lawmaking, it is now generally understood that
the broader process of speaking the language of international law contributes to its
making. There are several main reasons for this shift. One reason rests in the plain
proposition that law not only lies ‘in books’ but also ‘in action’.1 Another reason for a
move away from sources doctrine – at least as it has traditionally been spelled out –
stems from the multiplication of actors as well as new forms and fora of lawmaking. A
brief set of examples may clarify.
Consider, first, the distinction between ‘combatants’ and ‘civilians’, which lies at the
core of international humanitarian law and which appears, among other places, in many
different provisions of the 1949 Geneva Conventions. But to know what the law is, we
cannot but ask what it ‘really’ means to be a ‘combatant’ or a ‘civilian’. And the answer
to that inquiry cannot be found anywhere but in the practice of interpreting these terms.
Their meaning does not lie in or behind the text of the Geneva Conventions, but is
instead the product of communicative practices that use these terms. And these
practices are not limited to state representatives who sign international treaties, but they
include the opinions of military advisers, case law from domestic courts, the jurispru-
dence of international (criminal) courts and tribunals, statements of the International
Committee of the Red Cross, interventions by Non-Governmental Organizations such
as Human Rights Watch, as well as the arguments of prominent legal scholars.2
Further, consider two specific examples from international economic law. When
China joined the World Trade Organization (WTO) in 2001, it had made, among other
things, a commitment to liberalizing trade in ‘sound recording distribution services’.
Did this commitment also extend to distribution by electronic means? A panel found
that it did. On appeal, China argued that the scope of its commitments could not simply
* I wish to thank the editors as well as Matthias Goldmann for their helpful comments.
1
See already R Pound, ‘Law in Books and Law in Action’ (1910) 44 American Law
Review 12.
2
See in detail I Venzke, ‘Legal Contestation about “Enemy Combatants”: On the Exercise
of Power in Legal Interpretation’ (2009) 5 Journal of International Law & International
Relations 155.
66
1 / Date: 16/3
Contemporary theories and international lawmaking 67
increase due to ‘temporal variations in language’.3 The Appellate Body disagreed and
held that the terms – ‘sound recording distribution services’ – were ‘sufficiently generic
that what they apply to may change over time’.4 The Appellate Body decided a
concrete case inter partes, but it is highly likely that its interpretation will carry
onwards and instruct future practices.5 Moreover, in some circumstances, trade
agreements also oblige Members to base their domestic regulations on international
standards, thus adding to the normative bite of standards adopted by institutions such as
the Codex Alimentarius, itself established by the Food and Agriculture Organization
and the World Health Organization.6 In one recent case, the Appellate Body used a just
revised decision of the Committee on Technical Barriers to trade (TBT) – part of the
administrative underbelly of the WTO – to first see what actually amounts to an
‘international standard’ in the sense of the TBT Agreement and to then test a standard
adopted under the Agreement on the International Dolphin Conservation Program
(AIDCP) in that light.7
Similar to the AIDCP standard, there is a plethora of instruments typically grouped
under the heading ‘soft law’. Like the AIDCP standard, they may be referenced in
multilateral as well as bilateral treaties. For example, an Agreement on Labour
Cooperation complements the recent Free Trade Agreement between Canada and
Panama and links up to a series of Declarations of the International Labour Organ-
ization.8 Furthermore, such soft law instruments may even gain normative force in the
absence of any interaction with traditional sources of law, as OECD Export Credit
Arrangements and even the global use of indicators illustrate.9 Finally then, the
multiplication of forms of legal normativity and fora of its making certainly prompt
core questions about the concept of international law itself.
By way of introduction, these examples highlight why many contemporary theories
see international lawmaking not as an act of signing an international treaty, but as a
continuous communicative process of speaking in the language of the law. They also
3
WTO, China: Publications and Audiovisual Products – Report of the Appellate Body (21
December 2009) WT/DS363/AB/R, para 47.
4
ibid, para 396.
5
According to the Appellate Body, its reports create ‘legitimate expectations’ among WTO
members so that panels are expected to follow its precedents. WTO, Japan: Taxes on Alcoholic
Beverages – Report of the Appellate Body (4 October 1996) WT/DS8, 10 & 11/AB/R, 14.
6
WTO, European Communities: Trade Description of Sardines – Panel Report (29 May
2002) WT/DS231/R, para 7.77 (the European Communities cautioned that such institutions
would turn into ‘world legislators’).
7
WTO, United States: Measures Concerning the Importation, Marketing and Sale of Tuna
and Tuna Products – Report of the Appellate Body (16 May 2012) WT/DS381/R; Committee on
Technical Barriers to Trade (TBT Committee) Decision on Principles for the Development of
International Standards, Guides and Recommendations with Relation to arts 2, 5, and Annex 3 to
the TBT Agreement, G/TBT/1/Rev.10 (1 January 1995, revised 9 June 2011).
8
SW Schill and M Jacob, ‘Trends in International Investment Agreements, 2010–2011:
The Increasing Complexity of International Investment Law’ [2012] Yearbook on International
Investment Law & Policy 141, 148.
9
K Davis, B Kingsbury, and SE Merry, ‘Governance by Indicators’ in K Davis ao (eds),
Governance by Indicators: Global Power through Classification and Rankings (OUP 2012) 3.
2 / Date: 14/3
begin to illustrate the variety and multiplicity of actors who are involved in inter-
national lawmaking and, ultimately, they point to foundational questions: what is
international law? Whereas the sources of international law – commonly summarized in
the revered article 38(1) of the Statute of the International Court of Justice (ICJ) –
reserve lawmaking to states, the legal discourse knows many other actors. And legal
normativity comes in many other forms than treaties, custom, or general principles.10
Simply shifting emphasis towards communicative practices leaves a number of key
issues unanswered. Crucially, it begs questions of foundations, of legitimacy, and of
yardsticks for separating law from non-law. It poses core challenges to the concept of
law. Sources doctrine has always been tightly bound up with thinking about the
justification for the law and about its separation from other normative orders. The
traditional narrative reads that international law is authoritative and distinct because it
rests on the consent of sovereign states. Increasingly, such a view is contrasted with
approaches that seek to find a foundation in universal values or community interests.11
The present contribution neither rehashes the traditional narrative, nor does it spend
much time on renewed articulations of international law’s justification or its separation
from other normative orders.12 Rather, the following sections discuss how theories
approach international lawmaking with a focus on their shift towards communicative
practices as a defining feature.
The contribution proceeds by sketching the move from sources to communicative
practice against the backdrop of the ‘linguistic turn’, which proposes that law is made
‘in action’ (section 2). It then dedicates sections to principal contemporary theories,
starting off with the New Haven School as a pioneering approach to thinking of
international lawmaking as a process of authoritative decision-making (section 3). Its
heritage is refined in the theory of transnational legal process (section 4). In contrast to
these voices from New Haven, systems theory abstracts from the political strategies of
concrete actors and is therefore in a good position to recognize law as an autonomous
enterprise (section 5). Practice theory then combines, first, sociological thought on the
heels of Pierre Bourdieu in an attempt to overcome divides between actor-centred and
structural approaches and, second, philosophical insights of pragmatism that refine
accounts of how communicative practices actually make international law (section 6).
Governance theory suggests paying more attention to regulatory networks as sites of
10
Cf ch 2 in this volume on ‘subjects and actors in international lawmaking’. It is clear that
Art. 38 (1) ICJ Statute is, strictly speaking, a provision on the applicable law. While it may be
questionable to use it as a shorthand summary of the sources of international law, this is how
mainstream views on the issue of sources nevertheless treat it.
11
H Charlesworth, ‘Law-making and sources’ in J Crawford and M Koskenniemi (eds), The
Cambridge Companion to International Law (CUP 2012); for a critical exposition of diverging
approaches see J von Bernstorff and I Venzke, ‘Ethos, Ethics and Morality in International
Relations’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP
2010) sub voce.
12
Renewed articulations of a distinction between international law and non-law are
developed, ia, in J Klabbers, ‘Law-making and Constitutionalism’ in J Klabbers ao (eds), The
Constitutionalization of International Law (OUP 2009) 81–125; M Goldmann, ‘We Need to Cut
Off the Head of the King: Past, Present, and Future Approaches to International Soft Law’
(2012) 25 Leiden Journal of International Law 335.
3 / Date: 14/3
lawmaking and to private actors whose normative output gains bite on the market place
(section 7). The concluding outlook discusses the Global Administrative Law project
and research centred on international public authority as responses to the normative
challenges stirred up by the multiplication of forms and fora of international lawmaking
(section 8).
2. FROM SOURCES TO COMMUNICATIVE PRACTICE
2.1 Distinguishing Lawmaking from Law Application
Theories of international law have for some time converged on picturing lawmaking in
terms of sources.13 If law comes into the world through the channel of sources,
interpreting and applying international law then is something different. It has nothing to
do with making international law but rather with uncovering the law that was already
made. To be sure, many great minds of the discipline have already spotted that
international law develops in ways that cannot be captured through the lens of sources
doctrine. For Hersch Lauterpacht it was for example ‘the essential function’ of the ICJ
to develop the law.14 But, like many others, he speaks interchangeably of ‘developing’
the law and ‘clarifying’ it.15 In his view, the practice of the court makes the law
visible.16 In Lauterpacht’s parlance, which certainly leans towards a natural law
foundation, the court gives voice to existing law – to the law that ‘lies behind the
cases’.17 Scholars with a more positivist bend would place emphasis on the wording of
the text itself, which ‘must be presumed to be the authentic expression of the parties’.18
13
Sources doctrine is commonly shaped in light of art 38(1) ICJ Statute, which was taken
in verbatim from the Statute of the Permanent Court of Justice. For the impact of that article on
the discipline of international lawyers, see T Skouteris, ‘The Force of a Doctrine: Art. 38 of the
PCIJ Statute and the Sources of International Law’ in F Johns ao (eds), Events: The Force of
International Law (Routledge 2011) 69; M Sørensen, Les sources du droit international
(Munksgaard 1946), 40.
14
H Lauterpacht, The Development of International Law by the International Court
(Stevens & Sons 1958), 42
15
In further detail I Venzke, ‘The Role of International Courts as Interpreters and
Developers of the Law: Working out the Jurisgenerative Practice of Interpretation’ (2011) 34
Loyola of Los Angeles International and Comparative Law Review 99; G Abi-Saab, ‘De la
jurisprudence. Quelques réflexions sur son rôle dans le développement du droit international’ in
Hacia un nuevo orden internacional y europeo. Estudios en homenaje al profesor don Manuel
Díez de Velasco (Tecnos 1993) 19.
16
Lauterpacht (n 14), 42–3.
17
ibid, 3–74 (the section is titled ‘The Law Behind the Cases’).
18
The words are those of Sir Humphrey Waldock, last Special Rapporteur of the
International Law Commission working on the Law of Treaties. See Yearbook of the Inter-
national Law Commission, Third Report on the Law of Treaties (vol II, 1964) 5, 56.
4 / Date: 14/3
Sir Gerald Fitzmaurice similarly opined in a classic statement that ‘texts must be
interpreted as they stand, and, prima facie, without reference to extraneous factors’.19
In short, interpreting and applying the law is understood as distinct from lawmaking,
which, as a matter of sources, lies beyond the reach of the everyday operation of the
law. That is a view that also Hans Kelsen ultimately upheld even if he otherwise
foreshadowed significant theoretical developments. Three elements of his œuvre are
most salient for presenting the approach of contemporary theories to international
lawmaking. First, Kelsen unburdened the concept of sources from much of its
metaphorical and mystical baggage. In his view, sources are simply norms that
authorize actors to create other norms.20 With such an understanding in hand, sources
can be found not only in article 38(1) ICJ Statute but at every level of the legal order.
Article 42 of the United Nations Charter is a source, for example, because it empowers
the Security Council to adopt binding resolutions. More generally, whenever a norm is
applied in any concrete case, it amounts to a source because it authorizes its
interpretation. Second, interpretation is inescapably a creative activity that is not
determined by the norm to be applied. The norm to be applied authorizes an
interpretation but it does not determine the content of that interpretation. Kelsen
critiqued orthodox judicial methodology for wanting to make believe that the act of
interpretation is nothing but an act of understanding and clarification. The interpretation
in any specific case (which amounts to a new norm for that case, the Fallnorm) cannot
be discovered but only created.21 In other words, there is ‘no imperative without an
imperator’.22 Every act of law-application is also one of lawmaking.23 But, third,
Kelsen stopped short of considering the impact that applying a norm has on that same
norm. Applying a norm produces a new norm for the concrete case, but it does not
change the norm on which it is based.24
2.2 The Linguistic Turn: Lawmaking in Communicative Practices
Theoretical developments after Kelsen take his argument further by considering the
feedback of applying a norm onto that same norm. They see the operation of the legal
system not only as making law for concrete cases, but also as shaping the law to be
applied. The main reason for this shift rests in the so-called ‘linguistic turn’, which
19
GG Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty
Interpretation and Other Treaty Points’ (1957) 33 British Yearbook of International Law 203,
212.
20
H Kelsen, Principles of International Law (Reinehart 1952), 303; cf J Kammerhofer,
Uncertainty in International Law: A Kelsenien Perspective (Routledge 2011), 197–99.
21
H Kelsen, Reine Rechtslehre (Deuticke 1934), 74 and 95.
22
H Kelsen, General Theory of Norms (Clarendon 1991), 29, 203, with reference to W
Dubislav, ‘Zur Unbegründbarkeit der Foderungssätze’ (1937) 3 Theoria 330, 335. Cf Anton
Schütz, ‘Imperatives without Imperator’ (2009) 20 Law and Critique 233.
23
Hans Kelsen, Reine Rechtslehre (n 21), 82–83 and 95. On this point Kelsen draws heavily
on A Merkl, ‘Das Doppelte Rechtantlitz’ (1918) 47 Juristische Blätter 425.
24
This is why Kelsen had such trouble in coming to terms with ‘wrong’ and yet effective
interpretations. See A Jakab, ‘Probleme der Stufenbaulehre’ (2005) 91 Archiv für Rechts-und
Sozialphilosophie 333.
5 / Date: 8/2
disturbed received ideas about the relationship between words and the world – between
language and reality.25 Earlier, stability in the relationship between language and reality
was thought to be provided by a connection between linguistic signs (the words) and
something they represent (the world). But in his seminal Course in General Linguistics,
Ferdinand de Saussure successfully defeated this view and instead argued that linguistic
signs only gain meaning through their difference from other linguistic signs.26 Not
representation but difference constitutes meaning.27 On Saussure’s account, only
tradition has the potential of stabilizing fluctuating distinctions, of stabilizing meaning
as well as any norm to be applied.28 But beyond that, there is no possibility of telling
what a ‘sound recording distribution services’ in China’s schedule of commitments
‘really’ are. To the extent that the meaning of that expression changes, the law changes
with it.
A parallel line of thinking takes off with Wittgenstein’s piercing view that words do
not have a meaning other than that attributed to them by their use.29 In his solemn
observation, the best that can be done is to observe and find rules that describe the use
of a word. The meaning of the explanatory rule is of course subject to the same fate so
that one is caught in an infinite regress. A rule is always dependent on another rule that
explains how it should be used.30 For Wittgenstein the consequence was clear: ‘You
must look at the practice of language, then you will see it.’31 This was bound to hold
true for the language of international law just as well.32
The challenge in this line of thinking for a convincing understanding of international
lawmaking is further refined by John Austin, the twentieth century philosopher of
language, not the nineteenth century founding father of analytical jurisprudence. The
twentieth century Austin coins the concept of performative speech, which refers to
communicative utterances that change the world.33 The worn example is the utterance
of the words ‘I do’ that can create the bond of marriage if performed in the right
context. In a clever move, Austin tries to come up with distinctions that separate
creative performative speech acts from simple constative speech acts such as ‘this is an
apple’.34 If an interpreter only engaged in constative acts of the kind ‘this is what the
law is’, then she could possibly withdraw from any charge of actually making law
rather than applying it. Austin suggests, however, that such as position is unattainable.35
Every attempt at distinguishing performative from constative acts fails because it is not
25
For a concise and pointed introduction, see R Rorty, ‘Wittgenstein, Heidegger, and the
Reification of Language’ in R Rorty (ed), Essays on Heidegger and Others vol 2 (CUP 1991).
26
F de Saussure, Course in General Linguistics (Open Court 1983).
27
ibid, 65, 106.
28
ibid, 67–69.
29
L Wittgenstein, Philosophical Investigations (Blackwell 1958), para 43.
30
ibid, para 198. See also I Kant, Critique of Pure Reason (CUP 1998), 263.
31
L Wittgenstein, On Certainty (Blackwell 1969), para 501.
32
See in detail, Venzke, How Interpretation Makes International Law (OUP 2012).
33
JL Austin, How to Do Things with Words (first published 1962, OUP 1976), 138–39; JL
Austin, ‘Performative Utterances’ in Philosophical Papers (OUP 1979), 233–53.
34
Austin, How to Do Things with Words ibid, 140–1.
35
ibid, 141.
6 / Date: 8/2
possible to withhold from interpreting even simple objects such as apples, let alone
complex phenomena such as law.36 In short: ‘Stating is performing an act.’37
These lessons of the linguistic turn have been still further developed in work centred
on the concept of performativity, which connects to the work of Austin (and of John
Searle in his footsteps) but cuts some ties as well.38 Overall, it is employed to capture
in any moment of using and speaking (the law) the simultaneous presence of a
transformation of the past and of the introduction of something new that reaches into
the future.39 The use of legal concepts shapes their content and develops the law in
passing. Making law and interpreting it are not categorically different things, but law is
made by way of interpretation.
2.3 Making Law This Way?
It might well be asked at this stage whether making law in communicative practices is
not, after all, different from signing a treaty. Among other things, it could be argued
that contracting parties intended later legal developments to unfold as they did.40 This
seems especially plausible when they used specifically vague language that includes
terms that are ‘sufficiently generic that what they apply to may change over time’ and
when they mandate institutions with supervisory (eg UN High Commissioner for
Refugees) and adjudicatory functions (eg WTO). Later developments, it could be said,
then only ‘complete the contract’.41 Four preliminary points are in order.
First, even if tied back to treaty terms or accepted formulations of customary
international law, interpretative practice still contributes to shaping the contents of
commitments. Why not call this lawmaking? After all, second, tying the communicative
practice back to the consent of contracting states is oftentimes simply dubious and
suggests that actors are clairvoyant. That parties to the Refugee Convention could have
foreseen in 1951 that the expression ‘membership of a particular social group’ would
36
ibid, 142–43; S Fish, Doing What Comes Naturally (Duke University Press 1989),
488–91.
37
Austin, How to Do Things with Words (n 33), 139.
38
For an introduction of the concept in legal theory see S Müller-Mall, Performative
Rechtserzeugung (Velbrueck 2012); R Christensen and KD Lerch, ‘Performanz. Die Kunst,
Recht geschehen zu lassen’ in KD Lerch (ed), Die Sprache des Rechts vol 3 (de Gruyter 2006)
55.
39
In further detail see the work of J Derrida, in particular his Of Grammatology (Johns
Hopkins University Press 1998) and of J Butler, in particular her Excitable Speech: A Politics of
the Performative (Routledge 1997).
40
On the distinction between ‘contract treaties’ and ‘lawmaking treaties’ and for a further
discussion of the term lawmaking as opposed to creating specific (contractual) rights and
obligations, see C Brölmann, ‘Law-Making Treaties: Form and Function in International Law’
(2005) 74 Nordic Journal of International Law 383.
41
By H Horn, G Maggi, and RW Staiger, ‘Trade Agreements as Endogenously Incomplete
Contracts’ (2010) 100 American Economic Review 394; A van Aaken, ‘International Investment
Law Between Commitment and Flexibility: A Contract Theory Analysis’ (2009) 12 Journal of
International Economic Law 507. Also see G Bastid Burdeau, ‘Le pouvoir créateur de la
jurisprudence internationale à l’épreuve de la dispersion des juridictions’ (2007) 30 Archives de
philosophie du droit 289.
7 / Date: 14/3
include women as a social group is very unlikely. Third, using and speaking
international law not only connects to past acts, which enjoy the blessing of sources
doctrine, but actually re-structure the legal discourse by introducing new terms into the
debate. ‘Enemy combatants’ are a case in point. Likewise the trade law discourse used
to test whether a measure was ‘primarily aimed at’ the conservation of exhaustible
natural resources in the sense of article XX of the General Agreement of Tariffs and
Trade (GATT) even if the treaty language required such a measure to be ‘related to’.
Adjudication had coined the ‘primarily aimed at’ standard and it was treated as if it was
the expression used in the GATT.42 But, fourth, whereas lawmaking by way of sources
above all requires will, lawmaking by way of interpretation in principle has to
convince.43 To thus repeat the question: why look at communicative practices as
making law?
Granted, lawmaking by way of interpretation impacts the international legal dis-
course differently than any new treaty. Even after trade law jurisprudence had made all
participants understand ‘related to’ as ‘primarily aimed at’, in one of its first cases
the Appellate Body could brush this understanding aside because it did not rest on the
‘wording’ of the article XX and thus violated the rules of interpretation.44 But the
Appellate Body then set up a new body of precedents that again coated the GATT with
new layers of meaning. Past interpretations generate normative expectations and shape
the legal discourse. Participants in the legal discourse can simply not escape relating
their own statements about the law to those of interpreters with authority.45 The
distinction between lawmaking by way of interpretation and through ‘legislative’ acts
becomes more fluid. The reference to authority, however, opens up a new set of
questions. In particular: whose interpretation then matters and is such authority
justified? I will resume the normative implications of the shift in perspective from
sources to communicative practice in the concluding outlook. In the following, I
proceed by discussing in turn what contemporary theories offer for an improved
understanding of international lawmaking in communicative practices.
But an additional last point is in order before doing so. Not all lawmaking in
communicative practices comes in the form of interpretation. Many soft law instru-
ments can connect to and re-shape hard law obligations. But they can also create
normative effects on their own and, to the very least, shift argumentative burdens.
Many global indicators do precisely that. The fact that China struggles to undermine
the World Bank’s ‘Doing Business Report’ testifies to that reports’ relevance and
42
See in detail I Venzke, ‘Making General Exceptions: The Spell of Precedents in
Developing Article XX GATT into Standards for Domestic Regulatory Policy’ (2011) 12
German Law Journal 1111; see also R Bhala, ‘The Precedent Setters: De Facto Stare Decisis in
WTO Adjudication (Part Two of a Trilogy)’ (1999) 9 Journal of Transnational Law and Policy 1.
43
See in detail, A von Bogdandy and I Venzke, ‘Beyond Dispute: International Judicial
Institutions as Lawmakers’ (2011) 12 German Law Journal 979, 990–91.
44
WTO, United States: Standards for Reformulated and Conventional Gasoline – Report of
the Appellate Body (20 May 1996) WT/DS2/AB/R, 16–17.
45
I Venzke, ‘Understanding the Authority of International Courts and Tribunals: On
Delegation and Discursive Construction’ (2013) 14 Theoretical Inquiries in Law 381.
8 / Date: 14/3
impact.46 Soft law can create forceful incentives for acting one way rather than another,
sometimes backed by strong market mechanisms (think of voluntary product standards)
or simply pull towards efficient co-ordination.
3. THE NEW HAVEN SCHOOL

The New Haven School groups a number of scholars who worked on a policy-oriented
view on international law that was very outspoken about its disdain for thinking in
terms of formal sources.47 It foreshadows both theoretical developments that see how
hard law changes through interpretative processes and how the type of instruments that
form part of the body of international law is much richer than article 38 ICJ Statute
would suggest. International law, Myres McDougal found, should be ‘regarded not as
mere rules but as a whole process of authoritative decisions in the world arena’.48
Lawmaking neither ended nor started with sources. McDougal and his colleagues
spelled out seven phases of decision-making and execution to help identify inter-
national law in legal processes whose main drive was the exercise of power.49 The early
views cast on international lawmaking from New Haven were decidedly functional and
endorsed a substantive overarching end towards which all efforts should be directed;
namely, the protection of human dignity.50 Doctrines of sources and references to
article 38 ICJ Statute were replaced by a sociological view on what participants in legal
discourse actually do.
In his seminal article ‘International Lawmaking: A Process of Communication’,
Michael Reisman argued that scholarly teachings and judgments had developed a myth
– the myth that international law could be found by looking at what article 38 ICJ
Statute claims to be the sources of all law.51 The model of positivism, he contends, is
distorting precisely because it holds that law is made by the legislator.52 Instead,
46
‘Stand up for “Doing Business”’, The Economist (25 May 2013) available at <http://
www.economist.com/news/leaders/21578397-president-world-bank-should-support-one-its-most-
useful-products-stand-up-doing>.
47
See generally GJH van Hoof, Rethinking the Sources of International Law (Kluwer
1983), 39–44; M Koskenniemi, The Gentle Civilizer of Nations (CUP 2001), 474–80.
48
MS McDougal, Studies in World Public Order (Yale University Press 1960), 169. Also
see R Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17
International and Comparative Law Quarterly 58, 58 (‘international law is a continuing process
of authoritative decisions’); B Cheng, ‘Epilogue: On the Nature and Sources of International
Law’ in B Cheng (ed), International Law: Teaching and Practice (Stevens 1982), 203–33.
49
MS McDougal, HD Lasswell and JC Miller, The Interpretation of Agreements and World
Public Order (Yale University Press 1967), 13.
50
See MS McDougal, ‘International Law, Power, and Policy: A Contemporary Conception’
(1954) 82 Recueil des cours de l’Académie de droit international 137; WM Reisman (ed),
Toward World Order and Human Dignity. Essays in Honor of Myres S. McDougal (Free Press
1976). It is interesting to note that this comes close to idealist positions in a natural law tradition,
see VanHoof (n 47), 41.
51
M Reisman, ‘International Lawmaking: A Process of Communication’ (1981) 75 Ameri-
can Society of International Law Proceedings 101.
52
ibid, 107.
9 / Date: 14/3
Reisman maintains, international law emerges from the myriad of legal communica-
tions that a plethora of actors utter every day. In light of this observation, he developed
a novel scheme, wholly unrelated to sources, that distinguishes legal from non-legal
communications.53 He notably finds that international lawmaking is not a function
exclusively reserved for unitary sovereign states but is present in all legal communica-
tions.54 Given that the international legal process is no longer dominated by govern-
ments alone, Reisman further finds that newly generated legal norms can conflict with
norms that others might find with a formalist look at traditional sources of the law. His
process-oriented view of international law transcends formalism and claims to be in a
position of granting humanitarian concerns, voiced by a wide range of actors in
international political discourse, a legal status even if they conflict with norms that have
a formal pedigree in the sources of law. As in other sociological approaches to law,
humanitarianism is construed as a social fact. It amounts to a point of reference for
normative judgment and for legal argument with a certain distance to positive legal
provisions that might be spelled out in the UN Charter, for instance.55
4. THEORY OF TRANSNATIONAL LEGAL PROCESS

The theory of transnational legal process (TLP), a spin-off from New Haven, shares the
critique of legal positivism and formalism. It adapts the concept of ‘jurisgenesis’ from
the work of Robert Cover to look at the law-generating interactions among a multitude
of actors rather than the formal sources of the law.56 But this approach does not share
the earlier New Haven School’s ‘conviction that if knowledge is properly put to the task
of the realization of values, the results will lead inevitably to human betterment’.57 In
contrast, TLP does not, at least not at first glimpse, put international law in the
instrumental service of given goals. Its chief architect and proponent Harold Koh rather
claims that the participation and interaction of the grand variety of non-state actors as
well as the internalization of norms ensures the legitimacy of the jurisgenerative
transnational legal process.58 It remains opaque, however, why that should be the case.
The main point of TLP appears to be its contribution to when, why and how
53
ibid, 108, drawing on a more detailed argument in MS McDougal and M Reisman, ‘The
Prescribing Function in World Constitutive Process: How International Law is Made’ (1980) 6
Yale Studies in World Public Order 249.
54
M Reisman, ‘A Jurisprudence from the Perspective of the “Political Superior”’ (1996) 23
Northern Kentucky Law Review 605.
55
M Reisman, ‘Unilateral Action and the Transformations of the World Constitutive
Process: The Special Problem of Humanitarian Intervention’ (2000) 11 European Journal of
56
HH Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181; it borrows
the concept of ‘jurisgenesis’ from the work of RM Cover, see RM Cover, ‘Nomos and Narrative’
(1983) 97 Harvard Law Review 4.
57
RA Falk, ‘Casting the Spell: The New Haven School of International Law’ (1994–95)
104 Yale Law Journal 1991, 2002, quoted in F Hanschmann, ‘Theorie transnationaler Rechts-
prozesse’ in S Buckel ao (eds), Neue Theorien des Rechts (Lucius und Lucius 2009), 375, 384.
58
HH Koh (n 56), 205.
10 / Date: 8/2
international law induces compliance.59 As an approach to understanding the making of

international or transnational law it tends to be vague or simply mute.
Mary Ellen O’Connell has attempted to fill this theoretical gap within the framework
of TLP. She fleshes out how international law changes in light of new concerns and
objectives. But in doing so, she ends up embracing a functionalist-instrumentalist
perspective (placing international law in the service of given goals), which she first
strongly rejected. In the end she demands reaching out to society’s values where
treaties and customary rules do not fully support a desired outcome and thus reaches
back to classical voices from New Haven.60
The strength of TLP seems to lie in its account of norm compliance, but not without
follow-up questions. The theory suggests that the interaction between a variety of
actors in a transnational legal process is jurisgenerative. At the same time it contends
that such processes account for norm compliance by way of internalization. Both
propositions are probably true, but they stand in uneasy tension. Is it a given norm that
is internalized or does this norm change in the process of internalization? Is it not a
process that portrays law-creative features? The latter seems more plausible and fits
with TLP’s theoretical background. Yet the thought is not developed further.
Wayne Sandholtz picks up TLP as a theoretical frame in order to ask head-on how
norms change. He arrives at a cyclic model in which disputes triggered by events
generate debate that in turn changes norms.61 This bodes well for a better understand-
ing of international lawmaking. Yet, again, TLP accounts primarily for processes of
norm internalization rather than change. The law-creative aspect is nebulous to the
extent that Sandholtz confines his observation to social norms because, as he writes,
‘[i]nternational law, of course, has well-established rules for adding to or changing the
stock of international legal norms: the sources of international law. New rules emerge
and existing rules evolve through the formal process of treaty creation as well as
through the development of customary law’.62 How legal norms change is not even part
of the question and an investigation of how law is made thus lies outside, or at best at
the fringes, of his study. It appears to be a lucky coincidence that at the end of each of
his norm cycles governments signed a new treaty and thus the question did not arise
with much force whether the legal norm had changed prior to that. In the last chapter
Sandholtz ponders the question, however, whether, in light of the Iraq war and in view
of arguments centred on the plundering of Iraqi museums, there now exists an
obligation for the occupant to protect cultural property. He suggests that there is a
consensus that carries such an interpretation of the law. And ‘[w]hen a consensus
emerges, the rule is altered’.63 But on his account, the law changes through the formal
channels offered by the sources of international law.
59
HH Koh, ‘Bringing International Law Home’ (1998) 35 Houston Law Review 623.
60
ME O’Connell, ‘New International Legal Process’ (2004) 36 Studies in Transnational
Legal Policy 79, 104.
61
W Sandholtz, Prohibiting Plunder: How Norms Change (OUP 2007). Cf W Sandholtz
and A Stone Sweet, ‘Law, Politics, and International Governance’ in C Reus-Smit (ed), The
Politics of International Law (CUP 2004) 238; W Sandholtz and K Stiles, International Norms
and Cycles of Change (OUP 2009).
62
Sandholtz, Prohibiting Plunder ibid, 9.
63
ibid, 262.
11 / Date: 14/3
Paul Schiff Berman’s approach may be read as a correction of this shortcoming.

Berman also leans on Cover’s work on jurisgenerative practices – the continuous
contestation among interpretative communities that ‘do create law and do give meaning
to law through their narratives and precepts’.64 This opens the door for sketching law as
existing in numerous co-existing, competing, and overlapping normative universes.
Cover did not himself engage in debates of legal pluralism but his work certainly lends
itself in support of pluralist conceptions of law when he writes that ‘all collective
behavior entailing systematic understandings of our commitments to future worlds [can
lay] equal claim to the word “law”’.65 Law is not tied to recognized sources but
emerges from social interaction among a variety of actors, including multinational
corporations, non-governmental organizations, international organizations, terrorist net-
works, media and, in special circumstances, individuals. There is no centralized process
of lawmaking but there are multiple normative communities, which generate their own
legal norms. The grand picture is one of global legal pluralism.66 The focus does not
rest on shifting the contents of any commitments that contracting parties might have
made, but on the generation of new norms completely detached from avenues of formal
lawmaking. TLP thus draws attention to a whole range of instruments that form part of
international law.
5. SYSTEMS THEORY
The theoretical framework of systems theory paints a quite similar picture of law-
making in communicative processes but it sets itself apart from policy-oriented
jurisprudence à la New Haven by remaining bound to understanding interpretation in
law as a distinct enterprise that cannot be reduced to the exercise of power or the
pursuit of values. It recognizes that speaking the language of the law compels actors to
use certain arguments, a certain logic. It critiques external perspectives on legal practice
for reducing legal practice to the logics of other systems such as political, economic, or
cultural systems with their respective logic. Legal practice, in its view, then becomes
indistinguishable – politics by other means.67
One of systems theory’s overarching propositions is that law is an autopoietic
subsystem of society that encompasses all communications containing claims about
64
PS Berman, ‘A Pluralist Approach to International Law’ (2007) 32 Yale Journal of
International Law 301–29, quoting RM Cover, ‘Nomos and Narrative’ (n 56), 40.
65
RM Cover, ‘The Folktales of Justice: Tales of Jurisdiction’ (1985) 14 Capital University
Law Review 179, 181.
66
Berman, ‘A Pluralist Approach to International Law’ (n 64); also see PS Berman, ‘Global
Legal Pluralism’ (2007) 80 Southern California Law Review 1155. See also B de Sousa Santos,
Toward a New Legal Common Sense (Northwestern University Press 2002). This kind of legal
pluralism is notably different from that of N Krisch and others who are concerned with the
relationship between legal orders of different levels of governance, see N Krisch, Beyond
Constitutionalism. The Pluralist Structure of Postnational Law (OUP 2010).
67
A Fischer-Lescano and G Teubner, ‘Regime-Collisions: The Vain Search for Legal Unity
in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999,
1003–04; N Luhmann, Das Recht der Gesellschaft (Suhrkamp 1993), 9–18.
12 / Date: 8/2
(il)legality.68 ‘Autopoiesis’ here is a term taken from biology which roughly means
self-reproduction and it comes in handy for Niklas Luhmann to grasp the features of
social systems.69 The concept is used to suggest that communications within a system
can only operate by reference to communications of that same system – legal claims
have to refer to legal claims in order to be valid legal claims.70 Legislation – lawmaking
through the channels of sources – can enter the legal system only by way of a
‘structural coupling’ between the political and legal system. In the domestic context this
path is paved by constitutions.71 In the international context this coupling portrays
significantly different characteristics and the chances of input from the political into the
legal system are seen to be rather minimal, with two principal implications.72 First,
international law is understood to evolve in rather significant distance from political-
legislative input. Second, since the functional and institutional differentiation of the
political and legal system is only little advanced when compared with domestic
contexts, communicative operations in international law tend to portray more elements
that would usually belong to other systems. In other words, international legal
argument would show more references to morality and politics, for instance.73
Furthermore, with specific regard to international lawmaking, the world society and
international law are characterized by functional specializations rather than territorial
delimitations. Leaning on Eugen Ehrlich’s sociology of law, Gunther Teubner points
towards ‘Global Bukowina’, which are subsystems within the global society that create
their own normative orders.74 The overlaps with global legal pluralism as it has
developed from TLP are evident. Teubner argues that ‘global law will grow mainly
from the social peripheries, not from the political centres of nation-states and
international institutions’.75 And also in his outlook the role and impact of non-state
actors is of increasing importance in societal lawmaking processes.76 A feature to
which systems theory draws specific attention is that society falls into distinct sectors
that are institutionally organized in various regimes and driven by particular rationali-
ties.77 Law is fragmented along regimes that cater to economic or environmental
interests, for instance.78
68
Luhmann (n 67), ch 2.
69
The concept has been further refined for law as a subsystem by G Teubner, Law as an
Autopoietic System (Blackwell 1993).
70
Luhmann (n 67), 98.
71
ibid, ch 9.
72
ibid, 582; G Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’ in
Global Law Without a State (Dartmouth 1997) 3, 6; Fischer-Lescano and Teubner (n 67),
1014–17 (coining the notion of ‘auto-constitutional regimes’ in this regard).
73
The legal system then is not operationally closed. Luhmann (n 67), 157.
74
G Teubner, ‘Global Bukowina’ (n 72) with reference to E Ehrlich, Grundlegung der
Soziologie des Rechts (Duncker & Humblot 1967), 390.
75
G Teubner, ‘Global Bukowina’ (n 72), 7.
76
A Fischer-Lescano, Globalverfassung. Die Geltungsbegründung der Menschenrechte
(Velbrück 2005).
77
Fischer-Lescano and Teubner (n 67).
78
See in detail G Teubner, Constitutional Fragments: Societal Constitutionalism and
Globalization (OUP 2012).
13 / Date: 15/3
With the conceptual move towards autopoiesis, Luhmann finds a fitting response to
the challenges of the linguistic turn and the troubles of an infinite regress in the use of
rules. Remember, in the wake of Wittgenstein the question had been how it is possible
to follow a rule if its use always depends on another rule, and so forth. The answer
Wittgenstein gave was that rule following is a matter of practice.79 Practice here is used
in a manner akin to habit or custom. It is a cultural phenomenon of almost natural
quality – practitioners acquire the ability to follow a rule in processes of socialization.80
An actor must have learned in practice what a rule means – she must have internalized
the practice so as not to be in doubt about its meaning.81 It may thus be deemed most
fitting to think of norm change as a process of evolution, as systems theory does. The
‘blind force of natural selection’ would change and make international law.82
But the understanding of legal change as an evolutionary process, in a theoretical
meaningful way, faces a number of obstacles.83 One core challenge for such an
understanding emanates already from Max Weber’s astute argument:
the mere change of external conditions is neither sufficient nor necessary to explain the
changes in “consensual understandings”. The really decisive element has always been a new
line of conduct which then results either in a change of the meaning of existing rules of law
or in the creation of new rules of law.84
It continues to be a task for theory to develop an account of legal change and

lawmaking that captures legal interpretation as a distinct enterprise that is not reduced
to politics, morality, or culture, on the one hand, and that still maintains a grasp on
actual lines of conduct. A renewed conception of practice might be well suited to help
meet that chore.
6. PRACTICE THEORY
Theories that give prime consideration to the concept of practice have for a while been
mainly structuralist, and mainly Marxist. On the whole, they have not combined a
conception of practice with lines of conduct.85 It was in particular Maurice Merleau-
Ponty who brought life into the concept of practice and who conceived practice as
79
Wittgenstein, Philosophical Investigations (n 29), paras 202, 209. Cf B Bix, Law,
Language and Legal Determinacy (OUP 1993), 38–45.
80
Wittgenstein shows right at the outset of his Philosophical Investigations (n 29) that
learning a language is not about explaining what an expression means but about drill and
training, see para 208.
81
Wittgenstein, Philosophical Investigations (n 29), para 219.
82
Luhmann (n 67), 239–96.
83
In detail, Venzke (n 32), 38–42
84
M Weber, Economy and Society (University of California Press 1978), 755.
85
Among the exceptions see M Hardt and A Negri, Multitude. War and Democracy in the
Age of Empire (Penguin 2006) (drawing on Judith Butler’s work (n 39)).
14 / Date: 14/3
historically situated speaking, thinking, and acting.86 This is an important change of

perspective: it notably recognizes the feedback that acting has on the structures that
constitute and constrain actions. Anthony Giddens pinned down the idea in his classical
argument that ‘[s]tructural properties of social systems are both the medium and the
outcome of the practices that constitute those systems’.87 In brief, norms and actors are
co-constitutive.88 For international lawmaking this means that it is indeed what lawyers
make of it, but they are constrained by what they make.89
The work of Pierre Bourdieu offers further inspiration for this line of theoretical
thinking that explores practice between the snares of conduct that is oblivious to
structural constraints and reified structures that exist independent of human action.
Bourdieu argued that past structuralist approaches blunder into the trap of equating
what they see as objective observation (unburdened with dealings of living persons)
with the view that actors themselves have of their practice.90 Social actors tend to be
ignored where they should really be included as a constitutive element of the social
world. On the contrary, however, only taking account of practice without any critical
detachment and understanding for structural predispositions would fall for the fallacies
of an unbroken subjectivism. Sociological insight would then be impossible. In other
words, factors that explain conduct – such as an actor’s legal interpretation, for instance
– should not be equated with the reasons actors themselves see for their actions.
Bourdieu developed his sociology in an attempt to overcome this divide with a
praxeological epistemology.91
A further source of inspiration may be found in theoretical pragmatism, especially in
the work of Robert Brandom who, among other things, offers a persuasive response to
the rule-following paradox (the infinite regress in applying a rule whose interpretation
always hinges on yet another rule). Brandom argues that once an actor has consented to
a rule, she has committed herself in relation to others to using certain concepts. The
actual content of those commitments, the meaning of the concepts they use, is
86
M Merleau-Ponty, Adventures of the Dialectic (Northwestern University Press 1973), 37.
Cf C Taylor, ‘To Follow a Rule …’ in C Calhoun ao (eds), Bourdieu: Critical Perspectives
(University of Chicago Press 1993) 45, 49.
87
A Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in
Social Analysis (Macmillan 1979), 69.
88
A Wendt, Social Theory of International Politics (CUP 2000), ch 2.
89
Compare M Koskenniemi, ‘Between Commitment and Cynicism: Outline for a Theory of
International Law as Practice’ in United Nations, Collection of Essays by Legal Advisers of
States, Legal Advisers of International Organizations and Practitioners in the Field of Inter-
national Law (1999) 495, 523 (‘International law is what international lawyers do and how they
think.’).
90
P Bourdieu, The Logic of Practice (Stanford University Press 1992), 29–39. See also the
juxtaposition of internal and external perspectives in legal scholarship, HLA Hart, The Concept
of Law (first published 1961, OUP 1997) 88–9.
91
P Bourdieu and LJD Wacquant, An Invitation to Reflexive Sociology (University of
Chicago Press 1992) 7–11; P Bourdieu, Outline of a Theory of Practice (CUP 1977), 37 and
203, fn 49.
15 / Date: 14/3
consequently the product of a process of ‘negotiation’ with others.92 Whether some-

body meets his or her commitments can only be gleaned from communicative practice
itself. Notably, in this practice, applications of a concept in the present have to connect
to the past in a way that convinces future applications. In order to illustrate the point,
Brandom resorts to a case-law model of communication in which ‘[t]he current judge is
held accountable to the tradition she inherits by the judges yet to come’.93 Interpret-
ation (in international law) is an activity that is both creative and constrained. In fact, it
always has to be constrained if it wants to be creative. Interpretation as practice makes
law in the present and in so doing is tied back to the past by the future. Practice theory,
in this way, offers a development of thinking in the wake of Austin and Searle by
refining how we can understand ‘transformative iterations’,94 or, in other words,
incremental lawmaking in communicative processes.
For an understanding of the making of international law, much can be gained from
practice theory. Jutta Brunée and Stephen Toope have ventured in that direction with
their interactional account of international law, but without the full benefit of the turn
towards practice.95 Practice theory offers a persuasive account of how interpretation in
law can be understood as both creative as well as constrained – as a lawmaking practice
that combines the intention of actors with structural constraints.96 Actors struggle for
the law and seek to exercise semantic authority by establishing their own statements
about the law as reference points for later legal discourse. The constraints lie in the
limits set by interpretative communities as to what an interpreter ‘can get away with’.
The question then becomes: ‘What makes an interpretation acceptable?’97
7. GOVERNANCE THEORY
The examples of making law by shifting the meaning of ‘civilian’, ‘refugee’ or ‘sound
recording distribution services’ tie interpretative practices back to terms that are part of
the traditional sources of international law. They hardly capture the complexity of
contemporary lawmaking processes. Not only do legal discourses establish other
reference points such as ‘enemy combatant’ or ‘primarily aimed at’ in a way that
becomes almost indistinguishable from other terms that enjoy the blessing of sources
doctrine. But the forms and fora of lawmaking processes have multiplied significantly.
92
R Brandom, ‘Some Pragmatist Themes in Hegel’s Idealism: Negotiation and Adminis-
tration in Hegel’s Account of the Structure and Content of Conceptual Norms’ (1999) 7
European Journal of Philosophy 164, 173.
93
ibid, 181.
94
See supra notes 33–38 and accompanying text.
95
J Brunée and S Toope, Legitimacy and Legality in International Law: An Interactional
Account (CUP 2010).
96
In detail, Venzke (n 32).
97
S Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Harvard
University Press 1980), 338–55. For international law specifically, also see U Fastenrath, ‘A
Political Theory of Law: Escaping The Aporia of the Debate on the Validity of Legal Argument
in Public International Law’ in U Fastenrath ao (eds), From Bilateralism to Community Interest:
Essays in Honour of Bruno Simma (OUP 2011) 58, 77–78.
16 / Date: 8/2
Voices from New Haven as well as those inspired by systems theory have already
drawn attention to that complexity. Under the loose heading of governance theory, this
section discusses networks, other informal processes, and private actors in the making
of international law.
In her sketch of ‘A New World Order’, Anne-Marie Slaughter finds a lot of
international law, little of which has been made in ways that could be seen through the
lens of sources doctrine.98 Her theory disaggregates the state and highlights how its
parts – civil servants of the ministries, above all, but also judges and legislators –
interact with their counterparts across borders in loose networks that generate legal
normativity.99 She understands transnational legal politics not as pushed by an
aggregate of ‘national’ interests but as the product of diverging interests, which
individuals and organized groups pursue transnationally.100 Soft law instruments can be
as useful in this vein as formal lawmaking. Oftentimes, soft law instruments open up
new paths of action. In his panorama of practices, Legal Adviser to the US Department
of State and spearhead of the theory of transnational legal processes, Harold Koh, notes
that:
what we are doing is not ‘lawmaking’ per se, so much as it is what international-relations
theorists call ‘regime-building’ – in the sense of fostering discussion and building consensus
about a set of norms, rules, principles, and decision-making procedures that converge and
apply in a particular issue area.101
Overall, this practice has lead to greater heaps of what may be called ‘informal law’.102
Such perspectives have a specific strength in capturing lawmaking by private and
hybrid actors, be it in interaction with other ‘formal’ law, or in splendid isolation.
Examples include the normative output of the International Organization for Standard-
ization or of the International Accounting Standards Board, for instance. In their
nuanced overview of rule-making in private governance, Tim Büthe and Walter Mattli,
identify market-based selection mechanisms that give some actors the capacity to
impose rules onto others.103 A classical example would be the purchasing power of big
retailers such as Walmart and the rules they can impose down their supply chains.
Standards on ‘Corporate Social Responsibility’ can and do gain legal normativity
98
AM Slaughter, A New World Order (Princeton University Press 2004).
99
The concept of network plays an important role in this strand of thinking, Slaughter ibid
34; see AH Chayes and A Chayes, The New Sovereignty: Compliance with International
Regulatory Agreements (Harvard University Press 1995) 2.
100
AM Slaughter, ‘Law in a World of Liberal States’ (1995) 6 European Journal of
International Law 503, 508.
101
HH Koh, ‘Remarks: Twenty-First-Century International Lawmaking’ (2013) 101 George-
town Law Journal 725, 742, with reference to RO Keohane, ‘The Demand for International
Regimes’ (1982) 36 International Organization 325.
102
J Pauwelyn, ‘Informal International Lawmaking: Framing the Concept and Research
Questions’ in J Pauwelyn ao (eds), Informal International Lawmaking (OUP 2012) 11. Also see
RA Wessel, ‘Informal International Law-Making as a New Form of World Legislation?’ (2011)
8 International Organizations Law Review 253.
103
T Büthe and W Mattli, The New Global Rulers: The Privatization of Regulation in the
World Economy (Princeton University Press 2011).
17 / Date: 14/3
through their reception in the market place.104 At least at this stage, voices start to differ
more loudly as to whether that is still law, ‘properly so called’.105
8. OUTLOOK: GLOBAL ADMINISTRATIVE LAW AND

INTERNATIONAL PUBLIC AUTHORITY
The complexity of forms and fora of international lawmaking below the radar of
traditional sources doctrine poses significant challenges, not the least to the concept of
law and to the possibilities of thinking in terms of sources more generally.106 Moreover,
the diversification of actors and institutions who can indeed exercise authority by
contributing to the making of international law fundamentally challenges the traditional
narrative of legitimacy of international law according to which international law exists
and should be because unitary states have consented to it.107 Contemporary theories
converge on the fact that this narrative no longer holds. For one thing, it does not hold
because law is not fixed at the moment it enters the world through the channel of
sources but is instead in constant making through communicative practices in which a
variety of actors weigh in on the struggle for the law.108 In addition, not everything that
matters legally is necessarily connected to the sources of law.
While sources doctrine has tried to tie international law to the consent of unitary
states because state sovereignty was thought to be the exclusive building block for
legitimate international order, further complementary mechanisms of legitimation now
need to be explored simply because sources do not capture everything that matters.109
That is, finally, what the projects on global administrative law (GAL) and on
international public authority are about.
The GAL project has mainly been crafted as a response to growing accountability
deficits in global governance processes, which are, above all, lawmaking processes. It
is guided by the thought that those processes are best understood as administration and
it defines global administrative law ‘as comprising the mechanisms, principles,
practices, and supporting social understandings that promote or otherwise affect the
104
A Peters, L Koechlin, and GF Zinkernagel, ‘Non-state Actors as Standard Setters:
Framing the Issue in an Interdisciplinary Fashion’ in A Peters ao (eds), Non-State Actors as
Standard Setters vol 817 (CUP 2009); J d’Aspremont (ed), Participants in the International
Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011).
105
On competing conceptions of law see B Kingsbury and M Donaldson, ‘From Bilateralism
to Publicness in International Law’ in Fastenrath ao (eds) (n 97) 79.
106
For a response to these challenges with a view on ‘rescuing’ the doctrine of sources, see
J d’Aspremont, Formalism and the Sources of International Law (OUP 2011).
107
See ch 2 in this volume.
108
R von Jhering, The Struggle for Law (JJ Lalor tr from 5th German edn, 2nd edn,
Callaghan and Company 1915).
109
For a notable (early) attempt at expanding the doctrine of sources in this regard, see Van
Hoof (n 47).
18 / Date: 14/3
accountability of global administrative bodies’.110 General principles of an adminis-

trative law character are introduced as a possible cure: principles of transparency,
procedural participation, reasoned decision, and review. With these procedural
demands, the GAL project in effect takes on the challenge of offering a more dynamic
approach to lawmaking.111 Substantive standards – including proportionality, means-
end rationality, avoidance of unnecessarily restrictive means, and legitimate expect-
ations – further complement the procedural principles.112 How to apply those principles
and standards in concrete cases is a lasting question, not the least because, as the
protagonists of the GAL project well realize,‘[a]ccountability can dissipate effect-
iveness, participation can result in capture by special interests, transparency can mean
populism triumphs over justice’.113
Research centred on international public authority likewise responds to legitimatory
concerns with regard to the normative output of international institutions. It observes
the transformations of governance and connects to the tradition of public law in its dual
function of constituting as well as limiting public authority.114 If public authority is
understood as the law-based capacity to legally or factually limit or otherwise affect
other actors’ use of their freedom, then public law is precisely concerned with the
tension between such authority and individual or collective freedom.115 Making
international law within the practice of communication may well be captured as an
exercise of public authority if actors have the capacity to establish their own statements
about the law as reference points for legal discourse that others could only escape at a
cost. Overall it seems that, in the current setting of global governance, sources are not
the main site where law, politics and power meet, but the communicative practices in
which a variety of actors struggle for the law. Attention and critique should be
apportioned accordingly.
110
B Kingsbury, N Krisch, and RB Stewart, ‘The Emergence of Global Administrative Law’
(2005) 68 Law and Contemporary Problems 15, 17.
111
On such a need see Y Radi, ‘Standardization: A Dynamic and Procedural Conceptu-
alization of International Law-Making’ (2012) 25 Leiden Journal of International Law 283
(adding ‘coherence’ as a key demand to the set of principles).
112
Kingsbury, Krisch, and Stewart (n 110), 37–42.
113
B Kingsbury and N Krisch, ‘Introduction: Global Governance and Global Administrative
Law in the International Legal Order’ (2006) 17 European Journal of International Law 1, 4.
114
A von Bogdandy, P Dann and M Goldmann, ‘Developing the Publicness of Public
International Law: Towards a Legal Framework for Global Governance Activities’ (2008) 9
German Law Journal 1375, 1380.
115
ibid, 1376; A von Bogdandy and I Venzke, ‘In Whose Name? An Investigation of
International Courts’ Public Authority and its Democratic Justification’ (2012) 23 European
19 / Date: 14/3
PART II
IN AN INTER-STATE SETTING
1 / Date: 8/2
2 / Date: 8/2
5. Lawmaking by treaty: Negotiation of agreements

and adoption of treaty texts
1. INTRODUCTION
In all likelihood the first diplomatic negotiations between sovereigns were conducted
the very moment ancient rulers developed relations beyond their own sphere of
influence. The earliest documents that record such negotiations are Mesopotamian and
date back to the middle of the third millennium BCE. Preserved baked clay tablets
reveal that the ancient procedures, ploys and arguments do not differ significantly from
modern practices: the extravagant opening statements, drawn out games and posturing
mid-process, fall-back positions, last-minute demands and face-saving compromises of
the ancient world are still included in the modern negotiators’ repertory.1 There have
been some notable advances in the preparatory stages, presumably for example, priests
and soothsayers are no longer officially consulted to ensure the negotiator’s divine
blessings, though. It is more likely that modern negotiators consult how-to-do-it-books
on negotiation strategies,2 albeit often with as little certainty of success as their ancient
forebears. One of the few internationally renowned negotiation strategies is the Harvard
Concept whose principled negotiation technique was successfully applied by US
President Jimmy Carter when mediating in the Camp David peace negotiations between
Egypt and Israel in 1978.3 The Camp David negotiation falls into the category of means
of peace dispute settlement (art 33 UN Charter), whereas this contribution focuses on
treaty negotiations within the international lawmaking process. The international
lawmaking process proceeds from negotiations that are conducted in order to establish
the common will of the international community regarding a specific subject matter in
need of codification. In the event negotiations are successfully concluded, the adoption
of the treaty text marks the centralised formal decision-making on the content of the
future law. Subsequently it is the ratification of the treaty that adds the decentralised
formal decision-making to the international lawmaking process. The process is con-
cluded with the autonomously uncontrollable entry into force of the treaty. This chapter
1
For the Old Babylonian Period (eighteenth century BCE) see AH Podany, Brotherhood of
Kings (OUP 2010) 81–83; R Cohen, P Meerts, ‘The Evolution of International Negotiation
Processes’ (2008) 13 International Negotiation 149, 151.
2
UNEP, ‘Multilateral Environmental Agreement Negotiator’s Handbook’ (2006) available
at <www.unep.org/environmentalgovernance/Portals/8/documents/NegotiatorsHandbook.pdf>;
FC Iklé, How Nations Negotiate (Harper and Row 1964), 59ff.
3
eg United Nations (UN), ‘Guidance for Effective Mediation’ as annexed to the ‘Report of
the Secretary-General on Strengthening the role of mediation in the peaceful settlement of
disputes, conflict prevention and resolution’ (25 June 2012) UN Doc A/66/811.
87
1 / Date: 15/3
is devoted to the different phases of bilateral and multilateral negotiations between

states and other entities with international treaty-making capacity, ie at this stage only
international organisations, even though they are openly discriminated against within
the negotiation and adoption process (see formal equality of the negotiating parties in
section 2.2.2). The discussed phases of negotiations are tailored for multilateral
negotiation settings that aim at concluding a treaty establishing a normative system of
rules (a lawmaking treaty). That having been said, the process of negotiation is a
flexible, goal oriented and very malleable endeavour. Therefore, the considered phases
may also be followed in the context of other treaty-making scenarios such as dispute
settlement negotiations. Section 2 attempts to elaborate a general definition of
international negotiations beyond the lawmaking focus and epitomise the principles and
rules governing international negotiations. The procedural phases of bilateral negoti-
ations and multilateral negotiations at diplomatic conferences are illustrated in section 3
(bilateral) and section 4 (multilateral). Especially in the latter setting questions can
arise concerning complexity (4.2.4.), coalition building (4.2.5) and influential back-
ground players such as non-governmental organisations (NGOs) (4.2.6). Given this
context, a particular challenge for organisers, chairs and participants are multilateral
negotiation clusters within an international treaty regime (4.3). Finally, section 5 has a
focus on the adoption of the treaty text, especially the voting procedures in theory and
in practice.
2. NEGOTIATION OF INTERNATIONAL AGREEMENTS
2.1 Defining International Negotiation
As an inter-personal phenomenon, negotiations are omnipresent in many areas of life,

be it in private, for example when parents deal with teenagers, in business such as at
conferences or in political and judicial life where they are commonplace.4 Negotiations
take place every time two or more parties attempt to reach a common understanding by
way of discussing and/or bargaining.5 Building on that general definition, international
negotiations have the distinction of taking place between international actors in order to
reach an understanding that may take effect in their relations. Even though this broad
definition of international negotiations brings us closer to the phenomenon, it still
requires some supplementary explanation. The core of the definition is that two or more
parties attempt to reach an understanding among themselves, which distinguishes
4
At least four scientific disciplines have an interest in understanding and enhancing
negotiation behaviour in different settings: psychology, social science, political science and legal
science; see JZ Rubin, ‘Psychological Approach’ in Kremenyuk (ed), International Negotiation:
Analysis, Approaches, Issues (2nd edn, Jossey-Bass 2002) 257.
5
K Hakapää, ‘Negotiations’, in R Wolfrum (ed), Max Planck Encyclopedia of Public
International Law (OUP 2011), para 1; J Kaufmann, Effective Negotiation: Case Studies in
Conference Diplomacy (Nijhoff 1989) 3.
2 / Date: 15/3
Negotiation of agreements and adoption of treaty texts 89
negotiations from third-party adjudication, eg judicial or arbitral proceedings.6 The

submissions of the diverging views of the parties in the course of proceedings that
result in a third-party decision do not have the aim of reaching an understanding
between the submitting parties but to influence the view of the decision-maker. Given
that the objective to reach an understanding between the negotiating parties is essential
for the term ‘negotiation’, it is plain that the term implies two qualifications: first, there
must be a conflict of interest, ie diverging positions regarding a particular matter; and
second, this conflict must be accompanied by a common interest, ie the objective of all
parties to achieve an agreement about the particular matter. Without a conflict of
interest, the parties have nothing to negotiate about; without a common interest, the
parties have nothing to negotiate for.7 On the basis of the foregoing considerations,
international negotiations can be generally defined as a process between international
actors, represented by their agents, in the course of which conflicting positions are
presented with the objective to reach a mutual understanding.8 In the specific case of
treaty negotiations, the subject matter of the following sections, the negotiating parties
seek to reach a mutual understanding about the content of a legally binding treaty
governed by international law (cf art 2 para 1, lit a Vienna Convention on the Law of
Treaties (VCLT)).
2.2 Principles and Rules of International Treaty Negotiations
2.2.1 Attempts to codify rules of international treaty negotiations

When consulting historic treaties to learn about classical rules of international
negotiations, disappointment will follow. Whereas the art of international negotiations
was frequently discussed by scholars and politicians,9 the rules of negotiation (if there
ever were any) remained unaddressed. More a curiosity, at least from a modern
perspective, is Hugo Grotius’s reflections on the negotiator’s duty to turn himself in or
to make indemnity to the other negotiating party for the failure of his sovereign
refusing to ratify the proposed convention; at least the latter sanction was acknow-
ledged by Grotius on the basis of Roman civil law.10 Assessing the long-standing but
fruitless attempts to make the rules and principles of international negotiations
tangible,11 one can subscribe to Korontzis’s observation that treaty negotiations have
not been made the object of international regulations in a substantively legal normative
sense.12 In the context of the draft articles on the law of treaties, the International Law
6
A Lall, Modern International Negotiation: Principles and Practice (Columbia University
Press 1966) 5ff.
7
Iklé (n 2), 1ff.
8
cf Kaufmann (n 5), 3.
9
See eg F de Callières, De la manière de négocier avec les souverains (Paris 1716).
10
H Grotius, On the Law of War and Peace Book II (1625), ch 15.
11
See eg the early vain attempt of the Committee of Experts for the Progressive
Codification of International Law, established by the League of Nations, to codify procedural
rules for international conferences; R Sabel, Procedure at International Conferences: A Study of
the Rules of Procedure at the UN and at Inter-governmental Conferences (CUP 2006) 12–15.
12
G Korontzis, ‘Making the Treaty’ in Hollis (ed), The Oxford Guide to Treaties (OUP
2012) 177, 179.
3 / Date: 14/3
Commission (ILC) discussed a draft article on negotiations, presented by SR Fitz-

maurice in 1959 and reworked by SR Waldock in 1962, but neither the commenting
states nor the ILC members were overly impressed with the endeavour that was
considered purely procedural and descriptive. At the United Nations Conference on the
Law of Treaties (UNLOT Conference or UNCLOT) it was finally agreed to abandon a
separate negotiation article and rather transfer its content into the commentary of draft
article 6 (adoption on the treaty text, now art 9 VCLT).13 In 1981, at the request of the
General Assembly,14 the UN Secretariat drafted Standard Rules of Procedure for UN
Conferences (1981 UN Standard RoP).15 According to the authors’ intention, the
standard rules are inter alia designed for treaty-making conferences convened by the
UN. The General Assembly never even considered, let alone approved, the draft
standard rules, principally because UN Member States exhibited a considerable lack of
enthusiasm towards the issue. Ten years’ later, the ‘United Nations Decade of
International Law 1990–1999’16 was used by Mongolia as an opportunity to present a
draft of guiding principles for international negotiations.17 The motivation for the
proposed ‘code of conduct‘ was to increase the effectiveness of negotiations, to
enhance the predictability of the behaviour of negotiating parties and to develop criteria
against which the conduct of states at negotiations could be assessed.18 In 1999, with
some changes, the General Assembly adopted the ‘Principles and Guidelines for
International Negotiations‘ (1999 UNGA Negotiation Principles) as a non-binding
resolution on the occasion of the centennial of the first International Peace Conference
of 1899.19 On the basis of the three international attempts mentioned above, especially
the 1999 UNGA Negotiation Principles, the following rules with sufficiently estab-
lished legal content can be identified:
2.2.2 Procedural rules on negotiation
Authority to negotiate The VCLT does not contain specific rules on the authority to
negotiate a treaty, either in article 7 VCLT or elsewhere. Article 7 VCLT does however
clarify who, by virtue of having full powers or by virtue of the person’s function, may
represent a state for the purpose of adopting or authenticating the text of a treaty. The
provision’s silence on the authority to negotiate does not cause a significant gap on the
basis of the understanding that the authority to adopt the text necessarily embraces
13
(1965) Yearbook of the International Law Commission vol 1, 255.
14
The mandate was limited to procedural rules of ‘special conferences’ whereas the draft
has a much broader scope of application, Sabel (n 11), 17.
15
Draft Standard Rules of Procedure for United Nations Conferences, Report of the
Secretary General of 28 September 1981, UN Doc A/36/199.
16
UN General Assembly (UNGA), ‘United Nations Decade of International Law’ (9
December 1991) UN Doc A/RES/46/53.
17
UNGA, ‘Mongolia Draft Guiding Principles for International Negotiations’ (18 June
1997) UN Doc A/52/141.
18
UNGA, ‘United Nations Decade of International Law’ (n 16) 3.
19
cf UNGA Res 53/101, Principles and Guidelines for International Negotiations (20
January 1999) UN Doc A/RES/53/101.
4 / Date: 14/3
the authority to negotiate (cf article 2 para 1 lit c VCLT: full powers).20 On the other
hand, unauthorised negotiations by persons not representing a state or unauthorised
officials are legally resolved if the agreed text is confirmed and duly adopted by the
representative of the state in accordance with article 8 VCLT. With respect to treaty
making conferences, the accreditation of the representative to the conference suffices to
allow negotiation on behalf of the state (article 7 para 2 lit c VCLT) whereby the level
of the accrediting authority within the state – in accordance with the diplomatic
practice21 – is not determined.22
Agreed framework of procedure According to the 1999 UNGA Negotiation Prin-

ciples, states should adhere to the mutually agreed framework for conducting negoti-
ations (Guideline 2d). Apart from treaty negotiations in organs of international
organisations, the relevant rules of procedure (RoP) are adopted by all state representa-
tives present in the plenary meeting of the conferences. The obligation of all
participating states to abide by the RoP derives from their explicit or tacit consent to
these rules. Without a positive vote, the tacit or implicit consent in the RoP is given the
moment the accredited representative is accepted at and therefore participates in the
treaty-making conference.23 This is also valid for states that voted against the RoPs but
stay nonetheless. To object to or disregard RoP and yet continue participating in the
negotiations is not only inconsistent behaviour on the part of the state but also a breach
of the executive ad hoc agreement on procedural rules.24 The consequences of this
breach, however, have to be determined either on the basis of the RoP or, if they say
nothing about it, on a case-by-case basis by the president25 of the conference
conducting the negotiations by virtue of his or her power to maintain order.26
Formal equality of the negotiating parties The 1999 UNGA Negotiation Principles
identify the principle of sovereign equality of states as applicable in the setting of
international negotiations. It goes without saying that the heterogeneity of the negoti-
ating states in terms of their political, social, economic and geographical circumstances
increases the diversity of opinion, coalition formation and influence in the negotiation
20
cf Commentary of SR Fitzmaurice in ‘Draft Art 6’ (1959) Yearbook of the International
Law Commission vol II, 99 para 2.
21
F Hoffmeister, ‘Article 7’ in Dörr and K Schmalenbach (eds), Vienna Convention on the
Law of Treaties: A Commentary (Springer 2012), para 29.
22
For a deviating credential policy on treaty making conferences convened by the UN, see
Rule 18 UN Draft Standard RoP (n 15) according to which credentials may be issued by the
Head of State, Head of Government or the Minister of Foreign Affairs.
23
Tunkin (1959) Yearbook of the International Law Commision vol I, 25 para 35.
24
J Castañeda, Legal Effects of United Nations Resolutions (A Amoia tr, Columbia
University Press 1969), 153; for a nuanced analysis see Sabel (n 11), 33–38.
25
The President of the Conference presides at the plenary meetings of the Conference (Rule
7 RoP-Arms Trade Treaty (ATT) UN Doc A/CONF.217/L.1 and RoP of the Third UN
Conference on the Law of the Sea (UNCLOS III) UN Doc A/CONF.62/30/Rev.3).
26
cf Rule 34 UN Draft Standard RoP (n 15).
5 / Date: 14/3
process.27 The formal equality of states addresses only their equality in international
law. The actual inequality of states, which cannot be ignored, necessarily affects the
substantive leverage one negotiating state has over another, making formal equality at
times difficult to impose on inter-state relations. The principle of sovereign equality of
states (article 2 para 1 UN Charter) carries two relevant aspects for negotiations. First,
each negotiating state is sovereign and thus, from a formal point of view, in full control
of its negotiating powers and positions. As far as its sovereignty as an international
entity is concerned, the negotiating state is only restricted by international law, eg
the agreed RoP. Second, all negotiating states enjoy an equal legal status within the
negotiation process (formal procedural equality) which can be translated into the
negotiation principle of non-discrimination. This facet of the sovereign equality of
states, which even applies to peace treaty negotiations involving the defeated party,
finds its expression in the rule that each state is represented by one delegation having
one vote. The size of each delegation, however, may vary if not stipulated in the RoP.
Diverging delegation sizes necessarily have an impact on the states’ practical proced-
ural (in)equality as a large delegation could be involved in many more issues under
negotiation, participate in more informal talks and thus negotiate more effectively than
smaller delegations.28 In addition, the principle of non-discrimination29 cannot prevent
unequal treatment due to preferences and like-minded coalitions which are determined
by affiliation with real world political, economic or social systems.
Whereas the relevance of the sovereign equality of states for the process of
international negotiation is evident to a certain degree, it is striking that the 1999 UN
Principles for International Negotiations do not address the formal position of inter-
national organisations within the negotiation process. As a matter of fact, even the 1986
Vienna Convention on the Law of Treaties between States and International Organ-
izations or between International Organizations (VCLT-IO) refers in its preamble to the
sovereign equality of states as an overarching principle but does not dwell upon the
equality of all (future) contracting parties irrespective of their legal nature. It was
the majority view of states at the 1986 UN Conference on the Law of Treaties-IO that
states and international organisations cannot be placed on the same footing,30 and,
decades later, the legal equality of international organisations and states remains an
unresolved issue. With regard to international negotiations, it appears at first glance to
be evident that at least the formal procedural equality applies to international
organisations provided that the organisation participates in treaty negotiations as a
possible future contracting party. At the 1986 UN Conference on the Law of Treaties,
the representative of Germany, Wokalek, stated ‘the parties in the negotiation of a treaty
27
J Depledge, The Organization of Global Negotiations: Constructing the Climate Change
Regime (Earthscan 2005) 8.
28
ibid, 10.
29
cf UNGA, ‘Mongolia Draft Guiding Principles for International Negotiations’ (n 17)
Annex I, 5 lit f.
30
Arts 34, 60 RoP for the UN Conference On the Law of Treaties Between States and
International Organizations or Between International Organizations I xix; see also K Zemanek,
‘The United Nations Conference on the Law of Treaties Between States and International
Organizations or Between Organizations: The Unrecorded History of its “General Agreement”’
in Böckstiegel ao (eds), Festschrift Seidl-Hohenveldern (Heymans 1988) 665, 667.
6 / Date: 14/3
must all have equal standing in the negotiations. If that equality was not respected, it
would not be a negotiation between a State and an international organisation but rather
a diktat on the part of the State.’31 This view was supported by several IO representa-
tives and – considerably less enthusiastically – by a few state representatives. Whereas
the formal procedural equality of states and international organisations in the course of
bilateral treaty negotiations is indeed easy to establish on the basis of practice,
multilateral codification conferences are a totally different matter. The RoP of the 1986
UN Conference on the Law of Treaties-IO serves as an example for formalised
procedural inequality: even though international organisations have the capacity to
accede to VCLT-IO (art 85 VCLT-IO) they were not allowed to fully participate in the
codification conference in Vienna; instead, their representatives were subject to special
restrictive rules on participation (Rules 60, 61). According to these rules, the IO
representatives had, when compared to state representatives, almost equal procedural
rights in the process of the negotiations (participation in all meetings, right to intervene
in the debate, right to submit proposals, motions and documents), however, they were
not allowed to obstruct a final general agreement by objecting to the consensus or to
participate in any vote. This voting ban in particular considerably weakened the
negotiating power of the international organisations, resulting in palpable actual
inequality of the participating international organisations in their relations to the states.
Given the lack of multilateral treaties open to international organisations, international
practice with regard to formal procedural equality on the treaty-making stage is difficult
to verify. The fact that on some occasions the European Union has participated fully in
multilateral treaty-making conferences32 can be explained by the EU’s membership in a
few international organisations (World Trade Organization (WTO), Food and Agricul-
ture Organization of the UN) that convene those conferences.
Right to initiate and participate in negotiations and duty to cooperate The legal per-
sonality of states and their inherent treaty-making capacity as original subjects of
international law naturally entails the right to initiate treaty negotiations. However, this
finding is of little relevance in the light of the truism that negotiations require at least
two negotiating parties. The sovereign right to abstain from negotiations offered by
another party in its own right may, however, find its limits in the international duty to
cooperate. For this reason the 1999 UNGA Negotiation Principles stresses by way of
reference to article 1 paragraph 3 UN Charter and the Friendly Relations Declaration
the duty to cooperate in various spheres of international relations (Principle 4). Whilst
31
Official Records of the United Nations Conference on the Law of Treaties between States
and International Organizations or between International Organizations (Summary records of the
plenary meetings and of the meetings of the Committee of the Whole), 9th Meeting of the
Committee of the Whole, UN Doc A/CONF.129/C.1/SR.9, 85.
32
Being a founding member of the WTO, the EU enjoys equal rights to Member States in
WTO negotiations; eg the new Agreement on Trade Facilitation was negotiated and concluded
under the chairmanship of the EU, Ministerial Decision of 7 December 2013, WT/MIN(13)/36,
WT/L/911; in contrast the EU has only enhanced observer status without voting rights at
conferences convened by the UN according to UNGA, UN Doc A/RES/65/276 (3 May 2011),
preamble recital 2.
7 / Date: 14/3
this duty to cooperate can stem from existing treaty obligations,33 there is no customary
law-based obligation to cooperate in all fields of international relations to the effect that
states are obliged to follow the invitation to negotiate a contractual solution.34 The legal
situation is equally difficult to discern with regard to the right to participate in
negotiations. The UNGA Negotiation Principles underline that negotiating states should
take due account of the aspiration of states to engage in an appropriate manner in the
negotiation process if their vital interests are directly affected by the negotiation
agenda.35 It is, however, highly questionable whether the principle of non-
discrimination obliges states to accept negotiating partners given that they are, in
principle, free to choose their contracting partners. Again, the conventional duty to
cooperate in specific fields of international law may be the source of the right to
participate in negotiations, especially if the duty to cooperate or negotiate is enshrined
in a framework agreement and therefore addressed to all parties of that agreement.36
Apart from the above, state practice does not support a general rule that bestows
affected states (let alone international organisations) with an autonomous right to
participate in international negotiations to which they are not formally invited.
2.2.3 Substantive rules applicable to negotiations
Unlawful objects and purposes of negotiations Given that international negotiations

are a succession of interactions and communications between the negotiating parties,
all substantive rules and principles that serve to prevent an internationally proscribed
negotiation result are of relevance. On a related note is Guideline 2b of the 1999
UNGA Negotiation Principles which highlights that the objects and purposes of
international negotiations must be fully compatible with the principles and norms of
international law including the UN Charter. What appears to be a trivial or common-
place remark at first glance requires some qualification upon closer inspection. As a
rule, international law is dispositive law and negotiations that aim at altering the legal
situation are not incompatible with the principles and rules of international law. That is
valid even for negotiations that aim to modify certain obligations under a multilateral
treaty for only a limited number of states – provided that the prerequisites set out in
33
eg art 3 para 1 of the Convention for the Protection and Development of the Marine
Environment of the Wider Caribbean Region (adopted 24 March 1983, entered into force 11
October 1986) 1506 UNTS 157; art 2 para 3 Alpine Convention (adopted 7 November 1991,
entered into force 6 March 1995) 1917 UNTS 135; art 4 para 2 of the Convention for the
Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into
force 12 February 1978) 1102 UNTS 27.
34
J Delbrück, ‘The International Obligation to Cooperate’ in HP Hestermeyer ao (eds),
Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum vol 1 (Martinus
Nijhoff 2012) 3, 13.
35
cf UNGA, Principles and Guidelines for International Negotiations (n 19) para 2b.
36
eg art 2 of the Framework Agreement on Comprehensive Economic Cooperation between
the Republic of India and the Association of South East Asian Nations (adopted 8 October 2003,
entered into force 1 July 2004) available at <http://www.asean.org/asean/external-relations/india/
item/framework-agreement-on-comprehensive-economic-cooperation-between-the-republic-of-
india-and-the-association-of-southeast-asian-nations-3>: ‘The Parties agree to enter into
negotiations in order to establish an India-ASEAN Regional Trade and Investment Area […]’.
8 / Date: 14/3
article 41 VCLT are observed by the negotiating parties. It is noteworthy that article 41
VCLT stipulates a negotiation rule in cases of envisaged inter-se modification:
the negotiating states are under the obligation to notify the other state parties to the
multilateral treaty of their intention of the inter-se modification in order to give the
other parties to the multilateral treaty the possibility to legally assess this plan in
the light of the multilateral treaty obligations concerned.37 The notification duty arises
when the negotiation process has reached a ‘mature stage’, ie when they have reached
consent on the intended modification.38 In the light of article 41 VCLT and article 103
UN Charter, it is equally difficult to condemn lock stock and barrel all negotiations
whose objects and purposes is to achieve a contractual deviation from UN Charter
obligations. Having said that, negotiations that prepare the ground for the conclusion of
a treaty contrary to ius cogens – eg an aggression pact contrary to article 2 para 4 UN
Charter – are obviously unlawful under international law. The very moment the
negotiating parties reach their first consent on the ius cogens incompatible content of
the intended treaty, they are internationally responsible vis-à-vis the international
community and thus obliged to immediately cease the negotiations and not to resume
them (art 30 Articles on State Responsibility). In contrast, the prohibition to intervene
in matters within the domestic jurisdiction of a state cannot be readily applied to treaty
negotiations given that the envisaged treaty may permissibly internationalise what was
formally a purely internal affair (but see Guideline 1 b 1999 UNGA Negotiation
Principles).
Threat or use of unlawful negotiation means The legal assessment of the negotiation
process not only builds on the intended negotiation results but also on the actual means
employed during the negotiation process itself. As a rule, not every threat of an
internationally unlawful act for the purpose of influencing the negotiations constitutes
unlawful negotiation conduct. Rather, the threat itself must be proscribed by inter-
national law (article 1 of the Articles on State Responsibility).39 The unlawfulness of
the negotiation is evident if propelled forward by a threat or any use of armed force
found to be incompatible with the UN Charter. That is at least true if the negotiating
party threatens to or actually uses armed force to bring about the desired treaty (art 52
VCLT).40 The legally non-binding ‘Declaration on the Prohibition of Military, Political
and Economic Coercion in the Conclusion of Treaties’41 adopted by the UN Confer-
ence on the Law of Treaties in 1969 explicitly extends the prohibition to applying
pressure in any form including political and economic pressure to every stage of the
treaty-making process including negotiations (‘any act relating to the conclusion of a
37
ME Villiger, ‘Article 41’ in Commentary on the 1969 Vienna Convention on the Law of
Treaties (Brill 2009) para 10ff.
38
K Odendahl, ‘Article 41’ in Dörr and Schmalenbach (n 21) para 21.
39
The same is valid if the threat consists of preparatory measures that precede the actual
wrongful act, see Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep
7, para 79.
40
K Schmalenbach, ‘Article 52’ in Dörr and Schmalenbach (n 21) para 23 f.
41
UN Conference on the Law of Treaties, Second Session (UN Doc A/CONF.39/ll/Add.l),
101 para 3.
9 / Date: 8/2
treaty’).42 Given that the duty to respect another state’s autonomy under international
law flows from the principle of sovereign equality (5th recital of the VCLT), there is a
strong argument that under modern treaty law the state’s free consent (3rd recital of the
VCLT) is already protected in the negotiation process.43 Coercion not involving armed
force, however, does not result in absolute invalidity of the treaty on the basis of the
VCLT but triggers the international responsibility of the coercing state.44 When
assessing the lawfulness of the applied pressure during the negotiation process, the
relevant benchmark is the (non)existence of the negotiating state’s free will when
consenting to the negotiation result.
Duty to negotiate in good faith According to Guideline 2a of the 1999 UNGA

Negotiation Principles, negotiations should be conducted in good faith. It is a
well-recognised principle in dispute settlement negotiations45 but also applies to
multilateral treaty negotiations. Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons (NPT) is a prominent example of a conventional obligation of good
faith negotiations. The ICJ in its 1996 Advisory Opinion on the Threat or Use of
Nuclear Weapons did not specify what constitutes good faith in negotiations in
accordance with article VI NPT,46 but it is evident that the Court does not consider any
conduct that defeats the agreed goal of the negotiations as meeting the good faith
standard. Having said that, the obligation to negotiate in good faith restricts neither the
freedom to disagree with a proposal nor the right to withdraw from the negotiation
table.47 It merely prohibits destructive negotiating conduct aimed at preventing or at
least impeding the conclusion of a treaty the other negotiating parties are trying to
achieve. Indications for bad faith conduct can include behaviour such as unnecessarily
prolonging the negotiations or imposing irrelevant preconditions for the initiation or
continuation of negotiations.48
42
For a different interpretation of the Declaration see Villiger ‘Article 52’ (n 37) para 6.
43
K Schmalenbach, ‘Article 52’, in Dörr and Schmalenbach (n 21) para 58.
44
The possible obligation of the coercing State to consent into the termination of the treaty
(art 45 lit b Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force
27 January 1980) 1155 UNTS 331 (VCLT) in conjunction with art 35 Articles on State
Responsibility) is a realistic option only in the context of bilateral treaties; in the context of
multilateral treaties the precondition of art 45 VCLT may be difficult to reach (consent of all
parties). According to the Chorzów Factory Case, reparations must wipe out the consequences of
the illegal act only ‘as far as possible’, see PCIJ Rep Series A No 17, 47.
45
Application of International Convention on Elimination of All Forms of Racial Discrimin-
ation (Georgia v Russian Federation) (Preliminary Objection, Judgment) [2011] ICJ Rep 70,
para 157: ‘As such, the concept of “negotiations” differs from the concept of “dispute”, and
requires – at the very least – a genuine attempt by one of the disputing parties to engage in
discussions with the other disputing party, with a view to resolving the dispute.’
46
226, para 99.
47
Report of the Secretary-General, Comment of Qatar on the Draft Negotiation Principles,
UN Doc A/53/332, 3 para 3.
48
ibid, 3 para 5 and 6.
10 / Date: 14/3
3. TWO-PARTY NEGOTIATIONS
If not dispute-related, the objective of bilateral treaties is to jointly manage a common
concern that cannot be handled unilaterally, as vast numbers of bilateral investment
treaties, free trade treaties and tax treaties illustrate. On this basis, two-party negoti-
ations often begin with a firmer footing given that they imply the willingness of both
parties to achieve a compromise.49 During or after the stage in which each government
has identified the desired goals and minimum conditions through domestic policy
processes, both parties enter the pre-negotiation phase, ie bilateral talks about the ‘if’
and ‘how’ of the formal negotiations. In the course of this pre-negotiation, the parties
not only determine organisational matters but also identify common or separate
interests and goals as well as exploring the prospect of a mutual understanding.50 The
subsequent negotiation phase is a process that consists of official meetings and
informal talks that range from full delegations to one-on-one sessions.51 Rana distin-
guishes between five stages of formal bilateral negotiations: the ‘initial’ stage for
opening statements; the ‘exploration’ stage for tentative approaching that pass into the
‘formular’ stage where the details of the compromise are discussed; and finally the
‘packaging’ stage when the compromise is tied together.52 Two-party negotiations with
the prospect of reaching a bilateral agreement are chosen for many reasons; among
them is the extended deadlock common to multilateral negotiations (eg WTO Doha
Round) or the perceived unfeasibility of the multilateral forum (eg USA and the USSR
talks on disarmament during the ‘Cold War’53). Other bilateral negotiations serve to
build coalitions in the run up to multilateral diplomatic conferences.
4. MULTIPLAYER NEGOTIATIONS AT DIPLOMATIC

CONFERENCES
Given the multitude of fora54 and designs55 of treaty negotiations, the following overview
of the negotiation phases and phenomena is necessarily incomplete and prone to
generalisations. In recognition of the variety in negotiation processes, the section focuses
on diplomatic conferences. They assemble plenipotentiary representatives of states for
the purpose of negotiating and adopting a treaty text on a certain subject matter of
international concern. Different from the drafting and the adoption of treaties within
49
KS Rana, Bilateral Diplomacy (Diplo Foundation 2002) 227.
50
ibid, 231.
51
Korontzis (n 12), 181
52
Rana (n 49), 232.
53
United Nations Institute for Disarmament Research Geneva (UNIDR), ‘Interrelationship
of Bilateral and Multilateral Disarmament Negotiations: Proceedings of the Baku Conference
1987’, 11.
54
For international organisations as a treaty-making forum see C Brölmann, The Insti-
tutional Veil in Public International Law (OUP 2007), 102ff.
55
Kaufmann (n 5) 6ff.
11 / Date: 14/3
organs of international organisations, international treaty conferences are organised on an

ad hoc basis with no regular sessions, permanent venue or infrastructure.56
4.1 Pre-conference Phase: Getting Organised for Formal Negotiations
Given the complexity of multilateral treaty negotiations pertaining to logistics, organ-

isation and content, multilateral conferences have an extended pre-conference phase
that may stretch over several years.57 It starts with the acknowledgement by the
international community (eg the UN-General Assembly) that a particular issue requires
regulation, with NGOs and other stakeholders playing a pivotal role in raising public
awareness. In other cases, treaty provisions demand or recommend the conclusion of a
further treaty on a so far unregulated subject matter.58 Once decisive international
players or competent international organs have agreed to embark on an inter-
governmental negotiation process, a formal preparatory body (PrepCom) is established
to make a start on the organisational and substantive work.59 This body, which can be
open to all states that are eligible conference participants,60 makes decisions on its time
schedule, the composition of its Bureau (president, vice-president and one or more
rapporteurs), participation in the PrepCom’s work by observers and non-state actors,
funding, the work programme, its own RoP as well as the draft RoP for the conference
to be submitted to the plenary session for adoption. After decisions for procedural
matters are taken, an informal exchange of views of states and non-state entities takes
place and is compiled by the secretariat of the preparatory body into an unofficial
synopsis of different stances that provide the future delegations to the conference with
an overall sense of positions, controversial issues and shared perceptions. In other
cases, the PrepCom has presented an already pre-negotiated draft of the treaty text to a
conference that then served as a textual starting point for the conference negotiations.61
56
MCW Pinto, ‘Modern Conference Techniques: Insights from Social Psychology and
Anthropology’ in Macdonald and Johnston (eds), The Structure and Process of International
Law (Martinus Nijhof 1983) 305, 308.
57
The pre-conference phase of the UNCLOS III Conference (1973–1983) lasted from 1967
to 1973 (UNGA, UN Doc A/RES/2340(XXII) (18 December 1967) and UNGA, UN Doc
A/RES/2467(XXIII) A (21 December 1968)). The pre-conference phase of the International
Criminal Court (ICC) Rome Conference (1998) after the ILC had finished its work stretched
from 1995 to 1998 and that of the Arms Trade Treaty Conferences (2012 and 2013) from 2010
to 2012.
58
See n 33 and n 36.
59
When the General Assembly decided by Res 2750 C (XXV) to convene a Third
Conference on the Law of the Sea in 1973 (UNCLOS III), it made the ‘Committee on the
Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction’
(UNGA, UN Doc A/RES/2467(XXIII) A) the PrepCom for this conference; on the preparation
of the Rome Conference (ICC) see M Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the
Establishment of an International Criminal Court’ (1999) 32 Cornell International Law Journal
443, 446.
60
cf UNGA, Establishment of an International Criminal Court (16 December 1995) UN
Doc A/RES/50/46, para 2.
61
Kaufmann (n 5), 36.
12 / Date: 14/3
4.2 Conference Phase: Formal Negotiations
4.2.1 Decision on rules of procedure

Contrary to treaty negotiations in organs of international organisations,62 diplomatic
conferences do not work on the basis of pre-existing RoP,63 even though their
preparatory bodies normally pattern the draft procedural rules on the basis of different
models tested in practice.64 Each conference decides freely on its own RoP that will
govern how the negotiation is conducted and the decision-making in the formal
negotiation process.65 In practice, the RoP is adopted by the conference by acclamation
provided that no objections are put forward. In the latter case, it is for the conference to
decide which majority is required for the adoption of the modified RoP.66 The
controversial debate at the UNCLOS III Conference on the issue illustrates that the
RoP clearly has an impact on the substantial outcome of the negotiations (eg with
regard to the majority required for adopting the treaty text) which is why several states
do not consider a simple majority quorum for the adoption of an RoP under all
circumstances adequate.67
4.2.2 Commencement of the formal negotiations

The commencement of the formal negotiations is marked by an official plenary session,
which is attended by all delegations and observers. The opening statements by the
heads of delegations rarely address specifics of the negotiation text but serve as
political positioning with respect to the general subject matter under negotiation.68 Not
until the first draft negotiating text and non-papers are presented by the president,69 do
the delegates express their general concerns and approvals to substantiate their
respective initial positions.
4.2.3 Fine-tuning of negotiation text(s)

Conference negotiations involve a combination of formal meetings (plenary meetings,
committees of the whole, sub-committees with restricted membership, working and
drafting groups) and informal mechanisms.70 The informal working groups, discussion
rounds and ‘corridor chats‘ often set the course for the consolidation of deviating
62
eg negotiations in the UNGA follow the GA-RoP (2007) UN Doc A/520/Rev 17.
63
The Draft UN Model Rules on Procedure were designed to be applicable to all
conferences convened by the UN ‘except if the convening organ authorizes a convention to adopt
its own rules of procedure’ (art 1) were never adopted by the General Assembly.
64
See details in section 5 ‘Adoption of the Treaty Text’.
65
Sabel (n 11), 19.
66
UNCLOS III, Official Records vol I 30ff.
67
UNCLOS III, Official Records vol I 48.
68
MEA Negotiator’s Handbook (n 2) 5.2.2.1.
69
eg draft treaty text submitted by the President of the ATT Conference on 26 July 2012
(UN Doc A/Conf.217/CRP.1).
70
When negotiating the text of the ATT the President of the Conference appointed
facilitators to conduct informal meetings on aspects (scope, diversion, preamble – principles –
object and purpose, etc.) of the ATT (see Report of the Final United Nations Conference on the
Arms Trade Treaty, UN Doc A/CONF.217/2013/2, para 13).
13 / Date: 8/2
positions.71 The formal and informal work on the negotiation text involves detailed
amendments and non-papers, as well as counter-proposals tabled by delegations for the
purpose of deleting, adding or replacing text language. The consolidation of views
results in a bracketed negotiation text that combines the relevant bloc and state views
and indicates the key areas and phrases of disagreement.72 The more time goes by the
more negotiation dynamics are dominated by bargaining and trade-offs among indi-
vidual delegations, groups and coalitions with the chairpersons and the president often
exercising ‘shuttle diplomacy’.73 It is the function of the drafting committee and the
president to transform the bracketed text into a revised text version to put forward to
the delegations for further consideration and proposals for amendments.
4.2.4 Managing complexity

International negotiations are, irrespective of their subject matter, confronted with
multi-layered complexity. The intricacy of the negotiations stem from an increasing
number of diverse participating parties, ubiquitous domestic policy constraints, the
complexity of the topic under consideration and the multitude of issues connected to
it.74 Managing the complexity is the task of the PrepCom in the run up to the
conference and during the conference this responsibility falls to the president and
chairpersons. If successfully conducted, the result is a timely and comprehensive
negotiated agreement that is accepted by enough parties to achieve its goals.75 Much
has been written about diverse conference strategies, many have been tested in practice:
agenda management, the promotion of coalition-building,76 informality,77 one ‘rolling’
text approach during the negotiation process,78 adoption of package deals as a single
undertaking approach79 and so forth. Whichever approach is chosen, the human factor
must not and cannot be underestimated, ie the authority, personality and assertiveness
of the president and the chairpersons as well as the leadership of coalitions and
individual delegations all play crucial roles.80
71
On the Rome Conference see Bassiouni (n 59) 451.
72
MEA Negotiator Handbook (n 2) 5.2.2.4.
73
For the ICC Review Conference in Kampala 2010, see S Barriga and L Grover, ‘A
Historic Breakthrough on the Crime of Aggression’ (2011) 105 American Journal of Inter-
national Law 517, 520.
74
W Zartman, ‘Introduction’ in Zartman (ed), International Multilateral Negotiations
(Jossey-Bass 1994) 1, 4ff.
75
cf C Albin, ‘Improving the Effectiveness of International Trade Negotiations: A Synopsis,
(2012) 17 International Negotiation 1.
76
C Dupont, ‘Coalition Theory. Using Power to Build Cooperation’ in Zartman (n 74) 148,
152ff.
77
RD Eustis, ‘Procedures and Techniques of Multilateral Negotiations: The LOS III Model’
(1977) 17 Virginia Journal of International Law 217, 245; B Buzan, ‘“United we stand …”:
Informal negotiating groups at UNCLOS III’ (1980) 4 Marine Policy 183.
78
For the ICC Rome Conference see J Washburn, ‘The Negotiation of the Rome Statute for
the International Criminal Court and International Lawmaking in the 21st Century’ (1999) 11
Pace International Law Review 361, 366.
79
On the innovative and successful package deal procedure of UNLOS III see Eustis (n 77),
236.
80
On leadership see Kaufmann (n 5), 69ff.
14 / Date: 14/3
One of the well-established strategies to reduce overbearing complexity is the

fragmentation of a broad negotiation topic into subsections to be discussed in smaller
and thus more intimate working groups.81 In the case of UNCLOS III, the conference
introduced in the first of its 11 sessions (1973–82) a General Committee, three Main
Committees and a Drafting Committee. The Main Committees were each entrusted
with working on different topics. Each chairman of the Main Committees presented an
informal negotiation text at the third session of UNCLOS III. These three informal
negotiation texts combined to create the informal single negotiation text. In its tenth
session (142th–155th meeting) the official draft convention came into existence, based
on the work of ‘the Collegium’, as the working group consisting of the President and
the Chairmen of the three Main Committees was called.
4.2.5 Group and coalition building

It is difficult to imagine a modern multilateral negotiation conference without extensive
coalition building and alliance forming. Topic-related coalitions and interest groups,
brought together by common objectives and opponents, congregate next to institution-
alised negotiation blocs (eg the EU and the Group of 77). They are vital mechanisms
for funnelling political activities into a manageable number of actors in the preparation
phase of the conference.82 From the outset of the Rome conference, three active
coalitions among several groups and blocs dominated the negotiations: the sovereignty
oriented ‘conservative group’; the ICC-critical ‘restrictive group’; and the ICC commit-
ted ‘like-minded states’, the latter of which was characterised by its growing domin-
ance.83 The steady increase of followers during the Rome negotiations contributed
significantly to the like-minded-states’ overall success in securing the contractual basis
for a strong and independent ICC.84 The process of rolling coalition expansion is well
known from negotiations in the WTO where strong players try to achieve an inner
circle of consensus (consensus group) which is to be gradually expanded to reluctant
parties in the ‘outer circle’.85 The group forming in the course of the UNLOS III
Conference was predetermined by common political interests (eg Group of Five, the
flag-state group) and geographic conditions (eg coastal group, the maritime group, the
landlocked and geographically disadvantaged group, archipelagic group, straits
group).86 Not all of these groups were effective within the negotiation process but as a
81
This may also happen in an informal manner as in the case of the Final ATT-Conference
as already described in n 70.
82
Buzan (n 77), 192; G Sjöstedt, BI Spector and IW Zartman, ‘The Dynamics of
Regime-Building Negotiations’ in G Sjöstedt ao (eds), Negotiating International Regimes
(Graham and Trotman 1994) 3, 8.
83
P Kirsch and JT Holmes, ‘The Rome Conference on an International Court: The
Negotiation Process’ (1999) 93 American Journal of International Law 2, 4.
84
For a critical assessment see D Scheffer, ‘The United States and the International
Criminal Court’ (1999) 93 American Journal of International Law 12, 20.
85
P Drahos, ‘When the Weak Bargain with the Strong: Negotiations in the World Trade
Organization’ (2003) 8 International Negotiation 85ff.
86
A Beesley, ‘The Negotiation Strategy of UNCLOS III: ‘Developed Countries as Partners:
A Pattern for Future Multilateral International Conferences‘ (1993) 46 Law and Contemporary
Problems 183, 186ff.
15 / Date: 15/3
forum and mobilisation device, they visualised the sectional interest of the participants
for other states and blocs.87
4.2.6 Background factors: Non-state actors, IOs and state observers

The non-state actors (NGOs, legal experts or other stakeholders88) have come to play a
crucial role in international treaty negotiations through ‘grass roots’ diplomacy and
‘bottom-up’ multi-lateralism. From the outset, non-state actors influence IO’s decisions
to convene and governments’ decisions to negotiate lawmaking treaties by fact-finding
and organising campaigns to raise public awareness.89 Through lobbying for certain
political solutions, transmitting information to decision-makers, organising side events,
associating with state representatives and intervening in the formal debate, non-state
actors are an influential factor in the final outcome of treaty negotiations.90 That is so
even if their formal status in international treaty conferences is only that of observers
without voting rights.91 Apart from the revocable right to make statements in the
opening and closing plenary meeting92 and, as the case may be, subsidiary conference
bodies93 after the state representatives have had the floor, non-state actors are confined
to the abovementioned indirect and informal means.94 Having said that, the 1996 and
1998 negotiations surrounding the Aarhus Convention on public participation in
environmental matters are a remarkable exception regarding the participation of NGOs
being (virtually) on par with the state representatives. By making the content of the
proposed Aarhus treaty subject to the guiding negotiation principle, environmental
groups were endowed with an advanced observer status and explicitly invited to the
negotiating table with the right to propose amendments.95 Aarhus, however, set no
precedence for the following MEA negotiations, eg the 2009 Copenhagen climate
change negotiations, where the efforts of environmental groups to play a participatory
role bore little fruit despite their hope that the Aarhus Convention would serve as a
legal basis for their claim to enhanced participation.96 The 1998 Rome Conference on
87
Buzan (n 77), 191.
88
On the role of multinational enterprises in international treaty-making see P Malanczuk,
‘Multinational Enterprises and Treaty-Making’ in Gowlland-Debbas (ed) Multilateral Treaty-
Making (Martinus Nijhoff 2000) 43, 63ff.
89
L Doswald-Beck, ‘Participation of Non-Governmental Entities in Treaty Making: The
Case of Conventional Weapons’ in Gowlland-Debbas ibid 41, 42; in case of the ATT, an
umbrella NGO with more than 100 NGOs participating was decisive for the realisation of the
ATT Conference, D Garcia, Disarmament Diplomacy and Human Rights Security (Routledge
2011) 49ff.
90
MM Betsill and E Corell, NGO Influence in International Environmental Negotiations: A
Framework for Analysis (2001) 1 Global Environmental Politics 65ff.
91
See eg Rules 59-63 ATT Conference RoP.
92
Art 63 Rome Conference RoP.
93
Art 70 lit b ICC Review Conference RoP.
94
NGOs are often not invited to informal meetings of state representatives; see A Doherty,
‘The Role of Nongovernmental Organizations in UNCED’ in Sjöstedt ao (eds) (n 82), 199.
95
S Kravchenko, ‘Strengthening Implementation of MEA: The Innovative Aarhus Compli-
ance Mechanism’ available at <inece.org/conference/7/vol1/Kravchenko.pdf>.
96
WJ Wilson, ‘The Legal Foundation for NGO Participation in Climate Treaty Negoti-
ations, Sustainable Development’ (2010) 10 Law & Policy 54, 59.
16 / Date: 14/3
the establishment of an International Criminal Court (ICC) may serve as an example

for substantial NGO influence on the negotiation outcome even without an improve-
ment of their formal status in treaty negotiations: by 1995 a Coalition for an
International Criminal Court (CICC) comprising 25 diverse NGOs had been formed as
an umbrella and coordinating organisation that encouraged governments to call for a
diplomatic conference on, and developed the guiding principles for, a permanent ICC.97
At the Rome Conference the CICC represented 235 NGOs that endorsed the CICC
principles. Through position papers, reaction papers, media briefings and services as
well as constant communication with the group of like-minded states, the coalition
helped to channel content into the negotiations, to broker compromises and find ways
around impasses.98
Unlike NGOs, governmental IOs do not distinguish themselves from other confer-
ence observers through extensive lobbying. If the UN or another IO convenes a
treaty-making conference, their secretariats provide or support the conference manage-
ment. IOs influence the diplomatic negotiation process through preparatory work by
providing treaty drafts prior to the conference and expertise during the negotiation
process.99 Undoubtedly, one actor stands out among the non-state actors with observer
status, the EU. The EU is considered a key player in many international negotiations,
first and foremost because it is an institutionalised coalition of the 28 EU Member
States with both considerable expertise and bargaining power, eg in the policy areas of
trade, development and environment.100 That is at least valid if the EU internally
manages to bring them into line and externally succeeds in maintaining a united
front.101 Prominent examples of the EU speaking with a single voice and being a prime
actor in diplomatic conferences were the negotiations on the Kyoto Protocol (1997), the
establishment of the ICC (1998), and the UN Convention on the Rights of Persons with
Disabilities (2006).102
As is the case with IOs, the impact of observer states on treaty negotiations depends
on many factors, inter alia their standing in the international community. An example of
an active and influential role of an observer state in treaty negotiations (due to vital
97
BN Schiff, Building the International Criminal Court (CUP 2008), 147.
98
K Barrow, ‘The Role of NGO’s in the Establishment of the International Criminal Court’
(2004) 2 (1) Dialogue 11, 18; A Boyle and C Chinkin, The Making of International Law (OUP
2007), 65.
99
JE Alvarez, ‘The New Treaty Makers’ (2002) 25 Boston College International and
Comparative Law Review 213, 221; G de Búrca, ‘The EU in the negotiations of the UN
Disability Convention’ (2010) 35 European Law Review 174, 181; for the specific problem of
transparency and participation in negotiation, which concerns first and foremost bilateral treaty
negotiation see FG Nicola, ‘The Politicization of Legal Expertise in the TTIP Negotiations’
(2015) 78 Law and Contemporary Problems 211, 234ff.
100
O Elgström and M Strömvik, ‘The European Union as an International Actor’ in O
Elgström and M Jönsson (eds), European Union Negotiations (Routledge 2009) 117, 118ff.
101
De Búrca (n 99) 181ff; T Delreux, The EU as International Environmental Negotiator
(Ashgate 2011), 185.
102
M Groenleer and L van Schaik, ‘United We Stand? The European Union’s International
Actorness on the Case of the International Criminal Court and the Kyoto Protocol’ (2007) 46
Journal of Common Market Studies 969, 971; De Búrca (n 99) 181ff.
17 / Date: 14/3
national interests) is the bilateral diplomacy of the US observer delegation at the ICC
Review Conference on the Crime of Aggression in 2010.103
4.2.7 Final act

The text of a multilateral treaty negotiated at the diplomatic conference is often
incorporated into the Final Act of the Conference.104 Detailed final acts record the
proceedings of the conference and include, besides the annexed treaty text, reports on
the organisation of the conference’s work, lists of participating states and observers, the
names of the delegates as well as any resolutions adopted by the conference.105 Other
final acts simply state that the conference adopted a certain treaty text.106 By signing
the final act the delegations confirm that this is the text as negotiated.
4.3 Negotiating International Regimes
Multilateral negotiations become extraordinarily complex in the context of international

regime-building. Generally speaking, international regimes consist of clusters of
sectoral treaties and non-binding instruments, often characterised by vaguely worded
framework agreements and supported by institutional infrastructure.107 The treaties,
instruments and institutions cumulatively cover a policy field such as non-proliferation
of weapons, world trade, humanitarian law and environmental law.108 The endeavour of
international regime-building imposes special challenges on multilateral treaty negoti-
ations: the existing and proposed sectoral treaties must be synchronised which requires
concerted diplomatic action to a certain degree; the outcome of the regime-building
must be flexible enough to manage the relationships between the committed parties
over an extended period of time ie capable of absorbing technical and scientific
developments. To this end, regimes are not only created by but also governed through
the mechanism of parallel and subsequent negotiations.109
103
See for the US participation in the ICC Kampala Review Conference, HH Koh and SJ
Rapp, ‘US Engagement with the ICC and the Outcome of the Recently Concluded Review
Conference’ (Special Briefing) (15 June 2010) available at <http://www.state.gov/j/gcj/us_
releases/remarks/2010/143178.htm>.
104
The ATT was not incorporated into a Final Act because the ATT was not adopted at the
UN Conference on the ATT since the conference failed to gain consensus; instead, the UNGA
adopted the ATT by UN Doc Res A/RES/76/234 of 2 April 2013 and was opened for signature
on 3 June 2013 at the UN headquarters in New York. S Stedjan, ‘Introductory Note to the Arms
Trade Treaty’ (2013) 52 ILM 985.
105
See eg Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of the International Criminal Court (17 July 1998) UN Doc A/CONF.183/10.
106
See eg Final Act of the Diplomatic Conference for the Adoption of a New Act of the
Hague Agreements concerning the International Deposit of Industrial Designs (6 July 1999)
H/DC/41.
107
For a more general definition see S Krasner, ‘Structural Causes and Regime Conse-
quences: Regimes as Intervening Variables’ in Krasner (ed), International Regimes (Cornell
University Press 1983).
108
Sjöstedt ao (eds) (n 82), 3.
109
ibid, 4.
18 / Date: 14/3
A prominent example for successful regime building is the UN Conference on

Environment and Development (UNCED) in Rio de Janeiro from 3 to 24 June 1992
that formed one of a series of special conferences and meetings on the subject.110 In
1989, the UN General Assembly convened the UNCED through Res. 44/228.111 To
manage the thematic complexity in the preparatory stage of the conference, the
PrepCom divided the environmental issues into eight groups112 and added cross-cutting
thematic groups on development that cause stress113 on the environment.114 In Rio, the
UNCED handled the negotiations and debates among the participating 107 government
delegations and 2400 NGO representatives through an examination of the whole gamut
of existing structures identified by the PrepCom. On top of that they evaluated the
progress and the effectiveness of the system, they discussed possible means to improve
the existing regime and, if required, to generate new elements. The governments then
negotiated specific recommendations for action that became Agenda 21.115 In its
outlook, Agenda 21 recommends further negotiations in diplomatic conferences for a
number of new universal and regional instruments that deal with topics in need of
regulation and subsystems in need of strengthening, an endeavour that again requires
extensive situational stocktaking.
5. ADOPTION OF THE TREATY TEXT

5.1 Procedural Placement and Significance of the Adoption of the Text
The adoption of the treaty text signifies the end of the negotiations.116 Based on the
wording of article 9 VCLT, the adoption of the text is the act of approval by which the
parties participating in the negotiations determine that this is the final text on which
they have agreed. The adoption of the text is distinct from its authentication (article 10
VCLT). The authentication aims at establishing the text as both authentic and definite
(ne varietur), ie this version of the text is the one that is subsequently the textual basis
of the state’s consent to be bound. Both adoption and authentication may coincide, eg
in bilateral treaty negotiations. In other settings, they may be conducted separately, eg
at diplomatic conferences when the heads of delegations sign the Final Act of the
Conference to which the treaty text is annexed (authentication) after the conference has
in its plenary session agreed on the final text (adoption). Neither the adoption of the
text nor its authentication constitutes in any sense an expression of the state’s consent
110
UN Conference on the Human Environment held in 1972 in Stockholm and a number of
global and regional conferences following in its wake; in 1983, the UNGA established the World
Commission on Environment and Development that adopted the so-called Brundtland Report.
111
UNGA Res A/RES/44/228 (22 December 1989).
112
Atmosphere, land recourses, forests, biodiversity, biotechnology, oceans, wastes, fresh-
water recourses.
113
Poverty, unsustainable consumption patterns, demography pressure, trade, investment.
114
P Chasek, ‘The Negotiation System of Environment and Development’ in Sjöstedt ao
(eds) (n 82) 21, 22.
115
ibid, 35.
116
A Aust, Modern Treaty Law and Practice (3rd edn, CUP 2013) 79.
19 / Date: 14/3
to be bound by the treaty (article 11 VCLT).117 That does not mean that all three steps
(adoption, authentication and consent to be bound) cannot be combined into one act, eg
signing the treaty.
5.2 Voting Procedures
The legal issues associated with the adoption of the treaty text concern first and
foremost the voting procedures through which the participating parties can express their
consent or disagreement to the form and the content of the proposed treaty.
5.2.1 Conclusion of bilateral treaty negotiations

In bilateral treaty negotiations, the adoption of the treaty text does not require any
voting rules given that mutual consent is the only method to establish the approval of
the two parties involved (article 9 para 1 VCLT).118
5.2.2 Multilateral treaty negotiations: Article 9 para 2 VCLT

If several negotiating parties are involved in the drawing up of the text, it is evident that
the requirement of explicit assent of all parties to the final treaty text impedes the
adoption of the treaty text. Since sovereign concerns can be secured in the subsequent
ratification process, states have cautiously departed from the traditional unanimity vote
rule of the late nineteenth century, with the Hague Peace Conferences (1899 and 1907)
and moved towards ‘near-’ or ‘quasi’-unanimity.119 The conferences that followed
convened under the auspices of the League of Nations even shifted towards a two-thirds
majority rule.120 When the UN assumed the task of initiating diplomatic treaty making
conferences, pragmatic attempts to lower the adoption threshold to a simple majority
were undertaken. This met resistance, especially during the ILC discussions on the law
of treaties and the subsequent 1969 Conference on the Law of Treaties (UNCLOT) in
Vienna.121 After a controversial debate, UNCLOT adopted today’s article 9 para 2
VCLT: at an international conference, the adoption of a treaty text takes place by the
vote of two-thirds of the states present and voting, unless by the same majority they
decide to apply a different rule. Given the residual character of article 9 VCLT and the
sovereign right the diplomatic conference to decide on its own RoP,122 the conferences
may deviate from article 9. And indeed, the RoP of diplomatic conferences convey the
117
Hoffmeister , ‘Article 9’ (n 21), para 26.
118
cf ILC SR Humphrey Waldock, Comment on Draft Article 5, (1962) Yearbook of the
International Law Commission vol 2, 39.
119
LB Sohn, ‘Voting Procedures in International Conferences for the Codification of
International Law’ in GM Wilner (ed), Jus et Societas: Essays in Tribute to Wolfgang Friedmann
(Martinus Nijhof 1979) 278, 280ff.
120
Hoffmeister, ‘Article 9’ (n 21).
121
For a detailed account of the arguments see LB Sohn, ‘Voting Procedures in United
Nations Conferences for the Codification of International Law’ (1975) 69 American Journal of
International Law 310, 318ff.
122
cf Sabel (n 11) 19ff.
20 / Date: 16/3
impression that article 9 VCLT is doomed to remain on the sidelines of international

practice.123
5.2.3 International practice: If possible consensus

Arguably, article 9 VCLT reflects the conference practice of the post-World War II
period.124 When UNCLOT decided on its RoP in 1968, it anticipated the future article
9. In accordance with article 39 UNCLOT-RoP,125 decisions on matters of substance
were taken by a two-third majority of the state representatives present and voting. It
was understood that matters of substance included the adoption of the treaty text. The
UNCLOT-RoP served as a template when the Sea Bed Committee drafted as the
PrepCom of the Third Conference of the Law of the Sea article 36 UNCLOS-RoP.
However, the Chairman of the Committee proposed to the UN General Assembly an
unwritten gentleman’s agreement that all decisions should be arrived at through
consensus, even though what constitutes a consensus is ‘beyond definition’.126 The
proposal was received with a mixed reaction, but, supported by the approval of the
General Assembly, the gentleman’s agreement found its way in written form into
UNCLOS III as an appendix to the RoP and was formally endorsed by the Confer-
ence.127 The consequence thereof was that in practice UNCLOS III-decisions were
achieved without an affirmative vote on the proposal but by ‘meaningful’ silence, ie no
delegation present with voting rights objected to the proposal when asked by the
chairperson. This understanding is reflected in the definition of consensus provided by
article 161 para 8 lit e Convention of the Law of the Sea: consensus means the ‘absence
of any formal objection’. This effectively means that it is not required that all states
indeed fully agree with the treaty text as long as they do not express their objection.
In the aftermath of the successful UNCLOS, its consensus model was widely
perceived as a major innovation and model for procedures in future UN Conferences.128
This positive perception has turned into actual practice. The UN Draft Standard RoP
(1981)129 stipulates in Rule 51 para 1 that the conference shall make every effort to
ensure that all its substantive decisions are taken by consensus or general agreement
without defining what is actually meant by these terms. Rule 53 para 1 then falls back
on the VCLT model: ‘Unless the conference decides otherwise and subject to paragraph
1 of rule 51, decisions on all matters of substance shall be taken by a two-thirds
123
Korontzis (n 12) 183.
124
PC Szasz, ‘Improving the International Legislative Process’ (1979) 9 Georgia Journal of
International and Comparative Law 519, 528.
125
UN Offical Records of the UN Conference on the Law of Treaties, 1st and 2nd Session
(Vienna, 26 March – 24 May 1968) UN Doc A/CONF.39/10.
126
cf Sohn (n 121), 333.
127
Final Act of the Third United Nations Conference on the Law of the Sea (1833 UNTS
396 158-91) para 21.
128
E Miles, ‘The Structure and Effects of the Decision Process on the Seabed Committee
and the Third United Nations Conference in the Law of the Sea’ (1971) 31 International
Organization 159, 180; B Buzan, ‘Negotiation by Consensus: Developments in Technique at the
United Nations Conference on the Law of the Sea’ (1981) 75 American Journal of International
Law 324, 328.
129
UN Draft Standard RoP (n 15).
21 / Date: 14/3
majority of the representatives present and voting.’ Even though officially never
adopted by the General Assembly, subsequent diplomatic conferences copied the
standard voting rule into their RoP.130 In accordance with long-standing UN practice,
these RoP define the meaning of the phrase ‘states parties present and voting’ as
‘representatives casting an affirmative or negative vote’ whereas those who abstain
from voting are considered as not voting.131 Depending on the delicacy of the
negotiated subject matter, some conferences limit themselves to decision-making on the
basis of consensus in all matters of substance (imperative consensus132), eg the UN
Conference on the Arms Trade Treaty.133 Other conferences, such as the ICC Review
Conference in Kampala, had a fall-back rule on voting with a two-third majority
(probable consensus134) but operated on a de facto imperative consensus basis. It was
clear from the start that the very moment the proposed text on the Crime of Aggression
was put to a vote, too many representatives would refrain from voting thus not meeting
the required quorum (Rule 33 para 2 RoP: presence of an absolute majority of the ICC
state parties).135 Given that no delegation relished this scenario, the prospect worked
towards accomplishing consensus. Here, the conference followed the UNCLOS under-
standing of consensus meaning no explicit or evident objection. Despite Japan’s harsh
criticism of the Draft Articles on the Crime of Aggression in the final plenary session
of the ICC Review Conference there was no formal objection because the delegation
explicitly waived its right to object.
A survey of recent conference practice confirms that there is a customary rule in the
making according to which treaty texts shall be adopted by consensus in the first place.
The conference practice under the UN Framework Convention on Climate Change
(UNFCCC) gives evidence for this emerging rule. The Conference of the Parties has
never agreed on formal RoP as the adoption Draft UNFCCC RoP was blocked by Saudi
Arabia. On top of that, the Draft UNFCCC RoP does not stipulate the voting rule but
submits two alternative rules within draft rule 42.136 Consequently, the conference
applied, over a period of 20 years, the Draft UNFCCC RoP without the undecided
Draft article 42 and operated under the general agreement that decisions are taken by
consensus.137
130
Rule 34 Rome Conference RoP of 10 June 1998, UN Doc A/CONF.189/6 ‘general
agreement’; art 51 ICC Review Conference RoP of 26 May 2010, Doc RC/3.
131
Rule 37 Rome Conference RoP; art 36 ATT RoP.
132
M Kamto, ‘Article 9’ in Corten and Klein (eds), The Vienna Conventions on the Law of
Treaties: A Commentary vol 1 (OUP 2011) para 33.
133
Rule 33 ATT RoP (n 25).
134
Kamto, ‘Article 9’ (n 132), para 33.
135
On quorum and the question whether a decision by consensus is subjected to the presence
of a quorum, see Chen Wang, ‘Issues on Consensus and Quorum at International Conferences’
(2010) 9 Chinese Journal of International Law 717, 732–38.
136
UN Framework Convention on Climate Change (UNFCCC)-Draft RoP (22 May 1996)
UN Doc FCCC/CP/1996.
137
A Vihma, ‘A Climate on Consensus’, FIIA Briefing Paper 75 (March 2011), 4 available
at <http://www.fiia.fi/assets/publications/UPI_Briefing_Paper_75.pdf>.
22 / Date: 14/3
5.2.4 Pragmatic stance: Bypassing consensus

The consensus model has a number of advantages, even though not all of them can be
rationalised: for one, the concerns of every participating state, irrespective of its size
and power, has a better chance of being heard,138 for another, states may find it easier
not to object to a draft treaty rather than explicitly consent to it despite certain
reservations.139 However, consensus increases the prospect of both the general accept-
ance of the treaty and its eventual entry into force. On the other hand, the consensus
threshold can stall the conference process for an indefinite period of time if the
fall-back rule on majority voting is either non-existent or virtually meaningless. In this
respect the Stockholm Convention on Persistent Organic Pollutants of 2001140 experi-
enced in 2015 a radical game changer: in order to prevent India from blocking the ban
on a wood preservative chemical, for the first time in the history of the Convention the
parties applied the majority voting rules. Three years earlier, in 2012, the UN
Diplomatic Conference on the Arms Trade had no such option: with no two-third
majority vote on matters of substance, the UN Diplomatic Conference on the Arms
Trade treaty failed to adopt the treaty text. A bypass solution prevented further damage
on universal disarmament efforts: the UN General Assembly adopted the treaty text by
a vote of 154 in favour, three against and 23 abstentions. Whether or not the majority
vote translates into the failure of the ATT to reach universal acceptance remains to be
seen. Thus far, the treaty has attracted 80 ratifications within three years.
Another recent example of a rather drastic bypass of consensus is the Cancún
Climate Change Conference in 2010, when the president of the conference overruled
the explicit objection of Bolivia and declared that the conference had adopted the texts
of the final decisions by consensus. The president explained her decision: ‘The
consensus rule does not mean unanimity, far less does it mean the possibility of one
delegation exercising a right of veto after years of hard work.’141 Even though the
conference practice reveals that customary understanding of consensus as no explicit or
evident objections, the notion itself is open to variation. It is striking that ECOSOC
endorsed in its Res 1835 (LVI) the RoP of the World Population Conference (1974)
according to the notion that consensus is a ‘general agreement without vote but not
necessarily unanimity’.142 If consensus is strictly construed as ‘not a single explicit
objection’, however, consensus leads to almost the same legal consequence as unanim-
ity given that in both cases each party has the power to prevent the adoption of the
treaty text, either by explicit objection (consensus) or by negative vote (unanimity).143
On this basis, the chairperson’s disregard of an ‘evident’ but not explicit objection or a
‘solitary’ objection may not put a question mark on the declared consensus. In any
case, one may subscribe to Evenson’s assessment that consensus is a ‘state of art’
138
B Buzan, ‘Negotiating by Consensus’ (n 128), 326.
139
Wang (n 135), 723.
140
2256 UNTS 119
141
Quoted from Vihma (n 137), 3.
142
UN Economic and Social Council Res 1835 (LVI) (14 May 1974), para 7; this
understanding had already been expressed by the delegation of Thailand at UNLOS III (1973),
see Sohn (n 121), 340.
143
Wang (n 135), 719.
23 / Date: 15/3
emerging from negotiations.144 The decision of the president of the Cancún Climate
Change Conference in 2010 was indeed an artifice; plus, the ‘near consensus‘ approach
appears to be history repeating: the first easing of the strict unanimity voting rule was
the ‘near‘ unanimity rule of the 1899 Hague Conference.
6. CONCLUSION
Negotiating and adopting the treaty text are two key stages within the treaty-making
process. Negotiations are by their very nature balancing acts, irrespective of whether
the outcome is a treaty that settles a dispute, exchanges goods or creates law. However,
if the aim of the negotiating process is the creation of normative international rules that
acquire universal acceptance, efforts to progress and steer the negotiations are
exceptionally difficult. This brief consideration has endeavoured to explore the legal
framework governing bilateral and multilateral negotiations and to distinguish the
different phases of the process that come to a close with the adoption of a treaty text.
An area that has only been lightly touched upon in this contribution, for both
negotiation and adoption of a treaty text, is the following rule: the dynamics and
inventiveness of international practice is nearly unlimited in order to achieve the
political objectives pursued, often side-lining rules and principles to achieve those
objectives.
144
J Evenson, ‘Three Procedural Cornerstones on the Law of the Sea Conference: The
Consensus Principle, the Package Deal and the Gentleman’s Agreement’ in Kaufman (ed) (n 5)
75, 78.
24 / Date: 14/3
6. Lawmaking by treaty: Conclusion of treaties and

evolution of treaty regimes in practice
1. INTRODUCTION
This chapter focuses on a particular aspect of treaty practice – the conclusion of a
treaty and evolution of a treaty regime in practice. It takes as a starting point the rules
codified in the 1969 Vienna Convention on the Law of Treaties (‘VCLT’ or ‘1969
VCLT’), but also considers selected ways in which the conclusion of treaties and
evolution of treaty regimes transcend the 1969 VCLT. One of this chapter’s concerns is
for those dimensions of lawmaking by treaty where no element of consent is expressed
in the way normally required under the VCLT. The chapter considers a range of
lawmaking aspects in connection with the conclusion of treaties. The discussion starts
with the modest position reflected in the 1969 VCLT and proceeds to examine the bold,
indeed at times controversial activities of treaty bodies including conferences of the
parties (COPs) and meetings of the parties (MOPs), as well as the activism and
evolutive interpretation by international courts. The purpose of this chapter is to address
treaty practices leading to the creation of, or change to, legal norms under a treaty that
do not follow the mostly formal rules and procedures laid down in the 1969 VCLT on
the conclusion of treaties, yet which can still most appropriately be described as the
conclusion of a treaty or at least as the creation of legal rights and obligations under an
existing treaty. The chapter traces these developments in the fields of treaty bodies
under multilateral environmental agreements (MEAs) and of judicial interpretation of
treaty provisions, specifically in the case of the European Court of Human Rights
(ECtHR). The chapter considers both practices under multilateral treaties as free-
standing processes for the development of a treaty regime, that is, as distinct from
subsequent agreement or subsequent practice of the parties as a means of interpretation
of a treaty under article 31(3)(a) and (b) VCLT.
It is beyond the scope of this chapter to enter into an ontological discussion about the
nature of ‘law’ and ‘lawmaking’. It is sufficient, for the purposes of this chapter, briefly
to explain the understanding of ‘law’ and of ‘lawmaking’ that this chapter uses.
The chapter employs a simple working definition of the term ‘lawmaking’, which at
times is used as a term of art in the context of treaties. The term can describe various
processes, among others a deliberate process of rule-creation under a treaty, or an
evolutionary process of rule-creation under a treaty that describes a haphazard
development rather than a deliberate enterprise. While the word ‘making’ connotes a
deliberate process by the treaty parties, this chapter uses the term ‘lawmaking’ in a
broad sense to describe both the deliberate and the more or less deliberate creation of
rules. The term ‘lawmaking treaty’ is moreover often used to describe a particular kind
of treaty, namely those that are sometimes described as ‘normative’ treaties, or
111
1 / Date: 14/3
traités-lois, which often provide for self-existent obligations that must be performed
integrally. Here too, however, the chapter uses the term ‘lawmaking’, specifically by
treaty, in a broader sense. In this chapter the term refers prima facie to the creation of
any rule for a party to a treaty, regardless of the form of the treaty or of the type of
obligation(s) it contains. At the same time the chapter recognizes that most pertinent
developments in this field, notably in connection with the evolution of treaty regimes in
practice, arise under multilateral instruments with a ‘normative’ or ‘lawmaking’
character, such as the European Convention on Human Rights (ECHR).
Based on this understanding of law and of lawmaking, the chapter will first consider
traditional means of treaty-conclusion and the development in international practice of
multilateral modes of treaty-conclusion, before proceeding to a discussion of law-
making through treaty regimes that evolve on the basis of decisions by treaty bodies,
such as COPs and MOPs. While these practices raise potential doctrinal problems
because of their departure from the VCLT and from customary rules on the conclusion
of a treaty and on the amendment or modification of a treaty, and because their legal
character is difficult to describe, the chapter concludes that the relative flexibility of
these mechanisms is well suited for the technical nature of international agreements on
the environment. Finally, this chapter discusses subsequent development of treaty
obligations through the evolutive interpretation and application of treaty norms by a
judicial organ. The discussion is limited to the ECtHR’s interpretation of rights and
obligations under the ECHR, both because it is not possible to discuss all developments
of treaty regimes through a judicial organ, and because the ECtHR offers a particularly
stark and current example of this kind of activity. One of the chapter’s goals is to offer
a legal characterization of these developments from the perspective of lawmaking
through a treaty.
2. THE EXPRESSION OF CONSENT TO BE BOUND IN THE

PROCEDURE FOR THE CONCLUSION OF A TREATY UNDER
THE VCLT
Under the originally bilateral approach to the conclusion of a treaty and the formal
steps enumerated in the 1969 VCLT, a State’s expression of its consent to be bound is
a necessary element for the conclusion of a treaty.1 The 1969 VCLT was largely
designed to codify existing practices in the conclusion of conventions. However, under
certain multilateral conventions, particularly those providing for normative rather than
contractual obligations, and particularly those under which COPs/MOPs enjoy inter-
pretative or rule-creating powers, the formal VCLT criteria on the conclusion of a treaty
at times play a secondary role. This is particularly the case where obligations under the
treaty incumbent upon States parties to it can be modified or potentially even created in
a manner that does not call for the formal, VCLT-based procedures associated with the
conclusion of a treaty, or with its amendment or modification.
1
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1155 UNTS 331 (VCLT).
2 / Date: 15/3
Conclusion of treaties and evolution of treaty regimes 113
The ‘conclusion’ of a treaty strictly speaking may refer only to the moment at which
States express their consent to be bound by a treaty.2 More loosely, the term
‘conclusion’ can be used to describe the entire treaty-making process, including the
negotiation, adoption and authentication of the text, and expression of consent. The
1969 VCLT reflects this looser use of the term.3 This section focuses on the expression
of consent to be bound, because it is the element most pertinent to developments in
lawmaking practices through treaties.
In connection with the conclusion of a treaty and a party’s assuming initial legal
obligations by becoming a party to the treaty, a State’s expression of consent has –
traditionally, at least – been a necessary element. The traditional approach is simple:
consent is a necessary element for a State’s being bound by an international agreement
or by one of its provisions,4 and this principle of consent arises in several 1969 VCLT
provisions, including the VCLT provisions on the amendment and modification of a
treaty.5 By contrast, under a treaty regime in which treaty norms can be developed in a
way that goes beyond the plain textual provision, the legal position of a State party
ultimately may no longer depend on whether or not the State has expressed consent to
any such change in the same way as it did in order to become a party to the original
instrument, or to a formal amendment or modification of the instrument. It is important,
in the context of consent, to distinguish between the expression of consent as a stage in
the conclusion of a treaty and the idea that consent to a particular obligation arising
under a treaty is a condition for a State’s being internationally bound.
2
See P Reuter, Introduction au droit des traités (PUF 1995).
3
Part II Section 1 (‘Conclusion of Treaties’) covers capacity, the treaty-making process that
precedes the expression of consent, as well as elements that chronologically follow it.
4
This situation can arise, for instance, where a treaty imposes an obligation or a right upon
a third State. According to the principle reflected in arts 34–36 VCLT (n 1) the third State’s
consent is generally necessary for the right or obligation to become opposable to it.
5
Establishing whether or not a State is one that has expressed its consent to be bound by a
given treaty has legal consequences for several VCLT provisions, because under art 2(1)(f) a
‘contracting State’ means ‘a State which has consented to be bound by the treaty, whether or not
the treaty has entered into force’. The International Law Commission considered it necessary to
distinguish a ‘contracting State’ from a ‘negotiating State’ and from a ‘party’ for the purposes of
the Draft Articles on the Law of Treaties. The relevant point when describing a State as a
contracting State, according to the Commission’s commentaries on the draft provision, is that
such a State’s consent to be bound exists independently of whether the treaty has come into
force. The term ‘party’ should, according to the Commission, only be used for those States for
which the treaty is in force. To be a party a State must validly have expressed its consent to be
bound. Thus the question whether a State is a contracting State must be answered by reference
to arts 11–17, and this has implications for several other provisions of the Convention. Similarly,
art 2(1)(g) provides that a ‘party’ for the purposes of the VCLT is ‘a State which has consented
to be bound by the treaty and for which the treaty is in force’. The term ‘contracting State’ arises
in arts 16, 17, 20, 22, 23, 40, 54, 57, 77 and 79. The provisions of Part II VCLT, which include
the relevant provisions on the means of a State’s expressing its consent to be bound, apply to the
amendment of an agreement between parties, according to art 39 VCLT.
3 / Date: 14/3
2.1 The Forms of a State’s Expressing Consent to be Bound in Lawmaking by

Treaty
Multilateral treaties almost invariably provide for a two-stage, solemn process of

expressing consent as a step leading to the conclusion of the treaty. The text of such
treaties typically provides that the treaty shall be open for signature subject to
ratification, and that it shall be open to accession. Articles 24 and 25 of the 2001
Stockholm Convention on Persistent Organic Pollutants offers an illustrative example.6
Further, article IX of the Treaty on the Non-Proliferation of Nuclear Weapons for
instance requires the deposit of instruments of ratification on the part of signatory
States, and of instruments of accession on the part of acceding States.7 Similarly, the
United Nations Convention on the Law of the Sea (UNCLOS) is made subject to
ratification or formal confirmation under article 306. It is a standard practice to include
such a provision. These steps leading to the conclusion of a treaty, and the means of
expressing consent to be bound, do not, under the VCLT, depend on the substance of
the instrument or the substance of any particular obligation(s) arising under it. The type
of legal norm(s) contained in the instrument is irrelevant for the purposes of
conclusion, as far as the position under the VCLT is concerned. Under the VCLT, an
instrument that at the time primarily though not exclusively represented a codification
of bilateral treaty practices, consent to be bound remains an essential stage in the
conclusion of a treaty. Under this approach, stated in article 11 VCLT, contracting
States’ means of expressing their consent to be bound are limited.8 The second limb of
article 11, providing that consent can be expressed ‘by any other means if so agreed’,
leaves States autonomy to choose as a means of expressing consent any means not
expressly enumerated in the preceding limb.9
Consent to be bound can be expressed by signature, by an exchange of instruments
constituting a treaty, by ratification, acceptance or approval, or by accession. An
expression of consent is respectively operative only to the extent that the treaty
provides that consent may be expressed by any such means, or if it is otherwise
6
Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered
into force 17 May 2004), 2256 UNTS 119 (POP Convention).
7
Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered into
force 5 March 1970), 729 UNTS 161 (NPT), art XI.
8
The text that became art 11 VCLT was added during the Vienna Treaty Conference, on the
basis of a proposal by Poland and the United States. UN Doc A/CONF.39/C.1/L.88 and Add l.
See UN Conference on the Law of Treaties, UN GAOR 1st Session (15th Meeting, 5 April
1968), 83. The Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations (adopted 21 March 1986, not yet in force)
UN Doc A/CONF.129/15 (1986 VCLT) incorporates that provision as art 11(1), and further
contains a second paragraph pertaining specifically to an international organization’s means of
expressing its consent to be bound, which reproduces art 11(1) almost verbatim but replaces
‘ratification’ with ‘act of formal confirmation’. The 1986 VCLT is not yet in force, but both the
1986 and the 1969 VCLT are generally accepted as reflecting the position under customary
international law.
9
See S Szurek, ‘1969 Vienna Convention, Article 11: Means of expressing consent to be
bound by a treaty’ in O Corten and P Klein (eds), The Vienna Conventions on the Law of
Treaties: A Commentary vol 1 (OUP 2011) 188.
4 / Date: 14/3
established that the negotiating States are agreed that consent may be expressed in one
of these respective ways.10 Ratification, approval, acceptance and accession all take the
form of a written instrument sent either to the other party or to the depositary, then to
be communicated to the other parties. Accession only arises as a possibility under a
multilateral treaty, and is typically the means for a non-negotiating, non-signatory State
to become a party to the treaty, usually after the period of signature closes or the treaty
enters into force, depending on the instrument.
The expression of consent to be bound as a stage in the process of concluding a
treaty will typically follow the formal, two-stage process reflected in the Vienna
Convention where the treaty provides for collective obligations, and all the more so
where it imposes on States parties interdependent obligations in sensitive areas such as
arms control, or integral obligations such as in the area of human rights protection.
While States’ obligations under such a treaty regime can change over time independ-
ently of the States parties’ specific consent to the modification of an obligation under
the instrument, as the example of the ECHR most clearly and at times perhaps
controversially illustrates, the requirements for the expression of consent under the
VCLT and under general international law as a condition for becoming a party to such
an instrument remain stringent.
In the context of multilateral treaties it can consequently be difficult to speak of a
single moment in time at which a treaty is ‘concluded’, though of course the instrument
itself will almost invariably indicate the moment at which it enters into force. In
bilateral instruments, this point presents no difficulties. A multilateral treaty typically
enters into force upon receipt of a certain number of instruments of ratification,
acceptance or approval. However, it is more difficult to identify a point in time at which
the treaty was ‘concluded’, because States’ expression of their consent, which forms
part of the conclusion-process of a treaty under the VCLT and in general international
law, can occur on a rolling basis through the submission of instruments of ratification,
acceptance or approval before the entry into force, and can continue to do so by
accession where permitted even after the treaty enters into force throughout the life of
the treaty.11 By expressing consent to be bound, States ‘sign up’ to a future or existing
free-standing international arrangement consisting of a collection of treaty-based legal
norms. A State that accedes to the instrument after its entry into force accepts the
obligations for States parties under the instrument as they stand at that point in time,
10
Arts 12(1)(b), 13(b) and 14(b) are formulated generally. Signature under art 12(1) has the
effect of expressing a State’s consent to be bound, and this form of signature is sometimes
referred to as ‘definitive signature’. See G Korontzis, ‘Making the Treaty’, in DB Hollis (ed),
The Oxford Guide to Treaties (OUP 2012) 196; C van Assche, ‘1969 Vienna Convention Article
12: Consent to be bound by a treaty expressed by signature’ in Corten and Klein (eds) (n 9).
11
The principle reflected in art 16 VCLT has particular practical relevance in multilateral
treaty relations, and with respect to lawmaking instruments in particular. The provision specifies
the point in time as of which an instrument of ratification, acceptance, approval or accession
shall establish the consent of a State to be bound by a treaty. Notice the use of the verb
‘establish’ in art 16 as opposed to the verb ‘express’ in arts 11–15. This choice of terminology
indicates the effectiveness of such consent and the legal engagement it gives rise to as of that
moment.
5 / Date: 14/3
including such developments by treaty-body practice and interpretation that may have
occurred since the instrument’s entry into force.
2.2 Lawmaking Instruments Going Beyond the Requirement of Consent Under

the VCLT
At the other end of the spectrum, the exchange of signed or initialled notes, signed or
initialled minutes of a meeting, a signed or initialled joint communiqué, or even the
exchange of written documents not signed or even initialled, can constitute a binding
international agreement capable of giving rise to rights and obligations for States that
have expressed their consent to be bound in such a manner. The majority of bilateral
agreements in practice make do with this accelerated form of treaty-making that does
away with the formal two-state requirement of signature followed ratification or
approval, or by acceptance.12 This illustrates the range of practices capable of creating
international legal rights and obligations for States, and consequently of ‘lawmaking’
through a treaty under our present working definition.
International law in general imposes no strict formal requirements, according to the
International Court in Temple of Preah Vihear (Preliminary Objections).13 The position
is similar in modern treaty practice with respect to the form of an expression of
consent, and is captured in the second limb of article 11 VCLT. This practice is
primarily relevant in the bilateral context. The issue of form comes into sharper focus
primarily in the context of the practice, now quite common, of States’ issuing signed
joint communiqués, or an exchange of signed or initialled notes, or indeed of unsigned
or un-initialled notes verbales. In such a case signature of the document, or the
exchange of instruments constituting a treaty as envisaged in article 13 VCLT, typically
would be sufficient to express the consent of a State to be bound. The International
Court noted in Aegean Sea Continental Shelf with respect to the so-called Brussels
Communiqué of 31 May 1975 at issue in that case that ‘it knows of no rule of
international law which might preclude a joint communiqué from constituting an
international agreement to submit a dispute to arbitration or judicial settlement’.14
Indeed, States can register an exchange of notes of this variety with the Secretariat of
the UN in accordance with article 102 of the Charter. However, such a practice would
likely not be followed in a multilateral context, where the formalities surrounding the
conclusion of a treaty, and of the expression of consent as part of that process, remain
the standard way of proceeding.
As the International Court noted in Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, citing Aegean Sea, it must, in order to determine whether
the minutes of a meeting constitute an international agreement concluded between
12
One cannot help but notice that the loosening of formalities in treaty-making practice
roughly coincided with the ever-increasing ease of communication. See Sir Gerald Fitzmaurice,
‘First Report on the Law of Treaties’ (1956) Yearbook of the International Law Commission vol
2, 124.
13
Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Preliminary
Objections) [1961] ICJ Rep 17, 31.
14
Aegean Sea Continental Shelf (Greece v Turkey) [1978] ICJ Rep 3, 39.
6 / Date: 14/3
States in written form and governed by international law, ‘have regard above all to its
actual terms and to the particular circumstances in which it was drawn up’.15
3. LAWMAKING THROUGH AN EVOLVING TREATY REGIME

Under certain treaty regimes, developments over time have resulted in changes to the
primary obligations of States parties. The question concerning the legal character of
such developments in international practice has largely remained unanswered. The
purpose of this section is to contribute to the discussion and to provide some
clarification.
The tacit acceptance system and the powers of COPs/MOPs to develop treaty
provisions are a far cry from the general requirement of consent codified in articles
11–17 VCLT. The VCLT does not govern a situation such as this one. The VCLT
position is necessary for determining whether and when a State becomes a party to a
treaty, and when the instrument enters into force for that State. However, once the State
is party to an evolving treaty regime, rules under the treaty can be created, or their
content developed, through less formal procedures. In certain areas that call for
international legal regulation to address variable factual concerns and scientific
positions in order to respond to needs of the international community, this treaty model
may be the only realistic one for States to adopt. The tacit acceptance system and the
decision of a treaty body such as a COP or MOP do not amount to an amendment or
modification of the treaty in a formal sense in accordance with articles 39–41 VCLT.
Article 39 provides that ‘rules laid down in Part II [on the conclusion and entry into
force of treaties] apply to such an agreement except insofar as the treaty may otherwise
provide’. Thus the determinations of a treaty body do not amount to a formal
amendment or modification because such a procedure would typically require an
expression of consent in accordance with articles 11–17 under the said Part II, except
where the treaty otherwise provides, such as under the ‘Amendment by Simplified
Procedure’ in article 313 UNCLOS.
However, determinations by a treaty body play a significant role in treaty practice in
the development of a treaty regime over time. Even where a treaty body does not enjoy
the power to create obligations or rights for States parties, the practice of such treaty
bodies may constitute a source of interpretation of the treaty under article 31(2)(b)
VCLT.16
15
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v
Bahrain), Jurisdiction and Admissibility (1 July 1994) [1994] ICJ Rep 112, 121. The Inter-
national Tribunal for the Law of the Sea (ITLOS) reached a different conclusion with respect to
the legal status of signed minutes of a meeting in the Dispute Concerning Delimitation of the
Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (No 16)
(Bangladesh v Myanmar) (Judgment of 14 March 2012) ITLOS Reports 2012, 7.
16
G Ulfstein, ‘Treaty Bodies and Regimes’ in Hollis (ed) (n 10), 438.
7 / Date: 9/2
3.1 Lawmaking Through Tacit Acceptance (‘Opting out System’) Under a Treaty
It is arguably the system of ‘opting out’, or of ‘tacit acceptance’, that has brought into
particular focus the role of organs established under certain treaty regimes. This type of
system is widely adopted in international organizations and was notably developed by
the International Maritime Organization (IMO). Its basis is that a State becomes tacitly
bound by a treaty unless it ‘opts out’ within a certain period of time. Under this system,
decisions are adopted by a majority of States. Within the IMO system tacit acceptance
procedures are used for the amendment of technical annexes as a more efficient
alternative to traditional amendment procedures. However, an interesting point of law
arises in conventions such as the 1974 International Convention for the Safety of Life
at Sea (SOLAS Convention) and the 1973 International Convention on the Prevention
of Pollution from Ships (MARPOL), which include both forms of procedure (in the
case of the MARPOL, in relation to its Annexes).
The legal relationship between these procedures is far from clear. Since a tacit
acceptance procedure in substance amends the treaty and can change the scope of a
party’s international legal obligations, certain States hold the view that the opting out
procedure requires the same type of acceptance as is required for the amendment of a
treaty in the classical sense under the 1969 VCLT, that is, a procedure requiring the
approval by the States parties. Therefore, the paradoxical result may be that a
mechanism established to speed up an otherwise lengthy amendment procedure could
in certain circumstances become as lengthy as the classical procedure, and con-
sequently self-defeating.
3.2 Lawmaking Through the Decisions and Activities of Treaty Bodies
3.2.1 Bases for the powers of COPs and MOPs to develop a treaty regime in
practice
The theories underlying the effect of COP/MOP decisions for the development of a
treaty regime in practice can be grouped into three categories:
(i) Theories that accord binding force to the COP/MOP decisions, deriving from the
intention of the parties, ie, in the broadest sense from the treaty they are based on.
There are several versions of this theory.
(ii) Theories which, assuming that such decisions do not have a formally binding
legal effect, nevertheless attempt to find some intermediate (‘soft’ or ‘de facto’)
status for such decisions.17
(iii) Theories which, also assuming that the decisions do not have a formally binding
character on the basis of the intention of the parties, seek to substitute an
alternative basis from outside the realm of the law of treaties for their binding
character.
17
See J Brunnée, ‘“Reweaving” the Fabric of International Law? Patterns of Consent in
Environmental Framework Agreements’ in R Wolfrum and V Röben (eds), Developments in
International Law-Making (Springer 2005) 12.
8 / Date: 14/3
This section will not explore all theories in detail, but will merely discuss some of the
possible bases for these powers and highlight some of the associated problems.
Theories based on the law of treaties mostly refer to some form of enhanced powers
that COPs or MOPs allegedly enjoy. These can include powers to extend the
obligations of States parties, and in other cases powers to give these obligations greater
precision as a result of the interpretation of a basic treaty provision. This, however, is
arguably a simplified way of understanding the powers of COPs/MOPs. There must be
a difference between detailing an existing obligation (such as in the case of the
Convention on International Trade in Endangered Species (CITES)) and creating a new
obligation (as in the case of the Montreal Protocol’s adjustment procedures). In the first
case it is possible to rely on treaty interpretation as a formal basis for this power. In the
second case the more persuasive explanation would be to treat the powers of a COP or
MOP as a type of a secondary legislation adopted under a primary treaty, or perhaps
even as constituting a new treaty, depending on the decision at hand. Matters become
even more complex in cases involving COP/MOP activity that cannot be legally
justified on the basis of a primary treaty provision, such as, for example, the Basel
Convention COP’s establishment of a compliance procedure. This type of secondary
decision-making can perhaps be categorized as a form of ‘de facto’ lawmaking.
The next question concerns the legally binding force of COP/MOP decisions. Again,
there is great variation in possibilities depending on the provisions of the primary
instrument. Not all COP/MOP decisions have a ‘de facto’ or ‘soft’ law status. In the
case of adjustments under the Montreal Protocol the main procedure is that of
consensus. Failing that, a decision by the majority is considered binding upon the
minority. This procedure has never been used, yet it remains theoretically available.
Decisions taken under this procedure are binding, not in a ‘soft’ or ‘de facto’ way, but
in the full sense of the word.
Decisions adopted by COPs/MOPs establishing compliance mechanisms are perhaps
not strictly binding, but they are nevertheless generally accepted by States parties to an
MEA. These compliance procedures frequently result in the application of certain
measures taken by COPs/MOPs towards States parties as a result of non-compliance.
For the most part such regimes are set up by COPs/MOPs under enabling clauses. The
first type of procedure is found for instance under article 8 of the Montreal Protocol
and under article 18 of the Kyoto Protocol.18 The second procedure in particular can
result in onerous consequences for a State in the event of non-compliance, such as the
suspension of flexibility mechanisms. Saudi Arabia protested continuously against the
decision of the Kyoto Protocol MOP adopting a compliance procedure. Saudi Arabia
argued that this procedure should instead be adopted on the basis of an amendment to
the Kyoto Protocol. One must add, however, that COP/MOP decisions adopted in the
event of non-compliance are not binding on States parties, although they can produce
some political force. This, in turn, is not the case with respect to decisions by the
18
‘Procedures and mechanisms relating to compliance under the Kyoto Protocol’, Decision
27/CMP.1 in the UN Report of the Conference of the Parties serving as the meeting of the
Parties to the Kyoto Protocol on its first session (30 March 2006) FCCC/KP/CMP/2005/8/Add.3
available at http://unfccc.int/resource/docs/2005/cmp1/eng/08a03.pdf#page=92.
9 / Date: 14/3
Enforcement Branch of the Compliance Committee under the Kyoto Protocol, which
are indeed binding.
The legal character of such decisions has to be investigated on a case-by-case basis,
because the variety of possible COP/MOP functions and their legal effects escape
generalization. These COP/MOP activities can also be examined from the point of view
of consent to be bound. States consent to be bound by a primary treaty. This treaty can
contain certain provisions, such as the Kyoto Protocol for instance does, which enable
COPs/MOPs to develop or create rules for States parties under this treaty. These may
form a new level of obligations and rights that the primary treaty had not provided for.
The question one must ask is whether such a set of new obligations constitutes a new
treaty, an amendment to an existing treaty, or even a treaty in a simplified form. As
noted above, there are also theories that consider such new obligations for States to lie
outside the realm of treaty law all together. Under this view these obligations are the
result of an exercise of certain implied powers that international organizations enjoy.
Where the primary treaty contains no enabling clause, the characterization of the
practice by a treaty body and of the developed or new instrument is even more difficult.
These ‘new’ functions of COPs/MOPs have given rise to concerns with respect to the
legitimacy of MEA-based secondary law. According to Bodansky, for example,
‘legitimacy’ has two meanings in international law, one sociological and the other
normative.19 The sociological meaning is concerned with the addressees of the
authority accepted as ‘justified’, ie, as legitimate. The normative meaning is devoted to
the question whether ‘a claim of authority is well founded’.20 Brunnée holds the view
that the legitimacy of international environmental law, in contrast to international trade
law, is based on the consent embedded in the structure of treaty-law.21
In areas such as climate change, that is, a global environmental concern where
decision-making has implications for civil society, the legitimacy of COP/MOP
decision-making is very important. Camenzuli shares such a view.22 This leads her to
the conclusion that a COP/MOP decision adopted on the basis of majority voting is
‘inconsistent with the traditional consent based structure of treaty law and, con-
sequently, threatens its legitimacy and validity’.23 Therefore, she postulates that in order
to avoid the risk of alienating powerful minorities, the lawmaking powers by COPs/
MOPs ‘must be exercised with caution’.24 It may be noted, however, that the only
example of such a power is the Montreal Protocol, under which a majority decision
binds the minority in the case of ‘adjustments’, in cases where consensus could not be
reached. Again, however, this procedure has never been used.
19
D Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for
International Environmental Law?’(1999) 93 American Journal of International Law 596.
20
ibid, 601.
21
ibid, 610.
22
LK Camenzuli, ‘The Development of International Environmental Law at the Multilateral
Environmental Agreements’: Conference of the Parties and its validity’, 26 available at
<http://cmsdata.iucn.org/downloads/cel10_camenzuli.pdf>.
23
ibid.
24
ibid. See also A Wiersema, ‘The New International Law-Makers? Conferences of the
Parties to Multilateral Environmental Agreements’ (2009) 31 Michigan Journal of International
Law 231.
10 / Date: 14/3
Churchill and Ulfstein aptly call these phenomena ‘autonomous institutional arrange-
ments’. They believe this development ‘marks a distinct and different approach to
institutional collaboration between states, being both more informal and more flexible,
and often innovative in relation to norm creation and compliance’.25 The necessity to
create ‘strong’ regimes and possibly binding, rule-making characteristics has warranted
these novel institutional or quasi-institutional solutions.
There is a degree of ambivalence among States on these novel practices, specifically
with respect to the consent to be bound. The question concerning the lack of uniformity
arises in relation to the powers of COPs/MOPs when traditional, uniform means of
expressing consent to be bound by a treaty are abandoned, and modifications to an
MEA are brought about directly by the COP/MOP, absent any further act of validation
by the parties. While the traditional law of treaties reflected in the VCLT does not
regulate this practice, it has become accepted in the context of certain multilateral
instruments, notably certain MEAs. However, scepticism remains with respect to
whether the decision of such a body can create a new, free-standing rule under such an
instrument.
3.2.2 Types of powers typically enjoyed by treaty bodies

Depending on its functions and purposes and on its importance, the treaty body may
enjoy such implied powers as are necessary for it effectively to discharge its purposes
and functions.26 There are some limited indications that a form of international legal
personality may be an attribute of such a body, even where it is not an international
organization properly speaking. Thus for instance the fact that the Headquarters
Agreement for the Secretariat of the Antarctic Treaty of May 2010 mentions only the
Antarctic Treaty Consultative Meeting – a treaty body under article IX of the Antarctic
Treaty – and the Argentine Republic as parties, suggests the capacity of the former to
enter into an international agreement with a State.27
Some bodies, such as the Ministerial Conference and the General Council under
article IX(2) of the Agreement Establishing the Word Trade Organization, enjoy the
exclusive power to adopt interpretations of that agreement and of the Multilateral Trade
Agreements.28 Similarly, the Free Trade Commission established under article 1131(2)
of the North American Free Trade Agreement (NAFTA) has the power to issue
interpretations binding for a tribunal established under Section B of Chapter 11
NAFTA. The Assembly of States Parties under the Rome Statute of the International
Criminal Court enjoys the power under article 9 of the Statute to adopt ‘elements of
crimes’, which ‘shall assist the Court in the interpretation and application of articles 6,
25
R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral
Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94
American Journal of International Law 623.
26
See Reparation for injuries suffered in the service of the United Nations [1949] ICJ Rep
174, 180.
27
Headquarters Agreement for the Secretariat of the Antarctic Treaty (10 May 2010) 2775
UNTS 1.
28
Marrakesh Agreement establishing the World Trade Organization (15 April 1994) 1867
UNTS 3.
11 / Date: 14/3
7, 8 and 8 bis’.29 Also, the General Assembly of the United Nations has used its power
under article 14 of the Charter to interpret provisions of the Charter. Interpretative
powers do not prima facie amount to the power to make a binding determination or
create new obligations for State parties, but they may determine or develop the scope
and content of existing rights and obligations under an international agreement, and
consequently alter the legal position of States parties.
The question arises whether, without any further process of amendment, a decision
of a treaty body is intended to give rise to, or capable of giving rise to, obligations
directly binding on the parties. An example is the Antarctic Treaty Consultative
Meeting, established under article IX of the 1959 Antarctic Treaty.30 Article 1 of its
1995 Decision 1 contemplates the possibility of a ‘measure’ intended to be legally
binding once approved by all the Antarctic Treaty Consultative Parties, in accordance
with article IX of the Antarctic Treaty.31
An example of an MEA that purports to provide for such a power is, as noted above,
the Montreal Protocol. It provides for a so-called ‘adjustment procedure’ in article 2(9).
This procedure regulates the modification in the scope of the parties’ duties under the
Protocol, such as the tightening of control measures by bringing forward the phasing-
out of certain substances. Decisions adopting an adjustment are as a rule adopted by
consensus. However, in the case of a failure of all efforts to reach a consensus, such
decisions can be adopted by a two-thirds majority vote of all parties present and voting,
and representing a majority of both developed and developing countries. The decision
has to be communicated to the parties and then enters into force for all parties,
including those that opposed the adoption, six months from the date of circulation of
the communication.
The second method for modifying States’ obligations under a treaty in this way relies
on so-called enabling clauses in conventions or protocols thereto, which charge
COPs/MOPs with the elaboration of rules in particular areas without expressly
providing for the actual amendment of the convention or protocol. They may, however,
result in the modification of States parties’ obligations, as for example under the Kyoto
Protocol. The Kyoto Protocol grants the COP of the 1992 United Nations Framework
Convention on Climate Change (UNFCCC) the power under article 17 to ‘define the
relevant principles, modalities, rules and guidelines, in particular for verification,
reporting and accountability for emissions trading’.32 Ulfstein maintains that the notion
29
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into
force 1 July 2002) 2187 UNTS 3, art 125 (3).
30
The Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402
UNTS 71.
31
Antarctic Treaty Consultative Meeting, Decision 1 (1995): Measures, Decisions and
Resolutions, art 1.
32
Kyoto Protocol to the United Nations Framework Convention on Climate Change
(adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 148 (Kyoto
Protocol). Art 17:
The Conference of the Parties shall define the relevant principles, modalities, rules and
guidelines, in particular for verification, reporting and accountability for emissions trading.
The Parties included in Annex B may participate in emissions trading for the purposes of
fulfilling their commitments under Article 3. Any such trading shall be supplemental to
12 / Date: 14/3
of ‘rules’ presupposes that they have a legally binding character.33 The same author
notes that this position is supported by the wording of article 17, which refers to
‘relevant principles, modalities, rules and guidelines’, thus indicating that rules are
different from non-binding ‘principles’ or ‘guidelines’. Ulfstein further supports his
analysis on the basis of substantive considerations. He gives an example of a party that
makes use of ‘rules’ on emission trading by buying emission quotas. The party cannot,
according to him, be accused of non-compliance with the Protocol when it wants to add
these quotas to its emission limits in the Protocol. This example demonstrates that there
may only be a very small difference between ‘effective interpretation and the use of
implied powers: relevant arguments may be found in both the wording and object and
purpose of the treaty’.34 Ulfstein’s view that these ‘rules’ are binding is not shared by
all authors. For example, Brunnée is more sceptical about the legally binding character
of these ‘rules’. She argues that ‘[g]iven the exceptional nature of COP authority to
bind states, even the terms ‘procedures’ (used in arts 12.7 and 18) or ‘rules’ (used in
arts 3.4 and 17) do not necessarily imply COP authority to bind. Procedures or rules
can be binding, but need not be.’35
The mere use of the word ‘rule’ should not be conclusive as to a determination’s
binding character. Rather, it is necessary to look beyond the term to the substance of
the agreement in order to determine whether it was intended to grant the relevant treaty
body the power to make a binding determination giving rise to an international legal
obligation, the breach of which would engage a member State’s international respons-
ibility. It is, however, important to know when a ‘rule’ has been created. If an
obligation is breached, a State engages its international responsibility, depending on the
type of obligation, bilaterally towards one or more States parties, or collectively to all
States parties to the treaty. Where it remains unknown whether an international legal
obligation exists or not, international legal obligation indeed risks becoming a matter of
‘more or less’,36 if that is not already the case.
3.2.3 Instances of lawmaking by COPs and MOPs

An example of the importance of authentic interpretation offered by COPs/MOPs is
provided by several examples including the CITES COP, the Executive Body of
LRTAP, the Standing Committee (COP) of the Berne Convention and the Bonn
Convention COP. The CITES COP has interpreted and provided detailed guidance on
various issues regarding the primary CITES treaty, on questions including species that
can be regarded as captive stock. CITES made special provision for specimens that are
captive-bred or artificially propagated. Article VII(4) provides that specimens of
Appendix I animals ‘bred in captivity for commercial purposes’ and specimens of
Appendix I plants ‘artificially propagated for commercial purposes’ shall be treated as
domestic actions for the purpose of meeting quantified emission limitation and reduction
commitments under that Article.
33
Ulfstein (n 16), 438.
34
ibid.
35
J Brunnée, ‘COPing with Consent: Law-Making Under Multilateral Environmental
Agreements’ (2002) 15 Leiden Journal of International Law 1, 24.
36
See P Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 American
Journal of International Law 413, 421.
13 / Date: 14/3
Appendix II specimens. Appendix I excludes almost entirely commercial trade in

species. Appendix II allows trade of captive-bred or artificially propagated animals and
plants subject to certain conditions. Davies notes that the treaty text does not provide a
further definition of either ‘bred in captivity for commercial purposes’ or of ‘artificially
propagated for commercial purposes’.37
Therefore, the CITES COP in the 1997 Harare COP adopted Resolution Conf. 10.16
(Rev.), which clarifies that an animal specimen ‘bred in captivity’ must be ‘born or
otherwise produced in a controlled environment’, and that the parents must have either
mated in a controlled environment (if reproduction is sexual) or must have been in a
controlled environment when offspring development commenced (if reproduction is
asexual). The breeding stock must be established ‘in accordance with the provisions of
CITES and relevant national laws and in a manner not detrimental to the survival of the
species in the wild’; it must be maintained ‘without the introduction of specimens from
the wild, except for the occasional addition of animals, eggs or gametes’ inter alia to
‘prevent or alleviate deleterious inbreeding’; and it must either be managed in a way
shown to be ‘capable of reliably producing second-generation offspring in a controlled
environment’ or indeed ‘produce[d] offspring of second generation … or subsequent
generation’ in such an environment. The 2000 CITES Gigiri COP established criteria to
be satisfied before plants can be considered ‘artificially propagated’.38
Davies makes the following observation:
The clarifications provided by the Harare and Gigiri CITES COPs underline the importance
of replenishing captive bred or artificially propagated stock only in exceptional circum-
stances. As such an undue burden will not be placed on wild populations of such species.
Without the need extensively to replenish from the wild, the captive stock in question must be
largely capable of sustainable exploitation in its own right if trade is to continue in the long
term under the ‘captive bred’ or ‘artificially propagated’ special provisions of CITES. Such
clarifications go far beyond the mere interpretation of key terms (as one might find in the
definition section of a treaty) to establish a form of regulatory regime for ‘captive bred’ or
‘artificially propagated’ species.39
Another instance of lawmaking occurred under the Convention on the Conservation of

European Wildlife and Natural Habitat (Berne Convention). Article 4(1) of the Berne
Convention stipulates that each party must ‘take appropriate and necessary legislative
and administrative measures to ensure the conservation of the habitats of the wild flora
and fauna species, especially those specified in Appendices I and II, and the
conservation of endangered natural habitats’. Article 4(2) provides that the parties ‘in
their planning and development policies shall have regard to the conservation require-
ments of the areas protected under the preceding paragraph, so as to avoid or minimize
as far as possible any deterioration of such areas’. The Standing Committee addressed
the ambiguous character of these provisions. It adopted ‘Recommendation No. 25
(1991) on the conservation of natural areas outside protected areas proper’, which calls
37
P Davies, ‘Non-Compliance – a Pivotal or Secondary Function of CoP Governance?’
(2013) 15 International Community Law Review 77, 82
38
COP 11, Doc.11.56 (www.cites.org).
39
Davies (n 37), 81–2.
14 / Date: 14/3
upon parties to consider adopting a variety of measures, such as the setting-up of

environmental corridors and a network of nature parks to fulfill obligations under
article 4.
The Executive Body of LRTAP, the name for that treaty regime’s COP, provided
interpretations of ambiguous wording in a legally binding agreement. The 1985 Sulphur
Dioxide Protocol40 stipulates that parties ‘shall reduce their national annual sulphur
emissions or their transboundary fluxes by at least 30 per cent as soon as possible and
at the latest by 1993, using 1980 levels as the basis of calculation of reductions’. Four
years after the protocol’s adoption, the parties in the Executive Body reached a
‘common understanding’ that this obligation for the parties to ‘reduce their national
annual sulphur emissions or their transboundary fluxes by at least 30 per cent as soon
as possible and at the latest by 1993’ meant that ‘reductions to that extent should be
reached in that timeframe and the levels maintained or further reduced after being
reached’.41
The 1979 Bonn Convention regulates endangered migratory species in Appendix I.
However, it does not provide a definition of ‘endangered’, because article I(1)(e) only
provides that a migratory species is ‘endangered’ where it is ‘in danger of extinction
throughout all or a significant portion of its range’. The Bonn Convention COP in 1997
adopted Resolution 5.3 to clarify the term ‘endangered’, which is to be interpreted as
meaning a species ‘facing a very high risk of extinction in the wild’, and that the
parties would be guided in this regard by findings of the IUCN Council or by an
assessment by the CMS Convention’s Scientific Council. Davies notes that this
approach has resulted in the listing of various species in Appendix I. For example, the
17th meeting of the CMS Convention’s Scientific Council, held in November 2011,
endorsed proposals to list both the Far Eastern Curlew and the Bristle-thighed Curlew
in Appendix I. Having noted such endorsements, the 10th meeting of the CMS COP,
held after the Scientific Council’s meeting, duly approved Appendix I status for both
species.
Ulfstein offers an example of the interpretative powers of COPs/MOPs provided for
under certain MEAs, such as article 10(1) of the Montreal Protocol. This provision
authorizes the MOP to interpret the term ‘agreed incremental costs’, which are incurred
by developing States parties in complying with the protocol, by establishing ‘an
indicative list of the categories of incremental costs’. However, the same author
maintains that the example is less common in the context of the interpretative powers
of COPs/MOPs than in the interpretation of the provisions of MEAs without an express
authorization, as outlined above. According to Ulfstein, this is due to the fact that the
COP/MOP ‘experience in operating the MEA or scientific, technical, or other develop-
ments are perceived as requiring it’.42 Regarding the Montreal Protocol, one such
40
Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the
Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent (adopted
8 July 1985, entered into force 2 September 1987) (1988) 27 ILM 707.
41
UN Doc ECE/EB.AIR/20, para 22. See further ECE/EB.AIR/24, para 18 and UN Doc
ECE/EB.AIR/33, para 14.
42
Ulfstein (n 16), 436.
15 / Date: 14/3
instance is the definition of a ‘State not a party to this Protocol’ with respect to
hydrochlorofluorocarbons which was adopted by parties to the Beijing amendment.43
Some COP/MOP decisions remain very controversial, and these bodies are at times
regarded as usurping powers of State parties to MEAs. One example is a decision of
the COP of the Basel Convention on the Transboundary Movement of Hazardous
Wastes. The 1995 ‘Ban Amendment’ provides for the prohibition by each party
included in the proposed new Annex VII (parties and other States which are members
of the OECD, EC, Liechtenstein) of all transboundary movements to States not
included in Annex VII of hazardous wastes covered by the Convention that are intended
for final disposal. It also provides for the prohibition of all transboundary movements
to States not included in Annex VII of hazardous wastes covered by paragraph 1(a) of
article 1 of the Convention destined for reuse, recycling or recovery operations.44
Several States denied the legally binding character of this decision because the COP
was not empowered to alter substantive obligations ‘merely by utilizing its explicit
general power to take action to achieve the Convention’s objectives’.45 The controversy
43
ibid and Decision XV/3, ‘Obligations of Parties to the Beijing Amendment under Article
4 of the Montreal Protocol with respect to hydrochlorofluorocarbons’ (Fifteenth Meeting of the
Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, 11 November
2003) UNEP/OzL:
Expecting Parties to the Beijing Amendment to import or export hydrochlorofluorocarbons in
ways that do not result in the importation or exportation of hydrochlorofluorocarbons to any
‘State not party to this Protocol’ as that term is interpreted herein, recognizing the need to
assess the fulfilment of that expectation,
1. That the Parties to the Beijing Amendment will determine their obligations to ban the
import and export of controlled substances in group I of Annex C (hydrochlorofluorocar-
bons) with respect to States and regional economic organizations that are not parties to the
Beijing Amendment by January 1 2004 in accordance with the following:
a. The term ‘State not party to this Protocol’ in Article 4, paragraph 9 does not apply to
those States operating under Article 5, paragraph 1, of the Protocol until January 1,
2016 when, in accordance with the Copenhagen and Beijing Amendments, hydro-
chlorofluorocarbon production and consumption control measures will be in effect for
States that operate under Article 5, paragraph 1, of the Protocol;
b. The term ‘State not party to this Protocol’ includes all other States and regional
economic integration organizations that have not agreed to be bound by the Copenha-
gen and Beijing Amendments;
c. Recognizing, however, the practical difficulties imposed by the timing associated with
the adoption of the foregoing interpretation of the term ‘State not party to this
Protocol,’ paragraph 1 (b) shall apply unless such a State has by 31 March 2004:
i. Notified the Secretariat that it intends to ratify, accede or accept the Beijing
Amendment as soon as possible;
ii. Certified that it is in full compliance with Articles 2, 2A to 2G and Article 4 of the
Protocol, as amended by the Copenhagen Amendment;
iii. Submitted data on (i) and (ii) above to the Secretariat, to be updated on 31 March
2005, in which case that State shall fall outside the definition of “State not party to
this Protocol” until the conclusion of the Seventeenth Meeting of the Parties.
44
Available at <http://www.basel.int/implementation/legalmatters/banamendment/tabid/1484/
default.aspx>
45
Ulfstein (n 16), 437–8.
16 / Date: 14/3
was solved by adopting the ban by way of amendment to the Convention which is still
not in force.46
Ulfstein notes that even if COPs/MOPs are not empowered to make binding
interpretations, their decisions have some legal significance under the law of treaties as
reflected in the 1969 VCLT, as ‘subsequent practice in the application of the treaty
which establishes an agreement of the parties regarding its interpretation’ (art 31(3)(b)
1969 VCLT).47 Ulfstein further argues that such an agreement might be seen as being
reflected in the decisions of treaty organs consisting of MEA parties’ representatives.
Preferably, however, such subsequent practice should be understood as the practice of
the treaty body, rather than as the collective subsequent practice of States parties. This
distinction is especially pronounced in cases where these bodies consist of independent
experts rather than of representatives of States parties.48
Decision-making by a treaty body can be more efficient than the traditional,
consent-based treaty-making process.49 An efficiency-based approach to lawmaking
practices would have to take this circumstance into account. Such independent bodies
are typically established under treaties governing human rights, environmental law, and
arms control. Moreover, these bodies to a certain extent replace the supervision of the
implementation and the enforcement of treaty obligations by individual States, and set
up a collective mechanism to which compliance regimes belong (see above). In the
field of environmental law the only ‘pure’ example of such an independent body is the
compliance mechanism under the Kyoto Protocol.
Ulfstein’s argument that all such non-compliance procedures within the realm of
international environmental law are implemented by independent organs is doubtful.
Any initial decision by a non-compliance body set up under such a mechanism, which
indeed is an independent organ, must be validated by the respective COP or MOP, with
the exception of the procedure under the Kyoto Protocol. Thus the final decision on
compliance is adopted by the organ consisting of the States parties. Ulfstein is,
however, right about the requirement in cases involving such a procedure, that is, of the
existence of an assessment procedure with respect to States’ compliance with inter-
national obligations. Traditionally such a procedure remained within the competence of
States. However, today there exist treaty organs endowed with fact-finding powers. One
such example is the Expert Review Team under the Kyoto Protocol compliance
procedure. This body is entrusted with several functions with respect to the in-depth
assessment of all aspects of the implementation of the Kyoto Protocol, and with respect
to questions regarding a party’s performance relating to the Protocol’s implementation.
Ulfstein maintains that the functions of supervisory treaty bodies in general find their
basis in an express authorization in a treaty text, but at times also in an implied
power.50
46
ibid. As of 28 February 2016 the total number of ratifications was 85. The ban is not yet
in force.
47
See Ulfstein (n 16), 438. See further G Nolte (ed), Treaties and Subsequent Practice
(OUP 2013), 370–78.
48
See Ulfstein (n 16), 438.
49
ibid, 439.
50
ibid, 440–41.
17 / Date: 15/3
4. LAWMAKING THROUGH THE EVOLUTIONARY

INTERPRETATION OF A TREATY REGIME BY A JUDICIAL
ORGAN
States parties’ obligations under a treaty can also change as a result of the evolution of
a treaty regime through judicial interpretative activity. An example of this is the ECHR
as interpreted by the ECtHR.51 The sometimes controversial judicial activism of the
ECtHR rests upon a doctrinal background that has been stated and explained in many
of the Court’s judgments, as well as in numerous publications.52 There is an extensive
case-law taking the position that the ECHR is a ‘lawmaking treaty’ (and one that
bestows special competences on the Convention’s institutions),53 a ‘living instrument’54
or an instrument that conceptualizes autonomous principles.55 There is also case-law
that introduces the concept of rights that should be ‘practical and effective’.56 The
development of a treaty regime by a court established under the treaty arguably enjoys
less legitimacy than the development of a treaty regime through the decisions and
activities of COPs/MOPs, because at least in the latter States parties enjoy the
opportunity to express their positions.
The main gist behind arguments supporting and promoting the interpretative methods
adopted by the ECtHR is the allegedly special nature, or subject-matter, of the ECHR.
The claim has been advanced that the ECHR is more than a ‘common standard of
achievement’, and that instead it imposes upon the parties a body of legal principles to
which they must conform their behaviour. Compliance with these legal principles is at
times ensured by the machinery set up under the Convention. When a case is brought
before the Court, the fundamental function of this machinery is to ascertain whether
national law on this point is in conformity with the provisions of the Convention.
It has further been suggested that under the ECHR reliance upon classical tenets of
international law such as nationality and reciprocity is unnecessary. Although the
Convention itself is drafted in the traditional form of a treaty, from a substantive point
of view its ‘law transcends the traditional boundaries drawn between international and
domestic law. In short, the Convention is sui generis’.57 The instrument, according to
this view, is neither international nor domestic, though it comprises elements of both
51
M Fitzmaurice, ‘Dynamic Interpretation of Treaties’ (2013) 21 The Hague Yearbook of
International Law 101. See also E Bjorge, The Evolutionary Interpretation of Treaties (OUP
2014).
52
See eg, A Drzemczewski, ‘The Sui Generis Nature of the European Convention on Human
Rights’ (1980) 29 International and Comparative Law Quarterly 54; AH Robertson, Human
Rights in Europe (Manchester University Press 1977); EU Petersmann, ‘Do Judges Meet Their
Constitutional Obligations to Settle Disputes in Conformity with “Principles of Justice and
International Law”’ (2007) 1 European Journal of Legal Studies 12.
53
Loizidou v Turkey (Preliminary Objections) App no 15318/89 (ECtHR 23 March 1995) 20
EHRR 99, para 85.
54
Tyrer v United Kingdom App no 5856/72 (ECtHR 25 April 1978) 2 EHRR 1.
55
Engel and Others v The Netherlands App no 5100/71; 5101/71; 5102/71; 5354/72;
5370/72 (ECtHR 8 June 1976) 1 EHRR 647.
56
Airey v Ireland App no 6289/73 (9 October 1979) 2 EHRR 305, adjusted.
57
Drzemczewski (n 52) 54.
18 / Date: 14/3
dimensions. The point is further made that the Convention’s law is not simply a body of
law applied by the ECtHR and previously by the Commission, but that the Committee
of Ministers of the Council of Europe also applies this body of law, as do the parties’
domestic courts.58 The most contentious aspect of ECtHR jurisprudence is the view that
the ECHR contains a number of ‘unenumerated’ rights, which may ‘be read into’ the
Convention as ‘inherent’ in those rights that are enumerated. The ECtHR’s Golder
decision is the landmark case taking the position that the Convention constitutes an
interpretative regime.59
The dynamic, that is, evolutionary interpretation of treaties is based on the premise
that the treaty in question is ‘a living instrument’. If so, such a treaty would have strong
lawmaking potential within the meaning of this chapter’s working definition. Proceed-
ing from this assumption, the Court takes the view that it must make human rights
‘practical and effective’, and must take into account ‘present-day conditions’ for the
protection of the individual.60 The ECtHR stated this position in the Loizidou case:
That the Convention is a living instrument which must be interpreted in the light of the
present-day condition is firmly rooted in the Court’s case-law … It follows that these
provisions cannot be interpreted solely in accordance with the intentions of their authors as
expressed more than forty years ago … In addition, the object and purpose of the Convention
as an instrument for the protection of individual human beings requires that its provisions be
interpreted and applied so as to make its safeguards practical and effective …61
The classic decision introducing a conceptualization of an evolutionary, dynamic

interpretation of the ECHR as a ‘living instrument’ was the 1978 Tyrer case.62 In this
case the ECtHR referred to a ‘present day’ condition in interpreting obligations of
ECHR States parties, thus departing from an approach that looks to the moment of
conclusion to ascertain the scope of rights under the instrument.
Proceeding from the idea that consensus among States underlies its interpretative
techniques, the Court has further relied on a ‘moral reading’ of the Convention’s
enumerated rights, and has to a large extent prevented consensus and the preferences of
the majority of States from having an impact on the rights of individuals.63 There is no
58
ibid, 54–5.
59
G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, 21
(2010) European Journal of International Law 509, 516; Golder v United Kingdom App no
4451/70 (ECtHR 21 February 1975) 1 EHHR 524.
60
MM Sepúlveda, The Nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights (Intersentia 2003), 81.
61
Loizidou v Turkey (n 53) paras 71–72.
62
Tyrer v United Kingdom (n 54):
[t]he Court must also recall that the Convention is a living instrument which, as the
Commission rightly stressed, must be interpreted in the light of the present-day conditions. In
the case now before it the Court cannot but be influenced by the developments and
commonly accepted standards in the penal policy of the member States of the Council of
Europe in this field.
63
G Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in A
Føllesdal, B Peters and G Ulfstein (eds), Constituting Europe: The European Court of Human
Rights in a National, European and Global Context (CUP 2015).
19 / Date: 14/3
doubt that such extensive lawmaking activity on the part of an international court is
bound to raise questions of legitimacy.
5. LAWMAKING THROUGH SUBSEQUENT PRACTICE

Another concept relevant to lawmaking through a treaty – because it directly affects the
content of parties’ obligations – within the present understanding of the term is the
subsequent practice of States parties to a treaty regime.64 Subsequent practice, although
theoretically and practically distinct from lawmaking through the evolutionary inter-
pretation of a treaty, may lead to the modification of States parties’ obligations. The
two legal concepts – evolutionary interpretation and subsequent practice – can,
however, cause confusion. The Nicaragua/Costa Rica case offers an example.65 In that
case, the International Court of Justice discussed the development of the meaning of
‘comercio’ in light of the evolution of this term. However, Judge Skotnikov argued
against such an interpretation and contended that the meaning of ‘comercio’ had instead
changed as a result of the subsequent practice of States, which provided evidence that
the parties had arrived at a common interpretation of ‘comercio’ that included
tourism.66
The Grand Chamber of the ECtHR applied both techniques in the Öcalan case,67 in
which it stated that an established practice ‘within the Member States could give rise to
an amendment of the Convention’. It could ‘hence remove a textual limit on the scope
for evolutive interpretation of Article 3’.68
The subsequent practice of States parties can potentially change the content of a
treaty right or obligation. This subsequent practice as a basis for an evolving content of
a treaty right or obligation is not derived from a judicial organ, as may be the case with
respect to lawmaking through a treaty on the basis of the evolutionary interpretation
through a judicial organ. There is, however, some difficulty in determining which
activities on the part of States can constitute ‘subsequent practice’ for the purposes of
treaty interpretation.69 Unsettled issues include the question of what is required for
64
Art 31(3)(b), 1969 VCLT.
65
Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgment)
[2009] ICJ Rep 213.
66
ibid, Separate opinion of Judge Skotnikov. See also J Arato, ‘Subsequent Practice and
Evolutive Interpretation: Techniques of Treaty Interpretation over Time and Their Diverse
Consequences’ (2010) 9 Law and Practice of International Courts and Tribunals 443.
67
Öcalan v Turkey App no 46221/99 (ECtHR, 12 May 2005) 41 EHRR 985.
68
ibid, para 163. In the case of Felbrugge Netherlands, the ECtHR explained the difference
between subsequent practice and evolutionary interpretation, ECtHR case no. 8/184/80/127
(Judgment, 23 April 1986). This case suggests that evolved concepts are already contained in the
treaty, because otherwise the introduction of new concepts is a legislative function that belongs
to the Member States of the Council of Europe.
69
See 769th Meeting International Law Commission, Sir Humphrey Waldock (UN Doc
A/CN.4/SR.769) (1964) Yearbook of the International Law Commission, vol 1, 309. See also R
Gardiner, Treaty Interpretation (OUP, 2nd ed, 2013), 275–80.
20 / Date: 14/3
practice to evidence a common understanding; what kind of conduct can count as

subsequent practice; and who must engage in the conduct for it to be legally relevant.70
In the event, however, of a dispute over the relevance of subsequent practice, it is at
times an international judicial organ that decides whether or not a given State activity
constitutes subsequent practice.71 Thus in such a case it will usually be a decision by a
judicial organ – a decision which, being the exercise of a function with lawmaking
potential, will have an impact on the behaviour of States – that will settle the question.
6. CONCLUSIONS
Current practice on the conclusion of treaties and on the evolution of treaty regimes
over time shows a move away from the strict structures associated with treaty-making,
and a move towards speedier lawmaking through treaties that respond to the technical
needs of the area calling for regulation. The relevant VCLT provisions on amendment
and modification of treaties, articles 39–41, offer a framework of rules that apply
residually, and which function as fall-back provisions. Typically, however, if States
wish to create legal norms on the basis of a treaty, they will do so in the manner that
suits them best, including in ways that depart from the formal requirements under the
VCLT for amendment and modification in which the expression of consent at times
only plays only a secondary role.
However, this does not mean that introducing changes to a treaty remains within the
purview of States parties alone. Such a claim would fly in the face of modern practice.
The evolutionary interpretation of a treaty, which may result in a change to a State’s
legal position under the instrument in a manner that departs from the text of the
instrument and its meaning at the time of its conclusion, is no longer an activity
reserved to States. This has also become a sphere of significant influence for non-State
actors. Under certain instruments, such as the Aarhus Convention, this influence is
70
Arato (n 66), 459.
71
See eg, Whaling in Antarctic (Australia v. Japan: New Zealand intervening) [2014] ICJ
Rep 226. In this case, the ICJ stated: ‘Australia and New Zealand overstate the legal significance
of the recommendatory resolutions and Guidelines on which they rely. First, many IWC
resolutions were adopted without the support of all States parties to the Convention and, in
particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as
subsequent agreement to an interpretation of Article VIII, nor as subsequent practice establishing
an agreement of the parties regarding the interpretation of the treaty within the meaning of
(VCLT 31(3)(a) & (b))’, ibid, para 83. See also, Julian Arato, ‘Subsequent Practice in the
Whaling Case, and What the ICJ Implies about Treaty Interpretation in International Organ-
izations’ EJIL: Talk! 31 March 2014, <http://www.ejiltalk.org/subsequent-practice-in-the-
whaling-case-and-what-the-icj-implies-about-treaty-interpretation-in-international-organizations/>.
See further G Nolte, ‘Third report on subsequent agreements and subsequent practice in relation to
the interpretation of treaties’, International Law Commission, Sixty-seventh session, Geneva, 4
May–5 June and 6 July–7 August 2015, A/CN.4/683, <http://legal.un.org/docs/?symbol=A/CN.4/
683>.
21 / Date: 15/3
quite notable. These changes, modifications or amendments may also come about
through treaty interpretation by a judicial organ or through subsequent practice of the
parties.
The treaty practices described in this chapter are practical solutions that offer States
options for lawmaking by treaty. These practices are also, to an extent, the consequence
of competing interests engaged in a game of tug-of-war in the law of treaties. On the
one hand, there is the need for stability in international relations. On the other hand,
there is the need to ensure that treaties continue to be relevant and effective in a
constantly evolving environment.
22 / Date: 14/3
7. The emergence of customary international law:

Between theory and practice
Omri Sender and Michael Wood *
In theory, theory and practice are the same. In practice, they are not.
(Albert Einstein)
Hersch Lauterpacht, former Member of the International Law Commission and Judge
of the International Court of Justice, wrote of ‘the complexities – indeed the mysteries
– of the rise of binding customary law from amidst the amorphous and, when taken in
isolation, inconclusive manifestations of conduct.’1 Both theorists and practitioners of
international law have attempted over the decades to demystify this process, some
seeking better to comprehend the operation of custom as a principal source of
international law, others attempting to align such exploration with their own agenda or
world view. Understanding how customary international law comes into being, how in
the international community ‘[w]hat “is” becomes what “must be”’,2 has been of great
interest not only as a general jurisprudential-philosophical question but also in
numerous concrete cases, as each time anew ‘the ascertainment of customary law
involves a re-creation of its genesis’.3 To explain the process through which a rule of
customary international law is formed is, therefore, to explain what customary
international law is.
The present contribution seeks to provide a general overview of theory and practice
concerning the emergence of customary international law. Raising some of the central
issues rather than offering hard-and-fast answers, it suggests that although the process
of formation of customary international law may defy exact definition in light of its
inherently informal nature, important signposts exist for those who seek them. In
particular, while theorists continue to debate how customary international law is
generated, a shared understanding of the essential requirements does exist in practice
among the various international actors, who continue to regard customary international
law as deriving from ‘a general practice accepted as law’. Such an understanding of
what customary international law is and how it comes into existence is crucial for
* The present chapter was completed in 2013. A few subsequent developments have been
included, but the text has not been comprehensively updated.
1
(Stevens & Sons 1958), 390, reprinted (Grotius 1982) and (CUP 1996).
2
Case concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ
Rep 1960 6, Dissenting Opinion of Judge Armand-Ugon 82.
3
J Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Routledge
2011), 60.
133
1 / Date: 8/2
establishing a greater certainty with regard to its content, as well as for the legitimacy
of international law more broadly.
1. CUSTOM AS A PRINCIPAL SOURCE OF INTERNATIONAL

LAW
Customary law, evolving almost unconsciously out of prevalent and repetitive conduct
that gradually gave rise to a conception according to which such conduct was
obligatory, had regulated nearly all human societies since time immemorial until it was
largely replaced by (or subsumed in) more sophisticated modes of lawmaking. In the
international community as well, where there is no formal legislature, it had long
served as the primary source of law until much of its content was codified (and new
rules were established) by treaty. The modern profusion of bilateral and multilateral
treaties, however, has not rendered customary international law unimportant: not only is
it still a mechanism of law-creation and ‘the principal construction material for general
international law’ (in the sense of its capability to generally bind all States),4 it also
underlies the international legal structure as a whole.5 Even in fields where there are
widely accepted ‘codification’ conventions the rules of customary international law
continue to govern questions not regulated by the conventions,6 and apply in relations
with and between non-parties;7 they may also fill possible lacunae in treaties, and assist
4
VI Kuznetsov and BR Tuzmukhamedov (WE Butler, ed.), International Law – A Russian
Introduction (Eleven International Publishing 2009), 77.
5
The very requirement that treaties be complied with (‘pacta sunt servanda’) is customary
in origin, as are several other basic principles of international law. The preamble to the United
Nations Charter refers to respect for the obligations arising under ‘treaties and other sources of
international law’, thus giving particular emphasis to treaties but without neglecting the other
sources of international law listed in art 38(1) of the Statute of the International Court of Justice
(ICJ Statute) (as annexed to the Charter of the United Nations (26 June 1945) 1 UNTS xvi). See
also art 13.1(a) of the Charter with its reference to international law in general.
6
See, for example, Vienna Convention on the Law of Treaties (VCLT) (adopted 23 May
1969, entered into force 27 January 1980, 1155 UNTS 331), final preambular para and art 4
(non-retroactivity). The Martens clause in the preamble to the Hague Convention on the Laws
and Customs of War on Land (adopted 29 July 1899, entered into force 4 September 1900,
USTS 539, 2 American Journal of International Law Supp 90), was an early example of the
continuing importance of custom, notwithstanding a treaty: J von Bernstorff, ‘Martens Clause’ in
R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2012). In art 1 of
Additional Protocol I to the Geneva Conventions (adopted 8 June 1977, entered into force 7
December 1978, 1125 UNTS 3) the expression ‘the usages established between civilised nations’
was replaced by ‘established custom’.
7
For example, the VCLT (n 6) only applies in relations between the States Parties thereto;
the rules of customary international law on the law of treaties apply in relations between States
not Party to the Convention, and between a State Party and a non-Party: see EW Vierdag, ‘The
Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of
Treaties and States not Party to the Convention’ (1982) 76 American Journal of International
Law 779–801.
2 / Date: 8/2
The emergence of customary international law 135
in their interpretation.8 At times the treaty itself calls for the application of customary
international law; and a court may moreover seek to apply customary international law
where treaty law cannot be applied because of limits on its jurisdiction or applicable
law.9
The central role of custom in international law is enshrined in article 38(1) of the
Statute of the International Court of Justice (ICJ), which is generally regarded as
identifying the principal sources of international law and refers in its subparagraph (b)
to ‘international custom, as evidence of a general practice accepted as law’. This
language, originally adopted in 1920 by the League of Nations’ Advisory Committee of
Jurists for the Statute of the Permanent Court of International Justice, has been
criticized for being imprecise, mainly as ‘the Court cannot apply a custom, only
customary law’, and since logically it should be ‘general practice accepted as law
which constitutes evidence of a customary rule’ rather than the other way around.10
That is how the wording has generally been read in practice, and despite its
imperfection it has been incorporated into the constituent instruments of other
international tribunals.11 It also continues to be acknowledged by domestic courts as the
starting point for any exercise of ascertaining whether a rule of customary international
law exists or not.12
8
Article 31.3 (c) of the VCLT (n 6).
9
As, for example, in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America) Merits (Judgment) [1986] ICJ Rep 14, 92–96. A more
recent example may be found in the Supreme Court of Ghana’s judgment of 20 June 2013
(arising out of the ARA Libertad case) applying the customary international law on warships
which (unlike the United Nations Convention on the Law of the Sea) formed part of Ghanaian
law. The judgment is available on the website of the Permanent Court of Arbitration:
<http://www.pca-cpa.org/showpage.asp?pag_id=1526>.
10
ME Villiger, Customary International Law and Treaties: A Manual of the Theory and
Practice of the Interrelation of Sources (2nd edn, Kluwer Law International 1997), 15. On the
other hand, it has been said that ‘[t]here are two key elements in the formation of a customary
international law rule. They are elegantly and succinctly expressed in art 38 of the ICJ Statute’,
DJ Bederman, The Spirit of International Law (University of Georgia Press 2006), 9 and 33. For
the suggestion that the language might reflect an earlier understanding of customary law
influenced by natural law theories see GM Danilenko, Law-Making in the International
Community (Martinus Nijhoff Publishers 1993), 77.
11
A Pellet, ‘Article 38’ in A Zimmermann ao (eds), The Statute of the International Court
of Justice: A Commentary, (2nd edn, OUP 2012), MN 49–54. Examples include art 28 of the
1928 General Act for the Pacific Settlement of International Disputes (adopted 26 September
1928, entered into force 16 August 1929, 93 LNTS 344) (and art 28 of the 1948 Revised General
Act (adopted 28 April 1949, entered into force 20 September 1950, 71 UNTS 101); art 33 of the
Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two States.
Sometimes a cross-reference to art 38 of the Statute may be found: for example, in arts 74 and
83 of the United Nations Convention on the Law of the Sea (adopted 10 December 1982,
entered into force 16 November 1994, 1834 UNTS 379).
12
See, for example, cases referred to in the International Law Commission Special
Rapporteur’s ‘First report on formation and evidence of customary international law’ (2013)
A/CN.4/663, Section IX(C), in his ‘Second report on identification of customary international
law’ (2014) A/CN.4/672, para 24, and later in this chapter.
3 / Date: 14/3
As lex non scripta (unwritten law) that may lack the clarity and certainty of a written
instrument and that develops over time ‘like international relations themselves’,13
customary international law has ‘wrestled with acute problems of construction and
conception’.14 The inherent difficulties of identifying in the behavior of States ‘a
general practice accepted as law’ and ascertaining its specific content have, moreover,
multiplied in a world whose ‘international community’ no longer comprises only a
limited number of (mostly European) States but almost 200 States, and where
international (legal) relations have intensified and diversified. Yet customary inter-
national law has proven to be ‘an amorphous but formidable jellyfish’,15 retaining a
prominent place in modern international legal discourse and not withering away as
some foresaw. It has been suggested that it is precisely its dynamism and flexibility that
make it a valuable source of international law given the pace and complexity of modern
international relations,16 and recalled that difficulties in law-finding are not unique to
customary international law.17 Be that as it may, this ‘unprocessed international law, or
“raw international law”’, as it has been called,18 continues to develop in both old and
new fields. Routinely taken into consideration by a wealth of actors on both the
national and international planes, and applied by numerous judicial bodies, it is indeed
13
K Wolfke, Custom in Present International Law (Martinus Nijhoff Publishers 1993), 54.
14
R Kolb, ‘Selected Problems in the Theory of Customary International Law’ (2003) 50
Netherlands International Law Review 119, 150.
15
E Jiménez de Aréchaga, ‘Custom’ in A Cassese and JHH Weiler (eds), Change and
Stability in International Law-making (Walter de Gruyter 1988), 3 (quoting the words of ‘an
intelligent observer of the Third U.N. Conference on the Law of the Sea’).
16
J Pearce, ‘Customary International Law: Not Merely Fiction or Myth’ (2003) 10
Australian International Law Journal 125; D Bederman, ‘Acquiescence, Objection and the
Death of Customary International Law’ (2010) 21 Duke Journal of Comparative and Inter-
national Law 31, 41 and 42–43:
customary international law is supposedly a source of signal strength and flexibility for
international law. It allows international legal actors to informally develop rules of behavior,
without the necessity of resorting to more formal and difficult means of law-making (like
treaties) … in an international legal system which already features many highly-structured
mechanisms for law-creation … it certainly makes sense that there should also be an
alternative set of processes for CIL formation. The dynamic of State practice and CIL offers
the best hope for such an alternative to the glacial pace of treaty-making and sclerotic
attempts at treaty enforcement, application, and compliance.
17
I Brownlie, ‘To What Extent Are the Traditional Categories of Lex Lata and Lex Ferenda
Still Viable?’ in Cassese and Weiler (eds) (n 15), 68:
I think the main problem at the moment is the old one that law-finding is always difficult.
Even when you have a treaty, it is necessary to find out what a particular text means; you
may have a treaty which has been in existence for 20 years, but if it has not been much
interpreted by courts the law-finding remains to be done. There is a curious tendency for
people to think that if we can only find the right formula, the right rule, then the business of
law-finding is suddenly going to be made more easy for us. I think that is rather unrealistic.
18
See eg JO McGinnis, ‘The Comparative Disadvantage of Customary International Law’
(2006–2007) 30 Harvard Journal of Law and Public Policy 7, 8.
4 / Date: 8/2
positive law no less than treaty law.19 As Brownlie put it, ‘[c]ustom is not a special
department or area of public international law. It is international law’.20
2. THE ESSENTIAL ELEMENTS: THEORY

The inherently elusive nature of customary international law, combined with the
frequent recourse to it and its unequivocal significance for the ordering of international
relations, has attracted an extraordinary interest among scholars of international law
(and international relations). A vast (and growing) body of literature has been devoted,
in particular, to the question of how rules of customary international law emerge, with
various authors attempting to tackle both conceptual and practical difficulties. Being
‘connected with ideas about the nature of law in general and of international law in
particular’,21 the question still divides scholars, who recruit philosophical postulates,
moral claims and concrete examples (most often court decisions) in support of their
arguments.
From the outset, the basic issue that preoccupied writers had to do with the alchemy
that turned only some but not all custom into law. Observing that certain acts remain a
matter of comity or mere usage even if continuously performed as a matter of tradition,
scholars soon recognized that habitual conduct alone did not generate a legal rule: an
additional element was necessary to transform such practice from the norm to the
normative. Isidore of Seville (c560–636CE) wrote of habits which are ‘accepted as
law’22 and this notion, of an attached conviction according to which the relevant
practice is mandatory, found its way (albeit in different manifestations) into the
seventeenth century writings of Francisco Suárez and Hugo Grotius.23 German scholars
of the historical school have likewise sought to clarify the essence of this essential
element, and at the turn of the nineteenth century Francois Gény referred to it using the
Latin phrase opinio juris sive necessitatis (‘an opinion of law or necessity’, usually
shortened to opinio juris),24 a term still in use today. Only where such a sense of legal
obligation (a ‘subjective’, psychological element) accompanied a consistent and
19
See also S Rosenne, Practice and Methods of International Law (Oceana Publications
1984), 55.
20
I Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth
Anniversary of the United Nations (Martinus Nijhoff Publishers 1998), 18.
21
T Treves, ‘Customary International Law’ in R Wolfrum (ed), Max Planck Encyclopedia
of Public International Law (OUP 2012), para 4.
22
J Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012), 26.
23
T Maluwa, ‘Custom, Authority and Law: Some Jurisprudential Perspectives on the
Theory of Customary International Law’ (1994) 6 African Journal of International and
Comparative Law 387, 389. For a detailed historical account see E Kadens and EA Young, ‘How
Customary Is Customary International Law?’ (2013) 54 William and Mary Law Review 885,
888-907.
24
M Mendelson, ‘The Subjective Element in Customary International Law’ (1996) 66
British Yearbook of International Law 177, 194.
5 / Date: 14/3
uniform practice of States (an ‘objective’, material element), would a rule of customary
international law emerge.25
While the two-element approach considers each of these elements as indispensable
for the formation of rules of customary international law, primacy is usually accorded
to State practice, in the sense that ‘custom begins with “acts” that become a “settled
practice”; that practice may then give rise to the belief that it had become obligatory’.26
In other words, ‘we must look at what states actually do in their relations with one
another, and attempt to understand why they do it, and in particular whether they
recognize an obligation to adopt a certain course’.27 Such an approach remains loyal to
a classical understanding of the formation of customary law as an empirical, decentral-
ized, and bottom-up process;28 when situated on the international plane, customary law
25
H Thirlway, The Sources of International Law (OUP 2014), Chapter III (Custom as a
Source of Law); S Sur, International Law, Power, Security and Justice: Essays on International
Law and Relations (Hart Publishing 2010), 174; H Thirlway, ‘The Sources of International Law’
in MD Evans (ed), International Law (4th edn, OUP 2014), 98:
The traditional doctrine is that the mere fact of consistent international practice in a particular
sense is not enough, in itself, to create a rule of law in the sense of the practice; an additional
element is required. Classical international law sees customary rules as resulting from the
combination of two elements: an established, widespread, and consistent practice on the part
of States; and a psychological element known as the opinio juris sive necessitatis (opinion as
to law or necessity), usually abbreviated to opinio juris.
26
O Schachter, ‘New Custom: Power, Opinio Juris and Contrary Practice’ in J Makarczyk
(ed), Theory of International Law at the Threshold of the 21st Century (Brill 1996), 531
(describing the ‘generally accepted view of the relation of practice and opinio juris’). See also,
for example, G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice,
1951–54: General Principles and Sources of Law’ (1953) 30 British Yearbook of International
Law 1, 68; M Akehurst, ‘Custom As A Source of International Law’ (1977) 47 British Yearbook
of International Law 1, 53; GI Tunkin, ‘Remarks on the Juridical Nature of Customary Norms of
International Law’ (1961) 49 California Law Review 419, 421; A D’Amato, ‘Trashing Custom-
ary International Law’ (1987) 81 American Journal of International Law 101, 102; GM
Danilenko, ‘The Theory of International Customary Law’ (1988) 31 German Yearbook of
International Law 9, 19–20; N Petersen, ‘Customary Law without Custom? Rules, Principles,
and the Role of State Practice in International Law Creation’ (2008) 23 American University
International Law Review 275, 278. It is of course possible that an acceptance that something
ought to be the law (nascent opinio juris) may develop first, and then give rise to practice that
embodies it so as to produce a rule of customary international law; but opinio juris, as strictly
defined, cannot precede the practice which it is meant to accompany. If thereafter practice is
observed consistent with the view that a rule should exist (or a mistaken belief that it already
exists), it will be easily referable to it; in that sense the opinio can, as it were, be backdated, but
when it was expressed it was only opinio, not opinio juris.
27
A Clapham, Brierly’s Law of Nations (7th edn, OUP 2012), 57. See also Case
concerning Right of Passage over Indian Territory (Merits) (Judgment) [1960] ICJ Rep 6, Judge
Sir Percy Spender’s Dissenting Opinion, 99 (‘The proper way of measuring the nature and extent
of any such custom, if established, is to have regard to the practice which itself both defines and
limits it. The first element in a custom is a constant and uniform practice which must be
determined before a custom can be defined’).
28
See L Henkin, How Nations Behave: Law and Foreign Policy (2nd edn, Columbia
University Press 1979), 34 (‘the process of making customary law is informal, haphazard, not
6 / Date: 14/3
is to be ascertained through inductive reasoning that is both State-centred29 and devoid

of independent normative considerations.30 Awarding legal force only to actual behav-
iours and expectations that enjoy a wide degree of acceptance within the international
community is meant to ensure that customary international law is stable, reliable, and
legitimate.31
The two-element approach, embodied in Article 38(1)(b) of the ICJ Statute, remains
the ‘dominant position in the mainstream theory of customary international law’.32 In
the past several decades, however, it has ‘come under heavy fire’ in academic writing,33
with various authors challenging it on several accounts. For a start, a number of writers
have argued that the two-element approach is doctrinally incoherent and riddled with
‘inner mysteries’34 that make it difficult, if not impossible, to apply in practice.35 In
particular, the ‘opinio juris paradox’ has haunted scholars who attempted to explain
deliberate, even partly unintentional and fortuitous … unstructured and slow’); GJ Postema,
‘Custom in International Law: A Normative Practice Account’ in A Perreau-Saussine and JB
Murphy (eds), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives
(CUP 2007) 279, 285 and 306; J d’Aspremont, Formalism and the Sources of International Law
(OUP 2011), 162.
29
See eg Villiger (n 10), 16–17; PE Benson, ‘François Gény’s Doctrine of Customary Law’
(1982) 20 Canadian Yearbook of International Law 267, 268; RB Baker, ‘Legal Recursivity and
International Law: Rethinking The Customary Element’ (2012) available at <http://ssrn.com/
abstract=2147036>, 7; HWA Thirlway, International Customary Law and Codification (Sijthoff
1972), 58; AM Weisburd, ‘Customary International Law: The Problem of Treaties’ (1988) 21
Vanderbilt Journal of Transnational Law 1, 5.
30
See eg A Watts, ‘Codification and Progressive Development of International Law’ in R
Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2012), para 1 (‘It is
also inherent in customary law that it is based on how States have behaved in the past rather than
on the way in which it would be desirable for the law to develop in the future’).
31
See also AE Roberts ‘Traditional and Modern Approaches to Customary International
Law: A Reconciliation’ (2001) 95 American Journal of International Law 757, 762–63
(‘Reliance on state practice provides continuity with past actions and reliable predictions of
future actions. It results in practical and achievable customs that can actually regulate state
conduct’); Ch de Visscher, Theory and Reality in Public International Law (Princeton University
Press 1957), 155; Thirlway (n 29), 76; DJ Bederman, Custom As a Source of Law (CUP 2010)
162; B Simma and P Alston ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles’ (1988–1989) 12 Australian Yearbook of International Law 82, 88–89.
32
E Voyiakis, ‘Customary International Law and the Place of Normative Considerations’
(2010) 55 American Journal of Jurisprudence 163, 169. See also, for example, R Bernhardt,
‘Principles and Characteristics of Customary International Law’ (1987) 205 Recueil des cours
247, 265; CA Bradley and M Gulati, ‘Withdrawing from International Custom’ (2010) 120 Yale
Law Journal 202, 209.
33
Postema (n 28), 281.
34
RY Jennings, ‘The Identification of International Law’ in B Cheng (ed), International
Law: Teaching and Practice (Stevens and Sons 1982) 3, 4–6.
35
JL Goldsmith and EA Posner, ‘Notes Toward a Theory of Customary International Law’
(1998) 2 American Society of International Law Proceedings 53 (‘the standard definition of CIL
… raises perennial, and largely unanswered, questions’); AT Guzman and TL Meyer, ‘Custom-
ary International Law in the 21st Century’ in RA Miller and RM Bratspies (eds), Progress in
International Law (Martinus Nijhoff Publishers 2008) 197, 199 (‘Traditional critics of CIL have
pointed out that the definition of CIL is circular, that rules of CIL are vague and thus difficult to
7 / Date: 14/3
how it is that a new rule of customary international law can ever emerge if the relevant
practice must be accompanied by a conviction that such practice is already law.36
Another controversy surrounded the question whether practice may consist only of
physical acts, or whether pronouncements by States may also constitute practice;37 if
the latter were true, could ‘double counting’ by which such verbal acts count as both
practice and as opinio juris be permitted in proving that a rule of customary
international law exists? It has been contested, moreover, whether the subjective
element really stands for belief, or rather for consent (as voluntarists would suggest).
For many writers it seemed that ‘almost all important questions of customary
international law … revolve around one issue – the relationship between the objective
and subjective aspects of what is called state practice’.38 These controversies existed
alongside the ever-present difficulties of ascertaining the exact content of a given rule,
and of identifying the moment when a critical mass of State practice and opinio juris
had accumulated and a rule of customary international law thus came into being (which
meant that the transformation of custom into customary law could generally be judged
only after the event). Extensive scrutiny of the two elements has not provided clear
answers to other questions either, such as how many States must take part in a practice
to make it ‘general’, or for how long they must do so in order for a practice to ripen
into a rule of customary international law.
Other critics of the conventional two-element formula have stressed that customary
international law so constructed ‘is of too slow growth to keep pace with the changing
apply, and that we lack standards by which we can judge whether the two requirements for a rule
of CIL have been met’).
36
M Byers, Custom, Power, and the Power of Rules: International Relations and Custom-
ary International Law (CUP 1999), 130–31; AA D’Amato, The Concept of Custom in
International Law (Cornell University Press 1971), 53. Different solutions were offered by
scholars attempting to cure this circularity: see O Elias, ‘The Nature of the Subjective Element
in Customary International Law’ (1995) 44 International and Comparative Law Quarterly 501,
503–8; A Verdross, ‘Entstehungsweisen und Geltungsgrund des universellen völkerrechtlichen
Gewohnheitsrechts’ (1969) 29 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
635; J Tasioulas, ‘Opinio Juris and the Genesis of Custom: A Solution to the ‘Paradox’’ (2007)
26 Australian Yearbook of International Law 199; D Lefkowitz, ‘(Dis)solving the Chronological
Paradox in Customary International Law: A Hartian Approach’ (2008) 21 Canadian Journal of
Law and Jurisprudence 129.
37
For the former view see, for example, D’Amato (n 36), 88 (‘claims themselves, although
they may articulate a legal norm, cannot constitute the material component of custom’); K
Wolfke (n 13), 42 (‘customs arise from acts of conduct and not from promises of such acts’);
GJH van Hoof, Rethinking the Sources of International Law (Kluwer Law and Taxation
Publishers 1983), 108. For the latter view see, for example, Villiger (n 10), 19–20 (‘there is
much merit in qualifying verbal acts as State practice. First, and most important … States
themselves as well as courts regard comments at conferences as constitutive of State practice’);
C Parry, ‘The Practice of States’ (1958) 44 Transactions of the Grotius Society 145, 168 (‘very
often there is very little difference between what a State does and what it says because its actions
may consist only in pronouncements’); Akehurst (n 26), 53 (‘State practice means any act or
statement by a State from which views about customary law can be inferred’).
38
R Müllerson, ‘On the Nature and Scope of Customary International Law’ (1997) 2
Austrian Review of International and European Law 341.
8 / Date: 15/3
relations of the states which it endeavours to regulate’,39 as well as fundamentally

inefficient in doing so.40 It has further been claimed that the traditional approach
embodies a severe democratic deficit,41 and that its positivistic nature does not allow
customary international law to have due regard for normativity; even worse, the
approach might make customary international law incommensurable with basic human
rights.42 Finally, some writers have gone as far as to claim that the two-element
approach is a fiction.43
39
CG Fenwick, ‘The Sources of International Law’ (1918) 16 Michigan Law Review 393,
397. See also Ch de Visscher, ‘Reflections on the Present Prospects of International Adjudica-
tion’ (1956) 50 American Journal of International Law 467, 472; W Friedmann (ed), The
Changing Structure of International Law (Steven & Sons 1964), 121–4.
40
See eg WM Reisman, ‘The Cult of Custom in the Late 20th Century’ (1987) 17
California Western International Law Journal 133, 134 and 142–43; McGinnis (n 18), 11–12; S
Estreicher, ‘Rethinking the Binding Effect of Customary International Law’ (2003) 44 Virginia
Journal of International Law 5, 9, 11 and 14; E Kontorovich, ‘Inefficient Customs in
International Law’ (2006) 48 William and Mary Law Review 859, 921; V Fon and F Parisi,
‘International Customary Law and Articulation Theories: An Economic Analysis’ (2006) 2
International Law and Management Review 201, 202; G Palmer, ‘New Ways to Make
International Environmental Law’ (1992) 86 American Journal of International Law 259, 266.
41
Such arguments may relate to different aspects of the democratic process in different
contexts (for example, international versus national); see, for example, S Wheatley, The
Democratic Legitimacy of International Law (Hart Publishing 2010), 150:
Custom creates particular problems in terms of democratic legitimacy, as there is no
requirement that a particular state consents to the emergence of a new customary norm, or
that a majority of states participate in its formation, or that only democratic states participate,
or that the practices of states accord with the wills of their respective peoples … Moreover, as
customary norms are, by definition, not authoritatively written down, the task of identifying
and interpreting, and by implication ‘applying’, customary obligations often falls to non-state
actors, judges, academics, etc, with no requirement to take into account the attitude of the
state against whom the norms are opposed.
Schachter (n 26), 536 (‘As a historical fact, the great body of customary international law was
made by remarkably few States’); O Yasuaki, ‘Is the International Court of Justice an Emperor
Without Clothes?’ (2002) 81 International Legal Theory 1, 20; McGinnis (n 18), 8; WS Dodge,
‘Customary International Law and the Question of Legitimacy’ (2007) 120 Harvard Law Review
Forum 19, 26 (focusing on the US legal system but perhaps relevant elsewhere as well).
42
See eg J Klabbers, ‘The Curious Condition of Custom’ (2002) 8 International Legal
Theory 29, 34; A Pellet, ‘“Droits-de-l’hommisme” et droit international’ (2001) 1 Droits
fondamentaux 167, 171–72; J Wouters and C Ryngaert, ‘Impact on the Process of the Formation
of Customary International Law’ in MT Kamminga and M Scheinin (eds), The Impact of Human
Rights Law on General International Law (OUP 2009) 111, 129 and 130; H Charlesworth,
‘Law-Making and Sources’ in J Crawford and M Koskenniemi (eds), The Cambridge Compan-
ion to International Law (CUP 2012) 187, 192; M Koskenniemi, From Apology to Utopia: The
Structure of International Legal Argument (CUP 1989), 41.
43
See eg NCH Dunbar, ‘The Myth of Customary International Law’ (1978–1980) 8
Australian Yearbook of International Law 1, 8 and 18 (‘The myth is in assuming that universal
state practice ipso facto creates law. Law can only be created by legislation or by the judgment
of a court, or, in the case of international law, by a treaty’); Estreicher (n 40), 8 (saying that the
traditional account ‘is, of course, a legal fiction. Consent drawn from silence is a dubious form
9 / Date: 14/3
It is against this backdrop that other approaches to the formation of customary

international law, sometimes labelled by their proponents as ‘modern’, have sought to
reinterpret the constitutive elements of customary international law and, consequently,
to reframe it as a source of international law. Such departures from the standard
doctrine were for some writers an intellectual attempt to ‘supply the missing theory of
custom’,44 while for others they were a conscious effort ‘to align our conception of
customary law-making with the increased urgency of the substantive concerns that
international law needs to address’.45 In either case suggestions were made to replace
the two-element approach with a single-element theory, mostly by de-emphasizing one
of the two standard requirements or by dispensing with one of them altogether. Several
writers have called for a reduced role for opinio juris, arguing that in most cases
widespread and consistent State practice alone is sufficient for constructing customary
international law.46 Others, straying even further from the ordinary notion of custom,
have claimed the opposite – reducing the practice requirement to a minimum and
concentrating instead on the opinio juris element,47 as manifested predominantly in
of consent’); JP Kelly, ‘The Twilight of Customary International Law’ (2000) 40 Virginia

Journal of International Law 449, 460, 469 and 472:
The premise of CIL is that nations, despite lacking a consensus on values, can nevertheless
accept and thereby create binding legal norms without a formal process to determine
acceptance. This premise is doubtful … There is no methodology that will assure an accurate
measure of the normative attitudes of states. The means currently in use reduce opinio juris to
a mere fiction … Moreover, the entire enterprise of using state practice to construct norms is
suspect.
44
To borrow the words of D’Amato (n 26), 101.
45
E Voyiakis, A Theory of Customary International Law (2008) available at <http://
ssrn.com/abstract=895462>, 6. See also F Orrego Vicuña, ‘Customary International Law in a
Global Community: Tailor Made?’ (2005) 148 Estudios Internacionales 21, 38 (‘It was soon
discovered that if customary law could be taken to mean something different from what it had
traditionally meant, this was a much easier way to attain the desired goals’); Roberts (n 31), 766
(‘Modern custom evinces a desire to create general international laws that can bind all states on
important moral issues’).
46
See eg A D’Amato, ‘Customary International Law: A Reformulation’ (1998) 4 Inter-
national Legal Theory 1 (‘My work was considered radical by other scholars; with the passage
of time I have reluctantly concluded that it may not have been radical enough. Instead of trying
to work within the notion of opinio juris, I should have discarded it entirely’); L Kopelmanas,
‘Custom as a Means of the Creation of International Law’ (1937) 18 British Yearbook of
International Law 127, 129–30; H Kelsen, ‘Théorie du Droit International Coutumier’ (1939) 1
Revue internationale de théorie du droit 253, 263 (stating a position that he later abandoned,
according to which ‘[c]ette théorie selon laquelle les actes constituent la coutume doivent être
exécutes dans l’intention d’accomplir une obligation juridique ou d’exercer un droit […] est
évidemment fausse’); P Guggenheim, ‘Les deux éléments de la coutume en droit international’
in Ch Rousseau (ed), La Technique et les principes du droit public: Etudes en l’honneur de
Georges Scelle (LGDJ 1950) 275, 280; P Haggenmacher, ‘La doctrine des deux éléments du
droit coutumier international’ (1986) 90 Revue générale de droit internationale public 5, 124–25;
MH Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des cours
155, 250, 289.
47
See eg B Cheng, ‘Epilogue’ in B Cheng (ed) International Law: Teaching and Practice
(Stevens & Sons 1982) 223; AT Guzman, ‘Saving Customary International Law’ (2005) 27
10 / Date: 14/3
statements made in international fora.48 This latter approach, which gave rise to a call
for recognizing ‘instant custom’ and which stands at the core of so-called ‘modern
custom’, ultimately turns the ascertainment of ‘new customary international law’ into a
normative exercise rather than an empirical one. Employing a deductive methodology it
seeks to make customary international law a more rapid and flexible source of
international law, one that is able to fulfil a ‘utopian potential’ and ‘compensate for the
rigidity of treaty law’,49 particularly in such fields as international human rights,
humanitarian and environmental law.50 Indeed, ‘[a] focus on opinio juris is appealing to
those who want to expand the set of norms that are considered CIL. If one can ignore
or downplay the practice requirement, it is possible to argue for the inclusion of any
number of moral rights on the roster of CIL rules.51 Such ‘conceptual stretching’,52
celebrated as the ‘new vitality of custom’,53 has also been hailed as a means for
Michigan Journal of International Law 115, 153; BD Lepard, Customary International Law: A
New Theory with Practical Applications (CUP 2010).
48
See eg B Cheng, ‘United Nations Resolutions on Outer Space: ‘Instant’ International
Customary Law?’ (1965) 5 Indian Journal of International Law 23, 37; L Sohn, ‘“Generally
Accepted” International Rules’ (1986) 61 Washington Law Review 1073, 1074.
49
Words of H Charlesworth, ‘The Unbearable Lightness of Customary International Law’
(1998) 92 American Society of International Law Proceedings 44; see also MP Scharf,
Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments
(CUP 2013).
50
See eg D Hunter, J Salzman and D Zaelke, International Environmental Law and Policy
(2nd edn, Foundation Press 2002), 312–13; H Hohmann, Precautionary Legal Duties and
Principles of Modern International Environmental Law (Graham and Trotman 1994), 335; D
Bodansky, The Art and Craft of International Environmental Law (Harvard University Press
2010), 191–204; R Jennings, ‘Customary Law and General Principles of Law as Sources of
Space Law’ in KH Böckstiegel (ed), Environmental Aspects of Activities in Outer Space: State of
the Law and Measures of Protection (Carl Heymanns Verlag 1990) 149, 151.
51
AT Guzman, How International Law Works (OUP 2008), 186. See also Simma and
Alston (n 31), 83; T Meron, ‘International Law in the Age of Human Rights’ (2004) 301 Recueil
des cours 9, 377.
52
Baker (n 29), 31 (employing a term ‘coined by the social scientist Giovanni Sartori to
describe the distortions that result when established concepts are introduced to new cases
without the required accompanying adaption’). See also Kolb (n 14), 123 (referring to
‘increasing conceptual softness’); A Seibert-Fohr, ‘Modern Concepts of Customary International
Law as a Manifestation of a Value-Based International Order’ in A Zimmerman and R Hofmann
(eds), Unity and Diversity in International Law (Duncker & Humblat 2006) 257, 272 (‘The
relevance of customary international law ultimately depends on how strict the standards for the
assumption of customary international law are applied’); L Henkin, International Law: Politics
and Values (Martinus Nijhoff Publishers 1995), 37:
The purposive creation of custom is a radical innovation, and indeed reflects a radical
conception. Whereas law was made by treaty but grew by custom, now there is some
tendency to treat custom as a means, alternative to treaty-making, for deliberate legislation.
Using the concept of custom for that purpose brings with it the traditional definition, but now
practice sometimes means activity designed to create the norm rather than to reflect it.
53
A term mentioned in A Cassese, ‘General Round-Up’ in Cassese and Weiler (eds) (n 15),
165; see also Müllerson (n 38), 359.
11 / Date: 14/3
opening the process of customary law creation to non-State actors, namely, inter-
national organizations and their agencies (perhaps even non-governmental organ-
izations),54 as well as individuals.55
The attempts ‘to revise or “up-date” custom’56 have met fierce criticisms of their
own, chief amongst them the claim that ‘modern custom’ is, in fact, not customary
international law at all.57 Adherents of the two-element approach have referred to
international legal scholars who wish to undermine it as ‘political activists’ who ‘fudge
the law to further goals which are not expressed as positive international law’,58 and
have further stressed that promoting a ‘new species’ of customary international law
impairs the authoritative force and persuasiveness of custom as a source of law,59 as
well as that of international law in its entirety.60 Some have added that the
54
See eg I Gunning, ‘Modernizing Customary International Law: The Challenge of Human
Rights’ (1991) 31 Virginia Journal of International Law 211, 212–13; H Meijers, ‘On
International Customary Law in the Netherlands’ in IF Dekker and HHG Post (eds), On the
Foundations and Sources of International Law (TMC Asser Press 2003) 77, 80 and 125; N
Arajärvi, ‘From State-Centrism to Where?: The Formation of (Customary) International Law and
Non-State Actors’ (2010) available at <http://ssrn.com/abstract=1599679>, 23.
55
See eg LC Chen, An Introduction to Contemporary International Law: A Policy-Oriented
Perspective (2nd edn, Yale University Press 2000), 342 and 346; C Ochoa, ‘The Individual and
Customary International Law Formation’ (2007) 48 Virginia Journal of International Law 119,
164; Bederman (n 31), 162–63.
56
As referred to by Simma and Alston (n 31), 83.
57
See eg P Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 American
Journal of International Law 413, 435 (‘This is no mere acceleration of the custom-formation
process, but a veritable revolution in the theory of custom’); K Wolfke, ‘Some Persistent
Controversies Regarding Customary International Law’ (1993) 24 Netherlands Yearbook of
International Law 1, 2 (‘At the outset … In particular, it should be stressed that international
custom, like any custom, is based on a regularity of conduct. Customary international law not
based on ‘custom’ (consuetudo) in the traditional and literal meaning of this word, would simply
be a misnomer’); R Jennings, ‘What is International Law and How Do We Tell it When We See
It’ The Cambridge Tilburg Lectures (Kluwer 1983), 11; G Abi-Saab discussing ‘Custom and
Treaties’ in Cassese and Weiler (eds) (n 15), 10; Kolb (n 14), 123; M Koskenniemi,
‘Introduction’ in M Koskenniemi (ed), Sources of International Law (Ashgate Dartmouth 2000),
xxi; JI Charney, ‘Universal International Law’ (1993) 87 American Journal of International Law
529, 543 and 546; B Cheng, ‘Custom: The Future of General State Practice in a Divided World’
in RSJ Macdonald and DM Johnson (eds), The Structure and Process of International Law:
Essays in Legal Philosophy, Doctrine and Theory (Martinus Nijhoff Publisher 1983) 513, 548.
58
J Kammerhofer, ‘Orthodox Generalists and Political Activists in International Legal
Scholarship’ in M Happold (ed), International Law in a Multipolar World (Routledge 2012) 138,
152 and 157.
59
See eg Estreicher (n 40), 15; D’Amato (n 26), 101–5; Jennings (n 34), 6.
60
See eg HE Chodosh, ‘Neither Treaty nor Custom: The Emergence of Declarative
International Law’ (1991) 26 Texas International Law Journal 87, 99; van Hoof (n 37), 107;
Weil (n 57), 441.
12 / Date: 14/3
non-traditional approaches are themselves analytically unstable,61 and that they stand
for a ‘dubious operation’62 that can also be said to suffer from a significant democratic
deficit.63
While some authors have portrayed the ‘traditional’ and ‘non-traditional’ approaches
to customary international law as ‘a set of paired opposites’,64 others have sought to
synthesize and reconcile them in an attempt to produce a common conception or an
overall theory of custom formation.65 However attractive such attempts may be, the
ongoing doctrinal disputes have injected uncertainty into customary international law
and prompted several authors to proclaim it a ‘troubled concept’,66 an essentially
contested one suffering from an ‘identity crisis’.67 But such concerns hardly arise in
practice, to which we now turn.
3. THE ESSENTIAL ELEMENTS IN PRACTICE

The heated theoretical debates on how customary international law comes into being
have not found much resonance among legal practitioners, who for the most part
continue to adhere to the traditional understanding of State practice and opinio juris as
the touchstones of customary international law. On those occasions when they explain
themselves, courts and governments consistently apply the two-element approach in
ascertaining whether a rule of customary international law has emerged, and attest
61
See eg GJ Postema (n 28), 281–82.
62
Simma and Alston (n 31), 107.
63
See eg S Estreicher (n 40), 7 (describing ‘modern’ customary international law as an
attempt by ‘“highly qualified publicists of the various nations” … and other international law
activists to expand the reach of customary law so as to help advance the particular political,
ideological, or humanitarian aims of the writer’); F Orrego Vicuña (n 45), 37 (arguing that
‘modern’ customary international law is ‘[a] new authoritarianism through the non rule of law’);
Bederman (n 31), 145; JL Goldsmith and EA Posner, ‘Understanding the Resemblance Between
Modern and Traditional Customary International Law’ (2000) 40 Virginia Journal of Inter-
64
T Stein ‘Custo and Treaties’ in Cassese and Weller (eds) (n 15), 12. See also
Koskenniemi (n 42), 388; JA Beckett, ‘The End of Customary International Law?: A Purposive
Analysis of Structural Indeterminacy’ (PhD thesis, University of Glasgow, 2008), 238–58; Baker
(n 29), 10.
65
See eg Roberts (n 31), 767; A Orakhelashvili, The Interpretation of Acts and Rules in
Public International Law (OUP 2008), 100; L Condorelli, ‘Customary International Law: The
Yesterday, Today, and Tomorrow of General International Law’ in A Cassese (ed), Realizing
Utopia: The Future of International Law (OUP 2012) 147, 148; J Tasioulas, ‘Customary
International Law and the Quest for Global Justice’ in Perreau-Saussine and Murphy (eds),
(n 28) 307, 320; Goldsmith and Posner (n 63), 672; WT Worster, ‘The Inductive and Deductive
Methods in Customary International Law Analysis: Traditional and Modern Approaches’ (2014)
45 Georgetown Journal of International Law 445; Seibert-Fohr (n 52), 272–77.
66
Postema (n 28), 279.
67
Simma and Alston (n 31), 88. See also J Kammerhofer, ‘Uncertainty in the Formal
Sources of International Law: Customary International Law and Some of Its Problems’ (2004)
15 European Journal of International Law 523, 551.
13 / Date: 14/3
through such practice that ‘in the real world of diplomacy the matter may be less
problematic than in the groves of Academe’.68
It is not always easy to discern how States view the creation of customary
international law, mostly because they rarely address the matter expressly. They may do
so, for example, when pleading before courts and tribunals, both international and
domestic; and while statements made on such occasions are tied to a particular
adversarial position, they at least indicate that the wording of article 38(1)(b) (and the
International Court’s approach thereto) appear well understood by States. In such
proceedings States regularly adopt the two-element approach, arguing both on State
practice and opinio juris when attempting to establish that a rule of customary
international law does or does not exist. A recent example may be found in the
Jurisdictional Immunities of the State (Germany v Italy) case before the ICJ: Germany
argued that ‘No general practice, supported by opinio juris, exists as to any enlarge-
ment of the derogation from the principle of state immunity in respect of violations of
humanitarian law committed by military forces during an armed conflict’, and Italy,
which was not relying on customary international law, suggested in its Counter-
Memorial that ‘[t]he question at issue in the present case is not whether there is a
widespread and consistent practice, supported by the opinio juris, pointing to the
existence of an international customary rule permitting in general terms the denial of
immunity in cases involving gross violations of international humanitarian law or
human rights law’.69 In other instances as well, just as States have not argued for the
existence of a rule of customary international law based on the presence of either
practice or opinio juris alone, they have not attempted to question the existence of an
68
‘London Statement of Principles Applicable to the Formation of General Customary
International Law, with commentary’ Resolution 16/2000 (Formation of General Customary
International Law) in International Law Association Report of the Sixty-Ninth Conference
(London 2000) (International Law Association, London 2000), 30 (the quoted words refer, in
their original context, to the theoretical controversies surrounding the subjective element of
customary international law in particular). See also HW Briggs, ‘The Colombian-Peruvian
Asylum Case and Proof of Customary International Law’ (1951) 45 American Journal of
International Law 728, 729:
Theoretical difficulties involved in the determination of these elements [required for the
establishment of a rule of customary international law] or of the methods and procedures by
which customary rules of international law are created or evolve from non-obligatory practice
often receive more attention than the fact that in a given case courts have relatively little
difficulty in determining whether or not an applicable rule of customary international law
exists.
69
Memorial of the Federal Republic of Germany (12 June 2009), para 55; Counter-
Memorial of Italy (22 December 2009), para 4.108. For another recent example, see Questions
relating to the Obligation to Prosecute or Extradite Case (Belgium v Senegal), in particular
Questions put to the Parties by Members of the Court at the close of the public hearing held on
16 March 2012: compilation of the oral and written replies and the written comments on those
replies, 20-48, especially 24–25 (Belgium) ‘Question put to Belgium – Senegal being invited to
comment – by Judge Greenwood at the end of the public sitting of 16 March 2012’ available at
<http://www.icj-cij.org/docket/files/144/17202.pdf>; in the event the Court did not address this
question because it found it did not have jurisdiction to do so (but see the separate opinion of
Judge Abraham).
14 / Date: 8/2
alleged rule of customary international law arguing that the two-element approach is
theoretically flawed.
States may also make their views known through international treaties that they
conclude. Uruguay and Rwanda, for example, have each made their position known in
bilateral investment treaties that they concluded with the United States, where the
parties confirmed ‘their shared understanding’ that customary international law ‘gener-
ally … results from a general and consistent practice of States that they follow from a
sense of legal obligation’.70 Indications of the approach of States to the formation of
customary international law may also be found in governmental reactions to codifica-
tion efforts, in which customary rules are set down in writing.71 One such occasion was
in connection with the Customary International Humanitarian Law study undertaken
under the auspices of the International Committee of the Red Cross.72 The United
States stated that ‘[t]here is general agreement that customary international law
develops from a general and consistent practice of States followed by them out of a
sense of legal obligation, or opinio juris’, and stressed that evidence for the existence of
such law ‘must in all events relate to State practice’.73 The United Kingdom, for its
part, said that for the formation of customary international law ‘[w]hat is required is a
“general practice accepted as law by States”’.74 A similar position was adopted by
Member States of the European Union in the European Union Guidelines on promoting
compliance with international humanitarian law, which define customary international
law as a source of international law that ‘is formed by the practice of States, which they
accept as binding upon them’.75 That both elements are essential for the emergence of
a rule of customary international law was acknowledged, moreover, by many other
70
Annex A to the Treaty between the United States of America and the Oriental Republic
of Uruguay Concerning the Encouragement and Reciprocal Protection of Investment (adopted 4
November 2005, entered into force 1 November 2006) available at http://www.state.gov/e/eb/ifd/
bit/117402.htm; and Annex A to the Treaty between the Government of the United States of
America and the Government of the Republic of Rwanda Concerning the Encouragement and
Reciprocal Protection of Investment (adopted 19 February 2008, entered into force 1 January
2012) available at <http://www.state.gov/e/eb/ifd/bit/117402.htm>.
71
Such efforts are generally undertaken in order to solve ‘some of the practical problems
with customary law by clearly delineating the steps that mark the creation of a legal obligation’
(and its exact content): T Meyer, ‘Codifying Custom’ (2012) 160 University of Pennsylvania
Law Review 995, 1003–04 (offering other explanations for codification as well).
72
JM Henckaerts, ‘Study on Customary International Humanitarian Law: A Contribution to
the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87 International
Review of the Red Cross 175, 177.
73
JB Bellinger and WJ Haynes, ‘A US government response to the International Committee
of the Red Cross study’ Customary International Humanitarian Law (2007) 89 International
Review of the Red Cross 443, 444. A similar position was adopted in the Restatement (Third) of
Foreign Relations Law of the United States, §102(2) (1987).
74
Legal Adviser to the Foreign and Commonwealth Office, ‘Statement at the Meeting of
National Committees on International Humanitarian Law of Commonwealth States, Nairobi 20
July 2005’ (2005) 76 British Yearbook of International Law 694–95.
75
Updated European Union Guidelines on promoting compliance with international human-
itarian law [2009] OJ C 303, section 7.
15 / Date: 14/3
States in their interventions in the United Nations Sixth Committee debates between
2012 and 2015 on the reports of the International Law Commission.76
The approach of domestic courts to the emergence of rules of customary inter-
national law may also be seen as forming part of the practice of States in this regard,
though it needs to be borne in mind that each operates within the particular context of
its own domestic (constitutional) position. The Supreme Court of Singapore, for
example, held in Yong Vui Kong v Public Prosecutor (2010) that ‘extensive and
virtually uniform practice by all States … together with opinio juris, is what is needed
for the rule in question to become a rule of CIL’.77 In Poland, the Supreme Court stated
in Winicjusz v Federal Republic of Germany (2010) that the content of customary
international law was to be determined according to article 38(1)(b) of the Statute of
the ICJ, and that this required establishing two conditions: ‘(1) the widespread
repetition by states of similar international acts over time (state practice) and (2) with a
sense of legal obligation (opinio juris)’.78 The New Zealand Court of Appeal observed
in 2004 that ‘customary international law, the (unwritten) rules of international law
binding on all States … arise when States follow certain practices generally and
consistently out of a sense of legal obligation’,79 and the Special Supreme Court of
Greece likewise stated in Federal Republic of Germany v. Margellos and Others (2002)
that ‘[i]n determining the existence of such rules [i.e. generally accepted rules of
international law] it is necessary to establish the existence of generalized practice in the
international community acknowledging the acceptance that the rule has been formu-
lated as a binding legal rule’. The Greek Court referred in this context to article 38(1)
of the Statute of the ICJ.80
The ICJ, as the principal judicial organ of the United Nations that ‘relies on
customary international law constantly and as a matter of course’,81 does indeed
provide authoritative guidance on ‘the recognized methods by which new rules of
customary international law may be formed’.82 The Court has frequently applied article
38(1)(b) in the cases before it, and in doing so has clearly and consistently held (as did
its predecessor, the Permanent Court of International Justice) that customary inter-
national law is formed through State practice accompanied by opinio juris. The classic
76
The statements by the various States during these debates may be found on the
Committee’s PaperSmart Portal available at <http://www.un.org/en/ga/sixth/>.
77
Yong Vui Kong v Public Prosecutor 3 SLR 489 [2010] SGCA 20 (Supreme Court of
Singapore – Court of Appeal, 14 May 2010), paras 96–98.
78
Winicjusz N. v Republika Federalna Niemiec – Federalny UrzTd Kanclerski w Berlinie,
Supreme Court of Poland (Civil Chamber) Case No CSK 465/09, 29 October 2010; see also
(2010) 30 Polish Yearbook of International Law 299.
79
Attorney General v Zaouvi, CA20/04, Judgment (30 September 2004), para 34.
80
Federal Republic of Germany v Margellos and Others, Judgment Special Supreme Court
of Greece No 6/2002, 17 September 2002 (2007) 129 ILR 525, 528, para 9 (the term
‘international community’ does not accurately translate the original text; the proper translation
should be ‘international legal order’).
81
Lauterpacht (n 1), 392.
82
North Sea Continental Shelf Case (Federal Republic of Germany v Netherlands)
(Judgment) [1969] ICJ Rep 3, 41.
16 / Date: 8/2
statement of the Court is to be found in the North Sea Continental Shelf cases (1969),
where it said that:
Although the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked; and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved.
… The essential point in this connection – and it seems necessary to stress it – is that even if
these instances of action by non-parties to the Convention were much more numerous than
they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the
opinio juris; – for in order to achieve this result, two conditions must be fulfilled. Not only
must the acts concerned amount to a settled practice [une pratique constante, in the French
text], but they must also be such or be carried out in such a way as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it. The
need for such a belief i.e. the existence of a subjective element, is implicit in the very notion
of the opinio juris sive necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation. The frequency, or even habitual character
of the acts is not in itself enough. There are many international acts, e.g. in the field of
ceremonial and protocol, which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and not by any legal sense of
duty.83
The Court reaffirmed this in Military and Paramilitary Activities in and against
Nicaragua (1986), where it said that in order to consider what rules of customary
international law were applicable it ‘has to direct its attention to the practice and opinio
juris of States’, and that:
as was observed in the North Sea Continental Shelf cases, for a new customary rule to be
formed, not only must the acts concerned ‘amount to a settled practice’ but they must be
accompanied by the opinio juris sive necessitatis. Either the States taking such action or other
States in a position to react to it, must have behaved so that their conduct is ‘evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it.
The need for such a belief, i.e. the existence of a subjective element, is implicit in the very
notion of opinio juris sive necessitates’.84
The most recent extended pronouncement of the Court is in Germany v Italy (2012),
where it was said:
It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute,
the existence of “international custom, as evidence of a general practice accepted as law” …
To do so, it must apply the criteria which it has repeatedly laid down for identifying a rule of
customary international law. In particular, as the Court made clear in the North Sea
Continental Shelf cases, the existence of a rule of customary international law requires that
83
ibid, 43–44.
84
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America) (Merits) [1986], ICJ Rep 14, 97 para 183, 108–09, para 207.
17 / Date: 16/3
there be “a settled practice” together with opinio juris … Moreover, as the Court has also
observed,
”It is of course axiomatic that the material of customary international law is to be looked for
primarily in the actual practice and opinio juris of States, even though multilateral
conventions may have an important role to play in recording and defining rules deriving from
custom, or indeed in developing them” (Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, ICJ Reports 1985, pp. 29–30, para. 27).85
These judgments and others seem to exclude any single-element approach to the
formation of customary international law. Just as the Court stressed that a general
practice alone does not suffice for the emergence of a rule of customary international
law, it has been clear that opinio juris cannot by itself give rise to such law. The
indispensable role of practice was acknowledged, for example, in the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) judgment (1982), where the Court referred to ‘the
actual practice of States’ as ‘expressive, or creative, of customary rules’.86 In the
Nicaragua case (1986) it explicitly said that ‘[b]ound as it is by Article 38 of its Statute
to apply, inter alia, international custom “as evidence of a general practice accepted as
law”, the Court may not disregard the essential role played by general practice’.87
Again in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
(1996), the Court noted the existence of customary rules that ‘have been developed by
the practice of States’.88
Performing ‘its perfectly normal function of assessing the various elements of State
practice and legal opinion adduced … as indicating the development of a rule of
customary law’,89 the Court has indeed clarified the basic requirements for the
formation of customary international law. Some of its decisions in this field have been
trail blazing. As a judicial rather than academic institution, however, it has not engaged
too much in theory, and a former judge has explained that:
[s]till less than any other custom, international custom does not lend itself to the establish-
ment of [firm and general] criteria [permitting the conclusion with certainty and, in some
respects, a priori, of the existence of a customary rule]. The selection of the factual elements
which, viewed as a whole, lead in a given case to the admission of the existence of a
customary rule is subject to extremely variable considerations; it hardly permits efforts
toward systemization.90
85
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (Judgment)
[2012] ICJ Rep 98, 122–23, para 55.
86
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep 46,
para 43.
87
See North Sea Continental Shelf Case (n 82), 97–98, para 181; the Court added that it
‘must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by
practice’.
88
226, 256, para 75. For a different reading of the Court’s jurisprudence, see Haggenmacher
(n 46).
89
Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253, Joint Dissenting
Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock 367.
90
De Visscher (n 39), 472–73.
18 / Date: 14/3
This has led several observers to submit that the Court has thus far provided only
limited guidance on how a rule of customary international law actually emerges (and is
to be ascertained), ultimately ‘painting with a fairly broad and liberal brush’91 and
having ‘a marked tendency to assert the existence of a customary rule more than to
prove it’.92 Some have gone so far as to argue that the Court has often paid only lip
service to the conventional definition of customary international law (being driven
instead by normative considerations when deciding whether or not a rule of customary
international law exists),93 or that it was the Court, ‘in a set of novel, even
revolutionary’ opinions in the late 1960s and early 1970s, which set up the doctrinal
basis for ‘a re-think of the traditional sources of customary international law: state
practice and opinio juris’.94 Responding to such voices the then President of the
International Court, Judge Tomka, stated that:
… authors are correct in drawing attention to the prevalent use of general statements of rules
in the Court’s modern practice, although they take the point too far by insisting on theorizing
this development. In fact, the Court has never abandoned its view, firmly rooted in the
91
I MacGibbon, ‘Means for the Identification of International Law: General Assembly
Resolutions: Custom, Practice and Mistaken Identity’ in B Cheng (ed) International Law:
Teaching and Practice (Stevens 1982) 10, 21.
92
A Pellet, ‘Shaping the Future of International Law: The Role of the World Court in Law
Making’ in MH Arsanjani ao (eds), Looking to the Future: Essays on International Law in
Honor of W. Michael Reisman (Martinus Nijhoff Publishers 2011) 1065, 1076 (referring to ‘a
mysterious and empirical alchemy which leads the Court to ‘discover’ a rule before applying it
in a concrete case’). See also, for example, K Skubiszewski, ‘Elements of Custom and the
Hague Court’ (1971) 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 810,
853; RH Geiger, ‘Customary International Law in the Jurisprudence of the International Court of
Justice: A Critical Appraisal’ in U Fastenrath ao (eds), From Bilateralism to Community Interest:
Essays in Honour of Judge Bruno Simma (OUP 2011) 673, 692; WW Bishop, ‘General Course
of Public International Law’ (1965) 115 Recueil des cours 147, 220; GL Scott and CL Carr, ‘The
International Court of Justice and the Treaty/Custom Dichotomy’ (1981) 16 Texas International
Law Journal 347, 353; T Meron, The Making of International Criminal Justice: A View from the
Bench: Selected Speeches (OUP 2011), 30; J Ferrer Lloret, ‘The unbearable lightness of
customary international law in the jurisprudence of the International Court of Justice: the
Jurisdictional Immunities of the State case’ available at Revista Electronica de Estudios
Internationales (www.reei.org); M Hagemann, ‘Die Gewohnheit als Völkerrechtsquelle in der
Rechtssprechung des internationalen Gerichtshofes’ (1953) 10 Annuaire Suisse de Droit Inter-
national 61; S Talmon, ‘Determining Customary International Law: The ICJ’s Methodology
between Induction, Deduction and Assertion’ (2015) 26 European Journal of International Law
417 (on which see the EJIL: Talk! Debate in November–December 2015, available at
<http://www.ejiltalk.org>).
93
See eg E Benvenisti, ‘Customary International Law as a Judicial Tool for Promoting
Efficiency’ in E Benvenisti and M Hirsch (eds), The Impact of International Law on Inter-
national Cooperation: Theoretical Perspectives (CUP 2004) 85; FL Kirgis Jr, ‘Custom on a
Sliding Scale’ (1987) 81 American Journal of International Law 146; Orrego Vicuña (n 45),
25–26; Geiger (n 92) 673, 674; Müllerson (n 38), 353.
94
RB Baker, ‘Customary International Law in the 21st Century: Old Challenges and New
Debates’ (2010) 21 European Journal of International Law 173, 178–79. See also Chodosh (n
60), 88 (suggesting that it is the ‘“loose” application of the traditional definition that led to (a
new, modern definition [emerging] in the literature’).
19 / Date: 14/3
wording of the Statute, that customary international law is ‘general practice accepted as law’
– that is, in the words of a recent case, that ‘the existence of a rule of customary international
law requires that there be a “settled practice” together with opinio juris’.95
Other international courts and tribunals, from the International Tribunal for the Law of
the Sea to the dispute settlement organs of the World Trade Organization, have
generally followed the International Court’s lead.96 The ad hoc international criminal
tribunals, for the former Yugoslavia (ICTY) and for Rwanda (ICTR), have thus each
held that the formation of a rule of customary international law requires State practice
and opinio juris, and that identifying such a rule generally requires an inquiry into
these two elements.97 In Prosecutor v. Hadžihasanović, for example, the Appeals
Chamber of the ICTY noted that ‘to hold that a principle was part of customary
international law, it has to be satisfied that State practice recognized the principle on
the basis of supporting opinio juris’.98 The ICTR Appeals Chamber likewise said, in
Rwamakuba v Prosecutor, that ‘[n]orms of customary international law are character-
ized by the two familiar components of state practice and opinio juris’.99
Internationalized criminal courts, such as the Extraordinary Chambers in the Courts
of Cambodia, have similarly relied on the notion of customary international law as set
95
P Tomka, ‘Custom and the International Court of Justice’ (2013) 12 The Law and
Practice of International Courts and Tribunals 195, 197–98 (reference omitted). President
Tomka further explained that:
However, in practice, the Court has never found it necessary to undertake such an inquiry for
every rule claimed to be customary in a particular case and instead has made use of the best
and most expedient evidence available to determine whether a customary rule of this sort
exists. Sometimes this entails a direct review of the material elements of custom on their own,
while more often it will be sufficient to look to the considered views expressed by States and
bodies like the International Law Commission as to whether a rule of customary law exists
and what its content is, or at least to use rules that are clearly formulated in a written
expression as a focal point to frame and guide an inquiry into the material elements of
custom.
96
See, for example, cases referred to in the ‘First report on formation and evidence of
customary international law’ (n 12), section IX(A).
97
See ‘First report on formation and evidence of customary international law’ (n 12), paras
68–72. At the same time, Chambers of the Tribunals have on occasion shown a willingness to
recognize that a rule of customary international law has emerged even where the two elements
(in particular State practice) were not firmly established, leading several observers to argue that
the Tribunals’ jurisprudence often marks a shift ‘away from a practice-oriented sort of custom to
a more specifically humanitarian interpretation of the customary process’, G Mettraux, Inter-
national Crimes and the Ad Hoc Tribunals (OUP 2006), 18. Others, however, insist that ‘[t]he
argument that the jurisprudence of the international criminal tribunals has created a new form of
custom, rendering state practice and opinio juris as no longer indispensable to the formation of
custom, is quite wrong’, G Boas, Public International Law: Contemporary Principles and
Perspectives (Edward Elgar Publishing 2012), 90.
98
Prosecutor v Hadžihasanović (Decision on Interlocutory Appeal Challenging Jurisdiction
in Relation to Command Responsibility) ICTY-01-47-AR72 (16 July 2003), para 12.
99
Rwamakuba v Prosecutor (Decision on Interlocutory Appeal Regarding Application of
Joint Criminal Enterprise to the Crime of Genocide) ICTR-98-44-AR72.4 (22 October 2004),
para 14.
20 / Date: 14/3
out by the International Court to conclude, in the words of the Special Court for Sierra
Leone in Prosecutor v. Norman, that ‘[t]he formation of custom requires both state
practice and a sense of pre-existing obligation (opinio iuris)’.100 The Special Tribunal
for Lebanon, for its part, made it clear that ascertaining that a rule of customary
international law has evolved is to be done by ‘demonstrating the requisite practice and
opinio juris seu necessitatis’; it further held that ‘to establish beyond any shadow of
doubt whether a customary rule of international law has crystallised’ one must in
particular ‘look to the behaviour of States’.101
Regional courts, which have also not infrequently determined the existence or
otherwise of rules of customary international law (usually in the context of interpreting
and applying their own specific treaties), have also generally followed the International
Court’s approach. One example may be found in the 2009 Inter-American Court of
Human Rights’ Advisory Opinion regarding the interpretation of article 55 of the
American Convention on Human Rights, where the Court observed first the definition
of international custom in article 38(1)(b) of the Statute of the ICJ. It then went on to
cite several cases of the International Court and public international law scholarship to
conclude that:
[i]n this regard, the case law of the International Court of Justice, as well as the international
doctrine, have indicated that this source of law consists of two formative elements. The first,
objective in character, is the existence of a general practice created by the States, and
performed constantly and uniformly (usus or diuturnitas). The second element, of a
subjective character, refers to the States’ conviction that said practice constitutes a legal norm
(opinio juris sive necessitatis).102
Another example, from the European Court of Human Rights, is the Decision on
Admissibility in Van Anraat v The Netherlands (2010) where the Court, after referring
extensively to the North Sea Continental Shelf and Nicaragua cases, stated that the
formation of customary international law requires ‘settled State practice; and that there
be evidence of a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it (opinio iuris sive necessitatis).’103
Adherence to the two-element approach is found in the practice of other relevant
actors as well. One example may be found in the report of the United Nations
100
Prosecutor v Norman, SCSL-04-14-AR72(E) (31 May 2004), 13 para 17. The Court
added the borrowed words that ‘[a]n articulated sense of obligation, without implementing
usage, is nothing more than rhetoric. Conversely, state practice, without opinio iuris, is just
habit’ (citing to ET Swaine, ‘Rational Custom’ (2002) 52 Duke Law Journal 559, 567–8). For a
similar pronouncement by the Extraordinary Chambers in the Courts of Cambodia see Criminal
Case No 002/19-09-2007-EEEC/OICJ (PTC38), Decision on the Appeals Against the
Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), 20 May 2010, para 53. See
also the ‘First report on formation and evidence of customary international law’ (n 12), paras
74–75.
101
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpe-
tration, Cumulative Charging (Appeals Chamber) STL-11-01/I (16 February 2011), paras 104,
87.
102
Advisory Opinion OC-20/09 (29 September 2009), 54–55 para 48.
103
Application No 65389/09, Decision on Admissibility, 6 July 2010, paras 35–36, 87–92.
21 / Date: 14/3
Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, which

stated, in a section entitled ‘The Applicable International Legal Principles’, that
‘Custom has the force of law and is binding on States where it reflects the general
practice of States, and the recognition by States that this general practice has become
law (known as the opinio juris requirement)’.104 A similar approach was taken by the
Human Rights Council Working Group on Arbitrary Detention, whose 2012 report
referred to ‘a near universal State practice’ accompanied by opinio juris as evidence of
the ‘customary nature of the arbitrary deprivation of liberty prohibition’.105 A 2007
Advisory Opinion by the Office of the United Nations High Commissioner for
Refugees (UNHCR) on the scope of non-refoulement obligations has likewise accepted
that ‘[f]or a rule to become part of customary international law, two elements are
required: consistent State practice and opinio juris’.106
One actor whose practice may be of particular significance is the International Law
Commission (ILC), a subsidiary organ of the United Nations General Assembly
entrusted with promoting ‘the progressive development of international law and its
codification’.107 While the Commission has often been cautious about distinguishing
between codification and progressive development, much of its work has been
concerned with the identification of customary international law in order to achieve ‘the
more precise formulation and systematization of rules of international law in fields
where there already has been extensive State practice, precedent and doctrine’.108 In
doing so it has consistently treated customary international law as arising out of ‘a
general practice accepted as law’, and when ascertaining the existence and content of
rules of customary international law it ‘has frequently engaged in a survey of all
available evidence of the general practice of States, as well as their attitudes or
positions’.109
4. BRINGING PRACTICE AND THEORY A LITTLE CLOSER? THE

INTERNATIONAL LAW COMMISSION’S TOPIC
‘IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW’
Mindful of the need to secure a common understanding of the process of identifying
customary international law among all those who are called upon to apply it – not least
given the considerable differences of approach amongst writers, in 2012 the ILC placed
104
Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident,
appendix I (September 2011), 76 para 3 (references omitted).
105
Human Rights Council, ‘Report of the Working Group on Arbitrary Detention’ (2012)
(UN Doc A/HRC/22/44), 17–18 para 43.
106
UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement
Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’
(2007), para 14.
107
Statute of the International Law Commission (1947), art 1.
108
ibid, art 15.
109
Memorandum by the UN Secretariat: ‘Formation and evidence of customary international
law: Elements in the previous work of the International Law Commission that could be
particularly relevant to the topic’, UN Doc A/CN.4/659, 7.
22 / Date: 14/3
a topic entitled ‘Formation and evidence of customary international law’ on its current
programme of work, and appointed a Special Rapporteur.110 It was hoped that the
Commission would be well placed to make a contribution to such an understanding in
light of its relationship with States (through the General Assembly), as well as its
composition and working methods. The Commission has long dealt with items
concerning the sources of international law, and it was not for the first time that, in
2012, it took up a topic concerning customary international law. An earlier foray into
this field was mandated by article 24 of its Statute (‘Ways and means of making the
evidence of customary international law more readily available’), leading the Commis-
sion in 1950 to call on States to make evidence of their practice more accessible.111 In
deciding to include the current topic on its programme of work the Commission was
well aware of the difficulties inherent in an attempt to ‘codify the relatively flexible
process by which rules of customary international law are formed’.112 But it was also
aware of the need for authoritative guidance on how to identify rules of customary
international law in concrete cases, especially at a time when ‘questions of customary
international law increasingly fall to be dealt with by those who may not be
international law specialists, such as those working in the domestic courts of many
countries, those in government ministries other than Ministries for Foreign Affairs, and
those working for non-governmental organizations’.113 While recognizing the import-
ance of the theoretical underpinnings of the subject, members of the Commission
agreed that the outcome should be of an essentially practical nature, not seeking to
resolve largely theoretical controversies. In the words of the Chinese member:
According to views expressed by states at last year’s Sixth Committee of the UN General
Assembly when this topic was examined, the importance of the topic lies with providing
unified and clear guiding principles to international law practitioners, for them to identify and
apply customary international law in their practice.114
110
UN Doc A/CN.4/SR.3132 (22 May 2012), 16. The topic was included in the Commis-
sion’s long-term programme of work the previous year on the basis of a syllabus annexed to the
Commission’s 2011 report (Report of the International Law Commission on the work of its
sixty-fourth session (A/66/10), para 157 and annex A).
111
(1950-II) Yearbook of the International Law Commission, 367–74 (Report of the ILC for
1950, document A/1316, paras 24–94, especially paras 90–94); see also the memorandum by the
Secretariat (A/CN.4/6 and Corr.1), and the working paper by MO Hudson (A/CN.4/16 and
Add.1), in which he suggested, inter alia, that:
the emergence of a principle or rule of customary international law would seem to require
presence of the following elements: (a) concordant practice by a number of States with
reference to a type of situation falling within the domain of international relations; (b)
continuation or repetition of the practice over a considerable period of time; (c) conception
that the practice is required by, or consistent with, prevailing international law; and (d)
general acquiescence in the practice by other States.
112
Report of the Study Group on the Future Work of the International Law Commission,
para 104, in MR Anderson ao (eds), The International Law Commission and the Future of
International Law (British Institute of International and Comparative Law 1998), 42.
113
Annex A to the Commission’s 2011 report, A/66/10, para 3.
114
Provisional summary record of the 3185th meeting of the Commission (A/CN.4/
SR.3185).
23 / Date: 14/3
The Jordanian member was of the view that ‘… even if the Commission merely
describes the current state of the law, through adopting a set of conclusions, such
conclusions will definitely advance the rule of law and a clear understanding of what is
part of customary international law and what is not.’115
In the initial discussions about the scope of the new topic, the question was raised in
the Commission and in the Sixth Committee whether the title of the topic, with
references both to ‘formation’ and ‘evidence’, accurately described the envisaged
subject matter. It was suggested that the central issue was the identification of
customary international law, and that the reference to ‘formation’ risked making the
subject too broad or too theoretical (and the term ‘evidence’ was seen as somewhat
ambiguous as well, in particular when translated into the other official UN languages).
Stressing that the current topic is concerned with systemic rules, that is with the means
of identifying whether a rule of customary international law has emerged or not, the
Special Rapporteur explained that while in principle there no doubt is a distinction
between the formation and the identification of rules of customary international law, in
practice the identification of a rule of customary international law inevitably involves
an understanding of the ordinary process of the formation of customary international
law and the development of the rule over time. In order to determine whether a rule of
customary international law exists, it is necessary to consider both the requirements for
the formation of the rule and the types of evidence that establish the fulfilment of those
requirements. It was nevertheless agreed to change the title of the topic to ‘Identifi-
cation of customary international law’.
The Special Rapporteur’s First Report on the topic, discussed by the Commission in
2013, was introductory in nature. It suggested, in particular, that the rules for
identifying the sources of public international law ‘can be found for present purposes
by examining in particular how States and courts set about the task of identifying the
law’. Setting out, with examples, the wide range of materials that the Commission
might need to take into account in the course of its work on the topic, the report
suggested that the two-element approach was widely accepted in practice. This
approach was widely supported among members of the Commission, who come from
the principal legal systems of the world and ‘have very varied backgrounds, often as
holders of eminent positions of academic authority, or as former diplomats or
international officials with practical experience of international law’.116 Virtually all
speakers during the Commission’s debate expressly endorsed the two-element approach
(as did the representatives of States in the Sixth Committee117), recognizing that
determining the existence of the rule of customary international law requires an
assessment of both State practice and opinio juris.
115
Provisional summary record of the 3183rd meeting of the Commission (A/CN.4/
SR.3183). Mr Hmoud went on to say that ‘the complexities associated with the vagueness in
determining the law undermine legal stability and certainty’; he also emphasized that conclu-
sions in this topic would lead to ‘the avoidance of dispute and assist in reaching legal certainty
that otherwise may only be reached through judicial pronouncements’.
116
Watts (n 30), para 12.
117
See n 76.
24 / Date: 14/3
Building on the debates in 2013, the Special Rapporteur’s Second Report proposed
11 draft conclusions based on the two-element approach, and a more detailed
consideration of each element (as well as the relationship between them).118 After
thorough debate,119 the Commission referred the draft conclusions in 2014 to the
Drafting Committee, where several draft conclusions were provisionally adopted.120
The Special Rapporteur’s Third Report proposed several additional draft conclusions,121
which were referred to the Drafting Committee in 2015. The Drafting Committee then
proposed a set of 16 draft conclusions,122 and it is expected that the Commission will
next adopt commentaries to accompany the draft conclusions, which could be adopted
on first reading in 2016, with a second reading perhaps two years later.
Draft conclusion 2 is at the heart of the draft. As provisionally adopted by the
Drafting Committee in 2015, it reads: ‘To determine the existence and content of a rule
of customary international law, it is necessary to ascertain whether there is a general
practice that is accepted as law (opinio juris).’
5. CONCLUSION
‘As with everything that cannot be seen or grasped’, wrote one scholar, ‘customary law
remains something of a smiling sphinx in the realm of legal theory’.123 This certainly
holds true for customary international law, where the question of how it emerges has
puzzled international lawyers for generations. At the same time, while the theory of
customary international law may well be ‘one of the big mysteries of international legal
scholarship’,124 the reality of practice remains relatively straightforward. The theoret-
ical torment which accompanies such law in the books rarely impedes it in action,
where a settled methodology for ascertaining the existence of a rule of customary
international law is clearly apparent. This view is, of course, also a theory, but a theory
that has at its heart the actual practice of courts and tribunals, of foreign ministries, of
international organizations, and not just the teachings of even the most highly qualified
publicists.125 As the above survey confirms, such actors and others have repeatedly
118
UN Doc A/CN.4/672: ‘Second report on the identification of customary international
law’.
119
See summary records A/CN.4/SR.3222, 3223, 3224, 3225, 3226, 3227 (11, 15, 16, 17, 18
July 2014); A/68/10: ‘Report of the International Law Commission on its Sixty-fifth session’ (5
May–6 June and 7 July–8 August 2014), Chapter X.
120
Available at <http://legal.un.org/ilc/sessions/66/DC_ChairmanStatement%28Identification
ofCustom%29.pdf>.
121
UN Doc A/CN.4/682: ‘Third report on identification of customary international law’.
122
UN Doc A/CN.4/L.869.
123
Kolb (n 14), 119.
124
N Petersen, ‘Book review: BD Lepard, Customary International Law: A New Theory
with Practical Implications (CUP 2010)’ (2010) 21 European Journal of International Law 795.
125
Whose ‘lucubrations may be persuasive, but not authoritative’, Fuller CJ in The Paquete
Habana (175 US 677, 720).
25 / Date: 8/2
made clear that the emergence of customary international law requires ‘a general
practice’ that is ‘accepted as law’.126 To them customary international law is not a
‘meaningless concept that furnishes neither a coherent nor objective means of deter-
mining the norms of international law, how and when they come into existence, and
which nations are bound’.127 Rather, it results from a specific process of development,
even if the details of the process may indeed be fluid owing to the dynamic and
indeterminate character that customary law inherently possesses. Despite an observable
move in some legal scholarship towards a different approach to the formation of
customary international law, in practice the two-element approach prevails, with the
familiar concepts of a ‘general practice’ and ‘accepted as law’ continuing to serve as
the constituent elements of customary international law.
The conventional definition enshrined in article 38(1)(b) of the ICJ Statute may
indeed be ‘easy to state but not easy to interpret and apply, and […] continues to raise
difficult questions, some ‘operational’, some conceptual-jurisprudential’.128 Employing
it in identifying whether a rule of customary international law has formed is not
infrequently ‘a difficult task’,129 particularly in terms of collecting, selecting and
interpreting the vast amount of evidence that may be relevant to such an exercise in
order to find ‘what is the right mix of what States do and say, and of what States want
(or consent to) and what they believe’.130 But the two-element approach has also
enabled the formation and identification of rules of international law that have for the
most part won wide acceptance, while allowing customary international law to retain its
characteristic flexibility. It has proven to be both useful and stable, and it remains
authoritative through the ICJ Statute, which is binding at present on 193 States. Other
theories on how a rule of customary international law emerges are, essentially, policy
approaches; as such they may be instructive, but they remain policy, not law.
Customary international law is thus not – and must not be – an ‘I know it when I see
it’ category of law, subjective and lacking defined parameters. Securing a shared
understanding among those who are called upon to apply it is an important objective
that would contribute to the predictability and legitimacy of this significant body of
law, and of international law more broadly.131 Owing to custom’s inherent qualities it
may be true that to some extent ‘[t]the scholar and the lawyer can analyse the
126
See also SD Murphy, Principles of International Law (2nd edn, West 2012), 92–93; E
Denters and T Gazzini, ‘Multi-Sourced Equivalent Norms from the Standpoint of Governments’
in T Broude and Y Shany (eds), Multi-Sourced Equivalent Norms in International Law (Hart
Publishing 2011), 70; Wolfke (n 57), 3.
127
Kelly (n 43), 452–53.
128
Henkin (n 52), 29.
129
JL Kunz, ‘The Nature of Customary International Law’ (1953) 47 American Journal of
130
Treves (n 21), para 12.
131
On the need for clarity about the sources of international law more generally see M
Wood, ‘What is Public International Law? The Need for Clarity about Sources’ (2011) 1 Asian
26 / Date: 14/3
problems, but cannot make them disappear’,132 and academic disputes are bound to
continue. But that is not to be regretted; those engaged in the practice of law may
benefit much from theoretical debate and vice versa.
132
Bernhardt (n 32), 268. For the argument that a disconnect between the theory and
practice relating to customary international law has been around for centuries see Kadens and
Young (n 23), 911; Klabbers has suggested that ‘we are bound to quibble about sources doctrine,
and thus about customary law, precisely because we quibble about the point in law … As a
consequence, debates on what exactly constitutes custom are bound to be perennial, and
unsolvable: there simply may be too much at stake’, Klabbers (n 42), 36–37.
27 / Date: 14/3
8. Relying on general principles in international law

Beatrice I. Bonafé and Paolo Palchetti *
1. INTRODUCTION: GENERAL PRINCIPLES AS A SOURCE OF

INTERNATIONAL LAW
International practice – particularly judicial practice – offers many illustrations of the
well-established place of general principles among the sources of international law. A
number of statutes establishing international tribunals refer to general principles as part
of the law to be applied by these tribunals in the discharge of their functions. In this
respect, article 38 (1)(c) of the Statute of the International Court of Justice (hereinafter
‘ICJ’) and article 21 (1)(b) and (c) of the Statute of the International Criminal Court are
only the most well-known examples.1 In many cases, international judges have resorted
to this method of lawmaking in the absence of any reference to it in the rules governing
their activity – a clear indicator of the autonomy of general principles as a source of
international law.2 Finally, while a complete study on the use of general principles in
inter-state practice is still lacking,3 there are instances of practice – particularly
judgments of domestic courts – where reference has been made to this source of
international law.4
* This study is the result of long discussions and a joint work between the two authors.
However, Beatrice I Bonafé is the author of sections 2 and 4, and Paolo Palchetti wrote sections
1, 3, 5 and 6.
1
Article 38(1)(c) of the Statute of the International Court of Justice (ICJ) (as annexed to the
Charter of the United Nations (26 June 1945) 1 UNTS xvi) refers to ‘the general principles of
law recognized by civilized nations’. Article 21(1)(b) of the Statute of the International Criminal
Court (adopted 17 July 1998; entered into force 1 July 2002; 2187 UNTS 3) provides that the
International Criminal Court must apply ‘principles and rules of international law’, while in
point (c) reference is made to ‘general principles of law derived by the Court from national laws
of legal systems of the world including, as appropriate, the national laws of States that would
normally exercise jurisdiction over the crime’.
2
One may mention, for instance, the practice of arbitral tribunals dealing with investment
disputes. On this practice, P Weil, ‘Principes généraux du droit et contrats d’Etat’ in P Fouchard
ao (eds), Le droit des relations économiques internationales. Etudes offertes à Berthold
Goldman (Litec 1982) 387.
3
In his foreword to Cheng’s book (General Principles of Law as Applied by International
Courts and Tribunals (Stevens 1953), later reprinted (CUP 2006)), G Schwarzenberger observed
that a work on the use of general principles at the international level ‘could, and should be,
undertaken in the field of State practice, as yet so largely unexplored’ (at xii). After 60 years, the
field remains to a great extent unexplored.
4
See eg De Guglielmi v Germany, Torino Court of Appeal, Judgment of 19 May 2010
ILDC 1784 (IT-2010).
160
1 / Date: 14/3
Relying on general principles in international law 161
While international practice amply testifies to the use of general principles as a

source of international law, in the doctrinal debate they have been the object over time
of widely divergent views as to their nature and role.5 True, part of the debate over
general principles has been conducted at a high level of abstraction, without paying
attention to their actual use in international practice. Hence, in many cases the
existence of divergent views, rather than revealing a real uncertainty surrounding their
application by international actors, can be traced back to differences in the theoretical
approaches.6 Moreover, some of the more extreme views which emerged in the
doctrinal debate have lost ground. Nowadays there appears to be a substantial
agreement over the fact that general principles, like treaties and custom, constitute an
autonomous source of international law.7 Most authors also agree over the meaning of
such a notion and the processes by which general principles can be identified. As we
will show, it is now generally accepted that this notion covers both general principles
which are recognized by states in their domestic legal orders and principles of
international law, which can be identified by a process of deduction from other existing
rules, the only controversial issue being perhaps whether the definition set forth in
article 38(1)(c) of the ICJ Statute refers to both kinds of principles or, as suggested by
some authors, only to the principles existing in foro domestico.8
It is not the purpose of this contribution to describe and discuss in any detail the
longstanding debate on general principles. However, since the terms ‘general prin-
ciples’ continue to be used in a variety of meanings, it seems important to delimit the
scope of application of this notion by indicating those elements which, in our view,
constitute the essential features of this source of law. To do so, it is inevitable that we
come back to two points which have long been at the centre of the doctrinal debate,
namely the question of the consensual or non-consensual nature of this source of law,
and the question of the autonomy of general principles from other sources of law, and
in particular from custom. Section 2 will investigate the question of whether it would
be correct to regard general principles as a source of legal rules which, unlike treaties
and customs, do not find their basis of legitimacy in state consent but are rather
standards of natural law or principles of legal logic which derogate from the principle
of state consent. Section 3 will address the second issue by attempting to clarify what
are the elements which permit to distinguish general principles from other sources.
5
For an extensive survey of the doctrinal debate on general principles, see B Vitany, ‘Les
positions doctrinales concernant le sens de la notion de “principes généraux de droit reconnus
par les nations civilisées”’ (1982) 28 Revue générale de droit international public 48.
6
For more references, see section 2.
7
See, however, J Verhoeven, Droit international public (Larcier 2000), 349–51, who
appears to call into question the existence of a difference between general principles and
customary rules.
8
For the view that art 38(1)(c) only refers to principles in foro domestico, see A Pellet,
‘Article 38’ in A Zimmermann ao (eds), The Statute of the International Court of Justice (OUP
2012) 835; H Thirlway, ‘The Law and Procedure of the International Court of Justice,
1960–1989: Part Two’ (1990) 61 British Yearbook of International Law 114. For a broader view
as to the scope of application of this provision see A Verdross and B Simma, Universelles
Völkerrecht (3rd edn, Duncker & Humblot 1984), para 606; G Gaja, ‘General Principles of Law’
in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2012), para 19.
2 / Date: 14/3
After having fixed some of the distinctive characteristics of this method of lawmaking,
in the subsequent sections we will move on to an examination of their actual and
potential use by states and international courts and tribunals. A final, preliminary
remark is in order. The approach we adopt in this chapter is a traditional positivist
conception of international sources and in particular of general principles. Accordingly,
our analysis focuses on the elements that will allow us to identity general principles as
well as on the actors that actually play a role in the determination of general principles
as norms of the international legal order.
2. THE IDENTIFICATION OF GENERAL PRINCIPLES: A SOURCE

ULTIMATELY BASED ON CONSENT
As already noted, the question of the determination of general principles has been one
of the most debated questions concerning the sources of international law.9 This is
primarily because the question is deeply influenced by the theoretical conception that
scholars have of the international legal order and its system of sources. Inevitably,
natural law10 and positivist approaches11 to international law entail profoundly diver-
gent views on the precise nature and the legal foundation of general principles.
However, the limited purpose of this section is to focus on the process that leads to the
construction of general principles in international practice and to determine whether its
legal foundation is to be traced back to natural law standards or positivist arguments.
International practice shows that general principles can be identified mainly in two
ways. On the one hand, they can be inferred through a process of deduction from
existing international rules, that is, customary or conventional rules. This means that
existing international law is the starting point for obtaining general principles that can
subsequently be applied to other situations that do not fall under the original purview of
the relevant rules. For example, in the Norwegian Fisheries case, despite the different
international rules that have been used to effect the application of the low-mark rule,
the ICJ was able to deduce the principle that in any case the belt of territorial waters
must follow the general direction of the coast.12
On the other hand, recourse can be made to a process of identification of general
principles through a comparative analysis of the different municipal laws of states. In
other words, the municipal legal order is used as a ‘reserve’ of legal rules that, under
certain conditions, can be applied to international relations. Where the vast majority of
municipal orders embody a certain legal principle and this principle is suitable for
9
See in general Vitany (n 5) or R Kolb, La bonne foi en droit international public (PUF
2000), 25–60.
10
See R Kolb, ‘Principles as Sources of International Law (with Special Reference to Good
Faith)’ (2006) 53 Netherlands International Law Review 7, and Kolb (n 9), 73 fn 414;
R Dworkin, Law’s Empire (Fontana Press 1986), 244, 380, 401–07.
11
See D Anzilotti, Cours de droit international, (LGDJ 1999), 119; A Pellet, Recherche sur
les principes généraux de droit en droit international (PhD thesis Paris II 1974); Thirlway (n 8),
114–16; C Tomuschat, ‘Obligations Arising for States Without or Against Their Will’ (1993) 241
Recueil des cours de l’Académie de droit international 195, 314.
12
Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116, 129.
3 / Date: 14/3
regulating international relations, it may be applied by international courts and

tribunals. A plurality of cases dealing with procedural principles can substantiate this
conclusion, such as the principle of res judicata.13
This distinction largely corresponds to the most common classification of general
principles into a) international law principles and b) principles in foro domestico (or
general principles of law recognized by civilised nations),14 or to the distinction that
francophone scholars would make between a) ‘principes du droit international’ and b)
‘principes de droit international’.15
In both cases, the process has been described as a process of abstraction based on
precise and existing legal rules (either international rules or domestic rules).16 And in
both cases the result of such a process must be generally accepted by states. In the
Corfu Channel case the ICJ did not extend the application of the 1907 Hague
Convention VIII to peacetime, but it used humanitarian law and other international
rules as a proof of the generalized consensus surrounding the three general principles
of international law which entailed an obligation to notify the existence of a
minefield.17 Similarly, a principle can be derived from municipal rules because its
general recognition under municipal law justifies the assumption that states would have
subscribed to its application in international relations.
With respect to both kinds of general principles, it appears that – just as customary or
treaty law – they are ultimately based on the general acceptance of states. However,
what makes the difference with other sources of international law is the way in which
such a general recognition is assessed. It is not established by having recourse to
explicit state consent or generalized state practice. A more remote proof that states
would have subscribed to the application of general principles in international relations
would suffice. In particular, the general acceptance by states can be proved, on the one
hand, by having recourse to existing international rules, on the other, to a generalized
existence of the principle in domestic legal orders. In this respect, it must be noted that,
while the general attitude of states plays an important role in the formation of general
13
See the multiplicity of cases examined by H Lauterpacht, Private Law Sources and
Analogies of International Law (Longmans 1927), 215ff.
14
The wording of art 38(1)(c) of the ICJ Statute has been harshly criticized. The provision
seems to discriminate between civilized and uncivilized nations and to direct the interpreter only
to the legal orders of civilized nations when identifying general principles (see in particular
North Sea Continental Shelf cases (Germany/Denmark; Germany/Netherlands) (Judgment)
[1969] ICJ Rep 4, Separate Opinion of Judge Ammoun, 132ff). Today, this wording is generally
considered to be ‘devoid of any particular meaning’ (Pellet (n 8), para 261.
15
See eg P Dailler, M Forteau and A Pellet, Droit international public (8th edn, LGDJ
2009), 380ff; H Ascensio, ‘Principes généraux du droit’ in P Lagarde ao (eds), Répertoire
Dalloz. Droit international (Dalloz 2004) 1; B Simma and P Alston, ‘The Sources of Human
Rights Law: Custom, Jus Cogens, and General Principles’ (1988–1989) 12 Australian Yearbook
of International Law 82, 102; Weil (n 2), 401; Vitany (n 5), 113. For more detailed
classifications see O Schachter, ‘International Law in Theory and Practice’ (1982) 178 Recueil
des cours 9, 75 and W Friedmann, ‘The Uses of “General Principles” in the Development of
International Law’ (1963) 57 American Journal of International Law 287.
16
C De Visscher, Théories et réalités en droit international public (Pedone 1970), 419,
describes it as a double process of abstraction and generalization.
17
Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 22.
4 / Date: 14/3
principles, states are generally not aware of the fact that their conduct is contributing to
the development of general principles. This explains why it is possible to ground
general principles on a ‘consensualist’ conception of international law,18 provided that
in this framework the term ‘consensualist’ is not used to refer to consent by every state.
This finds support in judicial practice and the fact that international courts and tribunals
are reluctant to deduce general principles from ‘reason’, ‘justice’ or other non-legal
sources.19 Accordingly, it is difficult to infer from international practice that the legal
foundation of general principles is to be identified with standards of natural law.
As regards general principles deduced from municipal legal orders, a further issue
must be briefly addressed. The described process of construction of general principles
excludes mere transfer of a principle from municipal to international law.20 General
principles are a source of international law even when their generalized acceptance is
proved by having recourse to municipal legal orders, because their ability to be applied
at the international level must be tested and cannot be taken for granted.21 Indeed, it is
commonly recognized that a certain caution should surround the application of general
principles based on municipal law.22 For example, the principle of legality was said to
be applicable under international law provided that certain features of this legal order
are taken into account, such as ‘the nature of international law; the absence of
international legislative policies and standards; the ad hoc processes of technical
drafting; and the basic assumption that international criminal law norms will be
embodied into the national criminal law of the various States’.23
When compared in particular to the construction of customary rules, it is undeniable
that the described process of deducting general principles entails a broader discretion of
the interpreter, that is most of the time an international court or tribunal. While both
general principles and customary law are based on state acceptance, the deduction of
principles from other legal rules ensures a greater latitude in the reasoning of the
interpreter.24 It has been noted that, if both are based on general acceptance, the notions
18
See in particular H Charlesworth, ‘Law-making and Sources’ in J Crawford and M
Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 187, 196. For
references to the role of consent in the identification of general principles see also Friedmann
(n 15), 284; Vitany (n 5), 113; Simma and Alston (n 15), 105; Schachter (n 15); Cheng (n 3), 24;
Pellet (n 8), paras 273–274; P d’Argent, ‘Les principes généraux à la Cour internationale de
Justice’ in S Besson and P Pichonnaz (eds), Les principes en droit européen (LGDJ 2011) 109.
19
South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Second Phase
(Judgment) [1966] ICJ Rep, para 49.
20
De Visscher (n 16), 419.
21
See in this regard the diverging positions of Lauterpacht (n 13), 299ff, and AP Sereni,
Principi generali di diritto e processo internazionale (Giuffré 1955), 93.
22
Prosecutor v Blaskic (Judgment on the Request of the Republic of Croatia for Review of
the Decision of Trial Chamber II of 18 July 1997) ICTY-95-14 (29 October 1997), para 40;
Prosecutor v Furundzjia (Judgment) ICTY-95-17/1 (10 December 1998), para 177; Prosecutor v
Erdemovic (Judgment) ICTY-96-22 (7 October 1997), Dissenting Opinion of Judge Cassese,
para 3.
23
Judgment, Prosecutor v Delalic, IT-96-21, TC, 16 November 1998, para 405.
24
FO Raimondo, General Principles of Law in the Decisions of International Criminal
Courts and Tribunals (Martinus Nijhoff 2008), 53–4; Prosecutor v Tadic (Judgment, Appeals
Chamber) ICTY-94-1-A (15 July 1999), para 225.
5 / Date: 8/2
of customary law and general principles simply overlap.25 As will be discussed below,
the ‘relevant practice’ for deducing general principles is either existing international
rules or municipal practice concerning purely internal relations (not state practice
concerning international relations) and their application is normally required in the
absence of customary rules.26 In any case, such discretion is more limited than it might
appear at first sight. As pointed out by De Visscher, international courts are likely to
apply only ‘principes qui, par l’universalité de leur reconnaissance, ne pourraient prêter
au grief de subjectivité’.27
Finally, the described process of construction of general principles confirms the
distinction between decisions based on general principles and decisions based on
equity. In the former case, the interpreter does not carry out a purely subjective
evaluation, but its discretion is limited by the need to conform to precise legal
constraints which are the expression, in the last resort, of a general recognition by
states that such principles are suited to be applied to international relations.28
3. GENERAL PRINCIPLES AS AN AUTONOMOUS SOURCE OF

GENERAL RULES
With respect to both international custom and general principles the process leading to
their construction is the result of a complex assessment of a variety of elements. One
common element of the utmost importance is constituted by the requirement that a
custom or principle be generally recognized by states – or, as article 38 of the ICJ
Statute puts it with regard to general principles, that it is ‘recognized by civilized
nations’. Unlike treaties, customs and general principles are in principle sources of
general law. One may wonder whether a principle, which is not universally accepted,
may nonetheless be regarded as binding in the relations between a limited number of
states. As is well known, the ICJ has accepted the possibility that customs only apply to
a specific group of states and even that customs apply in the relations between only two
states.29 The case law of the ICJ does not provide analogous examples admitting the
25
J Verhoeven, ‘Considérations sur ce qui est commun’ (2008) 334 Recueil des cours 15,
116 (‘Nul ne conteste aujourd’hui qu’ils [les principes généraux de droit reconnus par les nations
civilisées] reposent sur la convergence de règles de droit interne dont la substance, débarrassée
de l’enrobage national qui les encombre, a vocation à régir les rapports internationaux dans la
mesure où elle reflète une pratique spécifiquement juridique largement répandue … ce qui
rapproche à certains égards les principes généraux de la coutume’).
26
See section 3.
27
De Visscher (n 16), 420.
28
This difference no longer makes sense if equity is considered to be a ‘legal rule proper’,
and in particular a general principle of international law. See H Lauterpacht (n 13), 65–7, 286.
For a more nuanced position, according to which general principles of law can be a more
reliable basis for an ‘objective’ equity, see M Akehurst, ‘Equity and General Principles of Law’
(1976) 25 International and Comparative Law Quarterly 801, 813ff.
29
On regional customs, see the Asylum Case (Colombia/Peru) (Judgment) [1950] ICJ Rep
266 and the Rights of Nationals of the United States of America in Morocco Case (France v
United States of America) (Judgment) [1952] ICJ Rep 172; as to bilateral custom, see the Right
6 / Date: 8/2
possibility to refer to ‘regional’ or ‘bilateral’ principles. However, there is little doubt

that, like customs, general principles may also be a source of rules which only apply in
the relations between a certain number of states.30 A potential function of these
‘non-universal’ principles is to fill gaps in treaties establishing international organ-
izations. An example in this regard is provided by the use of general principles in the
legal order of the European Union. It is all too well known that the European Court of
Justice has resorted to this source of law in order, among others things, to introduce a
legal basis for the protection of human rights within the EU.31 For the purposes of
identifying the applicable principles, the European Court has normally confined itself
to examining the domestic laws of the member states. Similarly, one may refer to the
possibility that an international tribunal, which is competent to settle disputes concern-
ing the application of a certain treaty, would make use of principles which are common
only to the states parties to that treaty for the purposes of interpreting its provisions.32
Since in the case of regional or local customs the ICJ has subjected the opposability
of such customs to the acceptance of it by the state concerned, it may be asked whether
a similar requirement also applies in the case of principles which are common to a
restricted group of states. Here again, it is difficult to see the reasons why, in this
regard, principles should be treated differently from customs. This view appears to find
confirmation in the case law of the European Court of Justice, even if it must be
admitted that on this issue the European Court has taken a very pragmatic approach:
while in principle it acknowledges that it can apply a principle only if it is common to
all member states, the European Court only rarely undertakes a complete survey of the
domestic laws of each and every EU member.33
While the existence of certain common features between customs and general
principles is easy to detect, it is more difficult to determine where the difference
between these sources of law lies. A variety of views have been presented on this issue.
When assessing their autonomy from international customs, some authors draw a
distinction between general principles generally recognized in the domestic legal orders
of states and general principles recognized internationally, arguing that, while the first
category of principles is to be regarded, by virtue of the particular process of
of Passage over Indian Territory Case (Portugal v India) (Judgment) [1960] ICJ Rep 6 and the
Dispute regarding Navigational and Related Rights Case (Costa Rica v Nicaragua) (Judgment)
[2009] ICJ Rep 213.
30
This view is shared, among others, by L Gradoni, ‘L’exploitation des principes généraux
de droit dans la jurisprudence des tribunaux pénaux internationaux’ in E Fronza and S
Manacorda (eds), La justice pénale internationale dans les décisions des Tribunaux ad hoc
(Dalloz 2003) 10, 22 and by Kolb (n 9), 50.
31
For an early account of the case law of the European Court of Justice concerning the use
of general principles, see M Akehurst, ‘The Application of General Principles of Law by the
Court of Justice of the European Communities’ (1981) 52 British Yearbook of International Law
29. See also A Arnull, The General Principles of EEC Law and the Individual (Leicester
University Press 1990).
32
Akehurst went so far as to suggest that an international tribunal could apply general
principles of law which are common to the disputing parties. See Akehurst, ‘Equity and General
Principles of Law’ (n 28), 825.
33
See G Gaja and A Adinolfi, Introduzione al diritto dell’Unione europea (Laterza 2010),
166.
7 / Date: 8/2
lawmaking characterizing it, as a source of law distinct from custom, the other category
can substantially be assimilated to the source set forth in article 38(1)(b) of the ICJ
Statute.34 Other authors go beyond such a view, by denying any specificity even to
general principles in foro domestico. According to this view, such principles are to be
regarded as custom, their only peculiarity being represented by the fact that the practice
supporting their existence is constituted by the acceptance of the principles by states in
their own legal systems.35
However, these views, which substantially end up in denying, partially or entirely,
the autonomy of general principles, appear to rely either on a too broad notion of
custom or in a too broad notion of what constitutes state practice for the purposes of
identifying an international custom. According to the traditional concept of custom,
which is reflected in the definition of this source set forth in article 38(1)(b) of the ICJ
Statute, practice has a constitutive role to play in the creation of customary law. As the
ICJ has repeatedly made clear, ‘the existence of a rule of customary international law
requires that there be “a settled practice” together with opinio juris’36 and state practice
must be ‘both extensive and virtually uniform in the sense of the provisions invoked’.37
Moreover, when considering what does constitute state practice for the purposes of
establishing an international custom, it seems necessary to bear in mind that, as has
been aptly said, an element of interaction – claims and tolerances as to what sovereign
states can do to each other – ‘is intrinsic to, and essential to, the kind of state practice
leading to the formation of customary international law’.38 Thus, while, in the presence
of such interaction, domestic law may certainly be regarded as a form of state practice,
the fact that certain principles are applied domestically for the purposes of regulating
relations between actors within the domestic legal order of the state can hardly be
regarded as a manifestation of state practice which is relevant for the establishment of
a customary rule.
If one accepts that international custom is a process of lawmaking which is based on
state practice, then the difference between international custom and general principles
can be readily appreciated. The requirement of uniform practice does not apply to
general principles – be they principles of international law or principles in foro
domestico.39 While the process which leads to the emergence of these two kinds of
principles differs in certain respects, they have in common the fact of flowing from a
process of lawmaking which is not based on practice. When, in 1920, the drafters of the
Permanent Court of International Justice’s Statute included general principles among
the sources of international law that could be relied upon for the settlement of disputes,
the main role attributed to general principles was to fill the gaps where there would be
34
See, among others, H Waldock, ‘General Course on Public International Law’ (1962) 106
Recueil des cours 1, 57; H Mosler, ‘General Principles of Law’ in Encyclopedia of Public
International Law vol II (North Holland 1995) 513; A Pellet (n 8), 835.
35
See B Conforti, Diritto internazionale (8th edn, Editoriale scientifica 2010), 46; L Henkin,
‘International Law: Politics, Values and Functions’ (1989) 216 Recueil des cours 9, 61–62.
36
Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment)
[2012] ICJ Rep 99, para 55.
37
North Sea Continental Shelf (Federal Republic of Germany/Netherlands) (n 14), 43.
38
Simma and Alston (n 15), 99. See also Pellet (n 8), 852.
39
Tomuschat (n 11), 321.
8 / Date: 8/2
no treaty or customary rule.40 Leaving here aside the question of whether, in their
relations with customary and treaty rules, general principles are necessarily to be
regarded as having a subsidiary character,41 the point to be stressed is that general
principles were clearly conceived of as a process of lawmaking which was alternative
to recourse to custom in that it was not based on practice.
It may be objected that the role of practice in the establishment of customary law
should not be overstated since in many cases international tribunals fail to carry out
in-depth examinations of state practice in order to justify their findings as to the
existence of a customary rule. The case law of the ICJ offers a pertinent example of this
attitude.42 However, this fact in itself is not sufficient to call into question the different
process of lawmaking which characterizes customs and general principles. It may be
right that, when the ICJ asserts the existence of a general rule without taking care to
demonstrate what are the constitutive elements justifying its assertion, it may some-
times be difficult to establish whether it is resorting to a rule having a customary
character or to a general principle. In this respect, the use of the term ‘principle’ can
hardly be regarded as decisive.43 But apart from the problems of classification, which
may sometimes arise and which, in this case, are devoid of any practical implications,
the distinctive features of these two sources of law remain intact.
4. THE ROLE OF INTERNATIONAL COURTS AND TRIBUNALS

IN THE DEVELOPMENT OF GENERAL PRINCIPLES
It must be apparent from the foregoing discussion that international courts and tribunals
have played and still play a leading role in the determination and application of general
principles. Two main aspects will be discussed here. The contribution of different
international judges to the development of general principles of international law will
be addressed first. Afterwards an attempt will be made to suggest the reasons why
general principles have been applied with varying success in different fields of
international law.
No doubt, international arbitral tribunals have made great use of general principles in
the past.44 Today, it must be acknowledged that the use of general principles by arbitral
tribunals is in decline, although they play an important role in the field of investment
40
Kolb (n 10), 30.
41
Different views have been expressed on the subsidiary character of general principles. For
the view that general principles are ‘overshadowed by treaties and custom’, see Akehurst (n 28),
817; for the opposite view that ‘principles do not necessarily have a subsidiary character’, Gaja
(n 8), 5.
42
See PM Dupuy, ‘Le juge et la règle générale’ (1989) 93 Revue générale de droit
international public 569; G Gaja, ‘Sul ruolo della Corte internazionale di giustizia
nell’accertamento del diritto internazionale generale’ in F Salerno (ed), Il ruolo del giudice
internazionale nell’evoluzione del diritto internazionale e comunitario (CEDAM 1995), 233ff.
43
See d’Argent (n 18), 110.
44
See Lauterpacht (n 13); Cheng (n 3); Kolb (n 9). For the use of general principles by the
Iran-US Claims Tribunal see G Hanessian, ‘“General Principles of Law” in the Iran-U.S. Claims
Tribunal’ (1988–89) 27 Columbia Journal of Transnational Law 309.
9 / Date: 14/3
law.45 In any case, practice offers a variety of different situations concerning the
application of general principles. Most of the time, arbitral tribunals are silent on the
‘origin’ of the general principle on which they rely. Awards where general principles
are explicitly derived from municipal law are relatively rare.46 Sometimes the general
principle, which is discussed, is said to belong to international law,47 or to be common
to municipal and international law.48 In other cases arbitral tribunals refused to apply
general principles.49
On the other hand, the ICJ, and previously the Permanent Court, have adopted, in a
sense, a more consistent approach: they have been reluctant to rely on general
principles.50 Indeed, references to general principles can be found only in a very
limited number of cases.
Four explicit references to article 38(c) of the Statute have been found in the case
law of the Court, which systematically denied the application of the ‘general principles
of law recognized by civilized nations’ invoked by the parties.51 The Court has not a
priori excluded the possibility of relying on principles in foro domestico. In the South
West Africa cases, the Court held that:
although a right of this kind [actio popularis] may be known to certain municipal systems of
law, it is not known to international law as it stands at present: nor is the Court able to regard
it as imported by the “general principles of law” referred to in article 38, paragraph 1 (c), of
its Statute.52
45
See T Gazzini, ‘General Principles of Law in the Field of Foreign Investment’ (2009) 10
Journal of World Investment and Trade 103.
46
See eg Affaire du Queen (Sweden v Norway) in A Lapradelle and N Politis (eds), Recueil
des arbitrages internationaux vol II (Pedone 1923), 708 (‘[D]ans l’examen de cette question, on
doit suivre, comme règle générale de solution, le principe de jurisprudence, consacré par la
législation de tous les pays, qu’il appartient au réclamant de faire la preuve de sa prétention’);
PCA, Russian Indemnity case (1912), para 5: ‘All the private legislation of the States forming
the European concert admits, as did formerly the Roman law, the obligation to pay at least
interest for delayed payments as legal indemnity’ available at <www.pca-cpa.org>. See more
recently the arbitration award in the Case concerning the Loan Agreement between Italy and
Costa Rica (1998) 25 RIAA 21, 54–55 (principle of good faith) or the ICSID arbitration award in
Amco Asia Co v Republic of Indonesia (Award) [1984] ICSID Case ARB/81/1(1984) 23 ILM
351, para 267 (principle of full compensation).
47
See the award in the Alabama arbitration case (United States of America v Great Britain)
(1872) 29 RIAA 125. See more recently the arbitration award in the Boundary Dispute between
Argentina and Chile concerning the Frontier Line between Boundary Post 62 and Mount Fitzroy
(1994) 22 RIAA 3, para 68.
48
See PCA, Pious Fund of the Californias (United States of America v Great Britain)
(1902) available at <www.pca-cpa.org>; and the award of the Italian-Venezuelan Commission in
the Gentini case (1903) 10 RIAA 551. See more recently the arbitration award in the case BP
Exploration Company (Libya) Limited v Government of the Libyan Arab Republic (1979) 53 ILR
297, 354 (compensation).
49
See PCA, Japanese House Tax (Germany, France and Great Britain v Japan) (1905)
available at <www.pca-cpa.org>.
50
See Pellet (n 8), para 300.
51
ibid, 833 fn 719.
52
South West Africa cases (n 19), para 88.
10 / Date: 14/3
However, it is unclear whether the references to ‘an established rule of law’,53 to a

‘general principle of law’,54 or to ‘general principles of procedural law’55 could be
understood as hints to general principles in foro domestico.
Most of the time, the Court seems to use the term ‘principle’ as a synonym for
‘customary rule’,56 for example when it refers to the principle that the breach of an
engagement involves an obligation to make reparation in an adequate form,57 the
prohibition of genocide,58 the principle of self-determination of peoples,59 the principle
of uti possidetis,60 the principle of the prohibition of the use of force,61 the principle of
territorial integrity,62 the principle of prevention,63 and the various principles mentioned
in the 1996 Nuclear Weapons Opinion.64
In certain cases, the Court has referred to principles common to both international
and municipal law,65 their recognition under domestic law having no real impact in
their belonging to international law.66 For instance, in the Genocide case the Court
seemed to accept that the international notion of complicity could have been deduced
from ‘certain national systems of criminal law’.67 However, it preferred to give the
53
Case concerning the Temple of Preah Vihear (Cambodia v Thailand) (Judgment) [1962]
ICJ Rep 6, 26:
It is an established rule of law that the plea of error cannot be allowed as an element vitiating
consent if the party advancing it contributed by its own conduct to the error, or could have
avoided it, or if the circumstances were such as to put that party on notice of a possible error.
54
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep 16, paras 98 and 101.
55
Case Concerning the Land, Island, and Maritime Frontier Dispute (El Salvador/
Honduras), Application by Nicaragua for permission to intervene (Judgment) [1990] ICJ Rep 92,
para 102.
56
d’Argent (n 18), 112 and 118.
57
Case concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction) [1927] PCIJ
Rep Series A No 9, 21.
58
Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15, 25.
59
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, para 59.
60
Frontier Dispute (Burkina Faso/Mali) (Judgment) [1986] ICJ Rep 554, para 20.
61
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States
of America) (Merits) [1986] ICJ Rep 14, para 190.
62
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, para 80.
63
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14,
para 101.
64
226, paras 13, 18, 21, 30, 42, 46, 48, 50, 78, 92 and 102.
65
Case concerning the Factory at Chorzów (n 57), 31; Corfu Channel Case (n 17), 18;
Effect of Awards of Compensation made by the UN Administrative Tribunal (Advisory Opinion)
[1954] ICJ Rep 47, 53; Gabčikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997]
ICJ Rep 7, para 110.
66
See Gaja (n 8); Raimondo (n 24), 29, 35–36 and 71.
67
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43,
para 419.
11 / Date: 8/2
notion of complicity an autonomous meaning under the law of state responsibility.68 In

practice, the Court has restrained the application of general principles to principles
deduced from existing international rules. An exceptional case in which the Court has
relied at the same time on three substantive general principles of international law is
the Corfu Channel case:
The obligations incumbent upon the Albanian authorities consisted in notifying, for the
benefit of shipping in general, the existence of a minefield in Albanian territorial waters and
in warning the approaching British warships of the imminent danger to which the minefield
exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VTII,
which is applicable in time of war, but on certain general and well-recognized principles,
namely: elementary considerations of humanity, even more exacting in peace than in war; the
principle of the freedom of maritime communication; and every State’s obligation not to
allow knowingly its territory to be used for acts contrary to the rights of other States.69
A more recurrent use of general principles can be found in the recent case law of
international criminal courts and tribunals. On the one hand, their early case law has
relied on a number of general principles of international criminal law,70 some of them
having subsequently been embodied in the Statute of the ICC.71 In this regard, a very
general statement can be found in Kupreskic:
any time the Statute does not regulate a specific matter, and the Report of the Secretary-
General does not prove to be of any assistance in the interpretation of the Statute, it falls to
the International Tribunal to draw upon (i) rules of customary international law or (ii) general
principles of international criminal law; or, lacking such principles, (iii) general principles of
criminal law common to the major legal systems of the world; or, lacking such principles, (iv)
general principles of law consonant with the basic requirements of international justice.72
On the other hand, recourse has been made to principles derived from municipal legal
orders.73 Their application has nonetheless raised concern with respect to their required
‘generality’74 and the caution that should surround their application or adaptation to
international criminal law.75 In Furundzija, the ICTY specified:
68
P Palchetti, ‘State Responsibility for Complicity in Genocide’ in P Gaeta (ed), The UN
Genocide Convention: A Commentary (OUP 2009) 381.
69
Corfu Channel case (n 17), 22.
70
See A Cassese, International Criminal Law (2nd edn, OUP 2008), 21.
71
Part III of the Rome Statute (n 1) is entitled ‘General Principles of Criminal Law’ and
includes, among others, the principle of nullum crimen sine lege (art 22), the principle of nulla
poena sine lege (art 23), the principle of non-retroactivity of criminal law (article 24), the
principle of individual criminal responsibility (art 25).
72
Prosecutor v Kupreskic (Judgment) ICTY-95-16 (14 January 2000), para 591.
73
See eg Prosecutor v Aleksovski (Judgment) ICTY-95-14/1 (24 March 2000), para 97 (stare
decisis principle).
74
B Simma and A Paulus, ‘Le rôle relatif des différentes sources du droit international pénal
(dont les principes généraux de droit)’ in H Ascensio ao (eds), Droit international pénal (Pedone
2012) 74. See eg Prosecutor v Erdemovic (Sentencing Judgment) ICYT-96-22 (29 November
1996), para 19; Prosecutor v Erdemovic (Judgment) ICTY-96-22 (7 October 1997), Dissenting
Opinion of Judge Cassese, paras 1–6.
75
Prosecutor v Delalic (n 23).
12 / Date: 8/2
Whenever international criminal rules do not define a notion of criminal law, reliance upon
national legislation is justified, subject to the following conditions: (i) unless indicated by an
international rule, reference should not be made to one national legal system only, say that of
common-law or that of civil-law States. Rather, international courts must draw upon the
general concepts and legal institutions common to all the major legal systems of the world.
This presupposes a process of identification of the common denominators in these legal
systems so as to pinpoint the basic notions they share; (ii) since ‘international trials exhibit a
number of features that differentiate them from national criminal proceedings’, account must
be taken of the specificity of international criminal proceedings when utilising national law
notions. In this way a mechanical importation or transposition from national law into
international criminal proceedings is avoided, as well as the attendant distortions of the
unique traits of such proceedings.76
Finally, numerous are the cases in which the application of principles in foro domestico
has been ruled out. In particular, a preference seems to be accorded to principles of
international criminal law. For example, although recognizing that ‘the principle of
non-bis-in-idem appears in some form as part of the internal legal code of many
nations’, the ICTY applied the principle ‘to the extent that it appears in the Statute, and
in the form that it appears there’.77
The judicial practice of international courts and tribunals shows that, while in certain
fields of international law international judges have been reluctant to rely on general
principles, in other fields international courts and tribunals have been more inclined to
have recourse to them. The foregoing analysis seems capable of explaining this varying
success of general principles in international case law and, by the same token, to bring
some light in the way in which international courts and tribunals have exercised their
discretion in resorting to general principles.
It is commonly acknowledged that one of the principal factors of this plurality of
approaches is the degree of development of a certain set of international rules. In
particular, recourse to general principles would be more frequent with respect to new
fields of international law, such as international criminal law or international economic
law.78 In their regard general principles have played and can continue to play an
important gap-filling role. On the other hand, where well-settled customary or treaty
rules already exist, there is substantially no need to rely on general principles. This can
also explain, at least in part, the declining success of general principles in specific
fields of international law where these principles have gradually turned into more
precise customary or treaty rules.79
76
Prosecutor v Furundzija (Judgment) ICTY-95-17/1 (10 December 1998), para 178.
77
Prosecutor v Tadic (Decision on the Defence Motion on the Principle of Non-Bis in Idem),
ICTY-94-1 (14 November 1995), para 9.
78
See in particular Weil (n 2), 387–414; Tomuschat (n 11), 315; J Cameron and D Gray,
‘Principles of International Law in the WTO Dispute Settlement System’ (2001) 50 International
and Comparative Law Quarterly 248; Dailler, Forteau, Pellet (n 15), p 386; Charlesworth (n 18),
196.
79
See, with respect to international criminal law, J De Hemptinne, ‘Table ronde’ in A
Cassese and M Delmas-Marty (eds), Crimes internationaux et juridictions internationales (PUF
2002), 134–35. See, more generally, on the ‘transitory’ character of general principles section 5.
See also Pellet (n 8), para 300; Simma and Paulus (n 74), 76.
13 / Date: 8/2
With respect to the kinds of international norms that have been applied thanks to the
source of general principles, it must be recognized that most of the time general
principles have not been used to deduce ‘primary’ obligations but ‘secondary’ norms, in
the Hartian sense. Among such general principles, we can recall the principles of treaty
interpretation,80 the principles of procedural law (such as the principle of sound
administration of justice,81 the principle of res judicata,82 the principles relating to the
onus probandi,83 etc.), those concerning state responsibility for internationally wrongful
acts, and in particular reparation.84 It seems that a wider recourse to general principles
would be more easily accepted by states if it confines to rules having no direct impact
on the solution of the merits of a case. Accordingly, a more cautious approach is
adopted with respect to primary norms, such as the definition of international crimes.85
In particular, the success of the use of general principles for deducing procedural norms
can also be explained with the wide discretion international courts and tribunals
generally have in framing their own procedural rules.86
A different explanation can be advanced for the diverging propensity of international
judges to have recourse to different categories of general principles. Most of the time,
international courts and tribunals are reluctant to rely on rules not supported by a
general acceptance of states. Thus, they may be particularly hesitant to apply
‘principles’ which are too remote from states’ generalized recognition because this
might be perceived as an application of non-legal standards. Accordingly, courts which
depend more directly on state consent would be tempted to confine themselves to apply
principles of international law, ie those directly inferred from existing international
customary and treaty rules. As observed by Friedmann with respect to the ICJ:
[y]et the suspicion which states, especially those on the losing side, may entertain of indirect
expansion of the scope of international law by a tribunal which depends upon the maximum
amount of consent by its constituent members, no doubt largely accounts for the failure of the
Court until now to make any significant use of this potentially very fertile source [general
principles] of development in international law.87
80
See eg PCA, Boundaries in the Island of Timor case (Netherlands v Portugal), 25 June
1914 available at <www.pca-cpa.org>, 8–9.
81
See eg LaGrand case (Germany v United States of America) (Provisional Measures,
Order) [1999] ICJ Rep 9, para 19.
82
See eg PCA, Pious Fund of the Californias (n 48), and the award in the Boundary Dispute
between Argentina and Chile (n 47).
83
See eg Affaire du Queen (n 46), 708; Prosecutor v Delalic (Judgment) ICTY-96-21 (16
November 1998), para 599.
84
See Case concerning the Factory at Chorzów (n 57).
85
See Prosecutor v Furundzija (Judgment) ICTY-95-17/1 (10 December 1998), paras
180–189, as far as the definition of the crime of rape is concerned. See, on the difference
between substantive and procedural principles of international criminal law, H Ascensio, ‘Table
ronde’, in Cassese and Delmas-Marty (eds) (n 79), 136–38.
86
See eg art 30 ICJ Statute (n 1).
87
See Friedmann (n 15), 280–81. See also G Fitzmaurice, IDI Livre du centenaire
1873–1973. Evolution et perspectives du droit international (Karger 1973), 325; d’Argent (n 18),
118–19; Pellet (n 8), 275.
14 / Date: 16/3
The same reason, can explain why other international judges – such as international
criminal courts – might be more inclined to rely on certain principles in foro domestico.
5. THE ROLE OF STATES IN PROMOTING THE USE OF

GENERAL PRINCIPLES
When referring to the significant role of general principles in the formative stage of
new rules, many authors appear inclined to consider this particular use of general
principles as a prerogative of international judges.88 They are frequently regarded as a
formidable tool on which international judges may rely for the purposes of introducing
new rules into the realm of international law. While acknowledging the prominent role
played by judges in this context, one should not lose sight of the fact that states can
also promote the use, and thereby contribute to the development, of general principles
in international relations.
As we have already mentioned, there is some practice attesting the use of general
principles by states outside the framework of proceedings before arbitral or judicial
authorities,89 although reliance on this source of law in interstate relations seems very
rare. Several reasons may be suggested to justify the cautious attitude shown by states.
With regard to principles which exist in municipal systems of law, it has been observed
that the fact that their identification presupposes an exhaustive study of comparative
law would constitute an obstacle to their use by states.90 More broadly, it may be
argued that states regard general principles, which often consist of vague legal
propositions, as providing a weaker legal basis than customary law for the purposes of
justifying their claims; as a consequence, they might prefer to rely on a customary rule,
even if its existence is not attested by an uniform and extensive practice.
Be that as it may, the use of general principles may still represent an attractive choice
for states in particular circumstances. It is a widely shared observation that general
principles tend to play a greater role when the need arises to fill gaps in the existing
body of international law or, more broadly, when international law needs to be
developed so as to adapt itself to new problems or to regulate certain fields which were
not yet regulated by it.91 In this kind of situations, recourse to general principles can
provide a basis for promoting the development and adaptation of the existing rules.
This process may in the long run lead to the formation of a practice showing a general
acceptance that – according to the general principles invoked by states – new situations
will come under the purview of existing rules and, consequently, to the adaptation of
customary law. In this respect, it may be right to say that customary law tends to
88
See, for instance, Weil (n 2), 404.
89
Some instances of state practice are referred to by Kolb (n 9).
90
Thirlway (n 8), 112. For the earlier practice, see H Wheaton, Histoire des progrès du droit
des gens en Europe et en Amérique depuis la paix de Westphalie jusqu’à nos jours (4th ed,
Brockhaus 1865), 109–10.
91
Kolb (n 10), 9.
15 / Date: 14/3
substitute progressively general principles in the legal regulation of a certain issue.92

This does not mean that general principles have no role to play in the process leading
to the modification of a customary rule.93 They may be used for the purposes of
favouring a certain interpretation of a customary rule; they may also affect the way in
which such a rule is to be applied. In both cases, general principles may have the effect
of triggering a process which could progressively lead to the modification or adaptation
of the content of the customary rule.
On the other hand, the use of general principles in state practice may also have a
considerable impact in the long and complex process of lawmaking which is based on
claims and tolerances by states in their reciprocal interactions. In other words, state
practice may lead to the acceptance of general principles which form the basis for the
subsequent development of new international rules. The difficulties faced by a state
which wishes to trigger a process leading to the introduction of a new rule of general
international law or to the modification of an existing one are all too well known. Since
at the formative stage the dividing line between changing the law and breaching it
becomes extremely thin, states are in great need to find some objective legal basis
which could support their claims. General principles may well serve this purpose.94
Recourse to general principles, even when they are vague or generic, may provide a
state with a strong legal argument to justify its policy decision. Thus, from the
perspective of a state which wishes to push towards a change in law, reliance on this
source of law has an undeniable advantage: it permits the enhancement of the
legitimacy of its action by presenting it as the mere application of an existing principle
rather than the intentional breach of an existing rule made for the purposes of
changing it.
6. GENERAL ASSESSMENT
When compared to other classic lawmaking instruments such as treaties and customary
international law, the formation of general principles appears to proceed from a
lawmaking process which may be qualified as a ‘spontaneous’ one. Unlike treaties,
general principles are not created by states or other actors on the basis of an established
procedure. Unlike in the case of customs, states are generally not aware of the fact that
their conduct is contributing to the development of general principles.
92
A Pellet, ‘L’adaptation du droit international aux besoins changeants de la société
internationale’ (2007) 329 Recueil des cours, 25, qualifies general principles as a ‘source
transitoire’. See also A Cassese, ‘The Contribution of the International Criminal Tribunal for the
former Yugoslavia to the Ascertainment of General Principles of Law Recognized by the
Community of Nations’ in S Yee and W Tieya (eds), International Law in the Post-Cold War
World (Routledge 2001) 46.
93
See, however, Pellet (n 92), 25, who held the view that the application of general
principles by states ‘a pour effet de les transformer en normes coutumières qui ne peuvent être
modifiées que par la voie conventionnelle ou par la formation d’une nouvelle norme
coutumière’.
94
See E Cannizzaro, Diritto internazionale (Giappichelli 2012), 114.
16 / Date: 14/3
Certain features characterizing general principles are strictly linked to the ‘spon-
taneous’ character of this process of lawmaking. Since general principles are not
actively created by states but are rather ‘discovered’ by a process of deduction from
other rules of international law or from a comparative analysis of domestic legal orders,
the dividing line between the identification and the creation of general principles
becomes rather thin. Hence, the importance generally assigned to international courts
and tribunals: since they can authoritatively identify general principles, international
judges are regarded as having a major – and, to a certain extent, a ‘law making’ – role
in the normative process leading to establishment of such principles. On a broader
perspective, also the subsidiary and transitional character of this source of law may be
explained by reference to the limited role played by state consent in the formation of
general principles. As states prefer to rely on rules to which they have consented in a
more or less direct way, general principles would normally apply only in the absence of
treaty or customary rules.
However, the characterization of general principles as ‘spontaneous law’ should not
lead to the exclusion of the relevance of state consent for the formation of these
international rules. General principles differ from natural law standards. Nor can resort
to these principles be assimilated to an equitable assessment of a given situation. As it
becomes immediately clear when one considers how these ‘spontaneous rules’ are to be
identified, general principles are ultimately based on the acceptance of states. The
wider discretion enjoyed by the interpreter in the identification of this source cannot
obscure the nature of general principles as a consensual phenomenon.
In the end, lawmaking by general principles is a hybrid process which combines
consensual and non-consensual elements. As its main function is to fill in gaps left by
other, consent-based rules, the attribution of certain discretion to the interpreter is
inevitable. At the same time, such discretion does not mean complete detachment from
state consent. In this respect, the adequacy of a given principle to govern the situation
at hand and its general recognition by states are both relevant factors for the crossing of
the threshold of lawmaking in the process of principles-generation.
17 / Date: 8/2
PART III
BEYOND THE STATE
1 / Date: 8/2
2 / Date: 8/2
9. Institutional lawmaking: The emergence of a

global normative web
Ramses A. Wessel *
1. INTRODUCTION: A DIVERSE COLLECTION OF NORMATIVE

BODIES
There is nothing new in arguing that international organizations engage in lawmaking.1
Apart from the fact that states may use international organizations as frameworks for
treaty-making, it is well-accepted that also many decisions of international organ-
izations can be seen as ‘law’. While over the past years lawmaking by international
organizations has received abundant attention,2 institutional lawmaking has moved
beyond the traditional methods and actors and is increasingly studied in a broader
sense, including new actors and new regulatory activities.
First, the role of many international institutions has developed well beyond a
‘facilitation forum’, underlining their autonomous position in the global legal order.3 In
those cases lawmaking takes place on the basis of well-defined procedures with an
involvement of institutional actors other than states, but also on the basis of a
sometimes dynamic interpretation of the original lawmaking mandate of the organ-
ization.4 Indeed, the outcome comes closer to a decision of an international organ-
ization than to an international agreement concluded between states. In fact, it could be
* This chapter partly draws on some earlier work on this topic by the author. References can
be found throughout the text.
1
cf A Boyle and C Chinkin, The Making of International Law (OUP 2007), vii:
‘Law-making is no longer the exclusive preserve of states’. The scope of this chapter does not
allow us to address the notion of ‘law’ and the question of its sources. Yet, obviously, using the
term ‘lawmaking’ somehow implies that we accept legal effects of the norms addressed here, be
it through customary law or simply because we accept the competence of the international
institutions to enact legal norms.
2
One of the most influential books may very well have been J Alvarez, International
Organizations as Law-Makers (OUP 2005).
3
R Collins and ND White (eds), International Organizations and the Idea of Autonomy:
Institutional Independence in the International Legal Order (Routledge 2011). See also RA
Wessel, ‘International Governmental Organizations as Non-State Actors’ in M Noortmann ao
(eds), Non-State Actors in International Law (Hart Publishing 2015) 185–203; as well as IF
Dekker and RA Wessel, ‘Identities of States in International Organizations’ (2016) 13 Inter-
national Organizations Law Review (forthcoming).
4
J Wouters and Ph De Man, ‘International Organizations as Law-Makers’ in J Klabbers and
Å Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward
Elgar Publishing 2011) 190, 192:
179
1 / Date: 14/3
argued that this is what ‘institutional lawmaking’ is all about: it is lawmaking by

international institutions (be it formal international organizations or other international
bodies) and less about lawmaking through international institutions.5 Yet, the distinc-
tion is not always easy to make. In some cases institutionalisation is ‘light’ and serves
as an ad hoc vehicle for a multilateral diplomatic process. Thus, the 3rd UN
Conference of the Law of the Sea led to UNCLOS III and at the 1998 Rome
Conference states adopted the Statute of the International Criminal Court. In these
cases the conferences were indeed not much more that meeting points, facilitating
states to conclude treaties.6 Similar processes also take place within more permanent
structures, including formal international organizations. Obvious examples include the
UN General Assembly7 and the UN specialized agencies.8 In these cases an important
function of international organizations is to reveal state practice (and opinion juris9)
and to allow for a speedy creation of customary law, although – one needs to remain
aware of the distinction between state practice and the practice of an international
organization.10
Secondly – and leading in this chapter – the set of international institutions
encompasses not only formal international organizations, but also other international
bodies, consisting of governmental representatives and/or other stakeholders. There are
indications that these forms of (informal) international lawmaking outnumber the
It is possible […] that the treaty provisions pertaining to the law-making powers of the
organization will be construed in a different way than was originally intended by the drafting
nations, as it proves very difficult to draft an instrument in such a manner as to effectively
preclude any other possible interpretation.
5
See on these two dimensions of international organizations J Klabbers, ‘Two Concepts of
International Organization’ (2005) 2 International Organizations Law Review 277; as well as his
‘Contending Approaches to International Organizations: Between Functionalism and Constitu-
tionalism’ in Klabbers and Wallendahl (n 4) 3.
6
Wouters and De Man ((n 4), 205) have argued that in these cases international
organizations ‘merely act as agents, since they only propose draft conventions through gathering
information and offering their expertise, which then may or may not be entered into by the
member states’.
7
Following art 13 of the UN Charter, which refers to its responsibility for ‘encouraging the
progressive development of international law and its codification’.
8
See for examples also Boyle and Chinkin (n 1), 124–41.
9
cf the ICJ’s advisory opinion on the Legality of the threat or use of nuclear weapons
[1996] ICJ Rep 226: General Assembly resolutions:
[…] can, in certain circumstances, provide evidence important for establishing the existence
of a rule or the emergence of an opinion juris. To establish whether this is true of a given
General Assembly resolution, it is necessary to look at its content and the conditions of its
adoption; it is also necessary to see whether an opinion juris exists as to its normative
character. Or a series of resolutions may show the gradual evolution of the opinion juris
required for the establishment of a new rule.
10
Wouters and De Man (n 4), 207–8. Once consensus has been reached within an
international organization, it will be difficult for states to deny their acceptance of a norm and to
be recognized as a ‘persistent objector’.
2 / Date: 14/3
Institutional lawmaking 181
traditional forms.11 Yet, given the fact that other chapters will deal with transnational
and private actors,12 our focus will be on international institutions consisting of (at
least) governmental representatives and/or bodies with a public mandate. We use a
broad definition of lawmaking, including regulatory and other normative institutional
output.13 Recent research projects underline that a focus on traditional formal law
enacted by traditional international organizations would amount to a far too limited
perspective on institutional lawmaking.14
Finally, institutional lawmaking hardly takes place on a ‘stand-alone’ basis: formal
and informal international norms are increasingly connected, and norms are adopted or
referred to by other international bodies, resulting in an unprecedented global institu-
tionalized normative web.15
In this chapter we will approach institutional lawmaking with these developments in
mind. Section 2 will first assess the lawmaking functions of traditional international
organizations and will also further clarify the notion of institutional lawmaking itself.
Section 3 will focus on possible lawmaking functions of other international bodies and
in doing so will point to the wide variety of bodies and networks active in lawmaking
processes. Both sections lead us to a concluding part (section 4) in which we underline
the interconnectedness between different international norms originating in distinct
formal and informal bodies and networks. Implicitly, this section calls for a broader
understanding of institutional lawmaking to allow us to take full account of a rich
institutional normative output.
2. LAWMAKING BY INTERNATIONAL ORGANIZATIONS

2.1 Defining Institutional Lawmaking
International organizations can be defined in many ways. We follow Schermers and

Blokker: ‘international organizations are defined as forms of cooperation (1) founded
on an international agreement; (2) having at least one organ with a will of its own; and
(3) established under international law’. On the basis of this definition we can count
11
See J Pauwelyn, J Wouters and RA Wessel, ‘When Structures Become Shackles:
Stagnation and Dynamics in International Lawmaking’ (2014) 25 European Journal of Inter-
national Law 733.
12
See chapters 3, 13 and 14 in this book.
13
Including international agreements to which the international organization itself becomes
a party, although from an institutional lawmaking perspective this is mainly interesting when the
role of the international organization in the negotiating process can clearly be distinguished from
the role of the states.
14
See in particular the leading study by Alvarez, International Organizations as Law-
Makers (n 2); but also J Pauwelyn ao (eds), Informal International Lawmaking (OUP 2012) and
A Berman ao (eds), Informal International Lawmaking: Case Studies (TOAEP 2013).
15
A Føllesdal ao (eds), Multilevel Regulation and the EU: The Interplay between Global,
European and National Normative Processes (Martinus Nijhoff Publishers 2008).
3 / Date: 14/3
somewhere between 500–700 international organizations,16 ranging from more general

ones such as the United Nations or the World Trade Organization to organizations in a
specific area, such as the International Coffee Organization or the International
Network on Bamboo and Rattan. While many international organizations were set up as
frameworks to allow states to institutionalize cooperation in a specific field, decisions
of international organizations are increasingly considered a source of international
law.17 Indeed, this seems to lie behind the term institutional lawmaking. Thus, Klabbers
defined lawmaking instruments as instruments ‘laying down more or less general
abstract rules of general application, binding upon all subjects of a given legal system’.
These instruments would be different from those that are merely ‘applying the law’,
acts of a ‘household nature’ and ‘acts which [aim] to influence behaviour, but without
creating law’.18 It has even become quite common to regard these types of acts as
contributing to the development of ‘world legislation’. Over the past decade, the use of
the term legislation in this context was triggered in particular by the adoption of a
number of resolutions by the UN Security Council, which aimed at a certain
‘harmonisation’ of domestic rules worldwide, rather than at regulating a concrete
situation. The idea behind the term ‘legislation’ is that ‘the consent of states need not
always be decisive, and may at times be overruled for the sake of the interests of
mankind’.19 Yet, a clear consensus on how to interpret these notions is still lacking.20
While some are quite generous in granting legislative powers to international organ-
izations,21 others would stress the idea that in the end it would be the member states
that are in charge, which would make the term ‘legislation’ (as a top-down instrument)
inappropriate.
At the same time it is very difficult to define the broader notion of institutional
lawmaking as its development differs from one organization to another and presents
itself in various shapes.22 Moreover, despite its current topical nature, international
lawyers were quite late in recognizing an ‘emerging reality of global governance’ and
the ‘organization of global rulemaking’.23 They only recently started to see and study
16
HG Schermers and NM Blokker, International Institutional Law: Unity within Diversity
(Martinus Nijhoff Publishers 2011), 37.
17
For a theoretical perspective see also IF Dekker and RA Wessel, ‘Governance by
International Organisations: Rethinking the Source and Normative Force of International
Decisions’ in IF Dekker and WG Werner (eds), Governance and International Legal Theory
(Martinus Nijhoff Publishers 2004) 215.
18
J Klabbers, An Introduction to International Organizations Law (CUP 2015), 174.
19
ibid, 205.
20
See the different contributions to the forum on ‘World Legislation’ in (2011) 8(1)
International Organizations Law Review.
21
cf Schermers and Blokker (n 16), 1066 para 1657: ‘It is submitted that international
organizations empowered to issue Decisions have legislative capacity.’
22
As José Alvarez notes, more and more international bodies ‘appear to be engaging in
legislative or regulatory activity in ways and for reasons that might be more readily explained by
students of bureaucracy than by scholars of the traditional forms for making customary law or
engaging in treaty-making; [t]hey also often engage in law-making by subterfuge.’ Alvarez (n 2),
217.
23
JGS Koppell, World Rule: Accountability, Legitimacy, and the Design of Global Govern-
ance (The University of Chicago Press 2010), 11.
4 / Date: 14/3
international organizations as autonomous actors which have as their main objective the
crafting of rules for worldwide application.24
Indeed, traditionally, lawmaking is not seen as a key function of international
organizations.25 The reason is that most international organizations have not been
granted the power to issue binding decisions as states were believed not to have
transferred any sovereignty. Nevertheless, these days it is undisputed that many
organizations do ‘exercise sovereign powers’26 in the sense that they not only
contribute to lawmaking by providing a framework for negotiation, but also take
decisions that bind their member states. Indeed, the current debates on international
lawmaking to a certain extent mirror the ‘governance’ debates in other academic
disciplines. In that respect Koppell pointed to the fact that we can indeed use the term
governance for the different normative activities as many of the international bodies are
‘actively engaged in attempts to order the behaviour of other actors on a global scale’.
Even without a global government we see ‘normative, rule-creating, and rule super-
visory activities’ as indications of global governance.27 For lawyers, ‘governance’
becomes interesting whenever it involves legal rules or at least normative utterances
with an effect on the legal order. Institutional lawmaking would then be part of ‘global
governance’.28
2.2 Lawmaking in Practice
Organizations with some competence to take legally binding decisions which go

beyond a mere application of the law include the EU, the UN, the World Health
Assembly of the WHO, the Council of the ICAO, the OAS, the WEU, NATO, OECD,
UPU, WMO and IMF.29 In addition, as Alvarez’s survey reveals, it includes standard
setting by the IMO, the FAO, the ICAO, the ILO, the IAEA, UNEP, the World Bank,
and the IMF.30 Furthermore, the fact that many international conventions – including
24
ibid; as well as K Jayasuriya, ‘Globalization, Law, and the Transformation of Sovereignty:
The Emergence of Global Regulatory Governance’ (1998–99) 6 Indiana Journal of Global Legal
Studies 425.
25
Not even of the United Nations. See O Schachter, ‘The UN Legal Order: An Overview’ in
C Joyner (ed), The United Nations and International Law (CUP 1997) 3: ‘Neither the United
Nations nor any of its specialised agencies was conceived as a legislative body.’
26
D Sarooshi, International Organizations and their Exercise of Sovereign Powers (OUP
2005).
27
Koppell (n 23), 77–78.
28
See also B Oxman, ‘The International Commons, the International Public Interest and
New Modes of International Lawmaking’ in J Delbrück (ed), New Trends in International
Lawmaking: International ‘Legislation’ in the Public Interest (Ducker & Humblot 1996), 28–30.
cf also T Stein and C Schreuder, ‘Comments’ in the same volume.
29
Cf Schermers and Blokker (n 16); Klabbers, An Introduction to International Organ-
izations Law (n 18); CF Amerasinghe, Principles of the Institutional Law of International
Organizations (CUP 2005); and ND White, The Law of International Organisations (Manchester
University Press 2005); PJ Sands and P Klein, Bowett’s Law of International Institutions (Sweet
and Maxwell 2001).
30
European Union (EU), the United Nations (UN), International Civil Aviation Organization
(ICAO), Organization of American States (OAS), Western European Union (WEU), North
5 / Date: 8/2
UNCLOS (on the law of the sea) and a number of WTO agreements – incorporate
generally accepted international rules, standards, regulations, procedures and/or prac-
tices may effectively transform a number of codes, guidelines and standards created by
international organizations and bodies into binding norms. This reveals the complexity
of institutional lawmaking: it is not just about clearly legally binding decisions of
international organizations; it may very well be about an acceptance of rules and
standards because there is simply nothing else and the rules need to be followed in
order for states to be able to play along.31 At the same time international organizations
often adopt rules or standards developed in another organization and with less than 200
states they are bound to run into each other in many different institutions. Binding
Security Council Resolutions or EU Regulations are just one example of a much
broader set of normative activities that may contribute to institutional lawmaking and
these include hard law as well as soft law measures. While the difference between hard
and soft law may be theoretically relevant to lawyers, recent studies increasingly focus on
the effects of the measures. Indeed, while in most cases standard setting is accomplished
through softer modes of regulation, this may leave the subjects of regulation ‘with as little
effective choice as some Security Council enforcement actions’.32
Some international bodies merit special attention. The UN Security Council is often
used as the example of an international body with clear and autonomous lawmaking
functions.33 Whereas its Charter presents the UN as an intergovernmental organization
dealing with the relations between its member states (compare articles 1 and 2), taking
decisions that entail obligations on those member states (article 25), and extremely
hesitant to interfere in the domestic jurisdiction of any state, the Security Council took
Atlantic Treaty Organization (NATO), Organization for Economic Co-operation and Develop-
ment (OECD), Universal Postal Union (UPU), World Metereological Organization (WMO),
International Monetary Fund ( IMF), International Maritime Organization (IMO), Food and
Agriculture Organization (FAO), International Labor Organization (ILO), International Atomic
Energy Agency (IAEA), UN Environment Programme (UNEP).
31
Interesting in this respect is Jan Klabbers’ notion of ‘presumptive law’: the author departs
from the more or less pragmatic idea that law is ‘whatever people recognize and treat as law
through their social practices’; J Klabbers, ‘Law-making and Constitutionalism’ in J Klabbers, A
Peters and G Ulfstein, The Constitutionalization of International Law (OUP 2009) 81.
32
Alvarez, International Organizations as Law-Makers (n 2), 218.
33
cf PC Szasz, ‘The Security Council Starts Legislating’ (2002) 96 American Journal of
International Law 901; S Talmon, ‘The Security Council as World Legislature’ (2005) 99
American Journal of International Law 175; B Elberling, ‘The Ultra Vires Character of
Legislative Action by the Security Council’ (2005) 2 International Organizations Law Review
337; M Akram and SH Shah, ‘The Legislative Powers of the United Nations Security Council’ in
RStJ MacDonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal
Ordering of the World Community (Martinus Nijhoff Publishers 2005) 431; AJJ de Hoogh,
‘Attribution or Delegation of (Legislative) Power by the Security Council?’ in M Bothe and B
Kondoch (eds), International Peacekeeping. The Yearbook of International Peace Operations vol
7 (Brill 2001) 1; and E de Wet, ‘The Security Council as a Law-Maker: The Adoption of
(Quasi)-Legislative Decisions’ in R Wolfrum and V Röben, (eds), Developments of International
Law in Treaty Making (Springer 2005) 184. The debate is somewhat older; see for instance E
Yemin, Legislative Powers in the United Nations and Specialised Agencies (AW Sijthoff 1996);
and FL Kirgis, ‘The Security Council’s First Fifty Years’ (1995) 89 American Journal of
6 / Date: 14/3
a number of decisions that directly affect citizens within member states (an element
usually seen as a characteristic of institutional lawmaking beyond the original object-
ives of the organization). Examples include the establishment of the Tribunals for the
former Yugoslavia and for Rwanda (creating competences for international bodies to
take individual decisions in the area of international criminal law), the cases in which
the UN has taken over the interim administration of a region or state (UNMIK in
Kosovo and UNTAET in Timor Leste)34 and the replacement of traditional sanctions
directed at states (eg Iraq) by ‘smart sanctions’ directed at certain individuals or
groups.35 Thus the Security Council placed greater emphasis on its ability to take
decisions with a great impact on intra-state issues rather than being involved merely in
relations between states.36
Institutional lawmaking may perhaps also take shape in the form of ‘case law’ rather
than as decisions of an organ of an international organization. The legal order of the EU
has largely been shaped on the basis of case law that, allegedly, went beyond what
states originally (thought to have) agreed on in the treaties. Less prominent examples
may be found in other international organizations. Thus, the WTO’s Dispute Settlement
34
For example, in relation to UNTAET, UNSC Resolution 1271 (1999) provides in para 1
that UNTAET ‘[…] will be endowed with overall responsibility for the administration of east
Timor and will be empowered to exercise all legislative and executive authority, including the
administration of justice […].’ See also C Stahn, ‘Governance beyond the State: Issues of
Legitimacy in International Territorial Administration’ (2005) 2 International Organizations Law
Review 9; B Kondoch, ‘The United Nations Administration of East Timor’ (2001) 6 Journal of
Conflict and Security Law 245; and R Wilde, ‘Representing Territorial Administration: A
Critique of Some Approaches’ (2004) 15 European Journal of International Law 71.
35
Smart sanctions are also referred to as ‘targeted’ or ‘designer’ sanctions. More extensively
see: I Cameron, ‘Targeted Sanctions, Legal Safeguards and the European Convention on Human
Rights’ (2003) 72 Nordic Journal of International Law 159; RA Wessel, ‘Debating the
“Smartness” of Anti-Terrorism Sanctions: The UN Security Council and the Individual Citizen’
in C Fijnaut ao (eds), Legal Instruments in the Fight Against International Terrorism. A
Transatlantic Dialogue (Martinus Nijhoff Publishers 2004) 633. On the sanctions committees
dealing with the cases see: GL Burci, ‘Interpreting the Humanitarian Exceptions Through the
Sanctions Committees’ in V Gowlland-Debbas (ed), United Nations Sanctions and International
Law (Kluwer Law International 2001) 143, 144–45.
36
For a survey of Security Council activities in this area see: I Österdahl, ‘The Exception as
the Rule: Lawmaking on Force and Human Rights by the UN Security Council’ (2005) 10
Journal of Conflict and Security Law 1. Earlier: B Graefrath, ‘Leave to the Court What Belongs
to the Court: The Libyan Case’ (1993) 4 European Journal of International Law 184; M
Bedjaoui, The New World Order and the Security Council: Testing the Legality of its Acts
(Martinus Nijhoff Publishers 1994); JE Alvarez, ‘Judging the Security Council’ (1996) 90
American Journal of International Law 1; DW Bowett, ‘The Court’s Role in Relation to
International Organisations’, in V Lowe and M Fitzmaurice (eds), Fifty Years of the International
Court of Justice: Essays in Honour of Sir Robert Jennings (CUP 1996); and J Dugard, ‘Judicial
Review of Sanctions’ in Gowlland-Debbas (ed) ibid 83. On the competence of the Security
Council see B Eberling, ‘The Ultra vires Character of Legislative Action by the Security
Council’ (2005) 2 International Organizations Law Review 337. On ‘abstract’ or ‘thematic’
decisions see also C Denis, Le Pouvoir normatif du Conseil de sécurité des Nations unies:
Portée et limites (Bruylant 2004), paras 118–30 and 171–81; as well as Alvarez (n 2), 173–76.
7 / Date: 14/3
Body (DSB) has been said to be proof of the organization’s ‘legislative’ or ‘adjudica-
tive’ powers.37 Indeed, while one may question whether dispute settlement can be seen
as lawmaking, the fact remains that the DSB’s reports reach beyond the WTO members
involved in the dispute and may even have serious consequences for individuals
(including enterprises in particular).38 A similar phenomenon may be discovered in
another dimension of the WTO: intellectual property, regulated in the so-called
TRIPs,39 which may affect the producers of for instance HIV/AIDS medicines, in that
an international decision ensures that their products may be sold under the market value
in developing countries. Apart from the fact that the WTO has no facilities for
individual access to a judicial review procedure such as those applicable within the EU,
it may nevertheless find itself bound by Security Council Resolutions, which may have
a conclusive impact on the outcome of a WTO dispute settlement procedure.
Other examples of institutional lawmaking can be found with the UN High
Commissioner for Refugees (in relation to the fixing of standards regarding the
establishment of a refugee status of the governance of refugee camps), the World
Health Organization (in establishing global health risks), the so-called Financial Action
Task Force of the OECD (in the area of money laundering), WIPO (in the area of
intellectual property), the World Bank (in setting criteria for obtaining financial
support), or intergovernmental bodies with very technical and specific mandates (eg the
International Civil Aviation Organisation, the International Telecommunication Union,
the Codex Alimentarius Commission).
Finally, institutional lawmaking may also relate to and originate from the organ-
ization’s own internal rules. In relation to the international financial institutions, for
instance, it was argued that the evolution of so-called Operational Policies and
Procedures (OP&Ps) and the establishment of international accountability mechanisms
to enforce them are instrumental in transforming institutions such as the World Bank
and the International Finance Corporation into lawmaking and law-governed insti-
tutions in the sense that the OP&Ps address the same issues and are increasingly
‘guided’ by existing international law standards, especially in the international environ-
mental law and international human rights law areas.40
37
See in particular N Lavranos: Decisions of International Organizations in the European
and Domestic Legal Orders of Selected EU Member States (Europa Law Publishing 2004).
38
See for instance DZ Cass, ‘The “Constitutionalization” of Trade Law: Judicial Norm-
Generation as the Engine of Constitutional Development in International Trade’ (2001) 12
European Journal of International Law 39. On the impact of the WTO on the international legal
order, see the important book by JH Jackson, Sovereignty, the WTO and the Changing
Fundamentals of International Law (CUP 2006).
39
SK Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights
(CUP 2003).
40
DD Bradlow and AN Fourie, ‘The Operational Policies and Procedures of the World Bank
and International Finance Corporation: Creating Law-making and Law-governed Institutions?’
(2014) 10 International Organizations Law Review 3.
8 / Date: 14/3
3. LAWMAKING BY OTHER INTERNATIONAL BODIES
3.1 New Forms of Institutional Lawmaking
In studying institutional lawmaking it became clear that many norms originate in other
international bodies or form part of a much broader international debate, including
many different actors. The emerging picture is one of a broad range of international
normative fora, from intergovernmental organizations with a broad mandate (see
above), treaty-based conferences that do not amount to an international organization (eg
Conferences of the Parties under the main multilateral environmental agreements, such
as the Framework Convention on Climate Change and the Kyoto Protocol), informal
intergovernmental cooperative structures (eg the G20, the Financial Action Task Force
on Money Laundering, the Basel Committee on Banking Supervision (Basel Commit-
tee)), and even private organizations that are active in the public domain (eg the
International Organisation for Standardisation (ISO), or private regulation of the
internet by the Internet Corporation for Assigned Names and Numbers (ICANN),
the Internet Engineering Task Force (IETF) or the Internet Society (ISOC).41
Three elements in particular make it difficult for traditional international law to grasp
the developments and to translate everything into legal terms. The decision-making
processes that result in normative or regulatory activity in these forums likewise seem
to be very diverse. They differ, for instance, on the issue as to who can take the
initiative and formulate proposals for decisions (governments, organs of the organ-
ization, interest groups, independent experts), the format wherein proposals are
discussed (organization of negotiations, formal and informal sessions, caucuses,
negotiating groups, amendments, etc.), and the actual decision-making mode (consen-
sus, voting by unanimity or by a certain type of majority, equality or inequality of
voting power, methods of voting), including the question of which actors and
stakeholders (eg organs of the organization, governments, civil society organizations,
businesses, parliamentarians, etc.) are involved – directly, or indirectly, formally or
informally – in the decision-making.
At least as diverse seem the instruments used within these various regulatory forums.
These range from ‘hard law’ to ‘soft law’, exchange of best practices and bench-
marking, to mutual recognition and even to tools that at first sight may not seem
normative in nature but that can have such effect, such as policy programmes, modes of
assessment, reporting and monitoring systems, and loan conditionality.42 The degree to
which such international regulatory regimes are binding is linked with both the
character of the instruments and procedures aimed at implementation and compliance.
Rules, standards and principles can be included in traditional, legally binding conven-
tions, negotiated between states or in the framework of an international organization, or
can have the status of technical annexes to such conventions, to be amended through
41
More extensively on the normative activities of these bodies: RA Wessel, ‘Regulating
Technological Innovation through Informal International Law: The Exercise of International
Public Authority by Transnational Actors’ in MA Heldeweg and E Kica (eds), Regulating
Technological Innovation: A Multidisciplinary Approach (Palgrave MacMillan 2011) 77.
42
See Alvarez (n 2), 217.
9 / Date: 8/2
simplified procedures; but they can also take the form of mere recommendations,
policy guidelines or political declarations. A normative impact can even result from
exchanges of best practices among states and the setting of benchmarks for good
policies.
Finally, what is clear is that the impact, direct or indirect, of such international
lawmaking and regulatory activities upon citizens and businesses is as yet poorly
understood. It is for that reason that many research projects have recently addressed the
impact of international institutions’ normative activities on domestic legal orders and
subjects within the member states, and the mechanisms through which such effects
occur.43
One approach is to include bodies at the global level that play a role in international
or transnational lawmaking, irrespective of the fact that they cannot be captured by the
traditional definition of subjects of international law. That is, they are not states and do
not fall within the traditional definition of an international organization and/or often
lack international legal personality. What makes things even more complicated is that
some of these bodies generate norms, such as best standards, practices, guidelines, and
so forth that affect a wide range of countries, companies and people, without being
considered formal sources of international law. Irrespective of the legal status of the
norms that are the product of these non-traditional bodies, there is some agreement on
the idea that the norms and rules produced by these bodies (or networks) contribute to
institutional lawmaking.44 Recently, this phenomenon was approached by coining it
informal international lawmaking (INLAW). INLAW is defined as:
cross-border cooperation between public authorities, with or without the participation of

private actors and/or international organizations, in a forum other than a traditional inter-
national organization (process informality), and/or as between actors other than traditional
diplomatic actors (such as regulators or agencies) (actor informality) and/or which does not
result in a formal treaty or traditional source of international law (output informality). (see
below).45
Other attempts to capture what is essentially the same phenomenon (albeit from
slightly different perspectives) have been labelled global administrative law,46
43
See also section 4 below. The impact of international norms is also part of a relatively
recent stream of research focusing on the changing relationship between international law and
national law. See for instance J Nijman and A Nollkaemper (eds), New Perspectives on the
Divide Between National and International Law (OUP 2007).
44
Boyle and Chinkin (n 2), vii. RA Wessel, ‘Informal International law as a Form of Wold
Legislation?’ (2011) 8 International Organizations Law Review 253; see for a non-legal
approach: MJ Warning, Transnational Public Governance: Networks, Law and Legitimacy
(Palgrave/MacMillan 2009).
45
See J Pauwelyn, ‘Informal International Lawmaking: Framing the Concept and Research
Questions’ in Pauwelyn ao (eds) (n 14) 13, 15.
46
See for instance B Kingsbury, N Krisch and RB Steward, ‘The Emergence of Global
Administrative Law’ (2004–2005) 68 Law and Contemporary Problems 15; as well as the
extensive case book by S Cassese ao (eds), Global Administrative Law: The Casebook
(published by IRPA and IILJ) and available at <http://www.irpa.eu/gal-section/9799/global-
administrative-law-the-casebook-2/>.
10 / Date: 14/3
postnational rulemaking47 or the exercise of international public authority.48 The latter

notion is particularly helpful if one wishes to develop an inclusive perspective on
institutional lawmaking. Lawmaking then comprises ‘any kind of governance activity
by international institutions, be it administrative or intergovernmental [and] should be
considered as an exercise of international public authority if it determines individuals,
private associations, enterprises, states, or other public institutions’.49 ‘Authority’ is
defined as ‘the legal capacity to determine others and to reduce their freedom, i.e. to
unilaterally shape their legal or factual situation’. Also important is the fact that the
determination may or may be not legally obligating: ‘It is binding if an act modifies the
legal situation of a different legal subject without its consent. A modification takes
place if a subsequent action which contravenes that act is illegal.’50
On the basis of the insights offered by these projects, this section will broaden the
scope of international institutions that are (or may be) engaged in lawmaking by
introducing three new categories: international institutions in which states cooperate on
a more informal basis (the G20 being the prime example); international bodies created
by international organizations (termed here ‘international agencies’); and informal
international bodies composed of other actors (‘institutionalised networks’).
3.2 Informal Institutional Lawmaking
States not only cooperate in the framework of formal international organizations, but
have also established more informal bodies.51 The question addressed here is to what
extent these bodies play a role in institutional lawmaking. Given the vast amount of
international bodies, we will only be able to highlight an example: the ‘Group of 20’
(or G20). The G20 is a prime example of an informal body that has been listed under
‘other autonomous organizations’.52 The Group was created in 1999, but started to meet
at the level of heads of state and government in 2008.53 The focus of the G20 gradually
47
E Fahey (ed), The Actors of Postnational Rulemaking. Contemporary Challenges of
European and International Law (Routledge 2015).
48
International Law: Towards a Legal Framework for Global Governance Activities’ in A von
Bogdandy ao (eds), The Exercise of Public Authority by International Institutions: Advancing
International Institutional Law (Springer 2010) 3.
49
ibid, 5.
50
ibid, 11–12. See also the author’s subsequent publications on this issue: A Von Bogdandy
and I Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority and
its Democratic Justification’ (2012) 23 European Journal of International Law 7; and A Von
Bogdandy and M Goldmann, ‘The Exercise of International Public Authority through National
Policy Assessment: The OECD’s PISA Policy as a Paradigm for a New International Standard
Instrument’ (2008) 5 International Organizations Law Review 241, 261.
51
cf P Sands and P Klein, Bowett’s Law of International Institutions (6th edn, Sweet and
Maxwell 2009), 13, 16. The authors adopt a broad definition of international organizations and
include not only the organization’s membership and legal personality, but also the extent to
which the body is ‘capable of adopting norms (in the broadest sense) addressed to its members’.
52
ibid, 13.
53
See J Wouters and D Geraets, ‘The G20 and Informal International Lawmaking’ in
Berman ao (eds) (n 14) 19. See for a historic overview C Schmucker and K Gnath, ‘From the G8
11 / Date: 8/2
shifted from enacting measures against the worst effects of the financial crisis, to topics
ranging from the reform of the international monetary system to climate change and
commodity price volatility.54 Compared to traditional international organizations, the
G20 resembles a loosely organized network or informal gathering. Meetings take place
in different locations, there are no procedural rules and its output is anything but a
treaty or any other form of traditional international law.55
With its characteristics of a network, the question may be whether the G20 can be
considered a ‘body’ that as such plays a role in institutional lawmaking. The fact is that
the outcomes of G20 meetings cannot be ignored and affect and influence other
international decisions.56 As illustrated by Wouters and Geraets, the G20 is currently
made up of seven advanced economies, 12 emerging economies and the EU.57 The
membership thus comprises five continents, two-thirds of the world’s population,
roughly 85 per cent of global GDP and approximately 80 per cent of world trade. The
broadening of the agenda led to the fact that G20 meetings now take place not only at
the level of heads of state or ministers of finance, but also at the level of specialized
ministries.
Given the explicit informal nature of the G20, it remains difficult, however, to view
the conclusions of the meetings as ‘lawmaking’. This is not to say that the G20 does
not play a role in the global lawmaking process. As argued by Martinez-Diaz and
Woods,58 the G20 outcomes affect decision-making by other international organizations
in three different ways: 1. a ‘complementary effect’ will generate political support for
the decision-making process in international organizations, thereby pressurizing them
to accelerate their initiatives; 2. a ‘competitive effect’, whereby certain formal bodies
such as the International Monetary and Finance Committee (IMFC) of the IMF and the
Development Committee of the World Bank now compete with the G20 as the latter
tries to gain authority on these matters; and 3. the G20 may have a ‘rebalancing effect’
in global governance and international organizations. It brings emerging economies into
agenda-setting and coordination ‘discussions and it may serve “as a catalyst for reform
of formal international organizations”’.59
While the G20 is a prominent example of an informal international body (in
International Relations theory probably referred to as an ‘international regime’) with
to the G20: Reforming the Global Economic Governance System’ in Chr Herrmann and J
Terhechte (eds), European Yearbook of International Economic Law vol 2 (Springer 2011),
389–402.
54
Wouters and Geraets ibid.
55
ibid; as well as L Martinez-Diaz and N Woods, ‘The G20 – the perils and opportunities of
network governance for developing countries’ (2009), 1 available at <http://www.global
economicgovernance.org/sites/geg/files/Woods%20Martinez%20Diaz%20Networks%20PB.pdf>.
56
See ‘What Is The G20?’ available at <http://www.g8.utoronto.ca/g20/g20whatisit.html>.
See also J Wouters and S Van Kerckhoven, ‘The OECD and the G20: An Ever Closer
Relationship? (2011) 43 George Washington International Law Review 345, 373.
57
Wouters and Geraets (n 53). The 19 countries are (alphabetically): Argentina, Australia,
Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, the Republic of Korea,
Mexico, Russia, Saudi Arabia, South Africa, Turkey, the United Kingdom and the United States.
58
Martinez-Diaz and Woods (n 55), 1.
59
ibid, 3.
12 / Date: 14/3
clear normative functions, others have a more formal basis. One may think of
international committees which may be intergovernmental but may also consist
exclusively of independent experts that have their basis in multilateral treaties, such as
the UN human rights treaty bodies.60 In terms of institutional lawmaking bodies such as
the G20 therefore contribute to lawmaking indirectly. They serve as a forum for state
representatives to draw conclusions on broad issues of global governance, thereby
influencing actual lawmaking by other fora.
3.3 Delegated Institutional Lawmaking
Lawmaking activities can also be discovered in international bodies that are neither
based on a treaty nor on a bottom-up cooperation between national regulators, but on a
decision by an international organization. By delegating or outsourcing some of their
tasks, these ‘international agencies’ as we may perhaps call them,61 may obtain a role
in norm setting that can be distinguished from the ‘parent organization’. According to
some observers, these types of bodies even outnumber conventional organizations and
may play an important role in the lawmaking process.62 Whereas traditional inter-
national organizations are established by an agreement between states, in which their
control over the organization and the division of powers is laid out,63 the link between
newly created international bodies and the states that established the parent organ-
ization is less clear. As one observer holds, this ‘demonstrates how the entity’s will
does not simply express the sum of the member states’ positions, but reformulates them
at a higher level of complexity, assigning decision-making power to different subjects,
especially to the international institutions that promoted the establishment of the new
60
See J Wouters and J Odermatt, ‘Norms Emanating from International Bodies and Their
Role in the Legal Order of the European Union’ in RA Wessel and S Blockmans (eds), Between
Autonomy and Dependence: The EU Legal Order Under the Influence of International
Organisations (TMC Asser Press/Springer 2013) 47. The authors refer to Human Rights
Committee (HRC), Committee on Economic, Social and Cultural Rights (CESCR), Committee
on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of
Discrimination Against Women (CEDAW), Committee Against Torture (CAT), Committee on the
rights of the Child (CRC), Committee on Migrant Workers (CMW), Committee on the Right of
Persons with Disabilities (CRPD), Committee on Enforced Disappearance (CED) (at 51). The
general term is ‘treaty organs’; see Schermers and Blokker (n 16), 294–96 paras 386–87.
61
See more extensively E Chiti and RA Wessel, ‘The Emergence of International Agencies
in the Global Administrative Space: Autonomous Actors or State Servants?’ in White and Collins
(eds) (n 3) 142; as well as A Berman and RA Wessel, ‘The International Legal Status of
Informal International Law-making Bodies: Consequences for Accountability’ in Pauwelyn ao
(eds) (n 14) 35.
62
See C Shanks ao (eds), ‘Inertia and Change in the Constellation of International
Governmental Organizations, 1981–1992’ (1996) 50 International Organization 593.
63
On the different dimensions of the relationship between states and international organ-
izations D Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’
(1996) 67 British Yearbook of International Law 413.
13 / Date: 14/3
organization’.64 One could argue that in these cases ‘lawmaking’ becomes even more
‘institutional’.
It is not entirely uncommon for international organizations to establish bodies with
public law functions. Since these bodies are usually not based on a treaty, they would
traditionally not qualify as international organizations themselves. A first possibility is
that these bodies are set up by one organization only, to help attain the objectives of
that organization. The most well-known examples include the bodies established by the
UN General Assembly (such as UNCTAD, UNEP, UNIDO, UNCHS, UNFPA and
UNDP). These bodies are usually referred to as subsidiary organs,65 or as quasi-
autonomous bodies (QABs).66 Special bodies were also set up by the UN Specialized
Agencies and other UN-related organizations.67 In terms of lawmaking, a case in point
is the Al Qaeda and Taliban Sanctions Committee, a subsidiary organ of the UN
Security Council, with its competence to place an individual on the consolidated list of
terrorist suspects.68 In many cases this type of international agency has the character-
istics of an international organization in its own right.
A second group of bodies is created by two or more international organizations in
areas where the problems they face transcend their individual competences and
lawmaking activities need to be combined. While these bodies may be established on
the basis of a treaty concluded between international organizations (as was the case
with the International Center for the Improvement of Maize and Wheat (CIMMYT),
created in 1988 by the World Bank and the UNDP; or the Vienna Institute, created in
1992 by the BIS, EBRD, IBDR, IFM, OECD and – later – the WTO), more frequently
they are the result of decisions taken by the respective organizations, such as in the case
of the Intergovernmental Panel on Climate Change (IPCC), established by the UN
Environmental Programme (UNEP) and the World Meteorological Organization
(WMO). It is not even exceptional for the above-mentioned subsidiary organs to, in
turn, act as a parent organization for the newly created bodies (thus leading to what
could be termed third-level international bodies). Thus, in 1994, UNICEF, UNDP,
UNFPA, UNESCO, the WHO and the World Bank instituted UNAIDS (the Joint
United Nations Programme on HIV/AIDS) and earlier examples include the World
Food Programme (WFP; created by the FAO and the WHO in 1961), the Codex
Alimentarius Commission (a 1962 FAO and WHO initiative), the International Trade
Centre (WTO and UNCTAD in 1968), the Intergovernmental Panel on Climate Change
64
C Martini, ‘States’ Control over New International Organization’ (2006) 6 Global Jurist
Advances 1, 25.
65
See Sarooshi (n 63); S Torres Bernardez, ‘Subsidiary Organs’ in RJ Dupuy (ed), Manuel
sur les organisations internationales – A Handbook on International Organizations (Martinus
Nijhoff Publishers 1998), 109.
66
P Szasz, ‘The Complexification of the United Nations System’ (1999) 3 Max Planck
Yearbook of United Nations Law 1.
67
Examples include the Commission on Phytosanitary Measures (created by the FAO in
1997) and the Prototype Carbon Fund (instituted by the World Bank in 1997). See Martini
(n 64), 4–5.
68
See on this nature of the Committee: C Feinäugle, ‘The UN Security Council Al-Qaida
and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the
Protection of Individuals?’ (2008) 9 German Law Journal, 1513.
14 / Date: 14/3
(WMO and UNEP in 1998), the Joint Group of Experts in the Scientific Aspects of
Marine Environmental Protection (GESAMP, created by the IMO, FAO, UNESCO and
WMO in 1969), and the Global Environmental Facility (GEF, created by the World
Bank in 1991 and joined by UNDP and UNEP).69 An example is also formed by the
World Heritage Convention (WHC), whose parties are the UNESCO member states
that have ratified the convention itself, while states, intergovernmental, or non-
governmental organizations that are not UNESCO members may accede to the WHC,
either as participants or as advisers.
In terms of lawmaking, the powers granted to these international bodies are often
constructed either as simple coordination of member states’ activities or as non-binding
regulatory powers. And yet, such powers tend in practice to go well beyond mere
coordination and gain a genuinely binding regulatory character. A case in point is
formed by the WHC. On the basis of its own text, this Convention is often defined as
‘a system of international cooperation and assistance designed to support States Parties
in their efforts to conserve and identify the world heritage’ (article 7), essentially
through the management of a World Heritage List and the allotment of international
assistance, financed by the World Heritage Fund. At the same time, the Operational
Guidelines adopted in the 1990s and their subsequent revision and application show
that inscription of a property on the List of World Heritage in Danger may take place
without the request of the relevant state party, and even against its express wishes, and
may be accompanied by a number of suggested measures to be adopted by domestic
authorities: an evolution which turns the WHC from a case of international coordin-
ation to a system aimed at ensuring member states’ compliance with the World Heritage
regime. Another clear example is provided by the standards produced by the Codex
Alimentarius Commission. These formally non-binding standards have gradually
gained a quasi-mandatory effect via the interpretation of the SPS Agreement by the
WTO Appellate Body, which has subjected the discretion of member states’ to deviate
from international standards to very strict limitation.70
This substantial evolution of the powers of ‘international agencies’ is usually
accompanied by the development of administrative law mechanisms. Such mechanisms
vary considerably from case to case. Yet, in all cases they respond to the exigency of
strengthening control over the functioning and operations of international agencies
through the provision of a number of administrative principles and rules applying to
decision-making. Their sources include treaties and general principles of public
international law. More often, however, administrative law mechanisms are established
by non-treaty lawmaking of the parent organizations as well as of international
69
See Martini (n 64), for a more extensive analysis. Most examples used in this section are
drawn from her survey. See on the interesting example of the GEF also L Boisson de
Chazournes, ‘The Global Environment Facility Galaxy: On Linkages among Institutions’ (1999)
3 Max Planck Yearbook of United Nations Law 243; and E Hey, ‘Exercising Delegated Public
Power’ in R Wolfrum and V Röeben (eds), Developments of International Law in Treaty Making
(Springer 2006), 437.
70
See RA Pereira, ‘Why Would International Administrative Activity be Any Less Legitim-
ate? – A Study of the Codex Alimentarius Commission’ (2008) 9 German Law Journal 1693,
1703. Credits are due to Edoardo Chiti for coming up with these examples.
15 / Date: 14/3
agencies per se, including soft law measures. As for their content, the emerging
administrative law principles and rules tend to converge around decisional transparency,
procedural participation and reasoned decisions, while review by a court or other
independent tribunal is normally excluded. In particular, international agencies develop
a practice of transparency by releasing, generally on their websites, administrative
decisions, information on which they are based and material on internal decision-
making. Moreover, participation in decision-making proceedings has been promoted.
Notably, procedural guarantees are designed as rights of states and are granted to all
member states, not only to those directly affected by regulatory decisions. Procedural
guarantees are extended to civil society and private actors, although their effective role
in the decision-making process is contested and their formal rights are often more
limited than those granted to states.
3.4 Lawmaking by Networking
In some issue areas there is intense cooperation between state and non-state actors.
Apart from the obvious example of the International Labour Organization, other
well-known examples include the Codex Alimentarius Commission on food safety or to
ICANN, which governs the internet. ICANN does not regulate on the basis of binding
decisions. Rather, it concludes contracts with the registries in charge of the adminis-
tration of internet ‘top-level domains’ (TLDs). However, given the fact that internet
access is dependent on having a TLD name (such as .eu), one may argue that this
comes close to ‘de facto’ bindingness. Indeed ‘It seems quite logical that the uniformity
of the rules is best guaranteed by a single “legislator”’.71
In some areas states have even ceased to play a role and transnational actors have
taken over. A prime example is the International Organization for Standardization,
which by now has produced some 20,000 rules on the standardization of products and
processes, covering almost all aspects of technology and business from food safety to
computers, and agriculture to healthcare.72 These rules are often adopted by other
international organizations, such as the WTO, which allows them to indirectly affect
national legal orders.73 A similar situation arises in relation to the norms set by the
World Anti-Doping Agency. It is clear that individuals or companies may be confronted
by rules that were adopted without any direct influence by the national legislator or that
simply have to be adopted at the national level in order to be able to participate in
international cooperation. These activities certainly form part of the international
lawmaking process, albeit that more often the term ‘regulation’ is used to indicate the
more practical or pragmatic dimension of this phenomenon. What one witnesses is a
transnational cooperation that has already led to a complete set of rules on the use of
the internet: the lex digitalis, comparable to the lex mercatoria related to transnational
71
M Hartwich, ‘ICANN – Governance by Technical Necessity’ in Von Bogdandy ao (eds)
(n 48) 575, 576.
72
RB Hall and ThJ Biersteker (eds), The Emergence of Private Authority in Global
Governance (CUP 2002).
73
See S Shapiro, ‘International Trade Agreements, Regulatory Protection and Public
Accountability’ (2002) 54 Administrative Law Review 435.
16 / Date: 14/3
trade.74 Other examples include the Basel Committee, in which the central bank
directors of a limited number of countries harmonize their policies in such a way as to
result in a de facto regulation of the capital market,75 and the International Organization
of Securities Commissions (IOSCO), which deals with the transnationalization of
securities markets and attempts to provide a regulatory framework for them.76 National
agencies or other stakeholders thus participate in global (or regional) regulatory
networks as independent, autonomous actors and are, in turn, often required to
implement international regulations or agreements adopted in the context of these
networks at the national level.77 Slaughter termed this phenomenon the ‘nationalization
of international law’.78 According to Jayasuriya these regulatory forms have three main
features: 1. they are governed by networks of state agencies acting not on behalf of the
state but as independent actors; 2. they lay down standards and general regulatory
principles rather than strict rules; and 3. they frequently contribute to the emergence of
a system of decentralized enforcement or the regulation of self-regulation.79
Harmonization networks as understood in this chapter are networks of public
regulatory authorities (at times in collaboration with private partners) that are in the
business of harmonizing their domestic rules, setting standards or other norms.80
Anne-Marie Slaughter is the scholar to have made the most notable contribution to our
understanding of networks of public regulatory authorities, or what she refers to as
‘trans-governmental regulatory networks’. She defines them as ‘pattern[s] of regular
and purposive relations among like government units working across the borders that
divide countries from one another and that demarcate the “domestic” from the
“international” sphere’.81 They allow domestic officials to interact with their foreign
counterparts directly, without much supervision by foreign offices or senior executives,
74
On the lex digitalis see for instance HH Perritt Jr, ‘Dispute Resolution in Cyberspace:
Demand for New Forms of ADR’ (1999–2000) 15 Ohio State Journal on Dispute Resolution
675. On the lex mercatoria see for instance LM Friedman, ‘Erewhon: The Coming Global Legal
Order’ (2001) 37 Stanford Journal of International Law 347. On some internet regulating bodies
see also Wessel (n 41).
75
D Zaring, ‘International Law by Other Means: The Twilight Existence of International
Financial Regulatory Organizations’ (1998) 33 Texas International Law Journal 281; MS Barr
and GP Miller, ‘Global Administrative Law: The View from Basel’ (2006) 17 European Journal
76
ibid; and Jayasuriya (n 24), 449.
77
Jayasuriya (n 24), 440. See also S Picciotto, ‘The Regulatory Criss-Cross: Interaction
Between Jurisdictions and the Construction of Global Regulatory Networks’ in W Bratton ao
(eds), International Regulatory Competition and Coordination: Perspectives on Economic
Regulation in Europe and the United States (Clarendon Press 1996) 89.
78
AM Slaughter, ‘The Real New World Order’ (1997) 76 (5) Foreign Affairs 183, 192.
79
Jayasuriya (n 24), 453. On the regulation of self-regulation in particular see G Teubner,
‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law & Society Review 239.
Elements of this development are also addressed by AM Slaughter, A New World Order
(Princeton University Press 2004).
80
Credits are due to Ayelet Berman, who suggested this term. Parts of this section are based
on her contribution to a joint publication: Berman and Wessel (n 61).
81
Slaughter (n 79), 14.
17 / Date: 14/3
and feature loosely structured, peer-to-peer ties developed through frequent inter-
action.82 The networks are composed of national government officials, either appointed
by elected officials or directly elected, and they may be among judges, legislators, or
regulators.83
While Slaughter’s work focused on networks composed purely of public regulatory
authorities, in reality, regulators often collaborate with private bodies, in particular in
harmonization networks. For example, the US, EU, and Japanese drug regulatory
authorities collaborate with the medical devices industry associations in the Global
Harmonization Task Force (GHTF), or US and EU aviation authorities collaborate with
aviation industry organizations on the US-EU Aviation Harmonization Work Program.
In some cases, trans-governmental regulatory networks are nothing more than talking
shops, that is, they provide a forum for the exchange of information and experience.
Yet, harmonization networks actually engage in standard setting, harmonization, or
setting of norms. They therefore serve as examples of institutional lawmaking by
actually issuing norms. Examples include the already mentioned Basel Committee and
IOSCO, the International Conference on Harmonization of Technical Requirements for
Registration of Pharmaceuticals for Human Use (ICH), or the Financial Stability Board.
In a chapter on institutional lawmaking, the question may rightfully be raised to
which extent trans-governmental regulatory networks are institutionalized. Again, there
is a great variety: while some may be extremely unstructured, some have become more
institutionalized and may resemble an international organization.84 The latter is in
particular the case in harmonization networks such as Basel, IOSCO and the ICH that
are highly institutionalized, and could rightfully be considered trans-governmental
regulatory organizations.85 They have many of the characteristics commonly associated
with an organization. As far as their contribution to ‘lawmaking’ is concerned, the
documents issued by harmonization networks are typically considered not legally
binding. Nevertheless, members are expected to implement the guidelines in their
domestic legal system. In the GHTF, for example, ‘founding Members will take
appropriate steps to implement GHTF guidance and policies within the boundaries of
their legal and institutional constraints’.86 Similarly, the Basel Committee members
have agreed to implement the accords within their own domestic system. And indeed,
in practice the guidelines enjoy widespread compliance and considerable normative
force, which puts their non-legally binding character into perspective. The normative
82
AM Slaughter and D Zaring, ‘Networking Goes International: An Update’ (2006) 2
Annual Review of Law and Social Science 211, 215; K Raustiala, ‘The Architecture of
International Cooperation: Transgovernmental Networks and the Future of International Law’
(2002–2003) 43 Virginia Journal of International Law 1.
83
Slaughter, A New World Order (n 79), 3–4.
84
See on this point also Slaughter and Zaring (n 82), 215.
85
Zaring refers to the Basel Committee and IOSCO as ‘international financial regulatory
organizations’. See Zaring (n 75). See also S Donnelly, ‘Informal International Lawmaking:
Global Financial Market Regulation’ in Berman ao (eds) (n 14) 181.
86
Art 2.1, ‘GHTF Roles and Responsibilities Document’ available at <http://www.imdrf.
org/docs/ghtf/final/steering-committee/procedural-docs/ghtf-sc-n2r12-100421-ghtf-roles-and-
responsibilities.pdf>.
18 / Date: 14/3
effect of the guidelines extends beyond the member regions. In practice, the guidelines
are often adopted by non-members. For example, more than 100 states have imple-
mented the Basel Accords to a greater or lesser degree.87 Similarly, ICH guidelines,
setting out rules for approval of new medicines, have been adopted globally by many
non-members.88
As we have seen, international norms do not always reach states’ domestic legal
orders directly: they may have followed a route through other international bodies,
which may strengthen the autonomy of the different institutions vis-à-vis their own
members. In the EU the relation between EU decisions and decisions taken by other
international bodies is indeed quite obvious.89 While most types of lawmaking by
international organizations are generally directed towards the organization’s own
members,90 the above analyses underlines that decisions by international institutions
either de jure or de facto become part of the domestic legal order of the member states
and directly or indirectly affect citizens and/or businesses within those states. While in
most states the decisions of international organizations and bodies typically require
implementation in the domestic legal order before they become valid legal norms, the
density of the global governance web has caused an interplay between the normative
processes at various levels. For EU member states (and their citizens) this can imply
that the substantive origin of EU decisions (which usually enjoy direct effect in, and
supremacy over, the domestic legal order) is to be found in another international
body.91 In many areas, ranging from security to food safety, banking, health issues or
the protection of the environment, national rules find their basis in international and/or
European decisions. In those cases decisions may enter the domestic legal orders as
part of European law. But international decisions may also have an independent impact
on domestic legal orders. This is not to say that all international decisions have a direct
effect in the sense we are familiar with in EU law. From the point of view of
international law, while ‘primacy is a matter of logic as international law can only
assume its role of stabilizing a global legal order if it supersedes particular and local
87
M Savino, ‘An Unaccountable Transgovernmental Branch: The Basel Committee‘ in S
Cassese ao (eds), Global Administrative Law: Cases, Materials, Issues, (Institute for Inter-
national Law and Justice: NYU School of Law, and Istituto di Ricerche sulla Pubblica
Amministrazione 2008), 67.
88
A Berman, ‘The Role of Domestic Administrative Law in the Accountability of IN-LAW’
in Pauwelyn ao (eds), (n 14) 468.
89
See also Wessel and Blockmans (n 60). For a theoretical approach to regulatory
interaction see also: V Mayer-Schönberger and A Somek, ‘Introduction: Governing Regulatory
Interaction: the Normative Question’ (2006) 12 European Law Journal 431 (Special issue of the
ELJ Governing Regulatory Interaction: the Normative Question).
90
A number of international organisations also contain other international organisations as
members: for instance, the WTO has the European Union as one of its founding members.
91
For a survey of the relations between the EU and other international organizations see: F
Hoffmeister, ‘Outsider or Frontrunner? Recent Developments under International and European
Law on the Status of the European Union in International Organizations and Treaty Bodies’
(2007) 44 Common Market Law Review 41.
19 / Date: 8/2
rules’, at the same time it ‘allows for an undefined variety of combinations based either
upon the doctrine of monism or the doctrine of dualism’.92
4. CONCLUSION: AN INSTITUTIONALIZED GLOBAL

NORMATIVE WEB
In the Introduction to this chapter we pointed to three phenomena which should guide
a meaningful assessment of institutional lawmaking these days. The importance of
these three phenomena is supported by our analysis:
1. International organizations and other international bodies have often obtained an

autonomous normative position and no longer merely serve as facilitation fora for
state cooperation. The lawmaking functions of many international organizations
have developed in a way that may not have been foreseen by their creators, but
could have been expected given the reason to establish the organizations in the
first place: to delegate authority on matters which require expertise, knowledge,
information, time and resources.93 Institutional lawmaking has thus moved from
using international organizations as facilitators for the conclusion of ‘international
agreements’ to the taking of ‘international decisions’.
2. A mere focus on traditional organizations would leave us with a very limited
picture of the international normative output.94 Although international networks
and informal bodies have existed for a long time,95 their proliferation and (legal)
impact through harmonization methods (standardization, certification) has made it
impossible for lawyers to disregard them in their analysis of international
lawmaking. In many cases they exercise a public authority which goes beyond a
mere cooperation between public as well as private actors. Obviously, this raises
new questions – for instance related to the constitutionalization of the inter-
national legal order, the legitimacy of the decisions or the accountability of the
actors – the answering of which goes beyond the scope of this chapter.96
92
T Cottier, ‘A Theory of Direct Effect in Global Law’ in A von Bogdandy ao (eds),
European Integration and International Co-ordination: Studies in Transnational Economic Law
in honour of Claus Dieter Ehlermann (Kluwer Law International 2001) 99, 102 and 104.
93
Wouters and De Man (n 4), 204.
94
In their book The Making of International Law, Boyle and Chinkin (n 1) accept and
describe the role of numerous state and non-state actors in international lawmaking. It is striking
that ‘treaties as law-making instruments’ is only dealt with marginally (section 5.4).
95
cf S Baldwin, ‘The International Congresses and Conferences of the Last Century as
Forces Working towards the Solidarity of the World’ (1907) 1 American Journal of International
Law 565; as well as H Laski, The Limitations of the Expert (The Fabian Society 1931)
(criticizing the influence of experts in the making of international public norms).
96
See also Klabbers, ‘Law-making and Constitutionalism’ (n 31), 12, arguing that non-state
actors have ‘started to compete with states for the scarce resource of politico-legal authority (ie
the power to set authoritative standards).’ In general the book discusses international constitu-
tionalism as a framework within which further normative debate on a legitimate and pluralist
constitutional order can occur (4, 10). But see also Pauwelyn, Wessel and Wouters, ‘When
20 / Date: 14/3
3. The distinction between formal and informal institutions and networks may have
been helpful for lawyers to define their object of study, but no longer does justice
to the interconnectedness of the norms they produce. Indeed, as has been
observed, the institutions involved in global governance ‘interact, formally and
informally on a regular basis. In recent years, their programs are more tied
together, creating linkages that begin to weave a web of transnational rules and
regulations’.97
In a way, this third point is the result of the first two. Hence, the main lesson
may be that institutional lawmaking (as well as the enforcement of the rules98)
cannot be studied by looking at one particular international institution or merely
at traditional international organizations. Norms enacted by formal and informal
international bodies and networks are more often interconnected and, given the
increasing (technological) complexity of many issues, the origin of a norm may
very well be found in a meeting of one of the hundreds of international bodies
and networks that exist internationally as part of an institutionalized global
normative web.
Structures Become Shackles’ (n 11), where we have argued that the effects on legitimacy should
not be overestimated as the traditional ‘thin state consent’ is replaced by a ‘thick stakeholder
consensus’. On the possibly changing nature of the international legal order as a result of the
new role of international institutions see also RA Wessel, ‘Revealing the Publicness of
International Law’, in C Ryngaert ao (eds), What’s Wrong With International Law? What’s
Wrong With International Law? (Martinus Nijhoff Publishers 2015), 449–66.
97
Koppell (n 23), 12.
98
MA Heldeweg and RA Wessel, ‘The Appropriate Level of Enforcement in Multilevel
Regulation: Mapping Issues in Avoidance of Regulatory Overstretch’, (2016) 5 International
Law Research 16–31.
21 / Date: 14/3
10. International judicial lawmaking

1. INTRODUCTION
The role of judicial institutions in the development of international law has been an
open question since the days of the Permanent Court of International Justice. In 1934,
Hersch Lauterpacht had already advanced the claim that ‘judicial lawmaking is a
permanent feature of the administration of justice in every society’.1 In many respects,
if the adjective ‘judicial’ can be used as pertaining to a court of law or a system of
courts of law that are dedicated to the administration of justice within a legal order,2
understanding a judiciary’s role in lawmaking remains a foundational question as to the
nature and form of a legal system.
The sheer number of international judicial institutions, each with their specific
mandate, renders any sweeping commentary on the phenomenon of international
judicial lawmaking rather illusory in this brief treatment of the question. Instead, a few
ideas will be highlighted, so as to test whether any generalisations can be made about
international judicial lawmaking. The question is not merely theoretical, but a matter of
the actual practice of international judicial institutions. As such, the first section will
consider the question of judicial lawmaking at the international level in the abstract.
The second part of this study will consider how the jurisprudence of the International
Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice,
have contributed to the development of international law. As to the first permanent
international court, its structure has usually been the archetype against which other
international judicial institutions have been designed, and its body of case law
stretching over nearly a century allows for clear observations as to its contributions to
the process of international lawmaking. In the third part, a brief survey of judicial
lawmaking will review the work of the WTO’s Appellate Body, the ad hoc international
criminal tribunals for the former Yugoslavia and Rwanda, and the American and
European human rights courts.
2. INTERNATIONAL JUDICIAL LAWMAKING

It is an incontrovertible fact that a decision choosing one of two or more alternative courses
equally available to the judge has an impact upon the understanding of the law in the future,
whether by the judge, the lawyer or, indeed, by the public. Especially if it is an important or
1
H Lauterpacht, The Development of International Law by the Permanent Court of
International Justice (Longmans 1934), 45.
2
cf HLA Hart, The Concept of Law (2nd edn, Clarendon 1994), 132, who describes these
courts as ‘rule-making authorities’ within a legal system.
200
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International judicial lawmaking 201
path-finding decision, the living law is not the same thereafter. The judge has become the
instrument of change through which the process of adaptation takes place to the needs of the
time. Decisions piled upon decisions thus make a whole corpus of law, whether or not the
process be prohibited by state authority or settled tradition.3
Although it is surely premature to suggest that international law has developed a robust
international judicial function,4 it is safe to admit that lawmaking is an intrinsic element
of adjudication,5 at least conceptually, in so far as clarifying ambiguities, filling
perceived gaps, and safeguarding the coherence of a system are involved. Some would
go further: Lauterpacht emphasised the right (if not outright duty) of the international
judge to develop the law,6 and foresaw that a judgment in which this occurred need not
be within the exercise of purely subjective discretion, but rather, be described as
‘fulfilling what the legislator would have intended if he could have foreseen the
changes occurring in the life of the community’.7 As such, because the basic principle
of providing a reasoned judgment is a necessary precondition for the use of judicial
pronouncements as a source of law,8 these reasoned judgments become authoritative
through the use of a consistent process and method.9 If seen as vested with the
appropriate authority, judicial decisions can clarify the content of unwritten law,
whether custom or general principle, through its concrete application to a given legal
dispute or situation; clarify ambiguities in the interpretation of a legal text; and provide
systematisation to a question of law where there might be conflicting practice or
ambiguity.
Moreover, the interpretation of a principle or rule by a judicial body channels it into
a concrete form, and ‘bestows it with meaning and authoritative weight’.10 Courts and
tribunals enjoy peculiar advantages due to their formal structure: they are provided with
3
CG Weeramantry, ‘The Function of the International Court of Justice in the Development
of International Law’ (1997) 10 Leiden Journal of International Law 309, 313.
4
But cf Y Shany, ‘No Longer a Weak Department of Power? Reflections on the
Emergence of a New International Judiciary’ (2009) 20 European Journal of International Law
73, 74.
5
A von Bogdandy and I Venzke, ‘On the Democratic Legitimation of International Judicial
Lawmaking’ (2011) 12 German Law Journal 1341, 1345.
6
Lauterpacht succinctly described the lawmaking function of the Court as ‘the creation,
development and clarification of an imposing body of rules of international law of varying
degrees of crystallisation’ (n 1), 8.
7
(Stevens and Sons 1958), 21, 80.
8
See JE Álvarez, International Organizations as Law-Makers (OUP 2005), 554.
9
GG Fitzmaurice, The Law and Procedure of the International Court of Justice vol I
(Grotius Publications 1986), 648. See also Barcelona Traction, Light, and Power Company,
Limited (Belgium v Spain) (Second Phase) [1964] ICJ Rep 6, Separate Opinion of Judge Tanaka,
65–66:
[t]he most important function of the Court … is to be found not only in the settlement of
concrete disputes, but also in its reasoning, through which it may contribute to the
development of international law. It seems hardly necessary to say that the real life of a
decision should be found in the reasoning rather than in the conclusion.
10
A Boyle and C Chinkin, The Making of International Law (OUP 2007), 272.
details of particular disputes submitted to them; judges are appointed to their benches
for having the requisite legal expertise to do so; they follow a procedure specified in
advance; and they are above all ‘required to fashion a just result which is in consonance
with the infinite variations of fact that can exist in the application of a particular
principle’.11 In this respect, adjudicative reasoning shapes the method of discourse,
outlining the contours of what is admissible and inviting participants in the legal
process to adopt its own processes and methods. Accordingly, making law in a series of
continuous small-scale decisions, built around a general principle, gives judicial
institutions ‘a degree of considered elaboration which no legislature has the opportunity
to achieve’.12 When they hand down such decisions, they make a ‘definitive and
authoritative impact on the development of law’.13
3. THE INTERNATIONAL COURT OF JUSTICE

3.1 The Formal Role of the International Court in International Lawmaking
One must proceed from the starting-point that international courts, and a fortiori the
ICJ, have no formal role in lawmaking. It is true that it operates as the single
permanent international judicial institution with competence over all matters of general
international law,14 and the ‘principal judicial organ’ of the United Nations Organ-
ization.15 However, nothing in the ICJ Statute can be read as suggesting that its
judgments are creative of international law.16 It has no automatic compulsory juris-
diction over UN Member States, even if these are ipso facto parties to its Statute.17 It
has no appellate jurisdiction over other international tribunals, and thus no competence
to ensure ‘systematic coherence’ between the judgments of different international
judicial institutions.18 What is more, it hardly bears recalling that article 38 of the ICJ
Statute relegates ‘judicial decisions’ to subsidiary means for the determination of the
11
Weeramantry (n 3), 319.
12
ibid, 320.
13
M Lachs, ‘Some Reflections on the Contribution of the International Court of Justice to
the Development of International Law’ (1983) 10 Syracuse Journal of International Law and
Commerce 239, 245.
14
See art 36(1) of the Statute of the International Court of Justice (as annexed to the
Charter of the United Nations (26 June 1945) 1 UNTS xvi; UKTS 67 (1946), Cmd 7015): the
Court enjoys jurisdiction over any dispute that States may submit to it, including any matters
provided for in the Charter, or in ‘treaties or conventions in force.’ Art 14 of the Covenant of the
League of Nations (in force 20 August 1921), UKTS 4 (1919), Cmd 153, had been even more
clear: the Permanent Court of International Justice was ‘competent to hear and determine any
dispute of an international character’ submitted to it.
15
Art 92 of the Charter of the United Nations (26 June 1945) 1 UNTS xvi; UKTS 67
(1946), Cmd 7015.
16
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Merits) [1982] ICJ Rep 18, Dissent-
ing Opinion of Judge Gros 143, 152.
17
Statute of the International Court of Justice (n 14).
18
As Boyle and Chinkin (n 10), 263, put it, ‘[c]onstitutionally it is simply one court among
many’.
rules of law, alongside the ‘teachings of the most highly qualified publicists’.19 Thus,
even though ‘judicial decisions’ (those of all courts, not only the ICJ’s) are recognised
as subsidiary sources of the law under article 38, they assist primarily in the elucidation
and interpretation of legal norms that are grounded on a formal source of international
law.20 Perhaps for reasons of continuity, or because the ICJ Statute is annexed to the
UN Charter, the sources of international law as enumerated in article 38 are ‘often put
forward as a complete statement of the sources of international law’.21 In any event, no
international court or tribunal formally recognises its judgments as a primary source of
international law.
Yet to focus purely on the formal role of the Court’s judgments would be
short-sighted, and in practice, few have been so insistent. To give but one example, in
1947, the General Assembly proclaimed that ‘it is … of paramount importance that the
Court should be utilized to the greatest practical extent in the progressive development
of international law.’22 This was, to be sure, a mere preambulatory clause, encouraging
States and United Nations organs to make greater use of the ICJ. However, in its
substance, Resolution 171 also embodied the belief that the ICJ, its principal judicial
organ, could be used effectively as an agent for ‘progressive development’23 as well as
the faith that the administration and development of substantive international law could
safely be trusted to impartial, objective judges, whose determinations would ‘naturally’
have repercussions ‘in many spheres including the political’.24 As such, even though a
formal lawmaking role was denied to it, from the outset it has been envisaged that it
could make a substantive contribution to the development of international law.
19
Art 38(1)(d) of the ICJ Statute (n 14); RY Jennings, ‘The Judiciary, International and
National, and the Development of International Law’ (1996) 45 International and Comparative
Law Quarterly 1, 3: ‘Article 38 constitutes a necessary recognition of the basic principle of the
process of adjudication that judges, whether national or international, are not empowered to
make new laws. Whatever modification and development of the law is made “must be seen to be
within the parameters of permissible interpretation”’.
20
Baron Descamps (Belgium)’s colourful description of the international judicial function:
‘[d]octrine and jurisprudence no doubt do not create law; but they assist in determining rules
which exist. A judge should make use of both jurisprudence and doctrine, but they should serve
only as elucidation.’ See PCIJ Advisory Committee of Jurists, Procès-verbaux of the Proceedings
of the Committee, June 16–July 24 1920, with Annexes (Van Langenhuysen Bros 1920) 336. See
also Lauterpacht (n 1), 22.
21
See J Crawford, Brownlie’s Principles of Public International Law (7th edn, OUP 2012),
22, who in fact suggests that they cannot be regarded as a straightforward enumeration, thus
breaking somewhat with Brownlie’s less critical view; M Shaw, International Law (6th edn,
CUP 2008), 6. P Daillier, A Pellet, M Forteau and D Müller, Droit international public (8th edn,
LGDJ 2009), 126, regard them as an ‘énumération universellement acceptée des sources
formelles du droit international’.
22
UNGA, ‘Need for greater use by the United Nations and its organs of the International
Court of Justice’ UNGA Res 171 (II) (1947) UN Doc A/519, 103.
23
A concept generally associated with art 1 of the ILC Statute: see UNGA, ‘Establishment
of an International Law Commission’, UNGA Res 174 (II) (21 November 1947) UN Doc A/519,
105.
24
R Higgins, Problems and Process (OUP 1994), 202; R Higgins, ‘International Law and
the Avoidance, Containment, and Resolution of Disputes’ (1991-V) 222 Recueil des cours de
l’Académie de droit international 9, 261.
3.2 Limitations to the International Court’s Role in Lawmaking
Before turning to the lawmaking potential of the Court, one must first identify some of
the limitations under which it operates. First, is the essentially reactive character of the
International Court’s work.25 Judicial opinions are essentially concerned with resolving
past disputes: it is only when they are viewed as precedents that they gain the potential
to determine the law in the future. Because it depends on proceedings being instituted
before it, or opinions requested of it, the Court cannot exercise the same systemic
function as a domestic supreme court, which can select the portfolio of cases that will
be argued before it. The Court’s relatively weak jurisdictional structure serves as a
second limitation; it remains dependent on the consent of States parties to a dispute,
and with a minority of States having accepted its compulsory jurisdiction,26 it is not
guaranteed a regular docket of cases,27 and there is no possibility of systemic
contribution due to this ‘exceptionality’.28 Further, the judges of the Court have stated
extra-judicially that they are ‘reluctant lawmakers’, eager not to be perceived to be
making law.29 As such, its body of case law has developed with a keen sense of
deference to State consent, and a great reluctance to be seen as overstepping such
consent.30
The caution of the Court in relation to the consent of parties before it also translates
into making any pronouncements on substantive international law. The Court’s restraint
has been consistent, as is evidenced by the 1974 judgment on Fisheries Jurisdiction,
where Germany and the United Kingdom filed proceedings against Iceland: when
considering the codification and progressive development of the law of the sea
simultaneously taking place at the third Conference of the Law of the Sea, it declared
that ‘[i]n the circumstances, the Court as a Court of law, cannot render judgment sub
25
ibid, 785.
26
As of 31 July 2012, 67 States had deposited with the Secretary-General a declaration of
acceptance of the Court’s compulsory jurisdiction in accordance with art 36, para 2 of the
Statute: see Report of the International Court of Justice (1 August 2011–31 July 2012), GAOR
67th Session Supp 4, UN Doc A/67/4, 1 para 7.
27
It seems noteworthy that the 1974 Reports of the International Court were six pages long.
28
G Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’ (1999) 31 New
York Journal of International Law and Policy 919, 922.
29
D Terris, CP Romano and L Swigart, The International Judge: An Introduction to the
Men and Women who decide the World’s Cases (OUP 2007), 129; See also M Shahabuddeen,
Precedent in the World Court (Grotius 1997), 233.
30
See eg Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep
6, 39 para 88 (emphasising the importance of consent in relation to compromissory clauses
conferring jurisdiction; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v
France) [2008] ICJ Rep 177, 204 para 62 (emphasising the need for consent to the Court’s
jurisdiction to be ‘certain’, and not only on matters relating to jurisdiction based on forum
prorogatum); and Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v Russia) (Preliminary Objections), Judgment 1 April 2011
available at <http://www.icj-cij.org/docket/files/140/16398.pdf>, para 131, on how prior resort to
negotiations represents a limit of consent given by States. See also, generally, S Oda, ‘The
Compulsory Jurisdiction of the International Court of Justice: A Myth?’ (2000) 49 ICLQ 251.
specie legis ferendae, or anticipate the law before the legislator has laid it down’.31
Similarly, in its advisory opinion in the Legality of the Use or Threat of Nuclear
Weapons, the Court reaffirmed that:
It is clear that the Court cannot legislate … Rather its task is to engage in its normal judicial
function of ascertaining the existence or otherwise of legal principles and rules … The
contention that the giving of an answer to the question posed would require the Court to
legislate is based on a supposition that the present corpus juris is devoid of relevant rules in
this matter. The Court could not accede to this argument; it states the existing law and does
not legislate. This is so even if, in stating and applying the law, the Court necessarily has to
specify its scope and sometimes note its general trend.32
3.3 The Lawmaking Authority of the International Court
3.3.1 Beyond persuasive authority?

With no formal authority upon which to fall back, the persuasive authority of a
judgment of the Court, in relation to lawmaking at least, remains theoretically
dependent purely on the quality of the reasoning contained in that judgment; neverthe-
less, the Court makes a substantial contribution to the development of international
law.33 From picking up any treatise on general international law,34 it is evident that
there is no gainsaying the practical authority and power of judgments of the Court.35
Erstwhile judge Thomas Buergenthal has called the Court’s engagement with inter-
national law a process of ‘normative accretion’,36 through which law is not created as
with legislative processes, but rather in a more modest, incremental fashion, clarifying
ambiguities and resolving perceived gaps in the law. As such, there is much to the
31
Fisheries Jurisdiction (United Kingdom v Iceland) (Judgment) [1974] ICJ Rep 181, 192.
This echoes the earlier statement in Northern Cameroons (Cameroon v United Kingdom)
(Preliminary Objections) [1963] ICJ Rep 15, Separate Opinion of Judge Fitzmaurice, 98–99:
… courts of law are not there to make legal pronouncements in abstracto, however great their
scientific value as such. They are there to protect existing and current legal obligations, to
afford concrete reparation if a wrong has been committed, or to give rules in relation to
existing and continuing legal situations. Any legal pronouncements that emerge are neces-
sarily in the course, and for the purpose, of doing one or more of these things. Otherwise they
serve no purpose falling within or engaging the proper function of courts of law as a judicial
institution.
32
Legality of the Use or Threat of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep
226, 237 para 18.
33
See N Petersen, ‘Lawmaking by the International Court of Justice – Factors of Success’
(2011) 12 German Law Journal 1295, who attempts to identify empirical, observable develop-
ments in international law and determine whether there exists a causal link with a judgment of
the Court.
34
See Lauterpacht (n 7), 5; A Pellet, ‘Article 38’ in A Zimmermann ao (eds), The Statute of
the International Court of Justice – A Commentary (2nd edn, OUP 2012) 731, 862ff; C Brown,
‘Article 59’ ibid, 1444–45; and Boyle and Chinkin (n 10), 268.
35
Jennings (n 19), 8.
36
T Buergenthal, ‘Lawmaking by the ICJ and Other International Courts’ in (2009)
Proceedings of the American Society of International Law 403, 403.
tion: 6 / Date: 8/2
argument that the Court’s influence on international legal development is essentially

interstitial:37 its intervention is punctual, and can later be ignored, overruled or limited.
Even so, the systemic constraints of operating in a decentralised framework give the
Court’s judgments a heightened influence on the internal understanding of legal rules
within the system, offering a set of normative expectations that can be relied upon by
States. It is certainly an agent in the international lawmaking process.38 Accordingly,
once a general statement on a legal principle or rule has been elucidated by the
International Court, both parties and non-parties cannot in good faith contest that
general principle.39 Recognition of the ICJ’s role as the ‘principal judicial organ’ of the
UN40 by all States compounds the issue, suggesting that the Court enjoys a systemic
function exceeding that of other international courts. Certainly, the Court regards its
own judgments as influential, and has expressly granted them a high persuasive value
as precedent:
[t]o the extent that the decisions contain findings of law, the Court will treat them as it treats
all previous decisions: that is to say that, while those decisions are in no way binding on the
Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to
do so.41
Its Registry has also expressed a desire for ‘continuity’.42 But there is more: beyond the
walls of the Peace Palace, its judgments are regularly scrutinised and observed by the
International Law Commission,43 the General Assembly,44 and other international
37
A term borrowed, as I understand it, from V Lowe, ‘The Politics of Law-Making’ in M
Byers (ed), The Role of Law in International Politics (OUP 2000) 207, 212–13.
38
CJ Tams and A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal
Development’ (2010) 23 Leiden Journal of International Law 781, 784; Weeramantry (n 3), 311.
39
GG Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’,
in Symbolae Verzijl (Martinus Nijhoff 1958) 153, 172–73, terms judicial decisions ‘quasi-formal’
sources of international law. Weeramantry (n 3), 321, goes further: the Court’s ‘role and duty
must extend beyond the immediate case to the elucidation of relevant principles that have arisen
for discussion in the context of the case, thereby helping in the development of the law’.
40
As spelt out in art 92 of the Charter (n 15).
41
Genocide (Croatia v Serbia) (Jurisdiction) [2008] ICJ Rep 412, 428, para 53.This habit is
nothing new: the Permanent Court had already stated in Case of Readaptation of the
Mavrommatis Jerusalem Concessions (Greece v Britain) (Jurisdiction) 1927 PCIJ Rep Series A
No 11, 18, the Court would have ‘no reason to depart from a construction which clearly flows
from the previous judgments the reasoning of which it still regards as sound’. Moreover, it was
evident to all besides the Court prior to 2008: see Pellet, ‘Article 38’ (n 34) 855–6; M
Mendelson, ‘The International Court of Justice and the Sources of International Law’ in V Lowe
and M Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of
Sir Robert Jennings (Grotius 1996) 63, 81.
42
The Registry of the Court, The International Court of Justice (ICJ Publications 1979),
62–63.
43
Tams and Tzanakopoulos (n 43), 783, make express reference to the ILC’s commentaries
to what have become arts 19–20 of the Vienna Convention on the Law of Treaties (adopted 23
May 1969, entered into force 27 January 1980, 1155 UNTS 331), art 8 and art 51 of the ‘Articles
on the Responsibility of States for Internationally Wrongful Acts’ in Report of the International
Law Commission on the Work of its 53rd Session, GAOR 56th Session Supp 10 UN Doc
A/56/10 chap V (2001). One can add art 14 of the Draft Articles on Diplomatic Protection
courts.45 As such, the Court’s view on the binding nature of a rule, if accepted by other
participants in the international legal community, is often determinative. With ‘not even
the semblance of any kind of hierarchy or system’,46 the authority commanded by the
Court is thus particularly noteworthy. The Court’s role has been one that perforce
clarifies and tidies up the substance of international law, and one that serves as a
consolidating force. It is an ‘agent’47 in the international legal process, participating in
the process of legal development without a formal role being ascribed to it.
As such the Court’s greatest contribution has been to lending authority to the rules
that it enunciates and applies, as often, and especially in relation to customary law, the
Court’s recognition of it is seen as determinative.48 The Permanent Court set down
rules that are now seen as foundational to the law on State responsibility.49 To give but
a few further examples, the International Court has made pronouncements on the
severability of reservations to treaties;50 its interpretation of the term ‘armed attack’
contained in article 51 of the Charter, persisting in its view that only attacks committed
by States could fall within its scope;51 on the scope of the right to self-determination;52
and on the legal effect of Security Council resolutions with respect to actors other than
UN Member States and inter-governmental organisations.53 Further, it could be argued
that the Court’s judicial pronouncements with respect to boundary delimitations54 or
(GAOR 61st Session Supp No 10 UN Doc A/61/10), which codifies the Court’s practice on the
exhaustion of local remedies.
44
See eg UNGA Res 171 (II) (14 November 1947) UN Doc A/RES/171(II); UNGA Res
3232 (XXIX) UN Doc A/RES/3232 (1974).
45
Examples abound. The ECtHR has recently done so in Behrami v France, Saramati v
France, Germany and Norway, Apps No 71412 and 78166/01 (ECtHR, 2 May 2007) (decisions
on admissibility) (2007) 44 EHRR 52, para 147. The ECJ has referred to ICJ case law
frequently: see eg (Case C-286/90) Anklagemyndigheden v Peter Michael Poulsen and Diva
Navigation Group [1992] ECR-I-6019, para 10; (Case T-115/94) Opel Austria GmbH v Council
of the European Union [1997] ECR II-39, paras 90, 93; (Case C-162/96) Racke GmbH & Co v
Hauptzollamt Mainz [1998] ECR I-3655, paras 24ff, para 50.
46
Jennings (n 19), 5.
47
48
Pellet (n 34), 864.
49
Pellet (n 34), 866, cites The Mavrommatis Palestine Concessions (Greece v Britain)
(Judgment)[1924] PCIJ Rep Series A No 2, 12, where the Permanent Court sets out the basic
rule on diplomatic protection for injuries suffered by nationals, and Case Concerning the
Factory at Chorzów (Germany v Poland) (Merits) PCIJ Rep Series A No 17, 29, where it set out
that the breach of an international engagement involved an obligation to make reparation.
50
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide (Advisory Opinion) [1951] ICJ Rep 15, 22–25.
51
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136, para 139 (Israeli Wall).
52
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 31 para 55.
53
Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo (Advisory Opinion) [2010] ICJ Rep 403,
450 paras 116–117.
54
Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) [1994] ICJ Rep 6; Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) (Application to
Intervene by Equatorial Guinea) [1999] (II) ICJ Rep 1029; and Territorial and Maritime Dispute
with maritime delimitations55 appear to be ‘objective law’, in that these determinations

are to be respected by all States.56 This conclusion is misplaced: article 59 calls upon
the parties to a dispute to comply with its legal findings, and other States simply
respect the positions as to their mutual boundary. Although the effect is law-creative, it
is the compliance of the States involved, rather than the Court’s judgment itself, that
formally translates into objective law.
3.3.2 Judicial lawmaking in the application and interpretation of unwritten law

Certainly, the Court’s interpretation of written law, most prominently international
treaties and the unilateral acts of States, can constitute an important source of judicial
lawmaking. Of considerable academic interest, however, is the Court’s role in the
interpretation and application of unwritten law, in particular of customary law.
Although certainly judicial decisions are not formally constitutive of customary law,
they help to establish its existence, providing written confirmation of its existence.57 As
Jiménez de Aréchaga has observed, a judicial pronouncement on a point of customary
law becomes a ‘focal point’ that inspires subsequent State practice and thus helps to
‘harden’ a rule.58 And it is true that the methodology of how the Court has addressed
custom demonstrates lawmaking potential: despite the Court’s doctrinal insistence on
State practice and opinio juris, it in fact rarely refers to these elements.59 So goes it
with the other unwritten formal source under article 38 of the Statute, general
principles of law. These principles, conceived as subsidiary in so far as they allow the
Court to look to the practice of domestic and international jurisdictions for certain
(Nicaragua v Colombia) (Merits) 2012 <http://www.icj-cij.org/docket/files/124/17164.pdf>

accessed 18 November 2013.
55
Maritime Delimitation in the Black Sea (Romania/Ukraine) [2009] ICJ Rep 61; Dispute
regarding Navigational and Related Rights (Costa Rica v Nicaragua)[2009] ICJ Rep 213;
Maritime Dispute (Peru v Chile), currently under deliberation: see ICJ Press Release 2012/37
<http://www.icj-cij.org/docket/files/137/17232.pdf> accessed 18 November 2013.
56
C Brown, ‘Article 59’ in Zimmermann ao (eds) (n 34), 1439.
57
A Roberts, ‘Traditional and Modern Approaches to Customary International Law: A
Reconciliation’ (2001) 95 American Journal of International Law 757, 772, goes so far as to
declare the Court ‘the ultimate arbiter in some cases’ of the existence and content of custom.
58
See A Cassese and JHH Weiler (eds), Change and Stability in International Law-Making
(Gruyter 1989), 3. This is to be distinguished from the ‘focal point’ in game theory: cf T
Ginsburg and RH McAdams, ‘Adjudicating in Anarchy: An Expressive Theory of International
Dispute Resolution’ (2004) 45 William and Mary Law Review 1229, 1269; and RH McAdams,
‘A Focal Point Theory of Expressive Law’ (2000) 86 Virginia Law Review 1649.
59
Boyle and Chinkin (n 10), 279, specifically point to Anglo-Norwegian Fisheries (United
Kingdom v Norway) [1951] ICJ Rep 116, Icelandic Fisheries Jurisdiction (n 31), and Military
and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 14. Perhaps the
most flagrant example is in the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v Belgium) [2002] ICJ Rep 3, para 58, where the Court felt no need to justify its
methodology in reaching its conclusion on the immunity of foreign ministers. The Court’s
formalism drew the ire of Judge ad hoc Van den Wyngaert in her Dissenting Opinion, ibid 137,
esp 145 para 13, where she concluded that negative State practice still requires opinio juris. But
see the notable exception of Jurisdictional Immunities of the State (Germany v Italy) (Judgment)
2012 available at <http://www.icj-cij.org/docket/files/143/16883.pdf>, para 77, where the Court
drew extensively on domestic court judgments as ‘evidence of State practice’.
tion: 9 / Date: 8/2
principles to be applied in a given case.60 The same approach has been adopted by the
ad hoc international criminal tribunals with respect to general principles, using these to
fill perceived ‘gaps’ and creating new norms of international criminal law,61 although it
would seem that the ad hoc tribunals have adopted a consciously teleological
interpretation of international law, especially in relation to protecting ‘human
dignity’.62
3.3.3 Judicial lawmaking through advisory opinions

An interesting final aside relates to the International Court’s advisory function. Courts
seldom give legal advice, advice being the exposition of abstract legal principles to
formulate and guide future action, rather than the classical judicial function of applying
the law with finality to a series of facts that have already occurred, in an attempt to
settle a dispute.63 Whatever faith placed in the advisory function as a law-creating
function is purely contingent: in order to constitute law, the opinions must be accepted
by the relevant organs (ideally also by the requesting organ!), and form the basis for
subsequent development.64 Advisory opinions only constitute ‘advice’,65 and are not
binding;66 and the Court’s hesitation to be seen as law-creating is such that in the
Legality of the Threat or Use of Nuclear Weapons advisory opinion, it declined to
60
The Court is sparing with these: although in its early days the Permanent Court
recognised equity in the Free Zones of Gex case (Switzerland v France) PCIJ Rep Series A No
24, 10; and the ‘clean hands’ doctrine (see Diversion of Water from the River Meuse (the
Netherlands v Belgium) (Judgment) PCIJ Rep Series A/B No 70), in general the Court has been
parsimonious in its reference to such principles: see Pellet (n 34), 838–39.
61
See eg Prosecutor v Delalić (judgment) IT-96-21-A (20 February 2001), para 173
(declaring the acts enumerated in Common art 3 to be international crimes as they ‘shock the
conscience of civilised people’); Prosecutor v Furundžija (Trial Judgment) IT-95-17/1 (10
December 1998), paras 174ff (situating the definition of rape as a crime against humanity by
reference to principles found in domestic legal orders); Prosecutor v Kupreškić (judgment)
IT-95-16-A (23 October 2001), para 75 (rejecting national concepts in determining under which
test additional evidence reveals an error of fact of such magnitude as to occasion a miscarriage
of justice); and Prosecutor v Akayesu (judgment) ICTR-96-4-T (2 September 1998), para 597
(concluding through a ‘conceptual approach’ that sexual violence was a form of torture because
it was a crime against personal dignity).
62
See Furundžija (n 61), para 184 and Prosecutor v Celibici (judgment) IT-96-21 (16
November 1998), para 170, in both of which the ICTY has made reference to purposive
interpretations in line with the concept of ‘human dignity’.
63
For similar reasons, JB Moore opposed the giving of advisory opinions by the Permanent
Court: see ‘The Question of Advisory Opinions’, Memorandum by Judge Moore presented 18th
February 1922, 1922 PCIJ Rep Series D No 2 (Annex 58a).
64
K Oellers-Frahm, ‘Lawmaking through Advisory Opinions?’ (2011) 12 German Law
Journal 1033, 1049. But cf A von Bogdandy and I Venzke, ‘Zur Herrschaft internationaler
Gerichte: Eine Untersuchung internationaler öffentlicher Gewalt und ihrer demokratischen
Rechtfertigung’ (2010) 70 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 1, 11.
65
See, generally, MO Hudson, ‘The Effect of Advisory Opinions of the World Court’
(1948) 42 American Journal of International Law 630.
66
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania [1950] ICJ Rep
65, 71; Applicability of Article VI, Section 22, of the Convention on the Privileges and
Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177 (Mazilu), 189 para 31.
tion: 10 / Date: 14/3
‘conclude definitively’ on the permissibility of the threat or use of nuclear weapons, in

an unprecedented non liquet.67
The tension between the advisory function and the contentious function within a
judicial body is deeply embedded in wider thinking on its function, and has been
explored systematically elsewhere.68 It suffices, however, to appreciate that the advisory
function departs somewhat from the classic dispute-settling function of judicial
institutions.69 For example, this may be the reason that the parties empowered to submit
disputes – States – are strictly separated from those authorised to request advisory
opinions under article 96, para 1 of the Charter, namely, UN organs and specialised
agencies.70 The Court itself has addressed the concern over possible overlap of these
functions, and that the advisory function could be used to circumvent the lack of
acceptance of its contentious jurisdiction.71
In its advisory capacity, the Court has made a substantial contribution to the
institutional law of the UN. It has expressly affirmed, as a part of the normal exercise
of its judicial power, the competence to interpret the Charter in Admission of a State.72
It has affirmed the international legal personality of the United Nations Organization.73
It has specified the extent of the supervisory power of the General Assembly with
respect to territories under the League of Nations’ mandate system.74 It has offered a
more precise delineation of the competences of the non-judicial principal organs in
respect to the budget.75 It has allocated the power to interpret the Charter.76 It has
67
Nuclear Weapons (n 32), 266 para 105 (Operative Clause), para 2E. The Court’s non
liquet here may be indicative of the present state of the international legal system, but it is also
a forceful statement of the Court’s position on its systemic function. See eg para 14 of Judge
Guillaume’s Separate Opinion: ‘… it is not the role of the judge to take the place of the
legislator … the Court must limit itself to recording the state of the law without being able to
substitute its assessment for the will of sovereign States’.
68
This tension is explored in G Hernández, The International Court of Justice and the
Judicial Function (OUP 2014), ch 3 (‘The Judicial Character of the Court’).
69
However, a few domestic supreme courts simultaneously and successfully discharge
advisory functions: see eg the Supreme Court of Canada (Section 53 of the Supreme Court Act,
RSC 1985 Ch S-26); and the Supreme Court of India (Constitution of India, pt V).
70
The division dates from the time of the Permanent Court: see art 14 para 3 of the
Covenant of the League of Nations. See also Oellers-Frahm (n 64), 1034–35.
71
See Applicability of Article IV, section 22, of the Convention on the Privileges and
Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177, 189; see also Israeli
Wall (n 51), where Israel raised this angrily in written proceedings and refused to participate in
the oral proceedings before the Court.
72
Conditions for Admission of a State to Membership in the United Nations (Article 4 of
the Charter) (Advisory Opinion) [1947] ICJ Rep 57, 61.
73
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion)
[1949] ICJ Rep 174.
74
International Status of South West Africa (Advisory Opinion) [1950] ICJ Rep 128, 131ff.
75
Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter)
(Advisory Opinion) [1962] ICJ Rep 151, 167.
76
ibid, 168, where it affirmed the powers of the various principal organs, including the
Court itself, in interpreting the Charter.
tion: 11 / Date: 14/3
elucidated the competence of the non-judicial principal organs in matters of inter-

national peace and security.77 It has claimed its own power to consider objections to
resolutions of the General Assembly and Security Council.78 It has clarified the ability
of political organs to create subsidiary judicial organs.79 It has clarified, in turn, the
UN’s relationship with its member States80 (and non-member States81), and its
specialised agencies (vis-à-vis the member States of those specialised agencies);82 its
ability to afford protection to its staff83 and ensure their fair treatment;84 and the scope
of the powers of the principal organs to establish subsidiary organs.85
Thus, the lawmaking element in advisory opinions is in essence a contribution within
the process of the development of the law; it is not related to the Court’s formal
authority or position. The Court’s judicial statement as to what it perceives the law to
be, having that normative impact on subsequent practice, may initiate a process of
clarifying or even creating new customary law, through States legitimating their policy
choices by reference to a judicial pronouncement by the Court.86
77
ibid, 163, regarding the concurrent role of the General Assembly alongside the Council in
peacekeeping and the exclusive competence of the Security Council to take coercive action; see
also Israeli Wall (n 51), 146, where it affirmed the competence of the General Assembly in
matters where the Security Council is deadlocked under the ‘Uniting for Peace’ resolution.
78
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep 16, 45.
79
Effect of Awards of Compensation made by the United Nations Administrative Tribunal
(Advisory Opinion) [1954] ICJ Rep 47, 57.
80
See Reparation for Injuries (n 73). In addition, the Court has considered the obligations
of member States when confronted with a mandatory Security Council decision (Questions of
Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahirya v United Kingdom) (Preliminary Objections) [1998] ICJ
Rep 9), or a General Assembly resolution that is not ‘merely hortatory’ (Certain Expenses
(n 75). Member States are also bound by obligations on them under the agreements entered into
by the UN and various States pursuant to the Convention on Privileges and Immunities: see eg
Mazilu (n 66), and Difference Relating to Immunity from Legal Process of a Special Rapporteur
of the Commission on Human Rights (Advisory Opinion) [1998] ICJ Rep 62 (Cumaraswamy),
where the Court considered the nature of the breadth of immunities from national law;
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters
Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep 3 (PLO Mission), on the UN’s
relationship with the United States.
81
In the Reparation for Injuries opinion (n 73), 182, the Court finds the UN to possess
international legal personality opposable to Member States and non-Member States alike.
82
MS Amr, The International Court of Justice as the Principal Judicial Organ of the
United Nations (Kluwer The Hague 2003), 159–67 and his discussion of Mazilu, Cumaraswamy,
and PLO Mission (n 80) and the Interpretation of the Agreement of 25 March 1951 between the
WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73 (WHO-Egypt).
83
The most obvious example is Reparation for Injuries (n 73), 185.
84
See Effect of Awards of Compensation made by the United Nations Administrative
Tribunal (Advisory Opinion) [1954] ICJ Rep 47, 57.
85
Application for Review of Judgement No 158 of the United Nations Administrative
Tribunal (Advisory Opinion) [1973] ICJ Rep 166 and Effect of Awards (n 79).
86
Oellers-Frahm (n 64), 1053.
tion: 12 / Date: 14/3
4. OTHER INTERNATIONAL COURTS AND TRIBUNALS

It is truly remarkable that the jurisdictional structures of most international judicial
bodies established subsequent to the PCIJ/ICJ have diverged from its traditional,
consensualist structure. In part, this may be due to their institutional proliferation,
expanding both in number and into areas far beyond the ICJ’s work, ie dispute
settlement between States and the giving of advisory opinions to international organ-
isations. The contemporary international judicial system now admits of individuals
being able to submit a claim against a State to an international court; it also admits of
courts exercising powers normally associated with a public function, such as the trial of
an individual, or the review of domestic legislation or acts for conformity with
international obligations. This diversification of functions represents a substantive
expansion of the work of international judicial institutions.
Some structural differences between these newer bodies and the ICJ may have helped
to engender these advances. If one examines the bodies under examination here – the
European and Inter-American courts on human rights, the World Trade Organization
Appellate Body and the ad hoc criminal tribunals established by the Security Council
for the former Yugoslavia and for Rwanda (ICTY and ICTR) – one notes that these are
characterised by compulsory jurisdiction over certain categories of disputes, represent-
ing a qualitative shift vis-à-vis the ICJ.87 Perhaps this is due to the fact that each body
has a limited subject matter, unlike the Court’s general competence over all areas of
international law.88 But that more limited competence ratione materiae also brings with
it a certain claim to primacy over that particular area of the law, suggesting that that
tribunal has a special obligation of legalisation within that particular area of the law. It
also has allowed, to a point, for access to non-State actors to the work of those
particular bodies – a substantial difference when compared to the ICJ.89
Strikingly, another commonality between the various international courts and tri-
bunals has been their consistent desire not to fragment away from international law, but
rather, to contribute to the general development of that legal order. Aside from an
expected – and obvious – fidelity to their constitutive statutes and the specialised area
of international law on which they focus, the emergence of judicial institutions
entrusted with various treaty regimes has ‘not undermined legal security, predictability
87
Shany (n 4), 79.
88
ibid, 80.
89
ibid, 79. See also R Higgins, ‘The ICJ, the ECJ, and the Integrity of International Law’
(2003) 52 ICLQ 1, 13. The present author has also written about the Court’s (parsimonious)
engagement with non-State actors: see GI Hernández, ‘Non-State Actors from the Perspective of
the International Court of Justice’ in J d’Aspremont (ed), Participants in the International Legal
System: Theoretical Perspectives (Routledge Cavendish 2011), 140.
tion: 13 / Date: 14/3
or the equality of legal subjects’.90 Whatever the proliferation of international courts

and tribunals, there is still a system of international law.91
4.1 European Court of Human Rights and Inter-American Court of Human

Rights
Lawmaking by the European and Inter-American courts for human rights is character-
ised primarily by the fact that both bodies enjoy, under their respective conventions,
final interpretative authority. Certainly, the bulk of the human rights courts’ work is to
provide for individual redress against human rights violations. Yet in doing so, the
courts do exercise a lawmaking role: they aim to ensure continuity and consistency
over time in the application of their respective treaties within the legal orders
established by them.92 Moreover, because both courts have consciously adopted a
‘dynamic’ interpretation of the rights contained in the Convention, they have often
widened the scope of protection by the Convention.93
Judicial lawmaking by the two human rights courts has occurred on both a
substantive and a procedural level, and their case law has compelled States to make
far-reaching changes to their domestic legislation on a number of rights protected by
90
Report of the Study Group of the International Law Commission finalized by M
Koskenniemi, ‘Fragmentation of International Law: Difficulties Arising from the Diversification
and Expansion of International Law’, UN Doc A/CN.4/L.682 (13 April 2006), 248–49 para 492
[emphasis in original].
91
B Simma and D Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in
International Law’ (2006) 17 European Journal of International Law 483; PM Dupuy, L’unité
juridique de l’ordre juridique international (2002) 297 Recueil des Cours 12, 89; T Buergenthal,
‘Proliferation of International Courts and Tribunals: Is it Good or Bad?’ (2001) 14 Leiden
Journal of International Law 267; PS Rao, ‘Multiple International Judicial Forums: A Reflection
of the Growing Strength of International Law or its Fragmentation?’ (2004) 25 Michigan Journal
92
The term ‘constitutional’ has been (mis)used to describe this particular function: S Greer,
The European Convention on Human Rights: Achievements, Problems and Prospects (CUP
2006), 7; L Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’
(2002) 23 Human Rights Law Journal 161, 162; R Harmsen, ‘The European Court of Human
Rights as a ‘Constitutional Court’: Definitional Debates and the Dynamics of Reform’ in J
Morrison ao (eds), Judges, Transition, and Human Rights (OUP 2007) 33, 36; M Fyrnys,
‘Expanding Competences by Judicial Lawmaking: the Pilot Judgment Procedure of the European
Court of Human Rights’ (2011) 12(5) German Law Journal 1231, 1232.
93
The famous ‘living tree’ interpretation given in Airey v Ireland App no 6289/73 (ECtHR
9 Oct 1979), ECHR Rep Series A no 32, para 26; further applied in Stafford v the United
Kingdom App no 46295/99 (ECtHR GC, 28 May 2002), paras 67–68, and Christine Goodwin v
United Kingdom App no 28957/95 (ECtHR GC, 11 July 2002), para 74. The IACtHR has
adopted a similar view with respect to certain provisions of the ACHR: see Bámaca-Velásquez
Case (Guatemala) (2000) Inter-American Court of Human Rights Series C No 70, Annual
Report of the Inter-American Court of Human Rights: 2000, OEA/Ser.L/V/III.50/doc4 (2000),
28, para 197.
the conventions.94 The ‘pilot judgment’ procedure pioneered by the European Court of
Human Rights in Broniowski v Poland95 is instructive. A response to the problem of
repetitive cases designed to reduce the Court’s heavy caseload,96 the procedure allows
the European Court to focus on the identification of ‘systemic malfunctioning’ of
domestic legal orders; the indication of appropriate remedial measures ‘normatively
extends the binding effect of the European Court’s judgments and changes their legal
nature’.97 By moving away from the focus on the individual, in this respect, the legal
effect of pilot judgments is to impose the European Court’s interpretations on the
domestic legislative processes of States parties.
An example of a substantive innovation is the prohibition of amnesties by the
Inter-American Court.98 The Inter-American Court has, in a long series of cases,
rejected the compatibility of amnesty legislation with the American Convention on
Human Rights (ACHR) with respect to Argentina, Uruguay, Peru, and Chile.99 In so
doing, the Court focused on the amnesty laws’ ratio legis: in shielding perpetrators of
grave human rights violations from prosecution, the Court determined that the
non-derogable, jus cogens nature of the rights the crimes in issue (torture, extrajudicial
killings, etc) meant that the amnesty laws in issue constituted a violation of the
survivors’ and victims’ family members’ rights to a fair trial and to judicial protection
under the Convention.100 As with the European Court, the underlying rationale behind
the Inter-American Court’s approach is its claim not only to be the authoritative
interpreter of the Convention rights, but also of the importance of the legal order
created by that instrument.
94
A thorough list of examples may be found in D Shelton, ‘The Boundaries of Human
Rights Jurisdiction in Europe’ (2003) 13 Duke Journal of Comparative and International Law
95.
95
Broniowski v Poland ECHR GC 28 September 2005) (friendly settlement and just
satisfaction), Reports of Judgments and Decisions 2005-IX. See Fyrnys, 1244–51, for extended
commentary. The judgment in Broniowski v Poland was a response to the failure to amend
Protocol No 14 to the European Convention on Human Rights, and the subsequent resolution by
the Committee of Ministers of the Council of Europe, in which it invited the Court to engage
with ‘underlying systemic problems’ relating to the Convention: see Committee of the Ministers
of the Council of Europe, Resolution on Judgments Revealing an Underlying Systemic Problem
(12 May 2004), ECHR Doc Res (2004)3, reprinted in (2005) 26 Human Rights Law Journal
119.
96
Fyrnys (n 92), 1232–33.
97
ibid.
98
See C Binder, ‘The Prohibition of Amnesties by the Inter-American Court of Human
Rights’ (2011) 12 German Law Journal 1203, 1204.
99
See Inter-American Commission on Human Rights, Cases 10.145, 10.181, 10.240,
10.262, 10.309, 10.311, IACHR Report No 29/92, OEA/Ser L/V/II.83, doc 14, corr.1 (1992–93)
(Argentina), Inter-American Commission on Human Rights, Cases 10.029, 10.36, 10.145,
10.305, 10.372, 10.373, 10.374, 10.375; IACHR Report No 29/92, OA/Ser.L/V/II.83, doc 14,
corr.1 (1992–93) (Uruguay); Barrios Altos v Peru, Merits Inter-American Court of Human
Rights Series C no 75 (14 March 2001); and La Cantuta v Peru, Merits, Reparations and Costs
Inter-American Court of Human Rights Series C no 162 (29 November 2006) (Peru); and
Almonacid Arellano y otros v Chile, Preliminary Objections, Merits, Reparations and Costs
Inter-American Court of Human Rights Series C No 154 (26 September 2006) (Chile).
100
Binder (n 98), 1211, who gives the example of Barrios Altos v Peru (n 99), para 42.
tion: 15 / Date: 14/3
4.2 The ad hoc International Criminal Tribunals
That the ICTY and ICTR, the ‘ad hoc’ international criminal tribunals, have engaged in
some ‘adventurous lawmaking’ is beyond dispute. Paradoxically, it was demanded from
the ICTY to discharge its functions only by applying existing international law, and
refrain at all times from creating or ‘legislating’ new customary law.101 Yet it has been
argued that the broad terms of Security Council Resolutions 827 and 955, establishing
the ICTY and ICTR, respectively102 in fact granted them de facto lawmaking
authority.103 The same was not demanded of the ICTR, which was free to use
customary international law and international treaty law,104 regardless of whether it was
part of customary law.105 As such, the additional constraint placed on the ICTY seems
to have led it to adopt an eccentric, ‘deductive’ method of determining customary law,
stating the rule first, and then justifying that rule with reference to extremely limited
case law and State practice.106 The justification for this has been that State practice
only ‘assists’, but rarely ‘constitutes’, the rule.107 Rather surprisingly, in the Kupreškić
judgment, the ICTY Trial Chamber even conceded that State practice did not support
the proposition that custom had evolved on the subject of belligerent reprisals, only to
101
Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution
808 (1993) (presented 3 May 1993) UN Doc S/25704, para 34).
102
‘Statute of the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991’ UNSC Res 827 UN Docs S/25704.36, annex (1993) and S/25704/Add.1
(1993), UN Doc S/RES/827 (25 May 1993); and Statute of the International Criminal Tribunal
for Rwanda UNSC Res 955 (8 November 1994) UN Doc S/RES/955.
103
Perhaps because of the haste with which the tribunals were created: see M Kuhli and K
Günther, ‘Judicial Lawmaking, Discourse Theory, and the ICTY on Belligerent Reprisals’ (2011)
12 German Law Journal 1261, 1264–5.
104
Comprehensive Report of the Secretary-General on Practical Arrangements for the
Effective Functioning of the International Criminal Tribunal for Rwanda, Recommending Arusha
as the Seat of the Tribunal (13 February 1995) UN Doc S/1995/134 para 12.
105
M Swart, ‘Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources
of International Law and “Adventurous Interpretation”’ (2010) 70 Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 459, 461, refers to the ICTR’s acknowledgement of this in
Prosecutor v Akayesu ICTR-96-4-T (2 September 1998), paras 604–07; Prosecutor v Musema
ICTR-96-13-T (27 January 2000), para 242.
106
ibid, 464; see also A Nollkaemper, ‘The Legitimacy of International Law in the Case
Law of the International Criminal Tribunal for the former Yugoslavia’ in TA Vandamme and J-H
Reestman (eds), Ambiguity in the Rule of Law: The Interface between National and Inter-
national Legal Systems (Europa Law Publishing 2001), 17.
107
Swart (n 105), 466–68, offers a comprehensive analysis of the ICTY’s loose approach to
identifying international crimes in customary international law, citing Prosecutor v Tadić
(Appeals Judgment) IT-94-1-A (15 July 1999), paras 163ff (the scope of the ‘protected person’
status under the grave breaches regime); Prosecutor v Furundžija (n 61), paras 162, 253
(extending the definition of torture under customary law); and Prosecutor v Galić (Appeals
Judgment) IT-98-29-A (5 December 2003), para 88 (identifying the prohibition of terror amongst
the civilian population by reference to art 51 of Additional Protocol I and art. 13(2) of Additional
Protocol II as codifications of customary international law). See also, gen, G Mettraux,
International Crimes and the ad hoc Tribunals (OUP 2005), esp 127ff.
tion: 16 / Date: 14/3
conclude that the ‘imperatives of humanity or public conscience’ embodied in the

‘Martens Clause’108 permitted it to deduce opinio necessitatis sufficient to establish
customary law.109 Strikingly, the ICTY there invoked various moral and practical
justifications for its approach, thus confirming to an extent that it was engaging in a
form of lawmaking in this particular area.110
4.3 The World Trade Organization Appellate Body
Finally, an interesting quasi-judicial system merits some examination, namely, the

WTO dispute-settlement system, which operates under the aegis of a single WTO
Agreement.111 At the apex of the WTO arrangement, the WTO Appellate Body (AB)
exercises a powerful reviewing function over the various dispute-settlement bodies
constituted under its rules,112 ensuring the coherence and consistent application of the
GATT treaties.113 In this respect, the WTO may be distinguished from the various
investment tribunals constituted under the ICSID Convention, all of which apply
separate treaties and are subject to separate review mechanisms.114
108
Common art 3 of the 1949 Geneva Conventions and the First Additional Protocol: see
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (entered into force 21 October 1950) 75 UNTS 31; Geneva Convention for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea (entered into force 21 October 1950) 75 UNTS 85; Geneva Convention relative to
the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135; Geneva
Convention relative to the Protection of Civilian Persons in Time of War (entered into force 21
October 1950) 75 UNTS 287; and Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)
(entered into force 7 December 1978) 1125 UNTS 3.
109
Prosecutor v Kupreškić (Judgment) IT-95-16-T (14 January 2000), para 527. This is in
line with A. Cassese, International Law (2nd edn, OUP 2006), 160–61, arguing that the Martens
Clause loosens the requirement of usus and elevates opinio juris in relation to the laws of
humanity.
110
Kuhli and Günther (n 103) 1272, 1275–76, suggest that these types of reasons constitute
a form of ‘norm justification’ best practised by legislatures and law-creating agents, and not by
judiciaries, who should engage in the identification and application of norms – not in justifying
their validity.
111
Marrakech Agreement Establishing the World Trade Organization (adopted 15 April
1994, entered into force 1 January 1995) 1867 UNTS 154 (WTO Agreement) in World Trade
Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade
Negotiations (CUP 2007) 4.
112
The dispute resolution rules and procedures and formalized in the Understanding on
Rules and Procedures governing the Settlement of Disputes (DSU), administered by the
Organisation in accordance with art III:3 of the WTO Agreement.
113
See I Venzke, ‘Making General Exceptions: The Spell of Precedents in Developing art
XX GATT into Standards for Domestic Regulatory Policy’ (2011) 12 German Law Journal
1111, 1121.
114
Although cf, generally, SW Schill, The Multilateralization of International Investment
Law (CUP 2009), esp 44ff, who argues that the thickening network of BITs constitutes a process
of multilateralisation of the investment law system.
The WTO Appellate Body has made a strong normative claim to authority through its
systematic reliance on its own precedent, despite the fact that authoritative interpret-
ation of the WTO Agreement vests exclusive authority to adopt interpretations of it in
the Ministerial Conference and the General Council.115 Yet from its inception, the WTO
Appellate Body has made a point of referring to its previous decisions: although they
are not binding, they are said to ‘create legitimate expectations among WTO members,
and, therefore, should be taken into account where they are relevant to any dispute.’116
Much like the International Court, the lack of binding quality of its decisions is thus
secondary to its persuasive power;117 and the Appellate Body has in fact intimated that
to do otherwise would amount to a failure of exercising a proper judicial function.118
As such, it has asserted not only its power authoritatively to interpret States’ obligations
under the GATT, but more importantly, its power to develop the law by way of
interpretation. Examples abound: it has clarified and developed the scope of article XX
GATT, the umbrella clause relating to exceptions that can be invoked by States to the
other obligations in the GATT.119 It has clarified the intentionally vague language in
article 4(2)(b) of the WTO Agreement, in relation to the causation analysis to be used
in safeguard cases.120 It has filled in gaps in the WTO Agreement relating to the
procedures to be followed before it.121 In so doing, it has established not only a
115
See WTO Agreement (n 111) art IX:2. Although art 3.2 of the DSU also foresees that the
adjudicative bodies must work with the objective of ‘providing security and predictability to the
multilateral trading system’, the thrust of art 3.2 is to curtail the adjudicative bodies’ powers:
‘[r]ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations
provided in the covered agreements.’
116
WTO, Japan: Taxes on Alcoholic Beverages – Report of the Appellate Body (4 October
1996) WT/DS8, 10 and 11/AB/R, 14-15.
117
Venzke (n 113), 1124.
118
WTO, United States: Final Anti-Dumping Measures on Stainless Steel from Mexico
Report of the Appellate Body (30 April 2008) WT/DS344/AB/R, para 162.
119
Venzke (n 113), 1125–31, describes how in a number of cases, the WTO Appellate Body
has contributed substantially to the interpretation of the term ‘necessity’ contained in art XX, as
well as the proportionality test it imposes. He uses as examples three notable cases: WTO,
United States: Standards for Reformulated and Conventional Gasoline – Report of the Appellate
Body (29 April 1996) WT/DS2/AB/R, 16–17; WTO, United States: Import Prohibition of
Certain Shrimp and Shrimp Products – Report of the Appellate Body (12 October 1998)
(Shrimp-Turtle) WB/DS58/AB/R; and WTO, Korea: Measures Affecting Imports of Fresh,
Chilled and Frozen Beef – Report of the Appellate Body (11 December 2000) WT/DS161 and
169/AB/R, paras 159–160.
120
WTO, United States: Definitive Safeguard Measures on Imports of Circular Welded
Carbon Quality Line Pipe from Korea – Report of the Appellate Body (8 March 2002)
WT/DS/202/AB/R; WTO, United States: Safeguard Measures on Imports of Fresh, Chilled or
Frozen Lamb Meat from New Zealand and Australia Report of the Appellate Body, (16 May
2001) WT/DS/177/AB/R; WTO, United States: Definitive Safeguard Measures on Imports of
Wheat Gluten from the European Communities Report of the Appellate Body (19 January 2001)
WT/DS/166/AB/R. See RH Steinberg, ‘Judicial Lawmaking at the WTO: Discursive, Constitu-
tional, and Political Constraints’ (2004) 98 American Journal of International Law 247, 253–4.
121
In Shrimp-Turtle (n 119), para 89, it interpreted art 13 of the DSU (n 112) to allow for
amicus briefs. In WTO, European Communities: Regime for the Importation, Sale and
tion: 18 / Date: 14/3
substantive body of law, but one that is ‘autonomously developing’,122 and has raised
concerns over expansiveness in judicial lawmaking.123 Given the WTO’s dispute-
settlement body’s compulsory jurisdiction over all matters within its competence,124 the
Appellate Body’s decisions have potentially far-reaching significance.
4.4 Interaction Between International Courts and Tribunals?
There is a certain cross-fertilisation between international courts and tribunals, with the
unlikeliest recent participant being the ICJ. The ICJ appraised the ICTY’s case law in
the Bosnia Genocide judgment of 2007 (only on questions of fact; it declined to
endorse their legal findings); it has cited arbitrations (in Continental Shelf and the
Alabama arbitrations);125 it has referred to the findings of the European Court of
Human Rights by analogy in order to interpret article 7 of the International Covenant
on Civil and Political Rights.126 It has even cited domestic courts: see Jurisdictional
Immunities of the State, where it referred to domestic judgments as ‘evidence of State
practice’.127 The ICTY has equally engaged in a practice of citing the judgments of
other courts and tribunals,128 and has perhaps provided the clearest example of their
subsidiary, non-binding nature.129 The Tribunals’ citation to municipal courts has
generally been in relation to general principles or State practice in confirming the
existence of a customary rule.130 Needless to say, and perhaps because they share a
Distribution of Bananas – Report of the Appellate Body (25 September 1997) WT/DS27/AB/R,
paras 5–10, it established that private lawyers may represent members in oral proceedings before
it.
122
A von Bogdandy, ‘Law and Politics in the WTO – Strategies to Cope with a Deficient
Relationship’ (2001) 5 Max-Planck Yearbook of United Nations Law 609, 625.
123
Steinberg (n 120), 257, suggests that debate has in fact intensified in the early years of
the WTO, relative to debates about lawmaking under the GATT regime.
124
Under art 6.1 of the DSU (n 112) the adjudicative procedure does not depend on the
consent of the respondent member.
125
In the Nottebohm Case (Liechtenstein v Guatemala) (Preliminary Objection: Judgment)
[1953] ICJ Rep 111, 119, the International Court referred to the Alabama Claims arbitration
(1872) Moore 1 International Arbitrations 495, in relation to the principle of compétence de la
compétence. In Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep
18, 57, the Court referred to the arbitration in Anglo-French Continental Shelf (1977), (1979) 18
ILM 397 in relation to the method for delimiting maritime boundaries.
126
In Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) (Merits) [2010]
ICJ Rep 639, 664 para 68, the International Court confirmed its interpretation of art 13 of the
International Covenant on Civil and Political Rights by referring to interpretations by the ECtHR
and the IACtHR of similar wording in their respective conventions, noting that ‘the said
provisions [were] close in substance’.
127
Jurisdictional Immunities of the State (n 59), para 77.
128
Swart (n 105), 471–74.
129
The Appeal Chamber rejected, after admittedly much consideration and engagement, the
Nicaragua legal test of ‘effective control’ for the purpose of attribution (see Nicaragua (n 59),
paras 105–115) preferring instead its own test of control of ‘an overall character’; Prosecutor v
Tadič (Judgment in Sentencing Appeals) ICTY-94-1-A (15 July 1999), para 99.
130
See eg Jurisdictional Immunities of the State (n 59), paras 72–78, referring to the
judgments of domestic courts in Egypt, Belgium, Germany, the Netherlands, France, Italy, the
common Appeals Chamber, the two ad hoc tribunals extensively, but not always, cite
each other’s decisions.131 There are obviously more examples, notably, the WTO’s
constant engagement with the international law rules on treaty interpretation,132 and the
practice of other courts.133
The varied judicial institutions are surprisingly uniform in their application of
general international law, and make frequent reference to one another.134 As for the
reasons for such mutual borrowing, it has been suggested again that it is due to the
gravitational effects of judicial pronouncements: novel legal conclusions are better
justified with persuasive authority from other international judicial institutions, as they
enhance a judgment’s legitimacy,135 especially if there is a perceived ‘gap’ in the law.
Any legal system has gaps that, as they are revealed, demonstrate that the legislator did
not anticipate a certain situation: the judicial function’s role is then to assume an
essentially suppletive role, applying principles rooted in the system itself so as to
extend the law into that particular dispute.136
5. CONCLUSION
It bears recalling that judicial lawmaking is an essentially retrospective exercise:
because the judicial institutions surveyed here have arrogated this role for themselves,
it is only after the fact that one can determine whether their reasoning has in fact been
adopted by wider international society.137 As such, there is much in Schwarzenberger’s
United Kingdom, Ireland, Slovenia, Poland, Serbia, and Brazil; and Arrest Warrant (n 59), 24
para 58, referring expressly to the United Kingdom House of Lords and the French Court of
Cassation, but not to specific judgments. One can only presume that the Court was distinguish-
ing the Pinochet and Gaddafi cases of those two courts, referred to by Belgium: see ibid, 23
para 56.
131
See eg Prosecutor v Jelesić (Judgment) IT-95-10-T (14 December 1999), para 61, citing
Akayesu (n 61), and Prosecutor v Kayishema (Appeal Judgment (Reasons)) ICTR-95-1-A, 21
May 1999. Note, however, that the ICTY ultimately did not endorse the Akayesu definition of
rape, proffering a more specific definition in Prosecutor v Kunarać, Kovać and Vuković (Appeal
Judgment) IT-96-23-T (22 February 2001), para 438.
132
From the outset, the WTO has made a point of referring to cases of other international
courts and tribunals for guidance on rules of international law, notably the ICJ: see I Van
Damme, ‘Treaty Interpretation by the WTO Appellate Body’ (2010) 21 European Journal of
International Law 605, 632. It also refers extensively to the work of the International Law
Commission: see J Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can
We Go?’ (2001) 95 American Journal of International Law 535, 563.
133
See n 45 for examples of cross-citation by the European Court of Human Rights and the
Court of Justice of the EU.
134
J Charney, ‘Is International Law Threatened by Multiple International Tribunals?’ (1998)
271 Recueil des cours, 373; ILC Report on Fragmentation (n 90); A Rosas, ‘With a Little Help
from my Friends: International Case Law as a Source of Reference for the EU Courts’ (2006) 5
The Global Community Yearbook of International Law and Jurisprudence 2005 203, contains a
repertory of citations from the Court of Justice of the EU.
135
Boyle and Chinkin (n 10), 297.
136
Weeramantry (n 3), 313.
137
Tams and Tzanakopoulos (n 38), 785–86.
tion: 20 / Date: 14/3
comment that the lawmaking potential depends on ‘the fullness and cogency of the
reasoning’ contained in a judgment.138 Yet ultimately:
[judicial lawmaking] cannot attempt to lay down all the details of the application of the
principle on which it is based. It lays down the broad principle and applies it to the case
before it. Its elaboration must be left … to ordinary legislative process or to future judicial
decisions disposing of problems as they arise.139
Although it should be clear from the above analysis that, on some level at least,
international judicial lawmaking indeed constitutes an element of the judicial function,
this conclusion should not be overstated, as it places excessive faith in an inchoate
international judiciary. There is no conscious, overt coordination between the various
courts and tribunals. The various international courts and tribunals remain hobbled,
each with its own Missionbewusstsein,140 guarding a set of value judgments embedded
within its constitutive instrument. As such, whilst these can constitute valuable
contributions to our understanding of international law, the judgments of the various
international courts and tribunals should be seen as evidentiary, and not constitutive, in
their essence. It is certainly exciting for some to envisage the prospect of international
courts and tribunals breaking the shackles of formalism and articulating the contours of
a genuine international community, of speaking truth to power. Yet to do so makes a
number of presumptions: it implies a substantive conception of what the law of the
international community ought to be, something difficult to discern objectively when
most definitions of ‘international community’ are value-laden or so inchoate as to be of
little use.141 Moreover, it is a misplaced faith that international judicial institutions
would naturally perpetuate this vision through their lawmaking contributions; but it is
equally possible that courts become handmaidens to the status quo, endlessly reinfor-
cing the validity of the system through recourse to arguments of concreteness (validity)
and normativity (justice), as per Koskenniemi’s oft-quoted, but still apposite, descrip-
tion of international legal argument.142
138
G Schwarzenberger, International Law as Applied by International Courts and Tribunals
vol 1 (Stevens & Sons 1957), 31; M Shaw, ‘A Practical Look at the International Court of
Justice’ in M Evans (ed), Remedies in International Law: The Institutional Dilemma (OUP 1998)
11, 27, has suggested that its authoritativeness will be founded upon the ‘constitutional function,
perceived role and reputation of’ a judicial institution; Lauterpacht (n 7), 41, suggested that:
however competent, however august, however final, and however authoritative a tribunal may
be, it cannot, in the conditions in which its jurisdiction is in law, and in compliance with its
decision is in fact, essentially of a voluntary character, dispense with that powerful appeal to
opinion which stems from the reasoned content of its pronouncements.
139
Lauterpacht (n 7), 189–90.
140
M Koskenniemi and P Leino, ‘Fragmentation of International Law? Postmodern Anx-
ieties’ (2002) 15 Leiden Journal of International Law 553, 567, 573.
141
I have written extensively on the concept of ‘international community’, specifically with
reference to the International Court of Justice: see GI Hernández, ‘A Reluctant Guardian? The
International Court of Justice and the Concept of “International Community”’ (2012) LXXXIII
83 British Yearbook of International Law 13.
142
M Koskenniemi, From Apology to Utopia (reissue, CUP 2005) 58, 219.
tion: 21 / Date: 14/3
However unsatisfactory this might seem, perhaps judicial institutions respond to a

sort of ‘societal demand’ in exercising a law-creating role, translating social or
community interests into general legal concepts, giving ‘general and articulate formu-
lation to developments implicit, though as yet clearly accepted, in actual international
custom or agreement of States’.143 International lawyers, working within a conceptually
ill-clarified system, have a habit of clinging to whatever authorities can be marshalled
in support of an argument, even though specific pronouncement by a judicial institution
‘cannot be divorced from the general framework of normative argument in the society
within which it operates’.144 Because judicial pronouncements are structured around
these general frameworks, they provide a basis for future development, permitting other
international actors to apply the principles so articulated, to clarify them, modify them
or opt out from them. It is that normative potential, to influence the development of
international law, which shapes the law-creating role of judicial institutions: not any
formal law-creating authority.
143
144
V Lowe, International Law (Clarendon 2007), 99.
11. Domestic judicial lawmaking

1. INTRODUCTION: CAN COURTS (EVER) MAKE LAW?

All legal systems grapple with the question of judicial lawmaking. To what extent – if
at all – is it permissible for judges to ‘make’ law? A necessary prerequisite is to agree
on what it is to ‘make’ law, and already here opinions may diverge sharply. If a real
lawmaker is a power that can ‘arbitrarily make and unmake the law, to any extent,
according to mere discretion, in perfect independence of any other authority’,1 then it is
questionable not only if there are any ‘real’ lawmakers in international law, but even if
there are any in domestic law, except perhaps for the people when yielding original
constitution-making power. A broader conception of lawmaking may portray the
function as that of ‘norm-setting or public policy-making by public authorities’.2 Even
so, the perceived orthodoxy is that judges do not make law, at least not in the same
sense as the law-givers,3 or the ‘real’ lawmakers, might. But neither can judges be
reduced to ‘mouthpieces’ of the law, to ‘la bouche qui prononce les paroles de la loi’.4
Whatever may be the precise position in each domestic legal system, the inter-
national legal system itself has grappled – and continues to grapple – with the question
of permissible lawmaking by international courts, particularly the International Court of
Justice (ICJ).5 As the ‘principal judicial organ’ of the paradigmatic international
organisation, the United Nations, the ICJ is the prime candidate for significant
international lawmaking. And yet, opinions diverge not only as to its power to ‘make’
international law, but even on whether it has developed international law to the extent
1
L Oppenheim, ‘The Science of International Law: Its Task and Method’ (1908) 2
American Journal of International Law 313, 337.
2
J Pauwelyn, ‘Informal International Lawmaking: Framing the Concept and Research
Questions’ in J Pauwelyn ao (eds), Informal International Lawmaking (OUP 2012) 13, 21.
3
Oppenheim (n 1), 337.
4
CL de Secondat, Baron de la Brède et de Montesquieu, De l’esprit des lois vol I ([n.p.]
1748), 327 (book XI, ch VI). Cf TA Walker, The Science of International Law (Clay and Sons
1893), 49: ‘When men believe in one another’s honesty, then national municipal courts may be
the trusted mouthpieces of International Law as local divisions of the great High Court of
Nations’ (emphasis added).
5
See generally, among many others, A Pellet, ‘Article 38’ in A Zimmermann ao (eds), The
Statute of the International Court of Justice: A Commentary (2nd edn, OUP 2012), 322–34; CJ
Tams and A Tzanakopoulos, ‘Barcelona Traction at 40: The ICJ as an Agent of Legal
Development’ (2010) 23 Leiden Journal of International Law 781, 782–86, both with further
references.
222
Domestic judicial lawmaking 223
commonly assumed.6 Some general remarks on the lawmaking function of courts in

general are thus required.
The function of every court is to resolve disputes and thereby enforce the law by
interpreting and applying the law to the facts of the case before it. Yet every act of
interpretation and application of the law is an act constitutive of the law to some extent:
interpretation and application of the law are inseparable from law development. These
are but points on a spectrum, with only a thin (and very vague) line separating
interpretation from ‘amendment’,7 and thus from development of the law, or lawmaking
in the broad sense. This is because every legal rule can sustain a number of plausible
interpretations:8 the act of selecting one of these interpretations as the authoritative one
for a specific case is an act that the legal system usually or occasionally assigns to the
judge, who is tasked with concretising the legal rule for application to the specific
facts.9 Every such selection is not simply declaratory of the law, but rather it effectively
‘makes’ law,10 at least on a micro-scale.11
If we accept that courts in general have at least some limited lawmaking power, or a
power to develop the law, the question we will deal with in this chapter is whether
domestic courts have the power to ‘make’ – or rather develop – international law. A
number of steps need to be taken to make that determination. First, we need to see
whether and to what extent domestic courts do indeed engage with international law, ie
to what extent they adjudicate questions implicating international law. This is addressed
in section 2, where we identify the factors that at once explain and obscure domestic
court engagement with international law. In section 3 we discuss the impact of that
engagement: while domestic courts do in fact contribute to the development of
international law in some cases, do they have the (formal) capacity to do so? That is,
are they formally ascribed a judicial function by the international legal order? In
section 4, we bring together minimalist and maximalist visions of domestic judicial
lawmaking (or the formal and actual capacity of domestic courts to develop inter-
national law) by means of the mitigating concept of ‘agents’ of development. Section 5
6
See the contributions in CJ Tams ao (eds), The Development of International Law by the
International Court of Justice (OUP 2013).
7
M Akehurst, ‘The Hierarchy of the Sources of International Law’ (1974–75) 46 British
Yearbook of International Law 273, 277; G Betlem and A Nollkaemper, ‘Giving Effect to Public
International Law and European Community Law before Domestic Courts: A Comparative
Analysis of the Doctrine of Consistent Interpretation’ (2003) 14 European Journal of Inter-
8
See eg, EP Hexner, ‘Teleological Interpretation of Basic Instruments of Public Inter-
national Organizations’ in S Engel (ed), Law, State and the International Legal Order: Essays in
Honor of Hans Kelsen (University of Tennessee Press 1964) 119, 123.
9
H Kelsen, Reine Rechtslehre (2nd edn, Franz Deuticke 1960), 242ff. cf I Scobbie, ‘The
Theorist as Judge: Hersch Lauterpacht’s Concept of the International Judicial Function’ (1997) 8
European Journal of International Law 264, 273–74; H Lauterpacht, The Function of Law in the
International Community (Clarendon Press 1933), 100.
10
See I Venzke, ‘The Role of International Courts as Interpreters and Developers of the
Law: Working Out the Jurisgenerative Practice of Interpretation’ (2011) 34 Loyola of Los
Angeles International and Comparative Law Review 99, 115–19.
11
See C Weeramantry, ‘The Function of the International Court of Justice in the
Development of International Law’ (1997) 10 Leiden Journal of International Law 309, 320.
concludes by enumerating a set of criteria for assessing the lawmaking potential or

impact of domestic court decisions.
2. DOMESTIC JUDICIAL ENGAGEMENT WITH INTERNATIONAL

LAW
For there to be any possibility of domestic judicial international-lawmaking, domestic
courts must first ‘engage’ with international law. That is, they must pronounce on
questions of international law in the process of exercising their judicial function. The
question of whether, and to what extent, domestic courts do indeed engage with
international law constitutes the first important complication in trying to assess their
‘lawmaking’ impact. This complication is due to two related considerations that
potentially obscure domestic court engagement with international law. These are the
‘directionality’ of international obligations and the ‘domestication’ of international law
in the various municipal legal orders.
2.1 The ‘Directionality’ of International Obligations
The rules of international law may prescribe, proscribe, or permit (enable) certain
conduct on the part of the state. This much is trite. What is important for the purpose of
gauging the engagement of domestic courts with rules of international law is to discern
where, that is, on what plane, that conduct is meant to be taking place. Conduct that is
meant to be taken exclusively on the international plane, in state-to-state relations, is far
less likely to be the subject of domestic litigation than conduct that the state is taking
within its domestic jurisdiction.12 Rules of international law can thus be distinguished
on the basis of where the conduct they prescribe, proscribe, or enable, is meant to be
taken. If such conduct refers exclusively to state-to-state relations on the international
plane, then the relevant rules are ‘outward-looking’. If, conversely, the international
rule prescribes, proscribes, or enables certain conduct on the domestic plane,
i.e., within the state’s domestic jurisdiction, then the relevant rules can be termed
‘inward-looking’.13
12
Even though such rules do occasionally find their way, usually incidentally, before
domestic courts. In US Citizens Living in Nicaragua v Reagan 859 F 2d 929 (DC 1988), eg
individuals sought to enforce the prohibition of the use of force by constraining US action in
Nicaragua. In R v Jones (Margaret) [2006] UKHL 16, defendants argued that international law
could be invoked as a defence against a charge of criminal trespass and damage: they had sought
to stop the UK from participating in the 2003 Iraq war, and they argued that they were acting to
prevent the commission of a crime under international law: the crime of aggression.
13
See A Tzanakopoulos, ‘Domestic Courts in International Law: The International Judicial
Function of National Courts’ (2011) 34 Loyola of Los Angeles International and Comparative
Law Review 133, 138–42, with further references; cf J d’Aspremont, ‘The Systemic Integration
of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of
the International Legal Order’ in OK Fauchald and A Nollkaemper (eds), The Practice of
International and National Courts and the (De-) Fragmentation of International Law (Hart
2012) 141, 142–3.
International law traditionally regulated the conduct of states on the international

plane, while at the same time guaranteeing non-intervention in their domaine réservé of
domestic jurisdiction.14 Accordingly, a state was traditionally free to conduct itself as it
wished internally, as long as it complied with the rules regulating its conduct towards
other states on the international plane. Rules prohibiting the use of force ‘in
international relations’,15 or prohibiting intervention in the domestic affairs of another
state, or enabling the free navigation and use of the High Seas, or even regulating the
conduct of hostilities and the use of weaponry,16 are paradigmatic in this respect.
The domaine réservé of states has been shrinking significantly, however, as inter-
national regulation turns increasingly towards regulating state conduct within the
domestic jurisdiction. More and more international rules are ‘inward-looking’, in that
they require, prohibit, or enable the state to act in a particular manner within its own
jurisdiction. The paradigmatic example here is the assumption of obligations to respect
and protect human rights, but many ‘canonical areas’ or ‘sectoral regimes’ of
international law include ‘inward-looking’ rules, or ‘inward-looking’ aspects of rules.
Examples abound: international trade law imposes certain conduct with respect to
discrimination between ‘like’ products, the granting of subsidies, or the practice of
dumping, within the domestic legal order; international investment law imposes
standards for the treatment of investors by the state; the international law of the sea
imposes obligations on the state to legislate with respect to ships flying its flag or with
respect to search and rescue on the High Seas; international criminal law requires the
domestic criminalisation of certain conduct by individuals; the law of armed conflict
similarly requires domestic criminalisation of certain conduct by individuals, as well as
regulates the conduct of an occupying power; international environmental law also
imposes obligations to take conduct domestically, in order e.g., to reduce emissions or
to allow access to environmental justice; the derivative or secondary law of inter-
national organisations may require states to legislate in order to (or otherwise to)
achieve certain results within the domestic jurisdiction; and so forth.
‘Outward-looking’ (or traditional) rules of international law will rarely fall to be
adjudicated by a domestic court. A whole host of ‘avoidance techniques’ has been
devised in order to allow domestic courts to escape having to pronounce on such
questions:17 the ‘act of state’ doctrine, questions of non-justiciability of executive
action, particularly in the field of international relations, non-self-execution of the
relevant rules, and of course the doctrine of immunity, in the even more unlikely
scenario that the court of one state is asked directly to pronounce on the legality of the
14
cf art 2(7) of the Charter of the United Nations (26 June 1945) 1 UNTS xvi; UKTS 67
(1946), Cmd 7015 (UN Charter).
15
ibid, art 2(4).
16
It is instructive, for example, that gas and other lachrymatory agents (riot control agents,
commonly known as tear gas) may not be used in an international armed conflict, as this is
prohibited by the 1993 Chemical Weapons Convention, but may be freely used for domestic riot
control.
17
See generally E Benvenisti, ‘Judicial Misgivings Regarding the Application of Inter-
national Law: An Analysis of Attitudes of National Courts’ (1993) 4 European Journal of
International Law 159; cf A Reinisch, International Organizations before National Courts (CUP
2000), 391.
conduct of another state on the international plane. This does not mean that ‘outward-
looking’ rules never find themselves before domestic courts – sometimes they do, but
this is by no means a frequent or usual occurrence (or one that is likely to lead to a
successful outcome for those invoking the ‘outward-looking’ rule).18
Conversely, ‘inward-looking’ rules regulate the conduct of the state in the domestic
legal orders. In many cases they require the state to take particular legislative or
executive action to achieve the goals of the international rule. This legislative or
executive action may much more easily be brought before the domestic court: after all,
it is but action of the legislature or the executive within the domestic legal order, and it
is the role of the courts to police such legislative or executive action for compliance
with the limitations imposed on it by law – including international law.19
This, however, brings to the forefront a further complicating factor: domestic judicial
action in these cases refers to domestic legislative or executive action. The international
norm will have been domesticated in one way or another, and so it will not be, usually,
the immediate source regulating the action being judicially reviewed. Rather, it will be
a more or less remote source, a fact that may obscure the court’s engagement with
international law. It is to the question of ‘domestication’ of international law that we
thus need to now turn.
2.2 The ‘Domestication’ of International Obligations
The infinite variety of methods of ‘domestication’ of international law in the various

municipal legal orders, in conjunction with the tendency of international regulation to
employ ‘inward-looking’ norms, makes it very difficult to discern when an international
norm is at bar before a domestic court. Every domestic legal order has its own rules
regarding the domestication of international law, so that any generalisation is bound to
be lacking in finesse. However, it is worth gleaning the methods of domestication with
a view to portraying the many ways in which international rules may find themselves,
directly or indirectly, before a domestic court.
Roughly, the two main methods of domestication or internalisation of international
law are (automatic) incorporation and transformation. Some domestic legal orders may
consider international law as being (automatically) part of domestic law, in which case
it can be invoked before and applied by the domestic court without the need for any
intervention by domestic organs. Conversely, other domestic legal orders may require
that international law be ‘transformed’ into domestic law through the intervention of
domestic organs before being applicable by domestic courts.
Incorporation and transformation are commonly portrayed as corresponding to the
‘monist’ or ‘dualist’ predisposition of each domestic legal order. This is misleading and
18
For examples see (n 12).
19
See T Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67, 78–82; A
Tzanakopoulos, ‘Domestic Court Reactions to UN Security Council Sanctions’ in A Reinisch
(ed), Challenging Acts of International Organizations before National Courts (OUP 2010) 54,
54–58 for examples of case law where individuals challenge the implementation by states of UN
Security Council targeted sanctions before those states’ domestic courts on the basis of both
domestic and international law.
may be positively counter-productive. First, the distinction between monist and dualist
approaches to domestication is illusory. Even if the domestic legal order provides for
the automatic incorporation of international law into domestic law, this is hardly a
monist approach: it is the domestic legal system that regulates the reception of
international law into domestic law, even if it does so in an international law-friendly
manner (i.e., imposing minimal requirements or obstacles). Secondly, and most
importantly, domestic legal orders may adopt both incorporation and transformation
with respect to different sources of international rules. English law, for example, seen
as the paradigmatic ‘dualist’ legal order, incorporates customary international law into
the common law,20 while maintaining a strict separation between international treaties
and domestic law: these require to be transformed by Parliament before they are
applicable domestically. Other states, conversely, such as the US only make constitu-
tional provision for the incorporation of international treaties, but do not include any
reference to customary law.
To make matters even more complicated, neither of these two ‘ideal’ types of
international law domestication is left to operate as originally intended. A number of
principles operate to blunt the edges of either incorporation or transformation.
Incorporation for example does not mean that an international rule is directly applicable
in the domestic legal order: it may be required that the rule is also self-executing, that
is, specific enough so that it can be applied without need for legislative or executive
intervention. Conversely, the requirement of transformation does not mean that
unincorporated rules will have no effect in the domestic legal order: the principle of
consistent interpretation creates a presumption that the legislature has not legislated (or
did not intend to legislate) in violation of the international obligations of the state.21
Thus domestic law needs to be interpreted as being in harmony with international law,
to the extent possible. Needless to say that the ‘extent possible’ will vary from one legal
order to another, some allowing for relatively easy rebuttal of the presumption, others
treating the presumption as virtually irrebuttable. These are not the only principles that
mitigate the effects of either incorporation or transformation: some domestic courts
have applied interpretative principles similar to consistent interpretation, such as that of
‘legitimate expectations’,22 while others may use international law as a lens in order to
‘understand’ definitions or other terms in domestic legislation.23
20
The situation is not in reality as simple as this sentence might imply. For details on how
customary international law relates to English law see R O’Keefe, ‘The Doctrine of Incorpor-
ation Revisited’ (2008) 79 British Yearbook of International Law 7.
21
See generally on consistent interpretation Tzanakopoulos (n 13), 155–58 with further
references.
22
For example Scottish and Australian courts. See Study Group on Principles on the
Engagement of Domestic Courts with International Law, ‘Preliminary Report’ in International
Law Association Report of the Seventy-fifth Conference (International Law Association Sofia
2012), para 23 (ILA Preliminary Report).
23
In Roper v Simmons 543 US 551 (2004) the US Supreme Court (controversially) resorted
to international materials to give meaning to the terms ‘cruel and unusual punishment’, which is
prohibited by the US Constitution, while US courts in general have given import to a more than
200-year-old single-sentence statute to controversially review the human rights practice of other
To all this one should add the fact that international law is domesticated at different
‘hierarchical’ positions in different states: in some cases it is internalised at the level of
ordinary law (which means that it can be abrogated by later ordinary law), in others it
is given higher standing than ordinary law, and in others yet it is accorded constitu-
tional or even supra-constitutional status.24 The icing on the cake is provided by the
fact that some states may internalise different sources,25 or even specific treaties,26 at
different hierarchical levels in their domestic legal order.
There is one final complication: sometimes international law may be implicated in
the decision of a domestic court even though no argument referred to international law
and even though the court does not purport to refer to it at all either. This is when the
domestic court interprets and applies what may be termed a ‘consubstantial norm’.27
This is a norm of domestic law that coincides substantively with a norm of
international law. It does not matter whether the ultimate or remote source of the norm
is indeed international. What matters is that the norm applied substantively coincides
with an international norm. The example of human rights norms is illuminating:
international human rights norms were inspired by the first constitutional bills of
fundamental rights, which they incorporated to some extent. The international human
rights instruments incorporating these rules, in turn, have exercised significant influ-
ence on the fundamental rights bills found in many modern constitutions, effectively
creating a ‘feedback loop’ between the domestic and the international. The same can be
said, for example, with respect to certain rules in the area of state responsibility,28 or
even (treaty) interpretation.29 Further, the domestication of international law may create
‘hybrid’ international-domestic rules, which in turn extenuate the ‘feedback loop’ just
identified.30
states: see the litigation under the Alien Tort Claims Act 28 USC §1350 (1789). See also ILA
Preliminary Report (n 22), para 24.
24
In the UK, eg, treaties are transformed by means of statute, which can be abrogated by
later statute. In Greece, treaties are incorporated above ordinary law, but are arguably subject to
the constitution. In Austria, a specific treaty – the European Convention of Human Rights – is
granted constitutional rank, while other international law does not enjoy the same hierarchical
position. See further text at (n 25–26).
25
The Swiss constitution, eg, grants norms of jus cogens supra-constitutional status in the
domestic legal order. Note that the peculiarly ‘Swiss’ notion of jus cogens is broader than that
normally accepted under international law, but Swiss courts will not consider a treaty void for
conflicting with that broader notion of jus cogens.
26
The South African and Turkish constitutions, eg, distinguish between human rights
treaties and other treaties as to their legal effects in the domestic legal order.
27
See generally Tzanakopoulos (n 13), 143–44.
28
See S Wittich, ‘Domestic Courts and the Content and Implementation of State Respons-
ibility’ in A Tzanakopoulos and CJ Tams (eds), ‘Domestic Courts as Agents of Development of
International Law’ (2013) 26 Leiden Journal of International Law 643.
29
T Bingham, ‘International Law in National Courts’ in J Crawford and M Young (eds),
The Function of Law in the International Community: An Anniversary Symposium (2008) 1,
3 available at <http://www.lcil.cam.ac.uk/Media/25_anniversary/Int_Law_in_National_Courts_
paper.pdf>.
30
A Roberts, ‘Comparative International Law? The Role of National Courts in Creating and
Enforcing International Law’ (2011) 60 International and Comparative Law Quarterly 57, 74–6;
This rather complicated picture serves to underline the difficulty in determining

whether an international norm is at bar: in the final analysis, is the domestic court not
applying domestic law, eg, when it is applying a domestic statute giving effect to an
international rule? Or when it is applying international law by renvoi from its own
domestic law? Or when it is pronouncing on a domestic legislative or executive/
administrative act adopted in furtherance of an international obligation? Or when it is
interpreting and applying a ‘consubstantial’ norm, a domestic norm that substantively
reflects international law? Whereas this does not necessarily mean that the international
rule somehow loses its quality as an international rule through domestication – in fact
it does not31 – it does obscure the court’s engagement with international law.
But even if somehow one is able to discern that the court is potentially engaging with
international law in any of its guises in the domestic legal order, the more crucial
question is how to assess this engagement in terms of its impact on international law. It
is to this question that we now turn.
3. DOMESTIC JUDICIAL IMPACT ON INTERNATIONAL LAW

Assessing domestic judicial impact on international law is complicated, not only by the
obscurity of domestic court engagement with international law, but also because of the
ambivalent position of domestic courts in the international legal order. They are at once
‘subjects and adjudicators’,32 they are bound by the law, but they are tasked to also
interpret and apply it, thus invariably developing it. Are courts to be seen as mere
organs of the state, which – like any other organ – engage in state practice and are thus
able to impact international law in an admittedly limited manner through their
contribution in the formation of custom and in the clarification of treaty terms through
cf K Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 New York
University Journal of International Law and Politics 501, 505–06; R van Alebeek, ‘Domestic
Courts as Agents of Development of International Immunity Rules’ in Tzanakopoulos and Tams
(eds) (n 28) 559.
31
H Lauterpacht, ‘Municipal Decisions as a Source of International Law’ (1929) 10 British
Yearbook of International Law 65, 77:
The principle holds good that whenever by implied or express delegation or reference to
international law as a whole or to some of its rules rights are conferred or duties are imposed,
the rules thus adopted preserve their original character as precepts of international law
notwithstanding their adoption as part of the law of the land
and 92:
For one who chooses to confine himself to the field of municipal law, judges administer in all
these cases the law of their own country, and nothing else. But one who looks at the
substance of things rather than at their form must realize that when acting in that capacity
municipal judges are the organs of the international legal community. In their decisions,
perhaps only in them, the unity of international and municipal law reveals itself.
32
See S Olleson, ‘Internationally Wrongful Acts in the Domestic Courts: The Contribution
of Domestic Courts to the Development of Customary International Law Relating to the
Engagement of International Responsibility’ in Tzanakopoulos and Tams (n 28) 615.
‘subsequent practice’? Or are they something more, since after all they may be seen as
the ‘natural’ or ‘ordinary’ judges of international law?
3.1 Formal Impact: Domestic Court Decisions as Facts
For international law, a domestic court decision (like all domestic law) is nothing but a
fact. The Permanent Court of International Justice stated the position clearly already in
1926: ‘From the standpoint of International Law and of the Court which is its organ,
municipal laws are merely facts which express the will and constitute the activities of
States, in the same manner as do legal decisions or administrative measures’.33 At
most, then, domestic court decisions are facts that constitute state practice and may
express the state’s opinio juris – or, as Pellet puts it, they are ‘at the cross-road between
evidence of state practice and opinio juris’.34 They thus have a very limited ‘formal’
potential impact, which does not extend beyond that of any other organ of the state.
They only represent the position of one state, no less, which highlights how limited this
potential ‘formal’ impact is.35
As facts, domestic court decisions may never excuse the violation of an international
obligation. They cannot be pleaded in defence of an internationally wrongful act and
thus help escape the international responsibility that is engaged as a consequence.36
This ‘dualist’ position of international law, which separates the international legal order
from the domestic legal order and limits the impact of domestic court decisions could
be interpreted to mean that domestic courts ‘are formally incapable of applying and, in
consequence, of developing or creating international law’.37 Rather, all they may do is
either conform to existing international law, or violate it – with the consequence of
engaging the state’s international responsibility.38
Effectively, then, domestic court decisions stand to be assessed as being in
conformity with or in violation of existing law. It is only in the event that a domestic
court decision will introduce a novel interpretation or application of a rule, or will
ascertain the existence of a customary rule heretofore not ascertained or confirmed by
states that some potential for developing international law appears, and even then this is
contingent on the domestic court decision receiving the attention of other states (and,
33
Certain German Interests in Polish Upper Silesia (Judgment) [1926] PCIJ Series A No 7,
19 (emphasis added).
34
Pellet (n 5), MN 321.
35
See generally R O’Keefe, ‘Domestic Courts as Agents of Development of the Inter-
national Law of Jurisdiction’ in Tzanakopoulos and Tams (n 28) 541.
36
See art 3 of the ‘Articles on the Responsibility of States for Internationally Wrongful
Acts’ in Report of the International Law Commission on the Work of its 53rd Session, GAOR
56th Session Supp 10 UN Doc A/56/10 ch V (2001) (ARSIWA); cf art 27 of the Vienna
Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980,
1155 UNTS 331).
37
38
See art 4 ARSIWA; for an early treatment of domestic courts as organs engaging the
international responsibility of the state, see C Eustathiadès, La responsabilité internationale de
l’Etat pour les actes des organes judiciaires et le problème du déni de justice en droit
international (Pedone 1936); see further Olleson (n 32), 617–21.
tion: 9 / Date: 8/2
possibly, their courts) and procuring their assent or positive acceptance through
practice. This may lead to the gradual creation or change of customary international
law or it may constitute subsequent practice as to the interpretation of a particular
treaty provision. But it is a (comparatively) rare occurrence, and in any event it is no
different than the capacity for development of international law that accrues to all state
organs by virtue of their organic link to the state.
Even if domestic court decisions were considered to fall within the ambit of ‘judicial
decisions’ in article 38(1)(d) of the ICJ Statute, which is by no means an undisputed
interpretation of that provision,39 they would still only constitute ‘subsidiary means for
the determination of rules of law’. This would not result in any change in their formal
quality. Article 38(1)(d) refers to ‘material sources’, as they are sometimes called.
These are merely sources of evidence of the existence of international legal rules, and
they depend on their ‘anchoring’ on some formal source of international law in order to
have a claim to legally binding character.40 In short, the rule or interpretation
propounded in a domestic court decision must truly reflect a rule or interpretation that
can be traced back to a customary or treaty rule, or at least a general principle of law.
3.2 Actual Influence: Domestic Court Decisions as Triggers
Domestic court decisions may formally constitute mere facts. But in international law
ex factis jus oritur: customary international law is created by facts, by a consistent
practice coupled with a claim that the practice is (or should become) law.41 And
domestic courts have been at the forefront of such practice in important areas of
international law, such as those relating to the law on immunities from jurisdiction, for
example. Ascertaining what their actual impact on the development of international law
has been is a comparative research-intensive exercise that goes beyond the modest aim
of this contribution (not to mention that it would be impossible to achieve in anything
less than book-length treatment).42 But it is possible to distil some basic factors that
help assess the impact of domestic courts on the development of international law.
Each domestic court decision which touches on a question regulated by international
law, even incidentally, or even if the international rule is obscured by its domestication
or is lurking in the background of a ‘consubstantial’ norm, constitutes an interpretation
and application of an international rule. This is so even when no international law is
invoked before or applied by the domestic court. If international law regulates the
question before the domestic court, then the court’s non-application of that law is
legally significant.
In all these instances, the domestic court’s decision is a fact, but a fact that calls for
some reaction on the part of other states. In light of that reaction – or lack of it – the
39
See eg Pellet (n 5), MN 321, with further references.
40
See generally ibid, MN 111–116, esp 116 and 304ff.
41
See art 38(1)(b) of the Statute of the International Court of Justice (as annexed to the UN
Charter (n 14)) (ICJ Statute).
42
But see the attempt to survey the impact of domestic courts in certain ‘sectoral regimes’
or ‘canonical areas’ of international law in the various contributions in Tzanakopoulos and Tams
(n 28).
decision of the domestic court may help to consolidate an international rule, initiate or
confirm a change in the rule’s content, or lead to the confirmation of the lack of any
relevant change. Let us discuss these possibilities in turn.
Certain areas of international law are predominantly ‘inward-looking’, as discussed
in section 2 above. The rules of jurisdiction are an example of such predominantly
‘inward-looking’ rules: they determine when and where the state may exercise its
powers of prescription and enforcement, and thus pretty much define and delimit what
is a state’s domestic jurisdiction and what action can be taken within it. In every case
that includes a foreign element, the domestic court will have to determine its (and the
state’s) jurisdiction, and will have to do so by applying (or at least complying with) the
relevant rules of international law.43 Similarly, the rules of attribution under the law of
state responsibility will have to be applied in any case where the conduct of state
organs is in question, even if that is for the purpose of determining the forum state’s
responsibility under domestic law.44 In many such cases, the relevant rules of
international law will not be mentioned at all, mainly because they have been
domesticated or because there are consubstantial rules of domestic law that claim
application.45 But the fact remains that the decision of the domestic court will be
relevant for international law – even if all it does is to confirm ‘mundane’, ‘basic’,
‘uncontroversial’ rules.46 After all, all these rules are ‘mundane’ precisely because
domestic courts consistently apply them. This is what made them mundane in the first
place. Further, consistent application of these mundane rules contributes, even if
minimally, to fine-tuning, to the addition of another set of facts subsumed under the
relevant rule, enhancing the compendium of practice.
The actual impact of a domestic court decision is much clearer when domestic courts
take action which goes beyond what might be considered the ‘established’ content of an
international law rule, or when they rely on a purported rule of international law that is
not ‘established’. The whole concept of an ‘established’ rule or its content is vague –
any rule that is challenged through the interpretation or application of a domestic court
is not so ‘established’. The court’s decision may formally constitute only a single
instance of state practice, but is also an act that calls for reaction. That reaction is
legally significant. The acquiescence of the forum state, or – more importantly – other
states, and even more so the adoption of the domestic court’s position by other states
(and their courts) means that the seeds for the development of the law along the lines
‘suggested’ by the domestic court have already been planted.
43
However, the fact that international law is in effect being applied (or violated) will only
become evident once the court steps beyond what might be considered the established
boundaries of the relevant jurisdictional rule, that is when it makes an exorbitant claim to
jurisdiction – as might be the case for example when US courts apply the ‘effects doctrine’. See
further below in this section.
44
Similarly to what is stated in n 43 above, the need to apply relevant rules of international
law of state responsibility to determine attribution only becomes evident when a claim is raised
that the relevant conduct is not state conduct, and even more so when conduct is claimed to be
attributable to another state or even another subject of international law. See eg HN v The
Netherlands ILDC 1092 (NL 2008) and cf Nuhanović v The Netherlands ILDC 1742 (NL 2011).
See further below in this section.
45
See O’Keefe (n 35), 542–56 and Olleson (n 32), 621–40.
46
For such characterisations see the references in n 45 above.
tion: 11 / Date: 15/3
Conversely, if the domestic court’s position is not deemed to be acceptable, then the
forum state will somehow react and other states will protest. Their reaction and protest
may establish the domestic court’s decision as a mere violation of international law and
thus stop dead in its tracks whatever ‘development’ or ‘lawmaking’ the court is attempting
– whether consciously47 or even sub/unconsciously.48 Or the reaction may lead to an
international dispute ‘maturing’ and being eventually resolved, including before an
international court or tribunal. The resolution of the dispute before an international court,
no less, is merely a further episode in the potential development of the rule, not the final
step. This is because decisions of international courts are also subject to state reactions:
after all, it is only states that have the formal power to ‘make’ international law.
It is worth recounting some examples of domestic courts ‘triggering’ international
law development. They constitute evidence of the international-lawmaking potential of
domestic courts, notwithstanding their necessarily anecdotal character. One of the most
prominent examples in this respect is the emergence and establishment of the restrictive
theory of state immunity, which was first propounded and developed by Belgian and
Italian courts,49 and more recently by Austrian courts.50 The courts of many other states
followed suit, and eventually the restrictive theory was codified in national legislation
of various states.51 It also passed into international instruments, such as the 1972
European Convention on State Immunity and the 2004 UN Convention on Jurisdic-
tional Immunities of States and their Property.52
The decision of the Greek Supreme Court of Cassation (Άρειος Πάγος) regarding the
definition of ‘ship’ in the 1992 Convention on Civil Liability for Oil Pollution Damage
and the related 1992 Convention on the Establishment of an International Fund for
Compensation for Oil Pollution offers an example of triggering development in the
47
In the context of the sovereign immunity confrontation between Italian courts and
Germany, which commenced with the decision in Ferrini v Germany ILDC 19 (IT 2004), the
Italian Court of Cassation quite deliberately sought to ‘develop’ or to consolidate the develop-
ment of international law regarding sovereign immunity: in Germany v Mantelli and ors ILDC
1037 (IT 2008), para 11, it acknowledged that it was contributing to the ‘emergence’ of a new
rule of customary international law. See also Van Alebeek (n 29), 559–61 with further
references.
48
In Marine Environmental Services MC and anor v IOPC Fund 1992 ILDC 855 (GR
2004), the Greek Court of Appeal of Piraeus interpreted the term ‘ship’ in the 1992 IMO
Convention on Civil Liability for Oil Pollution Damage in a novel manner and against the
prevailing interpretation – only to turn out to have referred to a textbook commenting on the
1969 version of the CLC, which defines ‘ship’ in a different manner. This is a good example of
the possibility of a domestic court ‘unconsciously’ attempting to develop the law. For the
aftermath of this decision and the relevant appeal in cassation see (n 52–56).
49
See van Alebeek (n 30), 559–61 with further references.
50
See generally S Sucharitkul, ‘Immunities of Foreign States before National Authorities’
(1976) 149 Recueil des cours de l’Académie de droit international 87, with further references,
and cf further M Sornarajah, ‘Problems in Applying the Restrictive Theory of Sovereign
Immunity’ (1982) 31 International and Comparative Law Quarterly 661.
51
See references cited in n 50 above.
52
See further the commentaries to part III of the latter convention in R O’Keefe ao (eds),
The United Nations Convention on Jurisdictional Immunities of States and Their Property: A
Commentary (OUP 2013).
interpretation and application of a treaty term. The Greek Supreme Court interpreted
‘ship’ to include ‘floating storage units’,53 an interpretation that had been rejected by
the states parties to the 1992 IOPC Fund Convention, constituted as the Assembly of
the 1992 IOPC Fund.54 The Assembly’s interpretations of the Convention are to be
considered as subsequent agreement as to the interpretation of the relevant treaty, and
thus binding, in accordance with article 31(3)(a) of the Vienna Convention on the Law
of Treaties.55 And yet, the decision of the Greek Supreme Court of Cassation initiated
a discussion among states-parties as to whether the definition given by the Assembly
was appropriate in view of recent changes in international maritime trade.56 Eventually
the Assembly was led to reconsider its definition of ‘ship’ in the relevant instruments
along the lines suggested by the court, a process that is still ongoing.57
In another example of domestic court action having set in motion a process of
development of international law, domestic court reactions to the targeted sanctions
regime established under Resolutions 1267 (1999) and 1989 (2011) (the 1267/1989
sanctions regime) have been instrumental in the refinement of Security Council
practice. Not only have domestic court decisions led the Council to introduce
humanitarian exemptions,58 but sustained pressure on the part of domestic courts in
cases such as Abdelrazik 59 and Ahmed 60 (along with reactions in regional international
courts in cases like Kadi,61 Kadi II,62 and Nada63) forced the Council to introduce
53
Marine Environmental Services MC and anor v IOPC Fund 1992 ILDC 856 (GR 2006)
paras 11 and 15–16.
54
See the Record of Decisions of the Eighth Session of the Executive Committee, Doc
92FUND/EXC.8/8 (2000), para 4.3.
55
See Resolution No 8 on the Interpretation and Application of 1992 Civil Liability
Convention and the 1992 Fund Convention, Doc 92FUND/AC.1/A/ES.7/7 (2003) Annex. The
Assembly notes that its interpretations are to be considered binding in the courts of states-
parties.
56
See Application of the 1992 Conventions to Ship-to-Ship Oil Transfer Operations and
Floating Storage Doc IOPC/OCT10/4/3/1 (2010).
57
See Record of Decisions of the October 2012 Sessions of the IOPC Funds’ Governing
Bodies Doc IOPC/OCT12/11/1 (2012) paras 4.6.3–4.6.6; see further Record of Decisions of the
October 2015 Sessions of the IOPC Funds’ Governing Bodies Doc IOPC/OCT15/11/WP.1
(2015) para 2.1.5.
58
As it did in the aftermath of R (Othman) v Secretary of State for Work and Pensions
[2001] EWHC 1022 (Admin) by means of SC Res 1452 (2002). See Tzanakopoulos (n 19), 66.
59
Abousfian Abdelrazik v Minister of Foreign Affairs and Attorney General of Canada
[2009] FC 580 ILDC 1332 (CA 2009). See for comment A Tzanakopoulos, ‘United Nations
Sanctions in Domestic Courts: From Interpretation to Defiance in Abdelrazik v Canada’ (2010)
8 Journal of International Criminal Justice 249.
60
HM Treasury v Mohammed Jabar Ahmed and others FC; HM Treasury v Mohammed al-
Ghabra FC; R (Hani El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2; ILDC 1534 (UK
2010).
61
Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat
International Foundation v Council of the European Union and Commission of the European
Communities [2008] ECR I-6351.
62
Case T-85/09 Yassin Abdullah Kadi v European Commission [2010] ECR II-5177.
63
Nada v Switzerland App No 10593/08 (ECtHR Grand Chamber 12 September 2012)
available at <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113118>.
tion: 13 / Date: 14/3
independent review of sanctions decisions at UN level through the establishment of an

Office of the Ombudsperson,64 a process which was subsequently further strengthened
in the face of continued challenge from domestic courts.65 The impact of domestic
court decisions here may extend beyond bringing about a change in Security Council
practice; it may ultimately have the effect of consolidating certain rights, such as the
right of access to a court and the right to an effective remedy, as jus cogens, or even
that of clarifying the relationship between article 103 of the UN Charter and
fundamental rights, which are guaranteed both by international law and by consubstan-
tial constitutional provisions in most states.66
Conversely, the forum state may be the first one to stop whatever ‘lawmaking’
attempt of the domestic court in its tracks. It can do so by intervening in proceedings in
order to prevent a violation of the state’s international obligations which would result
from the court’s decision. In Tachiona v US, for example, it was recognised that the
state may intervene even in a dispute between individuals and appeal the decision of a
lower court, when that decision, if left to stand would result in a violation of US
international obligations.67 A more subtle way to effectively overrule the domestic court
is through provisions of domestic law which permit such action in extremis, such as
when the Greek Minister of Justice declined permission to execute against Germany in
the wake of the Distomo cases in Greek courts.68 The Greek Special Supreme Court in
the end effectively (though not technically) overturned the innovative decisions of other
Greek courts, by confirming the rule of immunity.69 But overruling may not be subtle at
all: in the ARA Libertad case, Ghana openly disregarded the decision of its domestic
court to impose measures of constraint on an Argentinian warship, the frigate ARA
Libertad, anchored and later detained in Tema, in order to comply with the provisional
measures order of the International Tribunal for the Law of the Sea.70 Here, the ITLOS
order can be seen to have facilitated Ghana’s overruling of its own domestic court,
given that the state had already opposed the imposition of measures of constraint on the
foreign warship and agreed with Argentina that the measures constituted a violation of
64
See UNSC Res 1904 (2009) UN Doc S/RES/1904 preamble, para 9 (explicitly stating
that the action is taken in response to challenges in domestic courts) and operative paras 20–21
and Annex II.
65
See UNSC Res 1989 (2011) UN Doc S/RES/1989 para 23.
66
See generally A Tzanakopoulos, ‘Collective Security and Human Rights’ in E de Wet and
J Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (OUP 2012) 42.
Note that in Nada (n 63), para 210, the European Court of Human Rights effectively recognises
the existence of an obligation on Switzerland (and, consequently, on all 47 states-parties to the
ECHR) to review Security Council sanctions under the 1267/1989 regime for compliance with
fundamental rights protected by the ECHR, in particular the right to an effective remedy.
67
Tachiona and ors v US, 386 F.3d 205 (2d Cir, 2004); ILDC 1090 (US 2004).
68
Germany v Prefecture of Voiotia ILDC 287 (GR 2000).
69
Germany v Margellos ILDC 87 (GR 2002).
70
The ‘ARA Libertad’ Case (Argentina v Ghana) (Provisional Measures, Order of 15
December 2012) available at <http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/
C20_Order_15.12.2012.corr.pdf>.
international law. Ghana also challenged the decision of the Accra High Court before a
higher Ghanaian instance.71
If the forum state does not act to overrule its domestic court, implicitly allowing the
court’s position to become the state’s position, then other states may react in order to
clarify the position under international law. Sustained state reaction, including action
before an international court, will arrest the development of a new rule of international
law. Reactions to exorbitant claims of jurisdiction, e.g., of US courts applying the
‘effects doctrine’, are an obvious example.
What is more instructive is the sustained reaction of states to claims that a normative
hierarchy argument allows jus cogens norms to supersede immunity rules. Whereas the
decisions of domestic courts have been relatively consistent in denying the argument
and confirming that jus cogens does not have that effect,72 the odd decision that is out
of line is strongly protested. Germany’s reaction to the practice of the Italian courts
regarding sovereign immunity initiated in the Ferrini case73 was decisive: Germany
brought a claim against Italy before the International Court of Justice, which it went on
to win.74 The decision of the Court in the case can be seen as arresting the development
of the law on sovereign immunity along the lines suggested by the Italian Court of
Cassation, ie, as not applying in cases of serious breaches of peremptory norms by the
state claiming immunity. However, it is arguable that consistent practice by domestic
courts could eventually develop the principles of normative hierarchy in international
law75 – as they have, to some extent, in the case of Security Council sanctions.76 Indeed
the Italian Constitutional Court reacted to the ICJ decision by pressing on the argument
about the right of access to a court and the right to an effective remedy.77 Admittedly
the argument was under the Italian Constitution, but the Italian Constitutional Court can
also be seen as relying on a consubstantial norm. And so the process continues.
There are more examples of domestic courts triggering developments in (if not
development of) international law. For the purposes of this chapter, however, the
examples above illustrate the various ways in which such triggering may come about,
and its results. And yet, how is this ‘triggering’ function of domestic courts any
different from the triggering function of any other state organ? International law is
interpreted and applied in the day-to-day operation of every state organ, as is the
71
See <http://www.businessweek.com/news/2012-12-19/ghana-asks-appeal-court-to-vacate-
ruling-on-argentine-ship> and <https://ivybenson.wordpress.com/2012/11/14/court-halts-hearing-
of-default-judgment-on-ara-libertad-as-vessel-owners-seek-adjournment/>.
72
See A Orakhelashvili, Peremptory Norms in International Law (OUP 2006), 552–54.
73
See text (n 47).
74
Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) (Judgment)
[2012] ICJ Rep 99.
75
That international courts will consider domestic court jurisprudence when faced with
such questions is evident in the ICJ’s decision in Arrest Warrant of 11 April 2000 (DR Congo v
Belgium) (Judgment) [2002] ICJ Rep 3, 24 para 58.
76
See text (n 58–66).
77
Italian Constitutional Court, Decision No 238/2014 (22 October 2014), available at
<http://www.diritticomparati.it/2014/10/sentenza-n-238-anno-2014-repubblica-italiana-in-nome-
del-popolo-italiano-la-corte-costituzionale-composta-dai-signori.html> (in Italian).
domestic law that pertains to the relevant organs’ functions. Is there anything that sets
domestic courts apart from other state organs?
3.3 Domestic Courts as the ‘Natural Judges’ of International Law
‘International law has at times, like the common law within states, a twilight existence
… till at length the imprimatur of a [domestic] court attests its jural quality’.78 In the
fourth edition of his Law of Nations James Brierly notes that ‘[n]o rule exists to
determine the value of any particular precedent, and the decisions of national courts
dealing with matters of international law may be helpful, as well as those of
international courts’.79 In the seventh edition, more than 60 years later, Andrew
Clapham characterises domestic courts as ‘decentralised international judiciary’.80 This
implies that domestic courts have an international judicial function, alongside their
domestic judicial function.
Scelle’s theory of dédoublement fonctionnel would cast domestic courts also as
organs of the international legal system, not just as organs of their state.81 If the legal
system is perceived as unitary, then domestic courts are organs of that system, as well
as organs of whatever partial (i.e., domestic) legal system they may belong to. But this
would be true of any other state organ fulfilling functions on behalf of the ‘uninstitu-
tionalised’ international ‘community’. However, domestic courts have a particular role
to play as organs of the international legal order (to avoid the nefarious term
‘international community’): they are judicial organs, ‘guardians’ of the law, both for
their state but also internationally:82 they give judicial treatment to rules of inter-
national law.83 And the rules of international law themselves ‘are normally adminis-
tered by the administrative and judicial authorities of states, partly because many of
these rules regulate private rights or duties either directly or as determining the
jurisdictional competence of the state, and partly because private rights and duties are
dependent upon answers to questions of international law’.84 While the theory of
78
These are the words of Justice Cardozo in New Jersey v Delaware, 291 US 361, 383
(1934) (emphasis added).
79
Though he goes on to state that ‘the decisions of the [ICJ] … are naturally entitled to
more respect than any others’, JL Brierly, The Law of Nations: An Introduction to the
International Law of Peace (4th edn, Clarendon Press 1949), 65.
80
A Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law
in International Relations (7th edn, OUP 2012) 126.
81
See generally G Scelle, Précis de droit des gens: principes et systématique (Recueil Sirey
1932) vol 1, 49–69 and vol 2, 10–12.
82
See Y Shany, ‘No Longer a Weak Department of Power? Reflections on the Emergence
of a New International Judiciary’ (2009) 20 European Journal of International Law 73, 74–5; cf
Lauterpacht (n 31), 93: ‘states, on whose behalf [municipal courts] administer international law,
are the guardians of the international legal order’ (though recognising this as representing the
‘minority’ consciousness).
83
Cf A Nollkaemper, ‘The Role of Domestic Courts in the Case Law of the International
Court of Justice’ (2006) 5 Chinese Journal of International Law 301, 308: ‘a court’, after all, ‘is
a court’ – it only gives judicial treatment to issues brought before it.
84
tion: 16 / Date: 14/3
dédoublement fonctionnel still divides scholars (and judges),85 there is no reason why
domestic courts cannot be seen also as international actors, as ‘servants of two
masters’.86 They are state organs, and this quality of theirs is recognised by inter-
national law; but they are also adjudicators, who interpret and apply, among others,
international law.
International law assigns an international judicial function to domestic courts, and
this international judicial function, like any judicial function, involves some form of
lawmaking. The argument that domestic courts exercise an international judicial
function has been developed more fully elsewhere.87 For present purposes, it should
suffice to recapitulate the basic tenets of the argument. If courts have some lawmaking,
or law-developing, capacity, since every interpretation and application of law has a
constitutive rather than a mere declaratory effect,88 then domestic courts do ‘shape’
international law when they engage with it. Indeed international law does require them
to engage with it, as it establishes them, in most cases involving inward-looking norms,
as the ‘natural judges’ or ‘ordinary judges’ of international law.89
For example, international law requires the exhaustion of local remedies before a
claim that an (‘inward-looking’) international norm has been violated is admissible on
the international plane.90 What is more, the domestic court need only deal with the
substance of the claim,91 but it need not do so by explicitly applying international law
– which confirms two things: that ‘consubstantial’ norms are indeed a reality, and may
effectively be relied upon in order to resolve issues under international law; and that the
domestic court is the first port of call for the adjudication of international law, subject
to supervision at the international level (e.g., if the dispute is taken up on the
international level and makes it before an international court or is resolved by some
other means for the peaceful settlement of disputes). In human rights law, e.g., within
the context of the ECHR or the ICCPR, domestic courts are meant to be the ordinary
judges of international law subject to international supervision, while in investment law
the same is the case unless explicitly contracted out of in favour of an international
instance.92 Even then, the ‘natural judge’ function of domestic courts may be retained
85
Succinctly Y Shany, ‘National Courts as International Actors: Jurisdictional Implications’
(2009) Federalismi.it No 15/2009, 14–15 available at <http://www.effective-intl-adjudication.org/
admin/Reports/2af9ed4d4a026e581437876dd1b73b87Yuval.pdf>.
86
ibid, 21.
87
See generally Tzanakopoulos (n 13).
88
See section 1 above.
89
See generally A Tzanakopoulos, ‘Domestic Courts as the “Natural Judges” of Inter-
national Law: A Change in Physiognomy’ in J Crawford and S Nouwen (eds), Select
Proceedings of the European Society of International Law, vol 3 (Hart 2012) 155.
90
See Elettronica Sicula SpA (United States v Italy) (Judgment) [1989] ICJ Rep 15, 42 para
50 and cf commentary to article 44(b) ARSIWA (n 38), 121 para 3.
91
cf Elettronica Sicula Spa (n 90), 46 para 59; Avena and Other Mexican Nationals
(Mexico v United States) (Judgment) [2004] ICJ Rep 12, 35–6 para 40; Norwegian Loans
(France v Norway) (Judgment) [1957] ICJ Rep 9, Separate Opinion of Judge Lauterpacht,
40–41.
92
See eg, art 25(1) of the Convention on the Settlement of Investment Disputes between
States and National of Other States (adopted 18 March 1965, entered into force 14 October
1966, 575 UNTS 159).
tion: 17 / Date: 14/3
through ‘fork in the road’ provisions in many agreements. In international economic

law, among other areas, there is explicit acceptance of a ‘margin of appreciation’ of
domestic courts over their international counterparts,93 which points to a principle of
subsidiarity applying between international and domestic courts.94 This is made explicit
in international criminal law, as for example in the Rome Statute of the International
Criminal Court,95 or in treaties establishing an obligation to ‘extradite or prosecute’.96
International supervision is subsidiary in these circumstances, which highlights and
formally confirms the ‘triggering’ function of domestic courts.
4. DOMESTIC COURTS AS ‘AGENTS’ OF INTERNATIONAL LAW

DEVELOPMENT97
What becomes evident from the discussion so far is that: (a) domestic courts, as state
organs, engage in some limited form of lawmaking, on par with all other state organs,
as traditionally understood under international law; (b) this lawmaking takes the form
of consolidating and fine-tuning rules of international law, many times in less-than-
obvious ways, and in triggering acquiescence or reaction when going beyond well-
established rules (or interpretations of rules); and (c) and yet, what sets domestic
judicial lawmakers apart from their counterpart domestic lawmakers, the other organs
of the state, is the fact that international law does acknowledge the special position of
domestic courts as the ‘natural’ or ‘ordinary’ judges of international law and ascribes
them an international judicial function.
It is important, however, to relativise these statements, lest it be considered that
domestic courts are international lawmakers writ large. They are not. They are rather
‘agents’ of international law development, at best: neither law-givers nor mere
mouthpieces. The term ‘agent of development’, introduced by Hersch Lauterpacht98
and since taken up by Sir Franklin Berman,99 reflects a nuanced appreciation of the role
93
See eg, art 17.6(ii) Agreement on the Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) (adopted 15 April 1994,
entered into force 1 January 1995, 1868 UNTS 201).
94
See Y Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’
(2005) 16 European Journal of International Law 907, 926–31.
95
Article 17 Rome Statute of the International Criminal Court (adopted 17 July 1998,
entered into force 1 July 2002, 2187 UNTS 3).
96
See generally MC Bassiouni and EM Wise, Aut Dedere Aut Judicare: The Duty to
Extradite or Prosecute in International Law (Martinus Nijhoff 1995); Z Galicki, ‘Preliminary
Report on the Obligation to Extradite or Prosecute (“aut dedere aut judicare”)’, UN Doc
A/CN.4/571 (2006).
97
See generally A Tzanakopoulos and CJ Tams, ‘Domestic Courts as Agents of Develop-
ment of International Law’ in Tzanakopoulos and Tams (n 28) 531.
98
(Stevens & Sons 1958), ch 1 (‘The International Court as an Agency for Developing
International Law’); and already H Lauterpacht, The Development of International Law by the
Permanent Court of International Justice (Longmans Green and Co London 1934), 2.
99
Sir F Berman, ‘The International Court of Justice as an “Agent” of Legal Development?’
in Tams and Sloan (n 6) 7.
tion: 18 / Date: 14/3
of courts in the development of international law, a role which can be seen as

oscillating between the formal requirement that they do not ‘make’ law, but merely
apply existing law, and the actual fact that any interpretative endeavour and any
application of a general rule to specific facts has a law-clarifying, or law-developing,
effect. While Hersch Lauterpacht used it to describe the role of the Permanent Court of
International Justice (and later the ICJ), the concept of ‘agency’ can be applied to all
participants contributing to the process of legal development, including domestic
courts. ‘Agent’ is used in a broad sense, denoting a capacity to influence processes – in
this case: the process of lawmaking or legal development.100 Agents can be powerful or
weak, and their strength may vary across areas, as indeed it does in the case of
domestic courts. In certain areas they have ‘made’ the law, as for example in the
establishment of a restrictive theory of sovereign immunity. In others, their influence is
negligible or difficult to discern. Most importantly, agents operate within systems that
empower or constrain them: in our setting, domestic courts are part of a broader
process of international legal development shaped notably by the doctrine of sources of
international law.
Domestic courts cannot singlehandedly ‘develop’ international law. They merely
trigger reactions that may eventually lead to such development; or their decisions are
met with acquiescence or approval, which confirms them and may also lead to
law-development. This is the extent of their ‘lawmaking’ function, and it is recognised
by international law. How is this (limited) lawmaking function different in principle
from the lawmaking function of the ICJ, for example, or of any other (international)
court for that matter? After all, decisions of the ICJ enjoy no special ‘formal quality’
beyond article 59 of the ICJ Statute, which makes them binding on the parties to the
case before the Court. It is of course uncontested that the ‘actual’ impact of ICJ
decisions on the development has been significant in a number of cases – but even there
that impact was conditioned on the reaction of states to the pronouncements of the
Court. Let us not forget that state reaction has overruled findings of the Court, Lotus
being a prominent example in this regard.101 Conversely, ICJ decisions have ‘shaped’
international law by soliciting the acquiescence or approval of states, as for example
when the ICJ switched from the principle of integrity to the principle of universality of
treaties in the Genocide advisory opinion.102 The ICJ is as much subject to decentral-
ised supervision by states as domestic courts are: the South West Africa cases serve as
a powerful reminder of this fact.103
Domestic courts are thus ‘agents’ of international law development, supervised by
international courts and, finally, controlled by states in a decentralised manner, through
acquiescence, approval, protest. Their decisions need to be scrutinised carefully, as
need to be scrutinised the reactions to those decisions, in order to discern to what
extent these have shaped (or may in the future shape) international law.
100
cf Tams and Tzanakopoulos (n 5), 782–85.
101
SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ Ser A No 10.
102
Reservations to the Genocide Convention (Advisory opinion) [1951] ICJ Rep 15.
103
South West Africa, Second Phase (Liberia v South Africa) (Ethiopia v South Africa)
(Judgment) [1966] ICJ Rep 6.
tion: 19 / Date: 14/3
5. CONCLUSION: ASSESSING THE LAWMAKING POTENTIAL

OF DOMESTIC COURT DECISIONS
Instead of a concluding section, it is worth distilling from the above some guidelines,
or ‘rules of thumb’ for assessing the lawmaking potential of domestic court decisions.
Domestic courts, as the natural judges of international law, are potentially important
agents of international law development. But as their influence on international law
development may actually vary depending on a number of factors, it is crucial to pay
attention to these factors when assessing the actual or potential impact.
The first such factor is the nature of the international obligation which the domestic
court seems to be engaging with or which the decision may affect: if this is an
‘inward-looking’ norm, then it is far more likely that the decision of the domestic court
may have a developing impact on it than if it is an ‘outward-looking’ norm. In the latter
case, chances are that the domestic court will not meaningfully engage with it,
preferring to avoid getting involved in ‘international relations’ issues.
The second such factor is the peculiar domestication methods that may be at play in
the relevant legal order: a decision may be important even if it does not, at first sight,
apply or engage with international law. This may be so because the domestic court
might be applying domestic law which is meant to be giving effect to international
obligations, or interpreting domestic law ‘consistently’ with international law, or even
applying a ‘consubstantial’ norm. Even though such decisions are customarily given
little importance, they may actually have significant repercussions in international law.
Finally, a third factor is the reaction to the domestic court decision. A careful
consideration of the reaction of states and other actors to the decision of the court, its
adoption by courts in other jurisdictions or even by international courts or other actors
involved in the clarification or codification of international law will help assess more
precisely the actual impact of the particular decision on the development of inter-
national law.
tion: 20 / Date: 14/3
12. Quasi-judicial bodies

Mara Tignino
The last few decades have seen a blossoming of quasi-judicial bodies in various areas
of international regulation, each with a mandate to monitor compliance with a body of
norms, settle disputes regarding those norms, or make determinations on the basis of
investigations of one form or another, yet none empowered to make final, binding
decisions on questions of international law.1 These bodies not only help to resolve
ambiguity and uncertainty of the underlying principles and rules but, perhaps more
importantly, are well placed to improve compliance with international commitments.2
Nonetheless, their particular combination of powers seems to leave their practice and
decisions in a legal no-man’s land. Even taking for granted that binding interpretation is
itself a form of lawmaking, it is not clear that the traditional sources of international
law (identified in, for example, the Statute of the International Court of Justice (ICJ))
include the decisions of quasi-judicial bodies,3 even as a ‘subsidiary’ source of
international law.4 The obvious question, if their decisions cannot be uncontroversially
treated as sources of international law, is how can quasi-judicial bodies be viewed as
international lawmakers?
Following a short section that introduces the reader to the diversity of quasi-judicial
bodies, this chapter explores a number of possible answers to that question. The first
set of answers, explored in Sections 1 and 2, is that quasi-judicial bodies often act as
procedural rule makers. Often, they are explicitly empowered to make their own rules,
but in other cases, an effort to be more effective in keeping stakeholders accountable
has pushed them to be innovators of new practices that nonetheless fall within the
formal limits of their powers. The push for accountability, however, has also been
applied to the work of quasi-judicial bodies themselves. Research has uncovered
growing evidence of a trend toward judicialization in quasi-judicial bodies, tracing a
1
Certain tribunals are also charged with authoritative adjudication or binding interpretation
under particular treaties. See eg F Maupain, ‘The Settlement of Disputes within the International
Labour Organization’ (1999) 2 Journal of International Economic Law 273; G Abi-Saab, ‘The
Appellate Body and Treaty Interpretation’ in G Sacerdoti ao (eds), The WTO at Ten – The
Contribution of the Dispute Settlement System (CUP 2006), 455–56.
2
See C Chinkin, ‘Normative Development in the International Legal System’ in D Shelton
(ed), Commitment and Compliance: The role of Non-Binding Norms in the International Legal
System (OUP 2000), 21.
3
See especially art 38.1 of the Statute of the International Court of Justice (as annexed to
the Charter of the United Nations (26 June 1945) 1 UNTS xvi; UKTS 67 (1946), Cmd 7015).
4
See eg I Brownlie, Brownlie’s Principles of Public International Law (8th edn, OUP
2012), 20–21.
242
tion: 1 / Date: 8/2
Quasi-judicial bodies 243
convergence toward a shared collection of principles structuring their procedures.5

Section 3 provides a brief overview of those trends and then provides examples where
quasi-judicial bodies have had an autonomous role in enacting the principles that
constitute this trend. In so doing, it suggests that quasi-judicial bodies have acted as
lawmakers not only by crafting procedural rules, but by giving more general shape to
the principles that constitute the judicialization process or what others have called the
rise of global administrative law.
Section 4 widens the picture, touching on the degree to which quasi-judicial bodies
also act as substantive rules-makers, by influencing the interpretation, clarification and
refinement of State duties and responsibilities. In this context, this section touches on
why quasi-judicial bodies have proven influential in the interpretation of State
responsibilities by both national and international courts.
The conclusion relates the analysis to legitimacy concerns and broader theoretical
questions about the nature of international lawmaking.
1. QUASI-JUDICIAL BODIES: SHARED TASK, DIVERSE

PRACTICE
To provide a window on the diversity of ‘quasi-judicial processes’ in the international
sphere, the analysis draws on examples from a broad cross-section of regulatory areas.
While subsequent sections compare and contrast particular practices to elucidate the
role and influence of quasi-judicial bodies more generally, the subsections below are
intended to acquaint the reader with the function and structure of these particular
bodies.
1.1 The Aarhus Compliance Committee
The Aarhus Compliance Committee is probably the best known of processes providing
the public with a chance to participate in international environmental compliance.6 It
was created by a decision of the Meeting of the Parties7 in accordance with Article 15
5
The process of judicialization of non-compliance bodies established by environmental
agreements has been underlined by eg L Boisson de Chazournes and MM Mbengue, ‘A propos
du caractère juridictionnel de la procédure de non-respect du Protocole de Kyoto’ in S
Maljean-Dubois (ed), Changements climatiques – Les enjeux du contrôle international (La
documentation française 2007) 73. Regarding accountability mechanisms established by Inter-
national Financial Organizations (IFIs), see AN Fourie, The World Bank Inspection Panel and
Quasi-Judicial Oversight, in Search of the ‘Judicial Spirit’ in Public International Law, (Eleven
2009), 9.
6
The public also has the right to submit complaints to the Compliance Committee of the
Protocol on Water and Health to the Convention on the Protection and Use of the Transboundary
Watercourses and International Lakes. Decision on review of compliance, Report of the First
Meeting of the Parties of the Protocol on Water and Health to the Convention on the Protection
and Use of the Transboundary Watercourses and International Lakes ECE/MP.WH/2/Add.3
EUR/06/5069385/1/Add.3 (2007), para 16.
7
Decision I/7 on Review of Compliance ECE/MP.PP/2/Add.8 (2001).
tion: 2 / Date: 8/2
of the 1998 Aarhus Convention on Access to Information, Public Participation in

Decision-Making and Access to Justice in Environmental Matters (Aarhus Conven-
tion).8 The Committee is tasked with monitoring compliance with the Convention, and
specifically with considering claims of non-compliance submitted by members of the
public, individual States, Meeting of Parties or referral by the Secretariat.9 Members of
the public are allowed to lodge claims against any State they believe to be in
contravention with the norms set out in the Convention.10 The Committee regularly
examines questions of non-compliance by a Party and makes recommendations if and
as appropriate,11 reporting on its work at each ordinary Meeting of the Parties.12
1.2 The Economic, Social and Cultural Rights Committee
The Committee on Economic, Social and Cultural Rights (ESCR Committee) is very
significant among the quasi-judicial bodies with human rights competence.13 As part of
its task to monitor the implementation of the 1966 Covenant, the ESCR Committee is
authorized to make suggestions and recommendations of a general nature on the basis
of its consideration of State reports.14 Since 1989, the Committee has provided
Concluding Observations on each report considered, constituting the Committee’s
assessment of the State report in question, and summarizing the progress and
deficiencies in the implementation of economic, social and cultural rights. Given their
formal character and the care with which they are prepared by the Committee, the
findings set out in the Concluding Observations are seen as authoritative pronounce-
ments on whether States have or have not complied with the Covenant’s provisions.15
Given the interpretive dimension implicit to this task, the Concluding Observations are
8
Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters (Aarhus Convention) (adopted 25 June 1998, entered
into force 30 0ctober 2001) (1999) 38 ILM (1999) 517. The Convention was negotiated and is
administered under the auspices of the United Nations Economic Commission for Europe.
9
Decision I/7 on Review of Compliance (n 7).
10
A total of 136 communications from the public has been received as of February 2016;
by comparison, only two submissions had been received from a Party to the Convention.
11
Decision I/7 on Review of Compliance (n 7), para 14.
12
ibid, para 36.
13
MCR Craven, The International Covenant on Economic, Social and Cultural Rights. A
Perspective on its Development (Clarendon Press 1998), 57; C Brölmann and T Kiefer, ‘Beyond
State Sovereignty: The Human Right to Water’ (2005) 5 Non-State Actors and International Law
183, 204.
14
ECOSOC Res 1985/17 (28 May 1985), para (f).
15
Concluding Observations are adopted by consensus of the Committee as a whole, in
closed meetings. The adoption of these instruments follows a formal process. After a detailed
review of the States’ reports with the representatives of the reporting States, the Committee
usually sets aside a brief period in closed session immediately after the conclusion of the
dialogue to enable its members to express their preliminary views. The country rapporteur then
prepares, with the assistance of the secretariat, a draft set of concluding observations for
consideration by the Committee. Committee on Economic, Social and Cultural Rights, (ESCR
Committee) ‘Working methods’ Report on the Forty-Fourth (3–21 May 2010) and Forty-Fifth
(1–19 November 2010) Sessions E/2011/22 – E/C.12/2010/3, para 30.
understood as a body of jurisprudence that provides insight on the interpretation of the

Covenant’s provisions.
Pursuant to a 1987 resolution of the UN Economic and Social Council (ECOSOC)16
(subsequently endorsed by the General Assembly17), the Committee is also empowered
to adopt General Comments. The 21 General Comments issued since 1989 serve to
clarify the content of the norms contained in the Covenant, to aid States in the
preparation of their reports regarding the implementation of the rights enshrined
therein, and to inform the activities of both State and international actors likely to
impact on economic, social and cultural rights.18
1.3 The International Financial Organizations’ Investigative Mechanisms
In 1993, the creation of the World Bank Inspection Panel (WBIP) opened a direct
channel of communication between project-affected groups and the highest levels of
Bank decision-making.19 The WBIP has jurisdiction over the operational activities of
two key World Bank affiliates.20 An additional mechanism, the Office of the Compli-
ance Advisor/Ombudsman (CAO), was created in 1999 to provide oversight to the
International Finance Corporation (IFC) and the Multilateral Investment Guarantee
Agency (MIGA).21 Both mechanisms aim to increase accountability for compliance
with operational policies within the respective institutions, by providing concerned
individuals and communities with a means to seek redress in cases of non-compliance.
Each regional development bank – the African Development Bank (AfDB), the Asian
Development Bank (ADB), the European Bank for Reconstruction and Development
(EBRD) and the Inter-American Development Bank (IDB) – has since developed
similar investigative mechanisms22 and those mechanisms have been the subject of
16
ECOSOC Res 1987/5 (26 May 1987), para 9.
17
Indivisibility and interdependence of economic, social, cultural, civil and political rights,
UNGA Res A/RES/42/102 (7 Dec 1987), para 5.
18
According to the Committee on Economic, Social and Cultural Rights (ESCR Commit-
tee): ‘Through its general comments, the Committee endeavours to make the experience gained
through the examination of States’ reports available for the benefit of all States parties in order
to assist and promote their further implementation of the Covenant’. ECSR Committee (n 15),
para 57.
19
World Bank Inspection Panel, ‘Accountability at the World Bank, The Inspection Panel at
15 Years’ (2009), 5.
20
Namely, the International Bank for Reconstruction and Development (IBRD) and the
International Development Association (IDA).
21
IFC, MIGA, ‘CAO Operational Guidelines’ (1999) available at <http://www.cao-
ombudsman.org/howwework/ombudsman/documents/EnglishCAOGuidelines06.08.07Web.pdf>.
22
See Asian Development Bank, ‘Accountability Mechanism Policy Review’ (2012)
available at <http://www.adb.org/sites/default/files/accountability-mechanism-policy-2012.pdf>;
African Development Bank, ‘Independent Review Mechanism’ (2010) available at <http://
www.afdb.org/ fileadmin/uploads/afdb/Documents/Compliance-Review/Boards%20Resolution%
2016%20June%202010.pdf>, para 13; European Bank for Reconstruction and Development,
‘Project Complaint Mechanism, Rules of Procedure’ (2010) available at <http://www.ebrd.com/
downloads/integrity/pcmrules.pdf>, para 12; Inter-American Development Bank (IDB), ‘Policy
ongoing reforms.23 Apart from the WBIP, the mechanisms are expected to not only
assess policy compliance, but also to exercise a ‘problem-solving’ function, working
pro-actively to seek resolution of any disputes with those claiming harms as a result of
bank-financed projects.24
2. QUASI-JUDICIAL BODIES: LEADING INSTITUTIONAL

REFORM?
Over the last few years, quasi-judicial bodies have often been at the forefront of
changes to procedural rules that define and in some cases extend the strict boundaries
of their own mandate, motivated by a desire to make their process more efficient,
clearer for participants, and more effective. Though the contexts driving procedural
reform are varied, quasi-judicial bodies have proven to be capable, and even innovative,
procedural rule-makers.
Quasi-judicial bodies can often be constrained in the fulfilment of their functions by
procedural rules which are unhelpfully vague or superficially narrow in scope. The
need to confront real and often unforeseen circumstances has led them to occasionally
exercise some creativity in the process. For example, although the WBIP must stay
within the bounds of its operating procedures, it has applied a broad and flexible
interpretation of those rules, leading to a set of surprising outcomes. In its earliest
cases, the WBIP almost exclusively exercised two roles: fact-finding and assessment of
compliance with operational policies on the basis of those facts. Despite the fact that
the Bank never created a ‘problem solving’ mechanism nor empowered the WBIP with
a problem-solving mandate, the WBIP has nonetheless been able to exercise some
creative procedural ‘problem solving’ to fulfill some of the same functions. This has
been illustrated in the Mine Closure and Social Mitigation Project, a request concern-
ing Romanian financing. During its eligibility review, the Panel was informed that the
requesters, Bank Management, and project authorities had met and agreed to undertake
a series of actions to address the requesters’ concerns related to environmental
protection. The requesters asked the Panel to delay making a recommendation for six
establishing the Independent and Consultation Investigation Mechanism’ (2010) available at

<http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=36621519>, paras 38–52.
23
See DD Bradlow, ‘Private Complainants and International Organizations: A Comparative
Study of the Independent Inspection Mechanisms in International Financial Institutions’ (2004–
2005) 36 Georgetown Journal of International Law 403, 484.
24
One important difference between these investigative mechanisms and the two other
examples explored in this chapter, is that the ‘applicable law’ of each IFI’s investigative
mechanism are located in each institution’s operational policies and procedures. While these
instruments primarily serve an internal function, they also provide the framework in which
development finance project agreements are negotiated between IFIs and borrowing countries.
See L Boisson de Chazournes, ‘Policy Guidance and Compliance: the World Bank Operational
Standards’ in D Shelton (ed) (n 2), 281–82.
months,25 and the Panel recommended that the Board of Directors allow the Panel to
delay a decision on initiating an investigation.26 The Panel subsequently closed the case
after receiving a letter from the requesters indicating that the problems had been
satisfactorily resolved. As the case illustrates, the Inspection Panel may exercise
deference to problem-solving activities, where it seems appropriate to the circum-
stances, despite the departure this represents from the Panel’s strict procedural rules.
Elements of a problem-solving focus can also be detected in post-process monitoring
by the WBIP. The Panel does not have a formal, standing mandate to monitor
implementation of Action Plans approved by Bank Management, nor to report on
progress in response to the Panel’s investigation. Nonetheless, the fact that other
investigative mechanisms do have such authority has obviously provided impetus for a
pragmatic extension of Panel responsibilities.27 For example, the Panel undertook
post-decision visits in connection with its involvement in a complaint in the Democratic
Republic of Congo (DRC).28 The requesters in that case had alleged that Bank-funded
support for regulatory reform of the logging concession system in the DRC and
land-use zoning in the forest areas was made without recognition of the rights of the
Pygmy peoples, in violation of Bank policies on indigenous peoples and environmental
assessment. After the investigation report, the Panel was able to meet with the
requesters representing the Pygmy peoples to review and discuss the Action Plan to
assess whether all their concerns had been addressed.29
Procedural innovation has also been necessary to address overlaps in the work of
multiple quasi-judicial bodies. Many internationally supported development projects
receive financing from more than one donor institution. Such an overlap occurred for
the proposed hydroelectric plant at Bujagali Falls in Uganda funded by the World Bank
and the AfDB.30 The project gave rise to two separate requests, submitted to the WBIP
and the AfDB Independent Review Mechanism (IRM) in 2007. Given the shared issues,
the IRM and the Panel signed a memorandum of understanding (MOU) that set out
25
Romania: Mine Closure and Social Mitigation Project (IBRD Loan No 4509-RO)
Inspection Panel Recommendation [2006], para 3 available at <http://siteresources.worldbank.
org/EXTINSPECTIONPANEL/Resources/IPRecommendation100306.pdf>
26
ibid, para 1.
27
See Inter-American Development Bank, ‘Policy establishing the Independent Consult-
ation and Investigation Mechanism’ (2010), para 72.
28
Democratic Republic of Congo: Transitional Support for Economic Recovery Grant
(TSERO) (IDA Grant No H 1920-DRC) and Emergency Economic and Social Reunification
Support Project (EESRSP) (Credit No 3824-DRC and Grant No. H 064-DRC) Investigation
Report [2006] available at <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/
Resources/FINALINVREPwhole.pdf>.
29
World Bank Inspection Panel, The Inspection Panel at 15 Years (2009), 58.
30
Uganda: Private Power Generation (Bujagali) Project (Guarantee No. B0130-UG)
[2008] available at <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/Resources/
FULL_September_2_2008_FINAL_Red.pdf>; Compliance Review Report on the Bujagali
Hydropower and Interconnection Projects, [2008] available at <http://www.afdb.org/fileadmin/
uploads/afdb/Documents/Compliance-Review/30740990-EN-BUJAGALI-FINAL-REPORT-17-
06-08.PDF>.
tion: 6 / Date: 8/2
terms of cooperation on certain aspects of their respective investigations.31 The MOU

was intended to promote efficiency, so that each entity could carry out its own
investigation in an effective manner, consistent with the mandate and independence of
the other. Although the conclusions of the WBIP and the AfDB panel were independent
and based on different applicable policies, the mechanisms collaborated by sharing
experts and conducting a joint field mission.
The details of the coordinated approach taken in the Bujagali example offers an
important precedent for handling investigative functions when requesters submit
complaints to more than one institution. Yet it also provides evidence of the important
contribution which can be made to effective, efficient execution of their functions when
quasi-judicial bodies are allowed to innovate.
A lack of any clear guidance on procedure can be one catalyst of internal reform for
quasi-judicial bodies. They may be forced to choose practices in response to unforeseen
circumstances. For example, the ESCR Committee has required that, following
consideration of a State’s first report, reports be submitted every five years, unless the
Committee decides to shorten the period based on factors such as the quality of the
dialogue with the State party.32 The ESCR Committee has also tried to develop some
tools to encourage States to submit their reports;33 the failure of State parties to comply
with their monitoring obligations under the Covenant can have a substantial negative
impact on the implementation of economic, social and cultural rights for those who
lack official information about their rights provided by the State. On the one hand, the
solutions crafted by the Committee could be criticized for their compatibility with an
ongoing, large-scale overdue reports problem: in 2012, the Committee had 76 overdue
reports, falling among the human rights organs with most overdue reports (the situation
of UN treaty bodies range from 29 to 84 overdue reports).34 Yet such criticisms would
miss what is most salient about the Committee’s approach, which is the reality that the
Committee came up with a solution despite the relatively limited procedural tools it has
at its disposal, and the lack of any explicit mandate to take action in the case of late
reports.
31
Memorandum of Understanding, the World Bank Inspection Panel and the Compliance
Review and Mediation Unit of the African Development Bank, (adopted 28 November 2007),
reproduced in World Bank Inspection Panel, ‘Accountability at the World Bank, The Inspection
Panel at 15 Years’ (2009), 214–16. In the Memorandum, the World Bank Inspection Panel and
the AfDB Panel defined the conditions of their cooperation and information exchange on the
project.
32
B Lyon, ‘Discourse in Development: A Post-Colonial Agenda for the United Nations
Committee on Economic, Social and Cultural Rights through the Post-Colonial Lens’ (2002) 10
Journal of Gender, Social Policy and the Law 535, 545.
33
The Working methods establish three lists of States parties whose reports are overdue:
‘(i) States parties with reports that were due within the past eight years; (ii) States parties with
reports that were due from eight to 12 years ago; (iii) States parties with reports that were due
more than 12 years ago’. ESCR Committee (n 15), para 41.
34
Office for the High Commissioner for Human Rights (OHCHR), ‘Presentation Treaty
Bodies’ 3 (2012) available at <http://www2.ohchr.org/english/bodies/HRTD/docs/Presentation
Treat%20Bodies2-3%20April2012.pdf>.
3. A CONTRIBUTION TO COMMON PROCEDURAL FAIRNESS

PRINCIPLES?
The examples explored above find quasi-judicial bodies developing methods and
practices intended to increase the effectiveness of their intrinsic function. Yet proced-
ural changes at the international level have drawn from various sources, in step with the
increasing diversity of international law in the last 30 years. In the field of natural
resources, for example, understanding international lawmaking requires paying atten-
tion not only to principles and rules35 but techniques and procedures as well.36
Nonetheless, much of the change seen in quasi-judicial bodies – and even the creation
of many of these bodies in the first place – can be ascribed to an overarching trend of
judicialization at the international level.37 Underlying this trend is a commitment to the
‘rule of law’ and, as a corollary, to ensuring due process, implying an increasing
emphasis on independence, expertise, publicity of decisions, and public participation in
their existing and developing processes.38
Under a ‘rule of law’ framework, the effectiveness and legitimacy of any decision-
making body depends on the impartiality and competence of its decision-makers.
Impartiality requires avoiding conflicts of interest,39 but it may also require decision-
makers who can act free from undue influence, which in a large institutional context
35
Regarding the elaboration of ‘principles’ and ‘rules’ one arbitral tribunal under the
auspices of the Permanent Court of Arbitration put it this way:
There is considerable debate as to what, within the field of environmental law, constitutes
‘rules’ or ‘principles’; what is ‘soft law’, and which environmental treaty law or principles
have contributed to the development of customary international law…The emerging prin-
ciples, whatever their current status, make reference to conservation, management, notions of
prevention and of sustainable development, and protection for future generations.
In the arbitration regarding the Iron Rhine (‘IJzeren Rijn’) Railway (Belgium v Netherlands)
(2005) 17 RIAA 66, para 58.
36
Techniques and procedures with status and substance in international law include the
requirement for environmental impact assessments (EIA), as well as the framework-protocol
approach used in the development of international treaty law. Techniques and procedures are
often reflected in international standards. The International Court of Justice stressed the
importance of the latter saying:
In order to evaluate the environmental risks, current standards must be taken into consider-
ation. This is not only allowed by the wording of Articles 15 and 19 [of the 1977 Treaty], but
even prescribed, to the extent that these articles impose a continuing – and thus necessarily
evolving – obligation on the parties to maintain the quality of the water of the Danube and to
protect nature.
Gabcikovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7, para 140.
37
L Boisson de Chazournes and E Fromageau, ‘Balancing the Scales: The World Bank
Sanctions Process and Access to Remedies’ (2012) 23 European Journal of International Law
963, 965; see also B Kingsbury, N Krisch, RB Stewart and J Wiener, ‘Foreword: Global
Governance as Administration – National and Transnational Approaches to Global Adminis-
trative Law’ (2005) 68 Law and Contemporary Problems 1, 5.
38
Boisson de Chazournes and Fromageau (n 37), 965.
39
International Bank for Reconstruction and Development (IBRD) and International
Development Association (IDA), IBRD Resolution No 93-10 and IDA Resolution No 93-6 ‘The
may mean separation from day-to-day administration,40 and security of tenure regard-
less of the decisions made.41 The assumptions of impartiality and independence are
relatively novel.42 The employment of competent, impartial decision-makers is only a
first step. Keeping international actors ‘accountable’ also means decision-making
organs have to be accountable themselves, giving force to the principle of audi alterem
partem. Perhaps the most basic guarantee flowing from a concern for procedural
fairness is a commitment to transparency, with the public availability of decisions as a
bare minimum:43 publishing reports allows external actors to assess the overall
functioning of the procedure, while strengthening legal certainty and the predictability
of the process.44 There are sometimes exceptions based on confidentiality concerns, but
even these exceptions are narrow.45 Again, the assumption of publicity is a departure
from earlier models.46 Finally, there is evidence that the increasing impact on
individuals and communities by the decisions of international decision-makers has been
matched by a concurrent trend giving individuals and communities an increased voice
World Bank Inspection Panel’ (22 September 1993), para 6 (members of the World Bank
Inspection Panel (WBIP) are explicitly barred from participating in any hearing or investigation
where he or she has any history of involvement).
40
See eg ibid, para 5 (Members of the Panel cannot have worked for the Bank in any
capacity during the two years prior to their appointment) and para 10 (following the expiry of
their term on the Panel, members become ineligible for employment with the Bank Group in any
capacity).
41
ibid, para 8 (during their tenure, Panel members may only be removed pursuant to a
decision of the Board and only for “cause”).
42
The ESCR Committee is an independent body composed of experts in the field of
socio-economic rights but this has not been always the case. Between 1979 and 1985,
responsibility for supervising compliance with the Covenant fell to an ECOSOC Working Group
composed entirely of government representatives, although eventually governments were
expected to appoint experts. The Working Group was widely criticized for its incapacity to
independently and effectively assist the Economic and Social Council in monitoring States’
parties compliance. It was only with the 1985 establishment of the ESCR Committee that
ECOSOC decided members of the Committee should be experts serving in their personal
capacity. P Alston, ‘Out of the Abyss: the Challenges Confronting the New U.N. Committee on
Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 333, 340–42.
43
World Bank Inspection Panel, ‘Operating Procedures (1994)’ in ‘Accountability at the
World Bank: the Inspection Panel Ten Years On’ (2003), 158, paras 55–56 (at WBIP, Bank is
required to inform requester of the results, to relay actions decided by the Board, if any, and to
make the Panel Report, Management’s recommendations, and the Board’s final decision all
publicly available).
44
45
See eg Asian Development Bank, ‘Review of the Accountability Mechanism Policy’
(2012), 50, para 222, <http://www.adb.org/documents/second-consultation-paper-review-adbs-
accountability-mechanism?ref=site/accountability-mechanism/publications> (at ADB, general
principle that final agreement and resolution should be publicized finds exception only where
both parties request confidentiality).
46
At the ESCR Committee, publication of annual reports was a departure from previous
practice. ‘Review of the composition, organization and administrative arrangements of the
Sessional Working Group of Governmental Experts on the Implementation of the International
Covenant on Economic, Social and Cultural Rights’ (1985) E/RES/1985/17, para (g).
tion: 9 / Date: 8/2
in international decision-making.47 The Human Rights Committee provides an indi-

vidual complaint mechanism (at least against countries signatory to the Protocol) and
the ESCR Committee has been empowered to receive individual complaints as well.48
At the WBIP (and mechanisms at the regional multilateral development banks), any
impacted community (and in some cases even individuals) is empowered to make a
complaint against a project they claim will affect them negatively – this scope is in fact
the core of their accountability function. Outside the cases studied here, there continues
to be great controversy about what role affected parties can play.49
In part, these changes have come about as a result of the same external pressures that
helped create such bodies in the first place.50 Yet here again, quasi-judicial bodies have
authored rules aimed at procedural fairness; the larger context suggests that, in
authoring these rules, quasi-judicial bodies also contribute to the elucidation and
elaboration of what is required by the principles constituting this judicialization trend.
This role of quasi-judicial bodies in recrafting their procedures raises interesting
theoretical issues. If specific rule changes flow out of demands for transparency,
accountability, and participation, the harder question is what rules are required by those
higher-order principles. In cases where the rules are set by a governing body of
member States, the question is less relevant. Where quasi-judicial bodies exercise
autonomy in setting procedural rules, however, they can also in some sense be
understood as contributing to the elaboration of a set of international principles
regarding what is required by ‘procedural fairness.’
The issue is far from speculative and the Aarhus Convention provides a particularly
interesting case. Its very existence is tied to belief that access to justice requires both
public access to relevant information, and on channels for public participation in
decision-making. The Compliance Committee’s capacity to set its own rules therefore
provides a potential window on what rules of procedural fairness at the international
level may require. Many aspects of the Committee’s processes go beyond what is
allowed elsewhere. A commitment to independence from the political interests of
individual States is reflected even more strongly than in other settings, with Committee
members who include not only candidates nominated by States, but also those
nominated by non-governmental organizations (NGOs).51 Communications are dis-
cussed formally with the public, following a procedure which provides an opportunity
for observers to comment before decisions are made.52 A strikingly broad set of rights
has been assigned to individual complainants: a member of the public which makes a
47
48
The Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights allows individual complaints, A/RES/63/117 (adopted on 10 December 2008, entered into
force on 5 May 2013).
49
S Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100
American Journal of International Law 348, 355–56
50
On the combination of internal and external forces that gave birth to the WBIP, see IFI
Shihata, The World Bank Inspection Panel: in Practice (2nd edn, OUP 2000), 65.
51
Decision I/7, Review of Compliance, adopted at the First Meeting of the Parties (2002)
ECE/MP.PP/2/Add.8, para 4.
52
V Koester, ‘The Compliance Committee of the Aarhus Convention. An Overview of
Procedures and Jurisprudence’, (2007) 2–3 Environmental Policy and Law 85.
tion: 10 / Date: 14/3
communication to the Committee has the right to participate in any meeting in which
the matter is discussed53 and the Committee may also consider submitting a request
that the Secretariat provide financial assistance to individual communicants from the
Convention’s trust fund.54
The Aarhus Committee is not alone in making these contributions, however. The
principle of participation is reflected in the right of NGOs to make contributions not
only to the Aarhus Committee, but also to the ESCR Committee.55 The ESCR
Committee has accepted written and oral submissions from NGOs since 1987 and, in
1993, established a formal procedure for NGO participation.56 Under that procedure,
the Committee precedes its ‘pre-sessional working group’, which aims to identify
questions that will constitute the principal focus of the dialogue with reporting States
representatives, with an invitation to NGOs to submit relevant and appropriate
documentation to inform the working group’s conclusions.57 The Committee further-
more blocks off part of each of its sessions to receive oral information provided by
NGOs.58 The Committee has also asked the Secretariat to place certain types of
information provided by NGOs into the files of the countries submitting reports. Thus,
through the submission of relevant documentation, NGOs assist in monitoring the
implementation of Covenant rights by States parties.59 Above and beyond these
contributions, members of the Committee have also consulted with NGOs in the
preparation of General Comments.
Beyond the question of standing in the ongoing elaboration of a commitment to
public participation, the Democratic Republic of Congo case at the WBIP60 points to
additional questions, about the types of contribution that affected communities should
be allowed to make to the work of quasi-judicial bodies.61
53
Decision I/7, Review of Compliance, (n 7), para 32.
54
United Nations Economic Commission for Europe, ‘Guidance document on the Aarhus
Convention Compliance Mechanism’ (December 2010) available at <http://www.unece.org/
fileadmin/DAM/env/pp/compliance/CC_GuidanceDocument.pdf>, 38.
55
Beyond having a right to submit communications, NGOs actively contribute to the
Aarhus Committee’s efforts to collect information. The Committee’s sessions are open to the
public and the Committee is empowered to invite NGO representatives to raise compliance
issues, and to allot time explicitly to discussing non-compliance issues with them – even where
they are not directly raised in a communication. See eg United Nations Economic Commission
for Europe, ‘Guidance document on the Aarhus Convention Compliance Mechanism’ (December
2010) available at <http://www.unece.org/fileadmin/DAM/env/pp/compliance/CC_Guidance
Document.pdf>, 28–29. NGO participation at the ESCR Committee is discussed below.
56
Lyon (n 32).
57
ESCR Committee (n 15), para 57.
58
ESCR Committee, ‘Rules of Procedure’ (1993) E/C.12/1990/4/Rev.1, Rule 69, para 3.
59
In this regard it said that: ‘Non-governmental organizations in consultative status with the
Council may submit to the Committee written statements that might contribute to full and
universal recognition and realization of the rights contained in the Covenant’. ESCR Committee,
ibid, para 1.
60
See n 29.
61
At the IFI investigative mechanisms, affected parties not only have an active, ongoing
role in ensuring that Bank policies and procedures are respected, but may also be consulted in
the development and design of post-finding actions. See eg the return visits in connection with
tion: 11 / Date: 14/3
4. QUASI-JUDICIAL BODIES AND THE DEVELOPMENT OF

SUBSTANTIVE INTERNATIONAL LAW
Beyond their active contribution to the elaboration of procedural rules and principles,
the direct impact of quasi-judicial bodies have had on international organizations and
States should be no surprise: increasing ‘compliance’ with substantive rules is after all
the underlying reason for the creation of such bodies. Consider the Wilmar case
brought before the CAO. Between 2003 and 2008, IFC undertook four investments in
the oil palm business of Wilmar Group, a large agribusiness company. In 2007 and
2008, the CAO received two complaints from community groups, as well as local and
international NGOs, raising concerns about adverse environmental and social impacts
of Wilmar’s operations. The 2008 CAO Appraisal Report found problems with the
Wilmar loans, but also found a problem with the implementation of IFC standards in
certain supply chains.62 The strength of the CAO’s combined roles led to substantial
changes in the IFC’s internal processes and its approach at the sector level. Indeed, as
a result of the CAO audit, the President of the World Bank decided to suspend further
financing to the oil palm sector until the IFC implemented a revised strategy, a decision
subsequently extended to the entire World Bank group.63
Successful feedback from investigations conducted by quasi-judicial bodies can feed
directly and indirectly into changing practice, but in making their decisions based on a
body of norms, that role also often means defining or elaborating substantive rules of
international law. This dimension is complicated, however, in a way it is not for judicial
organs; part of what defines these bodies as quasi-judicial is that they lack a formal
capacity to make binding, final determinations on questions of international law. On the
other hand, beyond formal, binding adjudication, the application, interpretation and
clarifications of norms of international law is not limited to judicial bodies and
interpretations from international quasi-judicial bodies may be particularly influential
given their specialized function and expert composition, and even more so where a
quasi-judicial body is seen as the ‘custodian’ of a particular treaty or set of rules. The
examples below even suggest that their interpretive and procedural work may extend
beyond their metier.
the project Democratic Republic of Congo: Transitional Support for Economic Recovery Grant
(TSERO) (IDA Grant No. H 1920-DRC) and Emergency Economic and Social Reunification
Support Project (EESRSP) (Credit No. 3824-DRC and Grant No. H 064-DRC) Investigation
Report [2006] available at <http://siteresources.worldbank.org/EXTINSPECTIONPANEL/
Resources/FINALINVREPwhole.pdf>.
62
CAO Appraisal for Audit (2008), C-I-R6-Y08-F096, paras 16–18. The Director of the
agribusiness department at IFC noted:
CAO’s audit findings are helping inform a number of internal process adjustments at IFC,
including how we categorize projects with single commodity traders and how we address
supply chain risks. The audit has also served as a catalyst for a stakeholder informed palm oil
strategy which we believe will materially enhance our contribution to building a sustainable
oil palm sector.
The CAO at 10 (2010) available at <http://www.cao-ombudsman.org/languages/french/
documents/CAO_10Year_AR_web.pdf>, 41.
63
ibid.
tion: 12 / Date: 14/3
4.1 Quasi-judicial Bodies as Caretakers of their Applicable Norms
The influence and authority of legal interpretations are bolstered when they are subject
to refinement, criticism, debate and, in some cases, amendment. Reliance on a body of
case law allows quasi-judicial bodies to do just that.
Consider the Aarhus Compliance Committee. Although its role is formally only
‘consultative’, it has used its consideration of individual complaints to develop a body
of case law regarding the interpretation of the Aarhus Convention’s provisions. It
applies provisions of the Convention in the same way in similar situations. Thus in an
Armenian case regarding the issuance of a mining licence, the Compliance Committee
interpreted the aspects of Article 6 on the duty to provide early public notice in the EIA
procedure by referring to its earlier decisions in cases concerning Lithuania and
France.64 The Committee considered that: ‘The requirement to provide reasonable time
frames65 implies that the public should have sufficient time to get acquainted with the
documentation and to submit comments, taking into account, inter alia, the nature,
complexity and size of the proposed activity.’66 Yet the Committee also added
complexity and colour to its existing jurisprudence, holding that ‘a time frame which
may be reasonable for a small simple project with only local impact may well not be
reasonable in case of a major complex project’.67
Another question came up in a case concerning Ukraine and its Bystroe Canal
Project in the Danube delta, concerning which members of the public must be notified
during an EIA, and what must be done to take public comments into account. The
Compliance Committee concluded that the scale and impact of the project required
nationwide media attention and notification of organizations likely to be interested.68
64
See Findings and recommendations with regard to communication ACCC/C/2009/43
concerning compliance by Armenia [2010], Meeting of the Parties to the Convention on Access
to Information, Public Participation in Decision-Making and Access to Justice in Environmental
Matters, Report of the Compliance Committee, Fourth Session (29 June–1 July 2011) ECE/
MP.PP/2011/11/Add.1, paras 66 and 73.
65
Articles 6.2 and 6.3 of the Aarhus Convention provide that:
The public concerned shall be informed, either by public notice or individually as appropri-
ate, early in an environmental decision-making procedure, and in an adequate, timely and
effective manner […]
3. The public participation procedures shall include reasonable time-frames for the different
phases, allowing sufficient time for informing the public in accordance with paragraph 2
above and for the public to prepare and participate effectively during the environmental
decision-making.
66
In this regard, the Committee notes that ‘one week to examine the EIA documentation
relating to a mining project (first hearing) is not an early notice in the meaning of article 6,
paragraph 2, because it does not allow enough time to the public concerned to get acquainted
with voluminous documentation of technical nature and participate in an effective manner’.
Findings and recommendations with regard to communication ACCC/C/2009/43 concerning
compliance by Armenia [2010] (n 64), para 67.
67
ibid, para 73.
68
Aarhus Compliance Committee, Findings and recommendations with regard to compli-
ance by Ukraine with the obligations under the Aarhus Convention in the case of Bystre
deep-water navigation canal construction (submission ACCC/S/2004/01 by Romania and
tion: 13 / Date: 14/3
Since 2013, like the Aarhus Compliance Committee and its closer relative, the UN
Human Rights Committee, the ESCR Committee is developing a body of case law
through the adjudication of individual complaints.69 Moreover, the Committee has
articulated clarifications of international legal norms, particularly through the adoption
of General Comments. The authority of these instruments is bolstered by many factors:
the Committee has been given a mandate which requires it to provide States with an
interpretation of the norms of the International Covenant on Economic, Social and
Cultural Rights (ESCR Covenant);70 they are authored by an independent body of
experts; they can only be adopted by consensus of the entire Committee; and they are
released only after consultation with other UN bodies, civil society and individual
experts aimed at creating a result supported among a broad collection of stakeholders.71
In practice, the interpretations of the ESCR Covenant made through General Comments
have achieved a significant degree of acceptance. Their content is rarely questioned by
States parties.72 The interpretation of the norms in the ESCR Covenant via General
Comments could be compared to the practice by which international tribunals provide
advisory opinions.73 Like advisory opinions, General Comments not only inform State
assessments of their own compliance with the ESCR Covenant, but also provide
individuals with a foundation for their own arguments on human rights questions before
national and international courts.74
The practice of the UN human rights treaty bodies have provided courts with a legal
foundation for the application and interpretation of these rights. For example, the
International Court of Justice found evidence on the extra-territorial application of the
International Covenant on Civil and Political Rights in the case law of the Human
communication ACCC/C/2004/03 by Ecopravo-Lviv (Ukraine)) [2005], Meeting of the Parties to

the Convention on Access to Information, Public Participation in Decision-Making and Access to
Justice in Environmental Matters, Report of the Seventh Meeting (14 March 2005) ECE/MP.PP/
C.1/2005/2/Add.3, para 28.
69
B Samson, ‘Le Conseil économique et social des Nations Unies et le Comité des droits
économiques, sociaux et culturels’ in JM Thouvenin and A Trebilcock (eds), Droit international
social. Particularités du droit international social, vol 1 (Bruylant 2013) 686.
70
ESCR Committee (n 15), paras 55 and 57. See P Alston, ‘The Historical Origins of
‘General Comments’ in Human Rights Law’ in L Boisson de Chazournes and V Gowlland-
Debbas (eds), The International Legal System in Quest of Equity and Universality. Liber
Amicorum George Abi-Saab (Brill 2001) 764.
71
I Winkler, The Human Right to Water. Significance, Legal Status and Implications for
Water Allocation (Hart 2012), 41.
72
M Sepulveda, The Nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights (Intersentia 2003), 42.
73
T Buerghental, ‘The Human Rights Committee’ in A von Bogdandy and R Wolfrum
(eds), Max Planck Yearbook of United Nations Law vol 5 (2001), 386.
74
See Case of the Yaxye Axa Indigenous Community v Paraguay (Merits, Reparations and
Costs Judgement) Inter-American Court of Human Rights Series C No 125 (17 June 2005),
paras 167–168. Case of the Sawhoyamaxa Indigenous Community v Paraguay (Merits, Repara-
tions and Costs Judgment) Inter-American Court of Human Rights Series C No 146 (6 February
2006), para 164; South Africa, High Court, S. v Mazibuko, ZAGPHC 106 (Wit. Local Div.)
[2008] 4 All S.A. 471 (18 April 2008) available at <http://www.saflii.org/za/cases/ZAGPHC/
2008/106.pdf>.
tion: 14 / Date: 14/3
Rights Committee.75 The Court likewise found evidence of the applicability of the
ESCR Covenant in foreign territories in the concluding observations of the ESCR
Committee.76
The influence and authority of General Comments is illustrated by the impact of the
General Comment No 15 on the Right to Water.77 An example is the Matsipane
Mosetlhanyane & Gakenyatsiwe Matsipane v The Attorney General case brought before
the Court of Appeal of Botswana in 2011. The Court found that the government’s
deprivation of water to the Bushmen people living in the Central Kgalagadi Game
Reserve constituted degrading treatment in violation of the Constitution of Botswana –
relying on this point directly on General Comment 15.78 In City of Johannesburg v L
Mazibuko, as well, the High Court of South Africa pointed out that the ‘effect’ of
concepts such as ‘availability’ and ‘accessibility’ in terms of the General Comment, ‘is
that the right to water must be accessible equally to the rich as well as to the poor and
to the most vulnerable members of the population. It is in this context, that the State in
under an obligation to provide the poor with the necessary water and water facilities on
a non-discriminatory basis’.79
75
(Advisory Opinion) [2004] ICJ Rep 136, paras 109–111. In the advisory opinion, the Court
states (para.109):
[W]hile the jurisdiction of States is primarily territorial, it may sometimes be exercised
outside the national territory. Considering the object and purpose of the International
Covenant on Civil and Political Rights, it would seem natural that, even when such is
the case, States parties to the Covenant should be bound to comply with its provisions. The
constant practice of the Human Rights Committee is consistent with this. Thus, the
Committee has found the Covenant applicable where the State exercises its jurisdiction on
foreign territory. It has ruled on the legality of acts by Uruguayan cases of arrests carried out
by Uruguayan agents in Brazil or Argentina (case No. 52/79, Lopez Burgos v Uruguay: case
No. 56/79, Lilian Celiberti de Casariego v Uruguay). It decided to the same effect in the case
of the confiscation of a passport by a Uruguayan consulate in Germany (case No. 106/81,
Montero v. Uruguay).
76
ibid, para 112.
77
ESCR Committee, ‘General Comment No 15, The right to Water (Articles 11 and 12 of
the International Covenant on Economic, Social and Cultural Rights)’ (2002) UN Doc E/C.12/
2002/11. Although there is no explicit recognition of a right to water in the 1966 International
Covenant, the Committee considers this right to be inextricably related to the rights to an
adequate standard of living and to the highest attainable standard of health, respectively
recognized in arts 11 and 12 of the Covenant (para 3).
78
Matsipane Mosetlhanyane and Gakenyatsiwe Matsipane v The Attorney General, Court
of Appeal, Botswana (2011) available at <http://assets.survivalinternational.org/documents/545/
bushmen-water-appeal-judgement-jan-2011.pdf>.
79
S v Mazibuko, ZAGPHC 106 (Wit. Local Div.) [2008] 4 All S.A. 471 available at
<http://www.saflii.org/za/cases/ZAGPHC/2008/106.pdf>, para 36. It should be noted that the
orders of the High Court and the Supreme Court of Appeal were set aside by the Constitutional
Court, which found that the pre-paid meter was not unlawful. See City of Johannesburg v L
Mazibuko (489/08) [2009] ZASCA 20 available at http://www.saflii.org/za/cases/ZASCA/2009/
20.pdf; Mazibuko and others v City of Johannesburg and others (CCT 39/09) [2009] ZACC 28;
2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) available at <http://www.saflii.org/za/cases/
ZACC/2009/28.html>.
General Comment No 15 has also influenced the interpretation of that right by

international tribunals. The Inter-American Court of Human Rights has found that
sufficient and safe water are indispensable to the guarantee of a decent life in three of
its cases. The Court relied on General Comment 15 to highlight the special vulnerabil-
ities of indigenous peoples when facing restrictions on access to ancestral lands, and
the impact this may have on access to clean water.80 In line with the General Comment,
the Court found that limitations on the access to water affects the right of the members
of a community to a decent life and the right to life because they are deprived of the
possibility of accessing their means of subsistence which are necessary to their
survival.81 This case illustrates that the practice of quasi-judicial bodies can nourish the
jurisprudence of judicial bodies on socio-economic rights.
4.2 Quasi-judicial Bodies as Substantive International Lawmakers: How Much

Influence?
The influence of General Comment No 15 on the adjudication of human rights

responsibilities by national and international courts provides a window on the tension
inherent in asking a body to review compliance without giving it a mandate to provide
binding interpretations. Even without a formal interpretation power, it is easy to
understand how independent, consensus-based, consultative opinions by experts on a
body of norms would be influential in subsequent applications of those norms. This
influence also depends, however, on the perceived uniformity and coherence of the
human rights norms in question. The question then arises how influential the work of
quasi-judicial bodies remain outside the strict interpretation of the body of norms for
which they are responsible.
80
Case of the Yaxye Axa Indigenous Community v Paraguay (n 74), para 167; Case of the
Sawhoyamaxa Indigenous Community v Paraguay (n 73), para 164; Case of Xákmok Kásek
Indigenous Community v Paraguay (Merits, Reparations and Costs Judgement) Inter-American
Court of Human Rights Series C No 214 (24 August 2010), paras 194–196. See generally D
Shelton, ‘Water Rights of Indigenous Communities and Local Communities’ in L Boisson de
Chazournes ao (eds), International Law and Freshwater: the Multiple Challenges (Edward Elgar
2013) 69–94.
81
Case of the Yaxye Axa Indigenous Community v Paraguay (n 74), paras 167–168. Case of
the Sawhoyamaxa Indigenous Community v Paraguay (n 74), para 164. It is interesting to note
that in order to ensure a decent life, in both the Yakye Axa (para 205) and Sawhoyamaxa (para
224) cases, the Court ordered the State of Paraguay to establish a community development fund
to be used to implement educational, housing, agricultural and health projects, as well as to
provide drinking water and to build sanitation infrastructure, for the benefit of the members of
these indigenous communities. Moreover, in Xákmok Kásek ibid, paras 195–196, the Court
emphasized that access to and quality of water are part of the right to a decent existence. In this
case, the Court observed that since 2003 the members of the Community have not had water
distribution services. Moreover, water supplied by the State from May to August 2009 amounted
to no more than 2.17 litres per person per day. Under these circumstances, the measures taken by
the State have not been sufficient to provide the members of the Community with water in
sufficient quantity as required by human rights requirements and this has exposed them to risks
and disease.
tion: 16 / Date: 14/3
An example will help clarify this issue. The Aarhus Compliance Committee has
explicitly situated its decisions within a framework of international law beyond the
strict text of its operative treaty. In part, this simply means that the Committee
considers its assessment of compliance with the Aarhus Convention to also be governed
by general international law, such as the norms contained in the 1969 Vienna
Convention on the Law of Treaties.82 More specifically, however, the Committee has
opened the door to the assessment of Aarhus Convention provisions in light of the rules
and principles contained in treaties of environmental and human rights law sharing
common objectives and aims with the Aarhus Convention.83 From a lawmaking
perspective, the question is how often the reverse might occur, whether international
law will or should be drawn on the meaning that the Compliance Committee would
give to human rights and environmental norms outside the scope of the Aarhus
Convention.
For the Aarhus Compliance Committee, the evidence pulls both ways. The Commit-
tee has had much to say about the duty to carry out an EIA, and the correlated
obligation to conduct ‘public consultations’ with local populations. These norms are
embodied in other legal frameworks at the regional level,84 and have been explicitly
enshrined in universal consensus documents like the Rio Declaration on the Environ-
ment and Development85 as well as the 2010 United Nations Environment Programme
(UNEP) Guidelines for the Development of National Legislation on Information, Public
Participation and Access to Justice in Environmental Matters (Bali Guidelines).86 Of
course, as a regional body, the Committee has no explicit power to determine the
content of these norms and it could be argued that a duty to conduct an EIA and public
82
Report of the Twelfth Meeting of the Aarhus Compliance Committee, ‘Findings and
recommendations with regard to compliance by Belgium with its obligations under the Aarhus
Convention in relation to the rights of environmental organizations to have access to justice
(Communication ACCC/C/2005/11 by Bond Beter Leefmilieu Vlaanderen VZW (Belgium))’
(2006) ECE/MP.PP/C.1/2006/4/Add.2, para 41. In a similar vein, the WTO Panel concluded ‘the
customary rules of international law apply to the WTO treaties and to the process of treaty
formation under the WTO’. Korea – Measures Affecting Government Procurement (2000) WTO
Doc. WT/DS163/R, para 7.96.
83
Report of the Seventh Meeting of the Aarhus Compliance Committee, ‘Findings and
recommendations with regard to compliance by Hungary with the obligations under the Aarhus
Convention in the case of Act on the Public Interest and the Development of the Expressway
Network (Communication ACCC/C/2004/04 by Clean Air Action Group (Hungary))’ (2005)
ECE/MP.PP/C.1/2005/2/Add.4, para 18.
84
See the Convention on Environmental Impact Assessment in a Transboundary Context
(adopted on 25 February 1991, entered into force on 10 September 1997) available at
<www.unece.org/env/eia/eia.html>.
85
See Principles 10 and 17 of the 1992 Rio Declaration on Environment and Development
(Rio de Janerio 14 June 1992) UN Doc. A/CONF.151/26 (vol I) (1992) 31 ILM 874.
86
The Bali Guidelines have been adopted by the Governing Council of UNEP in 2010.
Decision SS.XI/5, part A (26 February 2010) available at <http://www.unep.org/civil-society/
Portals/ 24105/documents/Guidelines/ GUIDELINES_TO_ACCESS_TO_ENV_INFO_2.pdf>.
See U Etemire and F Sindico, ‘Public Participation and the Guaraní Aquifer Agreement’ in M
Tignino and K Sangbana (eds), Public Participation and International Law: Where do We Stand
in International Law, UNESCO, 2014.
tion: 17 / Date: 14/3
consultations depends on the context in which those rules are articulated, interpreted
and applied.
The practice of the Aarhus Compliance Committee has nonetheless been taken into
account in the interpretation of environmental consultation rights by the WBIP. The
Vlora case turned in part on clarifying what was required by the ‘meaningful public
consultations’ demanded by operational policies on public consultation and dis-
closure.87 The Panel found that public consultations had to take place in parallel with
preparations for the EIA; since no consultations were held until after the government
had approved the setting of the project, public meetings convened by the government
were therefore held to be ‘pro-forma’ and not a genuine consultation.88 What was
noteworthy about the case for our purposes is that the Panel considered Albania’s lack
of compliance with the Aarhus Convention requirements as additional evidence of
non-compliance with internal policies.89 After having recalled some of the conclusions
of the Aarhus Committee,90 the Panel concluded, ‘that Management did not ensure that
the Project preparation activities complied with the consultation and public partici-
pation requirements of the Aarhus Convention. This does not comply with OP 4.01’.91
It is true that the ICJ has still proved reticent to strongly endorse the authority of the
reasoning and rulings provided in the decisions of quasi-judicial bodies. In the case on
the Pulp Mills on the Uruguay River between Argentina and Uruguay, the ICJ did refer
to the duty to carry out an EIA as a practice ‘which in recent years has gained so much
acceptance among States that it may now be considered a requirement under general
international law’.92 Yet the Court did not specify the content of an EIA, instead leaving
each State the discretion ‘to determine in its domestic legislation or in the authorization
process for the project, the specific content of the EIA required in each case’.93 At the
same time, the ICJ did indirectly consider some elements characterizing an EIA process
and recognize that both Uruguay and IFC had undertaken consultations with affected
populations in carrying out an EIA.94
87
The Operational Policy 4.01 on Environmental Assessment specifically requires that
‘[f]or meaningful consultations between the borrower and project-affected groups and local
NGOs on all Category A and B projects proposed for IBRD or IDA financing, the borrower
provides relevant material in a timely manner prior to consultation and in a form and language
that are understandable and accessible to the groups being consulted.’ OP 4.01 is explicit that the
borrower must consult affected groups and local NGOs ‘as early as possible’ and ‘at least twice.’
OP. 4.01, Environmental Assessment (January 1999) available at <http://go.worldbank.org/
K7F3DCUDD0>, paras 14–15.
88
Albania: Power Sector Generation and Restructuring Project (IDA Credit No. 3872-ALB)
Investigation Report (2009) available at <http://siteresources.worldbank.org/EXTINSPECTION
PANEL/Resources/ALB_Power_Investigation_Report_whole.pdf>, para 343.
89
ibid, para 323; compare EBRD, Independent Recourse Mechanism, ‘Compliance Review
Report relating to the Vlore Thermal Power Generation Project’ (2008), para 72 available at
<http://www.ebrd.com/downloads/integrity/0701crr.pdf>.
90
ibid, paras 327–28.
91
ibid, para 332.
92
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14,
para 204.
93
ibid, para 205.
94
tion: 18 / Date: 14/3
5. FINAL REMARKS
The international system is now home to a broad constellation of quasi-judicial bodies.
In the best cases these bodies, created by treaty regimes or States parties, help
keep parties accountable for the norms they have committed to by drawing attention to
shortcomings, resolving ambiguity and uncertainty and thereby encouraging
compliance.
Increasingly, however, the demand for accountability pulls in multiple directions: it
covers not only the relationships between international organizations (or treaty-based
organs) and their member States (or State parties) but also the relationships among
States, international organizations, quasi-judicial bodies themselves and a range of
other actors that might be thought of as stakeholders, from NGOs to private indi-
viduals.95 Quasi-judicial bodies rarely possess formal enforcement powers, but must
instead rely on community pressure to exert direct influence,96 so their relationship
with NGOs and private parties has therefore emerged as fundamental to their success.
On the other hand, the processes provided by quasi-judicial bodies are supposed to aid
the individuals adversely affected by non-compliance with international norms.
In this context, the increasing influence of quasi-judicial decision-making on
international law may raise legitimacy concerns. In some cases, their ‘application’ of
international rules provides the principal vehicle by which the underlying norms are
developed and specified. These interpretations lack the pedigree and specification that
are the traditional benchmark of formal sources of international law. Indeed, not only
do they clearly influence international norms, but also they express the calls for
accountability by third parties – private individuals, local communities, and NGOs –
that gain a voice, albeit indirect, in the lawmaking process.
There is a need to include various actors with different statuses in the formulation of
norms and rules which have common objectives and interests.97 The production of
international norms now includes informal procedures involving non-State actors
excluded from the classical ideal of international lawmaking.98 This trend is not limited
to the quasi-judicial bodies. Non-state actors can bring complaints against a State or
participate through the submission of amicus curiae briefs in international judicial
proceedings.99
95
International Law Association, Accountability of International Organizations, ‘Second
report’ in International Law Association Report of the London Conference (London 2000)
(International Law Association, London 2000), 2.
96
See M Koskenniemi, ‘Breach of Treaty or Non-Compliance? Reflections on the Enforce-
ment of the Montreal Protocol’ (1992) 3 Yearbook of International Environmental Law 123.
97
V Gowlland-Debbas, ‘Law-Making in a Globalized World’ (2004–2005) VIII/IX Cursos
Euromediterráneos Bancaja de Derecho Internacional, 505–61.
98
See, among others, A Peters, L Koecklin, and GN Zinkernagel, ‘Non-state Actors as
Standard Setters: Framing the Issue in an Interdisciplinary Fashion’ in A Peters ao (eds),
Non-state Actors as Standard Setters (CUP 2009) 3; C Chinkin, ‘Normative Development in the
International Legal System’ in D Shelton (ed) (n 2) 21.
99
At some inter-state dispute settlement mechanisms such as the ICJ, non-State actors still
have limited participation rights, and often none at all. Regional human rights courts on the other
hand represent a countervailing trend for the inclusion of individuals and communities in
tion: 19 / Date: 14/3
Overall, international norm making has undergone a process of pluralization,

understood as a diversification of the modes or practice by which norms are made or
refined at the international level. In an age of ‘pluralized normativity’ it seems more
fruitful to pursue a theory of sources which grounds the identification of international
norms in the analysis of their techniques of production, impact or influence in the
international legal order.100 Nothing in these developments seems to challenge the
reality that States remain the final lawmaking authority, capable of amending treaties,
producing official interpretations, and demanding authoritative resolution of disputes
where it is called for. In the meantime, quasi-judicial bodies perform various important
functions in the administration of international law, including the elaboration, interpret-
ation and application of its norms. Like the rulings of international judicial bodies,
doing so may not only foster compliance with international law, and resolve potential
conflict, but also promote international justice.
decision-making. Although amicus curiae had long been ignored in international proceedings,
limiting participation in the procedure to the parties involved in litigation, in order to increase
participation and transparency, there are emerging new practices in this regard. For example,
investment arbitration tribunals, established under the International Centre for Settlement of
Investment Disputes (ICSID), have accepted amici briefs from third parties. See Suez, Sociedad
General de Aguas de Barcelona S.A. and Vivendi Universal S.A v Argentine Republic (Aguas
Argentinas) (Order in response to a petition for participation as amicus curiae) [2005] ICSID
Case ARB/03/19, paras 6–7. Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua
Servicios Integrales de Agua S.A. v Argentine Republic (Aguas provinciales de Santa Fe) (Order
in response to a petition for participation as amicus curiae) [2006] ICSID Case ARB/03/17,
paras 7–8. See B Stern, ‘Civil Society’s Voice in the Settlement of International Economic
Disputes’ (2007) 22 ICSID Review Foreign Investment Law Review 280.
100
See J d’Aspremont, Formalism and the Sources of International Law: A Theory of the
Ascertainment of Legal Rules, (OUP 2011).
tion: 20 / Date: 14/3
13. International lawmaking by hybrid bodies:

The case of financial regulation
Michael S. Barr *
1. INTRODUCTION
The recent financial crisis, which roiled the globe beginning in September 2008, nearly
decimated global financial markets and in fact devastated the real economy of the
United States (US) and Europe, with concomitant global harm. The crisis exposed
fundamental weaknesses – both procedural and substantive – in the international
financial regulatory architecture. The Bretton Woods institutions (the International
Monetary Fund (IMF), World Bank, and World Trade Organization (WTO)) were never
really equipped to deal with the growing complexity, breadth, and size of the global
financial system, and instead left rulemaking and supervision largely to the domestic
arena. The cross-border rules that were developed by national regulators and the
international standard-setting bodies that took root in this global institutional lacuna in
the 1980s proved woefully ineffective. Despite strategies to increase the accountability
and legitimacy of these hybrid standard-setting bodies,1 the rules failed substantively,
and overwhelmingly. Global finance, and a ‘soft-law’ architecture left unchecked by a
decades-long regulatory race to the bottom, proved weak in the face of global financial
institutions and crushed the real economy.
The failure of the pre-crisis regulatory architecture to manage the financial system at
a global level raises two fundamental questions: first, how can we best build a
substantively more effective international financial architecture with more than one
architect? And second, how can we foster a global regulatory architecture that is
legitimate and accountable – one that reflects our most basic values?
The rubric of global administrative law (GAL)2 provides a way of thinking about
how we might embed in the international regulatory architecture procedural values that
are consistent with the normative justifications for this architecture.3 At the most basic
level, we want global institutions that are effective – meaning that they establish norms
that are treated by national actors as obligations, that there are systems in place to
* The author would like to thank J Atchley and R Braver for research and editorial
assistance. This chapter is a condensed version of ‘Who’s in Charge of Global Finance?’ (2014)
45 Georgetown Journal of International Law 971, and appears with permission.
1
See generally MS Barr and GP Miller, ‘Global Administrative Law: The View from
Basel’ (2006) 17 European Journal of International Law 15.
2
See B Kingsbury, N Krisch, RB Stewart and JB Wiener, ‘Foreword: Global Governance
as Administration – National and Transnational Approaches to Global Administrative Law’
(2005) 68 Law and Contemporary Problems 1, 5.
3
See B Kingsburg, N Krisch and RB Stewart, ‘The Emergence of Global Administrative
Law’ (2005) 68 Law and Contemporary Problems 15, 44–52.
262
tion: 1 / Date: 8/2
International lawmaking by hybrid bodies 263
monitor compliance with these obligations, and that these obligations are enforced.4
Effective global institutions will help produce rules and other mechanisms that work at
a substantive level and that can prevent the significant harm the financial system can do
to the real economy when it fails.5 We also need global institutions that are legitimate,
in the sense that the decision-making criteria and processes they use are seen as
normatively correct, and in the sense that the outcomes these mechanisms produce
substantively respond to the public’s interests and values.6 Finally, we ought to demand
accountability. The international system requires accountability of its organs to national
governments, but global administrative law suggests a deeper commitment to public
accountability, as through transparency, public engagement in decision-making, and
initiatives to embed global rulemaking in national processes of public accountability,
such as notice-and-comment rulemaking.7
There is interplay between these values. Even where an institution lacks formal
accountability to nations through treaty authorization, for instance, robust GAL
mechanisms (for example, high levels of responsiveness to notice-and-comment
rulemaking) nevertheless might foster a sense of legitimacy, increase the substantive
efficacy of outputs, and encourage adoption by state or private-sector actors.8 Con-
versely, an organization might represent broad interests but have difficulty producing
effective rules widely adopted by national actors. Transparency can also contribute to
legitimacy and accountability.9 The degree to which each value is embedded in an
international organization – is highly variable. Assessing the extent to which the
international financial regulatory architecture embodies a set of democratic values thus
requires an understanding of what the different institutions are designed to do, the
sources of their authority, how they relate to one another, and the type of lawmaking in
which they are engaged.
This chapter traces the evolution of the international financial regulatory architecture
and evaluates each phase of this evolution in terms of institutional efficacy, legitimacy,
and accountability. It begins with a brief analysis of two key pre-crisis phases in the
development of our current global financial architecture, the birth of the Bretton Woods
institutions and the rise of the so-called ‘networks’ – the international standard-setting
bodies (ISSBs), such as the Basel Committee on Banking Supervision (BCBS or Basel
4
See M Reisman, ‘The Concept and Functions of Soft Law in International Politics’ in EG
Bello and BA Ajibola (eds), Essays in Honour of Judge Taslim Olawale (Springer 1992) 135.
5
See Barr and Miller (n 1) 21–23.
6
See generally ibid.
7
See generally ibid.
8
B Kingsbury and L Casini, ‘Global Administrative Law Dimensions of International
Organizations Law’ (2009) International Organizations Law Review 319, 354.
9
M Donaldson and B Kingsbury, ‘The Adoption of Transparency Policies in Global
Governance Institutions: Justifications, Effects, and Implications’ (2013) 9 Annual Review of
Law and Social Sciences 119, 121.
Committee)10 and International Organization of Securities Commissions (IOSCO)11

that first began to develop cross-border rules in the 1980s.
The chapter then examines the emerging post-crisis regulatory framework. In this
third phase, contradictory trends have emerged: the international financial order is more
political and more inclusive, and at the same time, its norms have hardened. Although
this hardening means minimum standards have become more difficult to avoid, in some
sense races to the top have replaced races to the bottom (at least for the moment), and
nations have reasserted their authority to raise standards unilaterally within their own
countries and to apply these standards extraterritorially. In this third phase, the Group
of Twenty (G-20) nations take center stage as the world’s economic and financial
decision-makers, and the Financial Stability Board (FSB) becomes the platform
through which the macro-financial blueprints of the G-20 are implemented, in part by
directing and coordinating the work of the standard-setting bodies. The chapter then
explores the interactions between these bodies and the older Bretton Woods and
standard-setting institutions. Finally, the chapter assesses the merits of the current
regulatory order and identifies key reforms aimed at strengthening the efficacy,
legitimacy, and accountability of the system.
On a substantive level, global-reform efforts to date have made the financial system
safer, but there remain real questions about whether the financial system is safe enough.
Much of the reform agenda is still a work in progress, from capital standards to
regulation of derivatives and other markets, to the mechanisms necessary to wind down
cross-border firms that get into financial distress. Amnesia about the causes and
consequences of the breakdown of the financial system may slow or even reverse
reforms taken to date, just when we need to be pushing harder to complete the task.
The next misunderstood financial innovation, asset boom, increase in leverage, or
explosion in hot money may find the world still unprepared. That is why the stakes are
so high for getting the international financial architecture right.
2. THE INTERNATIONAL FINANCIAL REGULATORY

ARCHITECTURE BEFORE THE RECENT CRISIS
2.1 Phase I: The Bretton Woods System
Today’s financial architecture is rooted in the post-World War II economic order, one
embodied in the three principal institutions that emerged from the Bretton Woods
conference in 1944:12 the IMF;13 the International Bank for Reconstruction and
10
Basel Committee on Banking Supervision, Bank for International Settlements, ‘A Brief
History of the Basel Committee’ (2013) available at <http://www.bis.org/bcbs/history.pdf>.
11
About the International Organization of Securities Commission (IOSCO), <http://www.
iosco.org/about/>.
12
See generally AI MacBean and PN Snowden, International Institutions in Trade and
Finance (C Carter 1987).
13
Articles of Agreement of the International Monetary Fund (adopted 22 July 1944, entered
into force 27 Dec 1945, 2 UNTS 39) (IMF Articles of Agreement).
tion: 3 / Date: 8/2
Development (now part of the World Bank Group);14 and the General Agreement on
Tariffs and Trade (GATT; now administered by the WTO),15 as well as (although much
less central in practice) the United Nations Economic and Social Council
(ECOSOC)).16 In many ways, the creation of these institutions was a reaction to the
financial crises of the 1930s and the pre-war fragmentation of the global political and
economic order.17 In the pre-war decade, the Great Depression led many nations to turn
inward, away from global trade, and to erect protectionist barriers in the hopes of
reenergizing ailing domestic economies.18
Bretton Woods embraced a liberal world-trading ideal, one that received its intellec-
tual force from the work of British economist John Maynard Keynes.19 The agreements
that resulted, largely shaped by the US and Britain, identified several key objectives for
these new liberal transnational bodies – stabilization, reconstruction, and investment-
driven growth20 – and forcefully pushed against the protectionist policies of the pre-war
decade that had curtailed growth and promoted economic fragmentation.21 In the
immediate post-war era, the IMF and the World Bank set about implementing this
liberal world-trading ideal, working to develop a level global playing field by
rebuilding European economies devastated by years of turmoil and to jumpstart those
less-developed economies newly emerging from long periods of colonization.
Despite the initial promise of these new institutions, their flaws – both procedural
and substantive – became apparent. First, both the IMF and World Bank (and later the
WTO) reflected a significant bias toward the large economies of the West and away
from smaller, developing or middle-income nations, a bias with important ramifications
for transnational accountability and legitimacy. Second, the immediate objectives of the
Bretton Woods institutions, although ambitiously focused on post-war economic
stabilization and growth, did not yet include the regulation or supervision of financial
markets and institutions across borders.
The Bretton Woods institutions were designed for efficacy and their legitimacy was
taken for granted – at least in the West and at least initially. They were rooted in
hard-law treaty regimes,22 and they bore the imprimatur and authority of the major
14
Articles of Agreement of the International Bank for Reconstruction and Development
(adopted 22 July 1944, entered into force 27 December 1945, 2 UNTS 134) (IBRD Articles of
Agreement).
15
General Agreement on Tariffs and Trade (adopted 30 October 1947, entered into force
1 January 1948, 55 UNTS 194) (GATT).
16
Article 7 para 1 and arts 61–72 of the Charter of the United Nations (adopted 26 June
1945, entered into force 26 June 1945, 1 UNTS xvi).
17
See WS Scammel, The International Economy Since 1945 (2nd ed, Palgrave Macmillan
1983), 9–14.
18
ibid, 39.
19
ibid, 13 and 15.
20
ibid, 14; see also IMF Articles of Agreement (n 13); IBRD Articles of Agreement (n 14);
GATT (n 15); JE Stiglitz, ‘The World Bank at the Millenium’ (1999) 109 The Economic Journal
577, 577.
21
See Scammel (n 17), 14.
22
See eg, IMF Articles of Agreement (n 13); IBRD Articles of Agreement (n 14); GATT
(n 15); see also JJ Norton, ‘NIFA-II or ‘Bretton Woods-II?’: The G-20 (Leaders) Summit
Western economies that had emerged victorious from war. For these nations, at the
zenith of their power in the post-war era, the IMF and World Bank were paragons of
accountability and legitimacy. Via their disproportionate funding contributions and
global influence, Western nations could exert direct and decisive control over the
operations of the World Bank, IMF, and the liberal trading order. For smaller,
less-developed nations, the nesting of these institutions within the fabric of the United
Nations held out at least the promise for accountability, however tenuous.
Yet a crisis of legitimacy came to the fore as the decades passed. The IMF and World
Bank in theory ‘each represent 184 countries who collectively fund and run each
organization.’23 In reality, however, ‘most of these countries have little say over either
organization.’24 Instead, a ‘small number of economically powerful countries run the
institutions.’25 Further exacerbating these national (and regional) discrepancies in
institutional power are powerful special interests seeking contracts (in the case of the
World Bank) or business-friendly ‘policies and interventions’ (in the case of the IMF).26
Even non-governmental organizations (NGOs) lobbying these institutions reveal a bias
toward the interests of wealthy countries.27 Taken together, these biases make it nearly
impossible for smaller, less economically powerful nations to influence global eco-
nomic, fiscal, and monetary policy28 – an accountability deficit that redounds to even
graver concerns about institutional legitimacy on a transnational basis.
These concerns were compounded by the initial narrow scope of the Bretton Woods
institutions. At least until the 1970s and 1980s, the World Bank and IMF offered the
only real framework for thinking about financial regulation on a global basis – and yet
financial regulation, particularly on a global, cross-border basis, occupied an ancillary
position to the more central stabilization and development objectives of these multi-
national institutions.29 Otherwise, financial regulation was relegated to the domestic
arena.
Although the liberal economic ideals of Bretton Woods were embraced at the
national level with zeal in the post-war decades, primarily through national treatment
regimes that lowered entry barriers so that foreign and domestic firms could compete
on even ground, many countries also enacted some form of special-dispensation and
special-control regimes.30 Even without these deviations from national treatment,
Process on Managing Global Financial Markets and the World Economy – Quo Vadis?’ (2010)
11 Journal of Banking Regulation 261, 263.
23
N Woods, The Globalizers, The IMF, The World Bank, and Their Borrowers (Cornell
University Press 2006), 190.
24
ibid.
25
ibid. See also ES Mason and RE Asher, The World Bank Since Bretton Woods
(McGill-Queen’s University Press 1973), 3-5.
26
See Woods (n 23), 190–91; see also Stiglitz (n 20), 582–85.
27
Woods (n 23), 191.
28
ibid.
29
See Scammell (n 17), 114; Norton (n 22), 265–66.
30
Although the Bretton Woods era was one marked by the fragmentation of global
prudential regulation, some commentators trace the roots of ‘global administrative law’ to the
national treatment and mutual recognition strategies developed by domestic regulators struggling
with the absence of uniform, cross-border rules. See Kingsbury, Krisch and Stewart (n 3), 21.
tion: 5 / Date: 8/2
domestic regimes on their own could not create level playing fields internationally.
Thus, even as individual nations embraced economic liberalization, the global financial
regulatory order remained fragmented.
The IMF and World Bank, meanwhile, did (and could do) little to contend with this
persistent regulatory atomization, focused as they were on catalyzing domestic fiscal
and monetary reforms, and not on creating global rules of the game on a cross-border
basis. In the 1970s, the traditional macroeconomic, fiscal, and monetary functions of
this post-war order also experienced massive upheaval, with the US shifting away from
the gold standard in 1971, the subsequent collapse of the Bretton Woods system of
fixed exchange in 1973, and the transition to a system of floating exchange rates
thereafter.31 At least partly in response to this turmoil, the privatization of the global
economic system increased dramatically in the subsequent decades, as did global
financial integration, with banks significantly expanding their international financing
role (and balance sheets) relative to the public sector.32
As a consequence of these shifting roles and responsibilities in the international
economic system, a sense emerged in the early 1980s, first in the banking sector and
then elsewhere, that the Bretton Woods framework was insufficient to the task of
modern, global finance.33 In particular, national regulators began to worry that
continued regulatory fragmentation left the global financial system susceptible to
cross-border races to the bottom and widespread regulatory arbitrage.34 To guard
against these concerns, a new consensus took shape – one aimed at the development of
substantive global regulatory frameworks and uniform cross-border rules.
2.2 Phase II: Rise of the Networks
The growing pressure for cross-border financial rules in the 1970s and 1980s did not
result in an expansion of the Bretton Woods institutions to include a treaty-based
‘World Financial Organization.’35 Instead, the Bretton Woods institutions largely shifted
their focus to macroeconomic and monetary policy in the developing world,36 leaving
national regulators and private market participants to develop an array of informal
global networks aimed at the creation of common cross-border rules for discrete
aspects of the global financial system.37 These networks ranged from private bodies,
31
See generally DT Llewellyn, ‘The International Monetary System Since 1972: Structural
Change and Financial Innovation’ in M Posner (ed), Problems of International Money 1972–85
(Springer 1985), 14.
32
See ibid, 31–34.
33
ibid.
34
See Barr and Miller (n 1), 21–23.
35
The General Agreement on Trade in Services (GATS), for instance, contained a carve-out
that left the prudential regulation of financial institutions to national authorities. See General
Agreement on Trade in Services, Annex on Financial Services § 2(a), (adopted on 15 April 1994,
entered into force 1 January 1995, 1869 UNTS 183).
36
See Scammel (n 17), 165–78.
37
See C Brummer, Minilateralism: How Trade Alliances, Soft Law and Financial Engin-
eering are Redefining Economic Statecraft (CUP 2014), 99–102
like the International Swaps and Derivatives Association (ISDA)38 and International
Accounting Standards Board (IASB),39 to bodies staffed by national regulators, such as
BCBS, IOSCO and the International Association of Insurance Supervisors (IAIS).40
On one end of the spectrum, global networks were driven by private interests but
given a measure of authority and the patina of legitimacy by public bodies. ISDA, for
instance, developed an entirely private contractual regime for over-the-counter (OTC)
derivatives transactions via its master agreement. ISDA agreements are ubiquitous in
OTC transactions, and thus represent a significant dimension of cross-border financial
regulation.41 IASB, meanwhile, is a private body comprised of industry accounting
experts and developed to oversee the design and promulgation of international
financial-reporting standards. These standards are enshrined by the European Union
(EU) in its financial regulatory infrastructure42 and are also now acceptable to the US
for certain cross-border transactions.43
Further along the spectrum, networks like BCBS, IOSCO, and IAIS emerged as
hybrid bodies that assembled central bank, securities, and insurance regulators,
respectively, to develop industry standards on a global, cross-border basis.44 Largely
speaking, they reflect the persistent and dominant role of national authorities in
directing financial rulemaking,45 while permitting the development of common regula-
tory standards on a transnational level.46 These networks are ‘soft-law’47 bodies – they
issue non-binding standards48 and permit significant variation in implementation across
jurisdictions.49 Nevertheless, there is at least some expectation that member nations,
and even non-members, will implement the standards they promulgate.50
38
International Swaps and Derivatives Association (ISDA), ‘About ISDA’ (2014) available
at <http://www2.isda.org/about-isda/>.
39
IFRS Foundation and International Accounting Standards Board, ‘Who We Are and
What We Do’ (2014) available at <http://www.ifrs.org/The-organisation/Documents/WhoWe
Are_JAN-2014_ENG.PDF>.
40
About the International Association of Insurance Supervisors (IAIS), <http://www.
iaisweb.org/About-the-IAIS-28>.
41
Clifford Chance, ‘The ISDA Master Agreement’ (2012) available at <http://www.
cliffordchance.com/publicationviews/publications/ 2012/04/the_isda_master_agreementfromhere
toeternity.html>.
42
See European Financial Reporting Advisory Group, ‘The EU Endorsement Status Report’
(2014) available at <http://www.efrag.org/WebSites/UploadFolder/1/CMS/Files/Endorsement%
20status%20report/EFRAG_Endorsement_Status_Report_12_March_2014.pdf>.
43
For an overview of Europe’s embrace of IASB standards, see Deloitte, ‘IFRS in Europe
– Background Information’ (2014) available <http://www.iasplus.com/en/resources/ifrs-topics/
europe>.
44
See Barr and Miller (n 1), 16–17. For an alternative account of Basel II, see DK Tarullo,
Banking on Basel – The Future of Banking Regulation (Peterson Institute 2008).
45
Barr and Miller (n 1), 21–23.
46
See ibid, 17.
47
See Reisman (n 4), 135.
48
See ibid.
49
See C Brummer, Soft Law and the Global Financial System – Rule Making in the 21st
Century (CUP 2012), 63–64.
50
See Barr and Miller (n 1), 21–3; see also Kingsbury, Krisch and Stewart (n 3), 21.
Although these hybrid, standard-setting networks represented an important evolution

beyond the Bretton Woods system, they raised significant concerns about accountability
and legitimacy. Among other things, they were criticized for technocratic cultures
unresponsive to domestic constituencies;51 for lack of transparency;52 for limited
memberships that excluded less-developed nations and reinforced the economic
hegemony of developed Western nations;53 for distorting domestic policy;54 and for
privileging industry insiders over average citizens.55
In response to these concerns, the networks attempted to improve their legitimacy
and accountability at both the domestic and international levels, which represented first
steps in the development of a global administrative law.56 To improve accountability
and legitimacy with respect to non-Western nations, the hybrid networks broadened
their membership or enhanced consultation with non-Western nations and regions. IAIS
and IOSCO, for instance, adopted more universal membership, expanding representa-
tion well beyond the Western economies responsible for their formation.57 Whereas
IOSCO was narrowly ‘trans-American’ at its founding in 1983, representing only 11
member states,58 its membership now includes securities regulators from more than 100
nations, with a largely representative board.59 Similarly, IAIS has expanded since its
formation in 1994 to a membership of more than 300, including more than 100 national
insurance regulators as well as other IOs, ranging from the European Commission to
the World Bank.60 Like IOSCO, IAIS’s executive committee is regionally representa-
tive.61 Unfortunately, broader membership helped limit the effectiveness of these
bodies. In the decades leading up to the financial crisis – with enormous failures in
investment banks like Lehman Brothers and insurance conglomerates like the American
International Group – IOSCO and IAIS were largely confined to hortatory pronounce-
ments and feeble measures aimed at disclosure.62
The Basel Committee, meanwhile, largely eschewed expansion of its membership,
which was traditionally ‘limited to the governors of the central banks of the Group of
Ten (G-10) countries and Switzerland.’63 Not until after the financial crisis of 2007–08
51
See AM Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability of
Global Government Networks’ (2004) 39 Government and Opposition 159, 164.
52
See D Zaring, ‘Informal Procedure, Hard and Soft, in International Administration’
(2005) 5 Chicago Journal of International Law 547, 569–72.
53
See Slaughter (n 51), 169.
54
See ibid, 166–67. But see Zaring (n 52), 600–02.
55
Slaughter (n 51), 169.
56
See generally Barr and Miller (n 1).
57
See P Iglesias-Rodriguez, The Accountability of Financial Regulators: a European and
International Perspective (Wolters Kluwer Law & Business 2013), 322–27.
58
ibid, 322.
59
ibid, 332.
60
ibid, 325–26.
61
ibid, 334–35.
62
See Brummer, Soft Law and the Global Financial System – Rule Making in the 21st
Century (n 49), 78–79; see also EM Hafner-Burton, D Victor and Y Lupu, ‘Political Science
Research on International Law: The State of the Field’ (2012) 106 American Journal of
International Law 47, 78–79.
63
Iglesias-Rodriguez (n 57), 320.
did BCBS invite other nations to join, and even now ‘its membership remains …
limited, with only 27 members.’64 Instead, the committee relied on other mechanisms
to promote accountability and legitimacy beyond the G-10 nations, implementing
consultations with non-G-10 regional and central bankers and generally working to
increase participation in BCBS decision-making by other developed countries.65 For
instance, ‘[c]entral bankers formed regional groups to share information about super-
vision and to coordinate in providing input into the formation of global capital
standards,’ and representatives from developing countries participated in the creation of
core supervisory principles in 1997 and in the development of the new Basel accord in
1999.66
The Basel Committee adopted international notice-and-comment decision-making.67
For instance, its Basel II capital standards went through multiple consultative iterations
prior to finalization, with the committee receiving hundreds of comment letters at each
procedural juncture.68 The committee also ‘issued background papers to inform the
public about its thinking on key issues, and held workshops with banks and other
firms.’69 From start to finish, this deliberative process lasted five years and included
two full rounds of consultation.70 Ultimately, these deliberations were relatively
‘responsive to suggestions made during the notice-and-comment process. There were
real changes in the proposed standards relating to a wide variety of areas … .’71 Despite
these efforts to address the accountability and legitimacy of the hybrid networks,
concerns still remained about the disproportionate influence wielded by the developed
Western nations.72 Furthermore, to the extent that the notice-and-comment process
employed by BCBS in the development of the Basel II accord increased organizational
transparency, critics worried about a concomitant increase in susceptibility to capture
by industry elites.73
To address accountability and legitimacy concerns at the national level, regulators
tethered the standards promulgated by the hybrid networks to domestic procedures,
including notice-and-comment rulemaking.74 In the case of the Basel II accord, this
tethering permitted G-10 economies such as the US and Europe to carefully tailor the
capital rules promulgated by BCBS to their own domestic-banking landscape, while
preserving a significant degree of commonality across jurisdictions.75 Even in emerging
economies such as China and India, where regulators opted not to adopt the Basel II
64
ibid, 321.
65
66
ibid, 27.
67
ibid, 24–27.
68
ibid.
69
ibid, 24.
70
ibid, 24–27.
71
ibid, 26.
72
See E Helleiner and T Porter, ‘Making Transnational Networks More Accountable’ in
S Burke (ed), Re-defining the Global Economy (Friedrich Ebert Stiftung 2009) 14, 17. But see
Zaring (n 52), 597–600.
73
See Slaughter (n 51), 165.
74
For a detailed description of this tethering process, see Barr and Miller (n 1), 28–41.
75
ibid, 28–39.
tion: 9 / Date: 8/2
standards, national processes still facilitated an important balance between the need for
common cross-border rules and domestic policy preferences.76 Both India and China,
for instance, continued to abide by Basel I rules with a commitment to move toward
implementation of Basel II’s Pillar II.77 Sometimes the nesting of Basel capital
standards (whether tacit or explicit) in the accession agreements, lending conditions,
and policy prescriptions of the WTO, IMF, and World Bank made adoption difficult to
resist – thus raising important legitimacy concerns in countries not involved in
development of the rules. Nevertheless, this ‘coerced’ adoption represented a significant
improvement in the accountability and legitimacy of domestic banking regulations in
non-democratic nations (or in countries where reforms had long battled entrenched
financial interests.)78 Taken together, these national efforts to tether global networks to
domestic process represented important steps to improve the accountability of hybrid
bodies. Although these procedures could not fully eliminate concerns about the
legitimacy of standard-setting institutions, they at least began to align global process
more closely with the set of expectations we might have for domestic democratic
institutions.
In the wake of the Asian financial crisis of the 1990s, and partly in response to
persistent concerns about the atomization of the hybrid networks, the Group of Seven
(G-7) nations moved to created a new international financial architecture, including the
Financial Stability Forum (FSF).79 The FSF was envisioned as a platform for
coordinating the hybrid networks, and for enhancing integration between these bodies
and the IMF, World Bank, as well as G-7 finance ministers, central bankers, and
financial regulatory authorities.80 By bringing together all of the authorities with a stake
in the development of an integrated set of cross-border rules, it was hoped that the FSF
could overcome the perils of decentralization that marked the rise of the networks and
that had rendered a swift, coordinated global response to crisis nearly impossible.81
The G-7 tasked the FSF with the development of international prudential ‘best
practices’82 that the FSF would then urge countries to adopt globally, including among
non-FSF nations. Because these non-G-7 countries were under-represented in the
international bodies assembled by the FSF, this extraterritorial mission raised concerns
for global legitimacy and accountability.83 The narrow membership of the FSF was by
design, however, and represented a purposeful balancing of legitimacy and accountabil-
ity concerns against the need for efficacy. A smaller group of relatively similar nations,
76
ibid, 39–41.
77
ibid.
78
ibid, 43.
79
See generally B Eichengreen, Towards a New International Financial Architecture: a
Practical Post-Asia Agenda (Institute for International Economics 1999). See also GA Walker,
‘International Financial Instability and the Financial Stability Board’ (2013) 47 International
Law 1, 2–5.
80
ibid.
81
ibid.
82
ibid.
83
ibid.
the G-7 thought, could better promulgate and enforce a common set of global rules.84
Indeed, the formation of the FSF by the G-7 reflected a conscious rejection of a
broader, more inclusive framework for global financial coordination put forth by the
Group of Twenty-Two (G-22) nations in 1998.85 Over time, a handful of non-G-7
economies were invited to join the FSF, and the FSF consulted with developing nations,
but its membership excluded larger, emerging economies like China, India, Brazil, and
South Africa.86
Ultimately, the FSF did little to impose order on the international financial system or
to strengthen the standard-setting bodies, with its mission in part hobbled by lack of
long-term US support.87 Thus, oversight of the global financial system still rested
primarily with the networks and national regulators. The 2008 financial crisis revealed
a system that, whatever its procedural merits, had permitted too little capital and too
much risky activity, and allowed too many systemically important institutions to escape
its reach or capacity altogether. Not only were financial institutions unable to withstand
the crisis when it hit, but the global networks were revealed as woefully inadequate
supervisors, unable to monitor, prevent, or respond to the decade-long build up of the
unsafe systemic risk and leverage levels that catalyzed the crisis.88
Reforms were swift in the making. The crisis almost immediately provoked a
systematic, substantive rethinking of the rules governing global finance – as well as a
significant procedural rethinking of the overarching global regulatory architecture. It is
to those reforms that the chapter next turns.
3. POST-CRISIS REFORMS
Shortly after the financial crisis hit full bore in the US, global leaders convened in
Washington, D.C., in November 2008 to discuss substantive and procedural reforms
necessary to stabilize the global financial system. In a symbolic and significant break
with history, this global response was coordinated by the political leadership of the
G-20 nations, and not by the independent central bankers of the narrower group of
Western countries that had overseen the global economic order in the pre-crisis
decades. The development of the FSB, coupled with the increased role of the G-20 in
establishing global financial policy, has led to important shifts in the accountability,
legitimacy, and efficacy of the international financial architecture, and these shifts have
shaped the development of new substantive rules of the game.
84
See D Lombardi, ‘The Governance of the Financial Stability Board’ Issue paper
Brookings Institution (2011), 4–5.
85
See ibid, 4.
86
ibid.
87
See A Baker, ‘Mandate, Accountability and Decision-Making Issues to Be Faced by the
Financial Stability Board’ in S Griffith-Jones ao (eds), The Financial Stability Board: an
Effective Fourth Pillar of Global Economic Governance? (The Centre for International Govern-
ance Innovation 2010) 19, 19.
88
Century (n 49), 213–33.
3.1 The G-20
The post-crisis elevation of the G-20 as the primary agenda-setting body represents a
recognition of the growing role of emerging economies in the international financial
order.89 Formed in the wake of the Asian financial collapse of 1999, the G-20
membership includes most of the world’s major emerging economies,90 with ‘more
than 60 percent of the world’s population,’ and ‘more than 80 percent’ of global GDP.91
In another break with the pre-crisis order, the G-20 nations were represented in
Washington, D.C., by their political leadership, with independent central bankers in
some respects having to share the global stage, for the first time, with higher-profile,
politically accountable finance ministers and heads of state.92 This politicization
immediately vested the G-20 with more national legitimacy and accountability than its
predecessors and substantially enhanced its global authority. The stakes were also much
higher. The credibility of the global political leadership would be measured against the
effectiveness of the architecture.
The G-20 nations issued a blueprint for reform to strengthen cross-border financial
rules, close gaps in the pre-crisis architecture, and enhance global regulatory
cooperation.93 The G-20 leadership agreed on broad areas of substantive reform:
mitigating procyclicality in financial regulation; aligning global accounting standards;
strengthening derivatives markets; reviewing executive compensation; and developing
regulatory strategies for systemically important institutions.94 Procedurally, the leaders
called for reworking the Bretton Woods institutions to reflect better the shifting weight
of the financial system toward emerging nations and a plan to revitalize the FSF to
coordinate reform.95
At its next summit, in London in 2009, the G-20 announced the result of these
procedural commitments: not a mere broadening of the FSF, but its transformation into
a formal international body, the FSB, with the capacity to develop, coordinate, and
implement the G-20’s substantive blueprint for reform.96 US Secretary of the Treasury
Timothy Geithner championed the FSB as a ‘fourth pillar’ of the global economic
order, indicating an ambition to place the FSB alongside the IMF, World Bank, and
WTO as a hard-law institution with a strong, formal mandate backed by the full
89
See ibid, 70–72.
90
ibid.
91
EM Truman, ‘The G-20 and International Financial Institution Governance’, Peterson
Institute for International Economics Working Paper (2010), 10–13.
92
Century (n 49), 193.
93
See Statement G-20 Leaders, ‘Washington, D.C. Summit – Leaders’ Statement’ (2008)
available at <http://www.nytimes.com/2008/11/16/washington/summit-text.html?pagewanted=
all>.
94
ibid.
95
ibid.
96
See Statement G-20 Leaders, ‘London Summit – Leaders’ Statement’ (2009) available at
<http://www.imf.org/external/np/sec/pr/2009/pdf/g20_040209.pdf>.
tion: 12 / Date: 14/3
political authority of its member states.97 By the Pittsburgh summit in September 2009,
the impact of the FSB was evident in the announcement of more detailed substantive
reform agenda, including specific global approaches to derivatives, capital, and
systemically important financial institutions (SIFIs).98 The G-20 announced that it
would become the primary platform for international economic policy, replacing the
G-8 in this role.99
By June 2010, the leadership reached an agreement in Toronto on the principle that
the costs of failure should be recovered from financial institutions (although the
mechanism for such recovery was left unresolved.)100 At both the Seoul and Cannes
summits (in November 2010 and 2011, respectively), the leadership emphasized the
need for robust surveillance mechanisms to monitor implementation of reform and
identified the need for a firm institutional foundation for the FSB.101 At the Los Cabos
summit in June of 2012, the leadership agreed that the FSB should become an
association and enter a multiyear funding arrangement with the Bank for International
Settlements (BIS).102
3.2 The Financial Stability Board
Driven by the G-20, the FSB includes representatives from key emerging and
middle-income economies.103 The G-20 insisted that the international standard-setting
bodies also expand their membership, a mandate with which most bodies swiftly
complied.104 The FSB was given a broad mandate. Beyond coordinating the work of
the international standard-setting bodies, it was tasked with the development,
implementation, and oversight of supervisory and regulatory policies for the global
97
T Geithner, US Treasury Secretary, ‘Press Briefing on the G-20 Meetings’ (2009)
available at <http://www.whitehouse.gov/the_press_office/Press-Briefing-by-Treasury-Secretary-
Geithner-on-the-G20-Meetings>.
98
See Statement G-20 Leaders, ‘Pittsburgh Summit – Leaders’ Statement’ (2009) available
at <https://www.treasury.gov/resource-center/international/g7-g20/Documents/pittsburgh_summit_
leaders_statement_250909.pdf>.
99
ibid.
100
See Statement G-20 Leaders, ‘Toronto Summit – Leaders’ Statement’ (2010) available at
<http://www.oecd.org/g20/meetings/toronto/g20-declaration.pdf>.
101
See Statement G-20 Leaders, ‘Seoul Summit – Leaders’ Statement’ (2010) available at
<http://online.wsj.com/public/resources/documents/G20COMMUN1110.pdf; Statement G-20
Leaders, ‘Cannes Summit – Leaders’ Statement’ (2011) available at <http://www.g20.
utoronto.ca/2011/2011-cannes-declaration-111104-en.html> (Cannes Statement).
102
See Statement G-20 Leaders, ‘Los Cabos Summit – Leaders’ Statement’ (2012) available
at <http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/ec/131069.pdf>.
103
See London Statement (n 96); see also Press Release, Fin Stability Forum, ‘Financial
Stability Forum re-established as the Financial Stability Board’ (2009) available at <https://
www.financialstabilityboard.org/press/pr_090402b.pdf>. For a detailed overview of Financial
Stability Board governance, see S Gadinis, ‘The Financial Stability Board: The New Politics of
International Financial Regulation’ (2013) 48 Texas International Law Journal 157, 164–68; see
also Lombardi (n 84).
104
See London Statement (n 96); see also Part 2.2.
tion: 13 / Date: 14/3
financial system.105 The FSB was tasked with advancing financial stability through five
principal mechanisms:106 preparing independent reports; directing the standard-setting
bodies; pushing for global compliance; conducting peer reviews; and, together with the
IMF, providing early warnings to global leaders of emerging financial threats.
The work of the FSB is governed by its plenary, ‘the central organ of the FSB and
the one in which political appointees … have the most distinct presence.’107 The
plenary consists of senior officials from each represented nation’s financial regulatory
agencies, central bank, and finance ministries, along with the chairs of each member
international standard-setting body (for example, IOSCO) and international organ-
ization (for example, IMF).108 The plenary oversees the work of the FSB.109 The
plenary also ‘decides on the membership; appoints the chairperson; and decides on
Charter amendments and on any other matter.’110
Seats on the plenary are allocated according to, among other things, the ‘size of the
national economy [and] financial market activity,’111 such that the largest countries,
such as China and the US are each allocated three seats, with medium-sized countries
like Australia and Mexico each allocated two seats, and smaller countries, such as
Argentina, each allocated one.112 Plenary decision-making occurs on a consensus
basis,113 a rather arduous process given that the current membership of the FSB stands
at 64.114 The plenary selects the membership of the steering committee,115 which
oversees operations.116 Because of its ongoing operational role, the steering committee
wields influence over FSB decision-making, particularly as FSB membership has
expanded and plenary decision-making becomes more unwieldy.117
Meetings of the plenary and the steering committee are convened by the FSB
chair.118 The chair – elected by the plenary for three-year terms and limited to two
terms119 – also oversees the FSB’s Secretariat and Secretary General,120 serves as the
organization’s public representative,121 and ‘take[s] all decisions and act[s] as necessary
to achieve the objectives of the FSB in accordance with the directions given by the
105
Article 1 Financial Stability Board Charter (2012) (FSB Charter).
106
ibid, art 2(5).
107
Gadinis (n 103), 166.
108
Art 8(1) FSB Charter.
109
ibid, art 7.
110
Lombardi (n 84), 9; see also ibid.
111
ibid, art 10.
112
See Lombardi (n 84), 10.
113
Article 7(2) FSB Charter.
114
See Financial Stability Board, ‘FSB Member Institutions’ available at <https://www.
financialstabilityboard.org/about/fsb_members.htm>.
115
Article 12 FSB Charter.
116
ibid, art 13.
117
See Lombardi (n 84), 10–13.
118
Article 14(3) FSB Charter.
119
ibid, art 14(1).
120
ibid, art 14(3).
121
ibid, art 14(4).
tion: 14 / Date: 14/3
Plenary.’122 In this capacity, ‘the chair fulfills a fundamental strategic role and shapes
much of the organization.’123
3.3 Procedural Reforms
In assessing the procedural and structural reforms of the international financial

architecture in the wake of the recent crisis, one can see that the international financial
architecture changed in four key ways. First, its ‘soft-law’ mandates and institutions
became harder, and more formal. Second, global leaders developed a clearer hierarchy
among institutions assigned tasks in the regulatory system in order to drive reform.
Third, international financial regulation became more political, with greater involve-
ment by heads of state and finance ministries. Fourth, peer review became a more
important mechanism for enhancing compliance.
3.3.1 More formality

First, the post-crisis institutional reforms hardened the international regulatory architec-
ture, imbuing it with more formality. Initially, the FSB lacked independent legal
personality and was governed by a non-binding Charter. However, the G-20 leaders
acted quickly to strengthen the FSB: following the 2011 Cannes summit, the FSB
convened a high-level working group to recommend reforms that would put it on an
‘enduring organizational footing.’124 Although this group considered the transformation
of the FSB into a multilateral treaty-based organization, this option was ultimately
discarded. Instead, the working group recommended that the FSB incorporate as a
Swiss association and take steps to increase its financial resources. These recommenda-
tions were adopted first by the FSB Plenary125 and then by the G-20 itself at the 2012
Los Cabos summit.126 In January 2013, the FSB formally registered as a Swiss
association, based in Basel.127
Despite these institutional reforms, however, the FSB falls short of a binding,
treaty-based regime. Indeed, the FSB’s articles of association specify that its non-
binding Charter governs all of the organization’s policymaking activities, and that
members can choose not to participate in them.128 Compliance with the articles of
association and the Charter thus remains a ‘matter of political commitment.’129
Although national commitment to reform remains at a historical zenith, the possibility
122
ibid.
123
See Lombardi (n 84), 13.
124
Cannes Statement (n 101).
125
Financial Stability Board, ‘Report to the G20 Los Cabos Summit on Strenghtening FSB
Capacity, Resources and Governance’ (2012) available at <http://www.financialstability
board.org/publications/r_120619c.pdf>.
126
See Los Cabos Statement (n 102).
127
See Financial Stability Board, ‘Articles of Association’ (2013) available at <http://
www.financialstabilityboard.org/publications/r_130128aoa.pdf> (FSB Articles of Association).
128
ibid, art 10.
129
S Donnelly, ‘Institutional Change at the Top: From the Financial Stability Forum to the
Financial Stability Board’ in R Mayntz (ed), Crisis and Control (Frankfurt aM Campus 2012)
261, 265.
tion: 15 / Date: 14/3
of waning commitment remains an area of concern, especially as the FSB has not yet
developed effective mechanisms for the self-censure of its members.130
Furthermore, because the plenary undertakes decision-making by consensus, it
effectively grants large players willing to stand up to an emerging consensus a kind of
veto power over FSB policy.131 Although in most instances the FSB has nevertheless
been able to reach consensus on policy, consensus building can lead to lower standards.
Moreover, were FSB peer reviews to reveal national regulatory deficiencies, national
resistance to a robust FSB mandate could increase,132 and the recalcitrance of a G-20
member could torpedo the FSB agenda. With its small Secretariat, the FSB effectively
favors those nations able to finance domestic cadres of technical and policy advisors
and disadvantages developing nations with limited internal capabilities, and thus less
ability to participate in FSB working groups.
Despite these concerns, there are good reasons to be wary of further institutional
formality and hardening while the international regulatory architecture (and the national
implementation of substantive reforms) remains in flux.133 By preserving a ‘soft-law’
approach, the G-20 has created in the FSB a body that might be more flexible and
better able to manage the continuing tensions between national implementation and
cross-border rule development that are playing out on a global level. A continuing
‘soft-law’ approach might also better accommodate the ongoing refinement of relation-
ships among institutions within the global financial regulatory architecture, with the
G-20 preserving the authority to further formalize the FSB should the long-term
governance of the global financial system so demand.134
3.3.2 A clearer hierarchy

Second, the post-crisis reforms created a clearer hierarchy of power within the
international financial regulatory architecture. Wielding the imprimatur of its member
nations’ political leadership, the G-20 functions as an apex agency, announcing strategy
at a global level and charging the FSB with implementation.135 The FSB, in turn,
coordinates the ISSBs, directing their policy work and monitoring national implemen-
tation of global regulatory standards.136 In this way, the increased role of the G-20, and
the development of the FSB, marks an important shift from the network of standard-
setting bodies that had presided over the global financial regulatory architecture. With a
single body now responsible for coordination, policymaking is less atomized and it is
harder for risks to grow between the cracks of standard-setting bodies.137
130
See B Momani, ‘The IMF and the FSB: Intractable Political Reality and Organizational
Mismatch’ in S Griffith-Jones ao (eds) (n 87) 36, 37.
131
See Baker (n 87), 22.
132
See ibid, 21–22.
133
See Hafner-Burton, Victor and Lupu (n 62), 73; see also CM Chinkin, ‘The Challenge of
Soft Law: Development and Change in International Law’ (1989) 38 International and
Comparative Law Quarterly 850; Reisman (n 4), 139.
134
Some commentators argue that the G-20 should also resist institutionalization in order to
preserve its operational flexibility. See Truman (n 91), 17–18.
135
See Gadinis (n 103), 169–75.
136
See ibid, 163–64.
137
ibid.
The FSB also helps to inform the specific regulatory agenda of the G-20. At the
Pittsburgh summit in September 2009, the first summit after the establishment of the
FSB, the G-20 Leader’s Statement reflected a far more sophisticated substantive agenda
for reform, with detailed principles for derivatives reform (the centralized clearing and
exchange-based trading of OTC derivatives), capital standards (new liquidity and
leverage ratios), and cross-border resolution mechanisms.138 The FSB shapes the
policymaking work of subsidiary bodies in part through its influence on the G-20’s
reform agenda.139 Moreover, because of the significant representation by national
finance ministers within the FSB’s plenary, many of whom also provide national
representation within the G-20, there are significant interlocks in authority between the
FSB and the G-20 such that recalcitrance by the standard-setting bodies can be
authoritatively resolved. The efficacy of the FSB in directing and shaping the work of
the standard-setting bodies is reflected in the board’s success in developing recom-
mendations for the regulation of global systemically important financial institutions
(G-SIFIs), compensation practices, resolution mechanisms, shadow banking, and OTC
derivatives.140
Some commentators have suggested that concerns about the continued murkiness of
the global regulatory hierarchy might also infect the horizontal relationship between the
FSB and the three other pillars of the global economic order, especially the IMF. The
relationship between the FSB and these other pillars of the global economic order is so
critical in part because of a return by the Bretton Woods institutions to the task of
macroeconomic, monetary, and financial policy in the developed world – both in
managing Europe’s sovereign debt crisis and conducting peer reviews of national
financial sectors in the West as part of the IMF and World Bank’s Financial Sector
Assessment Program (FSAP).
Those worried about the relationship between the FSB and the Bretton Woods
institutions point to the substantial organizational mismatch between the FSB and a
more institutionalized body like the IMF, not only in terms of size and capacity141 but
also as to international legal status. Moreover, the IMF and FSB report findings from
their early warning exercises separately despite the underlying aim of producing an
integrated view of the global economy, across financial, monetary, and macroeconomic
indicia.142 Several commentators have also suggested that the FSB’s peer review and
IMF FSAP can result in mission confusion.143 They argue that the potential for tension
is concerning because a strong partnership with the IMF and World Bank is one of the
principal mechanisms by which the FSB can cultivate influence and legitimacy.144
But these criticisms overlook the structural value of jurisdictional overlap and
competing missions, and the ways in which the FSB can act as an important
informational counterweight to the IMF. For instance, joint reporting might actually
138
See Pittsburgh Statement (n 98).
139
See Gadinis (n 103), 169–75.
140
See Walker (n 79), 11–28; see also Gadinis (n 103), 171–73.
141
See Momani (n 130), 36.
142
ibid.
143
See Donnelly (n 129), 271; see also LW Pauly, ‘The Financial Stability Board in Context’
in Griffith-Jones ao (eds) (n 87) 13, 17.
144
See Donnelly (n 129), 271.
tion: 17 / Date: 14/3
provide a more textured, balanced view of the global economic order and avoid the
groupthink that characterized global regulation in the lead up to the most recent
financial crisis. A similar counterweight structure marks the national regulatory
landscape in the US, with the Office of Financial Research acting as the informational
counterweight to the domestic prudential regulators, many of which overlooked key
systemic risk indicia prior to the crisis.145 Furthermore, because much of the global
regulatory architecture remains in flux, jurisdictional overlap between the IMF and FSB
might actually help surface important institutional tensions that can inform the
development of a more refined, long-term regulatory architecture.
3.3.3 More political involvement

Third, the post-crisis regulatory architecture reflects more robust involvement by the
political leadership of the G-20 nations. Whereas major central banks oversaw the
development of cross-border regulatory frameworks in the pre-crisis era, now heads of
state, and their finance ministers are involved alongside the independent central bankers
in directing the global agenda. At the most basic level, this direct political involvement
lends the international financial architecture more national legitimacy, rooting it
directly in domestic democratic processes. It also bolsters regulatory accountability by
shifting authority from insulated bureaucrats to elected political officials directly
responsive (in theory) to the will of their domestic constituencies.
The increased role of the political leadership in the international financial regulatory
architecture, however, has not come at the expense of independent agencies, with
enhanced authority granted to central banks (and other independent regulators) in the
UK, US, and the EU.146 Thus, while the political leadership does exercise more
significant authority over the global policymaking agenda, independent agencies have
retained or enhanced their policymaking roles, too. In the US, for instance, the Treasury
chairs the Financial Stability Oversight Council (FSOC),147 but the Federal Reserve
Board has been given significant supervisory and regulatory authority over the largest
bank and non-bank financial institutions.148 At a global level, the division of respons-
ibility across these two functions, although uncertain, helps mediate accountability
concerns with the long-held value of independence in financial regulation.
It is not clear whether the role of the G-20 political leadership will help to address
concerns related to global legitimacy. For instance, because at least part of the FSB’s
145
For an early vision of an entity similar to the Office of Financial Research, see R
Levine,‘The Sentinel: Improving the Governance of Financial Regulation’, National Bureau of
Economic Research (2009).
146
In the UK, for instance, significant regulatory authority has been given back to the Bank
of England, Financial Services Act 2012, c 2, while in Europe, the European Central Bank has
played a leading role in the development of a new, post-crisis regulatory framework, art 127(6)
Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326,
103.
147
See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111–203
§ 111 (2010).
148
See eg Dodd-Frank Act sections 604–06 and 616.
tion: 18 / Date: 14/3
mission is extraterritorial (that is, fostering compliance among non-member juris-

dictions),149 it may be necessary to broaden the board’s membership further, although
the FSB has established regional consultative groups to facilitate outreach among
non-member countries.150 Even as the FSB’s membership expands, concerns might still
remain about whether all of the voices within this expanded membership are heard.151
This concern is particularly acute given the bias of the FSB toward Western developed
nations. All of the major international financial organizations are headquartered in
Europe or the US, making the cost of participating higher for non-Western nations,
many of which already lack strong representation at these organizations.
One might also be concerned about institutional capture. For instance, FSB’s Charter
only provides for consultation with private-sector parties (in addition to non-member
authorities), although in the parlance of international law, private sector may encompass
civil society organizations as well.152 The increased role of the G-20 political
leadership might also increase opportunities for capture at the national level to the
extent that political leaders are less insulated from domestic political pressures than
their central bank counterparts. Some of these concerns can be addressed via consult-
ations with civil society groups, formal notice-and-comment processes and the prom-
ulgation of less complex standards,153 although concerns about capture will naturally
intensify as the FSB continues to gain global influence.
3.3.4 Stronger peer review

Finally, the post-crisis financial architecture reflects an emphasis on peer reviews, a
process that ‘produces social pressures, which in turn shapes judgments as to whether
or not to conform to a given standard’.154 The FSB conditions membership on assent to
regular peer reviews. The IMF–World Bank FSAP process has also become more
robust.155 In another important step toward increased efficacy, peer-review mechanisms
now also increasingly focus on private institutions and not just on nations, as in the
case of US-EU exercises on the comparability of risk-based capital requirements156 and
European Central Bank stress tests.157 Thus, even in the absence of a hard-law,
treaty-based regime, peer review mechanisms can enhance the efficacy of the global
financial architecture by increasing transnational social pressure and giving more
weight to the obligations promulgated by the FSB and the ISSBs.
149
Annex B FSB Charter; see also Lombardi (n 84), 7–8.
150
See Lombardi (n 84), 16–17.
151
See E Helleiner, ‘Governance Issues Relating to the FSB and International Standards’ in
Griffith-Jones ao (eds) (n 87), 28.
152
Art 3 FSB Charter.
153
See E Helleiner, ‘Governance Issues Relating to the FSB and International Standards’ in
S Griffith-Jones ao (eds) (n 87) 29, 30–31.
154
Lombardi (n 84), 6.
155
See eg IMF, ‘The IMF and Europe’ available at <http://www.imf.org/external/np/exr/
facts/europe.htm>.
156
See Basel Committee on Banking Supervision, ‘Regulatory Consistency Assessment
Programme (RCAP)’ (2013) available at <http://www.bis.org/publ/bcbs256.pdf>.
157
See European Central Bank, ‘Comprehensive Assessment’ available at <http://www.ecb.
europa.eu/ssm/assessment/html/index.en.html>.
tion: 19 / Date: 14/3
Substantive outcomes The post-crisis reforms to the global financial regulatory archi-
tecture represent an improvement over the prior era of decentralized, hybrid networks.
Furthermore, this new, ‘harder’, more political, more hierarchical regulatory architec-
ture has achieved some early substantive successes, producing rules far more stringent
than those produced in the pre-crisis climate of global races to the bottom and
cross-border regulatory arbitrage.158 Capital rules are stronger. Derivatives regulation is
tougher. Structural reforms are being put in place. Yet the project is incomplete, and
significant risks remain in the system.
National strategies Even as the post-crisis intervention of the G-20 in the global
financial architecture has resulted in a harder, more formal system, with a clearer
hierarchy, more political accountability, and a stronger framework for generating,
implementing, and monitoring cross-border rulemaking, variations across domestic
regulatory regimes have proliferated, with the leading economies engaged in an
ambitious transnational strategy of regulatory competition. Unlike in the pre-crisis era,
however, national variation and international regulatory competition to date have not
resulted in widespread races to the bottom and cross-border regulatory arbitrage.
Instead, the post-crisis national regulatory strategies have largely resulted in upward
deviations from an already more robust global regulatory floor – a global race to the
top. This has happened in particular, for example, on national efforts to increase capital
requirements, as in the US and Switzerland. Another approach to national variation is
extraterritoriality. One country can take the lead in developing more robust standards
than those required on a global level, and seek to apply those rules to its national firms,
on a global basis, and by doing so can effectively push other countries into the adoption
of similarly stringent rules. In the US, for example, the Commodities Futures Trading
Commission has pushed for strong derivatives rules to be applied to US firms on a
global basis.159 In a related vein, the Federal Reserve Board has pushed, for the first
time, for foreign firms operating in the US to comply with structural, capital and
liquidity rules similar to those imposed on US firms.160
These rules have engendered significant controversy because of their extraterritorial
reach. With respect to derivatives rules, the CFTC and the European Commission
eventually reached agreement on a ‘common path forward’,161 which embraced
158
For a comprehensive overview of post-crisis international reforms, see generally MS
Barr, ‘Financial Regulation and US Competitiveness Before the House Committee on Financial
Services’, Subcommittee on Oversight and Investigations (statement) (2014); US Government
Accountability Office, GAO-14-261, International Financial Reforms (2014). For a critique of
the focus on the procedural dimensions of reform versus its substantive outcomes, see Truman
(n 91), 15.
159
Cross-Border Application of Certain Swaps Provisions of the Commodity Exchange Act,
17 CFR (2012), Part 1 available at <http://www.gpo.gov/fdsys/pkg/FR-2012-07-12/pdf/2012-
16496.pdf>.
160
See Federal Reserved Board Enhanced Prudential Standards (Regulation YY) 12 CFR
(2014), para 252.
161
Press Release, ‘US Commodity Futures Trading Comm’n, The European Commission
and the CFTC Reach a Common Path Forward on Derivatives’ (2013) available at <http://
www.cftc.gov/PressRoom/PressReleases/pr6640-13>.
tion: 20 / Date: 14/3
‘equivalence’, whereby the US will consider European market participants and

exchanges in compliance with European rules also in compliance with US rules.162 By
acting first and then leveraging its aggressive rules in transatlantic negotiations, the
CFTC ensured that equivalence would be just that – actual regulatory parity, and not a
code word for regulatory arbitrage. Nevertheless, even as the CFTC’s strategy of
extraterritoriality has resulted in stronger European rules and reduced the potential for
arbitrage, it has also increased transatlantic tensions.
In this intermediate period of reform, however, with the G-20 not yet transitioned
from crisis management to long-term governance, it may make sense for the global
leadership to encourage – or at least not attempt to block – national variation and even
national strategies of extraterritorial application.163 The US should be permitted to take
an aggressive stance on derivatives, and the EU should be permitted the same latitude
on executive compensation and financial taxation. Indeed, the post-crisis experiences
with national variation and extraterritorial strategy to date suggest that the G-20 should
avoid the adoption and implementation of rigid, detailed rulemaking on a cross-border
basis and should instead play the role of shepherd – working through the FSB to
produce rigorous, robust prudential standards;164 correcting downward national devia-
tions but otherwise encouraging strong domestic regimes that exceed minimum
standards; and intervening where necessary to minimize transnational tensions.
The prospects for further institutional reform The international architecture remains
an awkwardly constructed work in progress. Measured by its outputs, the modifications
appear to be making the financial system safer, but there are, nonetheless, many
structural and procedural tensions roiling beneath the surface. These tensions stem from
an international regulatory system that lacks a single, authoritative architect. While the
basic structural problem is unlikely to change soon, modest institutional reforms might
enhance the long-term efficacy, legitimacy, and accountability of the system.
For instance, further reforms are necessary to enhance the FSB’s legitimacy with
non-member states. The Regional Consultative Groups (RCGs) represent an important
step, but do not fully compensate for the extraterritorial mission of the FSB.165 Even
within the existing membership of the FSB, the United States and European Union tend
to dominate.166 Reforms need to elevate the role of non-Western voices in organ-
izational decision-making and foster more engagement by non-G-20 countries, but
without diluting reforms in the US and Europe.
162
ibid.
163
See R Romano, ‘For Diversity in the International Regulation of Financial Institutions:
Critiquing and Rethinking the Basel Architecture’ (2013) Yale Law & Economics Research
Paper No 452, 35–38.
164
See Hafner-Burton, Victor and Lupu (n 62), 74. For another account of the relationship
between ambiguity (ie standards) and compliance, see generally Chinkin (n 133).
165
See E Helleiner, ‘FSB Governance’ in New Rules for Global Finance (ed), Global
Financial Governance and Impact Report (2013), 9–10.
166
See I Angeloni and J Pisani-Ferry, ‘The G20: Characters in Search of an Author’ (2012)
Breugel Working Paper No 4, 27.
tion: 21 / Date: 14/3
Increased transparency is also necessary to enhance the global accountability of the

FSB and to address concerns about private-sector capture.167 A 2012 Charter modifi-
cation mandates periodic reporting to the G-20 and lead to a public website,168 but a
2013 civil society review noted that the FSB ‘still does not release much information to
the general public about its meetings, including those of its Plenary and the RCGs.’169
The need for transparency is heightened because the FSB decision-making process is,
in many ways, more complex and opaque than the domestic regulatory process. On the
one hand, the FSB is making the sort of merits-driven policy judgments that domestic
regulatory agencies undertake. On the other hand, its decision-making reflects the
multilateral system of negotiation and compromise. Enhanced transparency can help
clarify the FSB decision-making process such that domestic rulemaking can better
compensate for deficiencies.
To increase transparency, and to strengthen linkages between national and global
process, the FSB should formally adopt – via its Charter – procedures for notice-and-
comment rulemaking.170 By developing structured processes for civil-society and
private-sector actors to review and comment on proposed rules, the FSB would help
ease coordination difficulties between the international and national regulatory pro-
cesses and might also enhance procedural safeguards for financial institutions. Cur-
rently the process by which FSB arrives at G-SIFI determinations lacks robust
procedural protections.171 A formal process would extend to institutions affected by
these determinations something akin to the sort of rights already built, for example, into
the FSOC’s non-bank SIFI determinations in the US.172
The FSB might also consider a range of other governance mechanisms to give more
weight to civil-society voices.173 First, it might amend its Charter explicitly to include
civil-society organizations alongside ‘private sector and non-member authorities’
among the parties with which it can consult.174 The Charter might also be amended to
permit civil-society observers – in addition to private-sector observers – at plenary
sessions, when invited by the chair.175 Other commentators have suggested that
civil-society organizations also be allowed to observe and participate in the work of the
167
See Helleiner (n 165), 10–11 (describing potential transparency and disclosure reforms).
168
Art 5(1) FSB Charter.
169
Helleiner (n 165), 10.
170
See also Brummer (n 49), 197–98.
171
In the past, the FSB has simply published an annual list of G-SIFIs and G-SIBs. See eg
Financial Stability Board, ‘Update of Group of Global Systemically Important Banks’ (2013)
available at <https://www.financialstabilityboard.org/publications/r_131111.pdf>.
172
Financial Stability Oversight Council, ‘Authority to Require Supervision and Regulation
of Certain Nonbank Financial Companies’, 12 CFR Part 1310 (2012) available at <http://
www.treasury.gov/initiatives/ fsoc/documents/nonbank%20designations%20-%20final%20rule%
20and%20guidance.pdf>.
173
For a discussion of the importance of civil society voices in domestic regulatory controls,
see, for example, MS Barr, ‘Credit Where It Counts’ (2005) 80 New York University Law Review
513, 601–602.
174
Art 3 FSB Charter; see also Helleiner (n 165), 11 (discussing the need for FSB
consultation with civil society groups).
175
See Helleiner (n 165).
tion: 22 / Date: 14/3
RCGs.176 And while the 2012 Charter amendments provided for some form of public
consultation,177 the FSB might consider dedicating Secretariat staff to civil-society
consultation and outreach. Dedicated Secretariat staff would ensure a more direct link
between civil-society groups and FSB policymaking, and might create more parity with
private-sector groups by giving civil-society groups access to in-house technical
expertise.
More could be done to tether the activities of the FSB and the standard-setting bodies
to national mechanisms of accountability, transparency, and legitimization.178 Inter-
national standard-setting contemplates national methods of execution. In both the US
and Europe, for example, this involves notice-and-comment rulemaking, albeit with
different procedures, standards, and to some extent, expectations regarding the modes
of engaging public voice and fostering transparency. These national (or in the case of
the EU, supranational) administrative processes should be seen as part of a trans-
national, nested system to enhance the legitimacy and accountability of the global
financial regulatory architecture.
These national systems could be further bolstered by facilitating public input into the
decisions of national finance ministries and regulators before they agree to global
standards, akin to a kind of ‘advance notice of proposed rulemaking’ for the global
negotiating space. National mechanisms could also make greater space for transparent,
open mechanisms for civil-society organizations to provide input into national decision-
making prior to finalizing (or in some instances, entering into) negotiations over key
global-reform initiatives. While these national mechanisms to promote civil engage-
ment and enhance transparency will not guarantee better substantive outcomes, they
may bolster the case that the judgments of the FSB and the standard-setting bodies, as
well as of national regulatory authorities, are legitimate.
4. CONCLUSION
The global financial regulatory architecture has evolved significantly since 1944. The
first set of global regulatory institutions – the IMF, the World Bank, and the trade
regime eventually embodied in the WTO – while concerned with key problems in
international money, paid scant attention to the problem of global, cross-border
supervision and regulation of financial firms and markets. This institutional lacuna gave
rise to the networks – informal, bureaucratic standard-setting bodies – that initially
caused significant concerns about legitimacy and accountability but that eventually
began to develop nascent mechanisms of global administrative law.179 The rules these
institutions produced, however, did not work, to say the least, as the most recent
financial crisis revealed. In the immediate aftermath of the crisis, the political leaders of
the leading global economies asserted themselves more forcefully, producing a new set
of institutions and institutional relationships that were more formal, more political, and
176
See ibid.
177
Art 3 FSB Charter.
178
179
ibid, 15–46.
more hierarchical. Although significant tensions still exist within this new system –
particularly as among national variation, extraterritorial application of national rules,
and the desire for uniform global standards – the substantive outcomes to date, while
imperfect, messy, and contentious, evidence a stronger commitment to meaningful,
long-lasting reforms.
There is still much more substantive work to do – on capital and liquidity, resolution,
and derivatives, to name a few core areas in need of action. In fact, such an approach is
essential to reduce the chances of another devastating global financial crisis. On bank
resolution, the US has a solid framework in place but is still working through how to
make winding down a major financial firm plausible; in Europe, there is agreement on
the need for resolution authority but a lot more to do to make this authority work
within the context of EU member states’ legal and political frameworks. On derivatives,
there is now agreement on how to approach trading, clearing, and transparency, but
much more work to do on capital, margin, clearinghouse supervision, global coordin-
ation on trade repositories, determination of equivalency across national borders, and
other issues. Wholesale funding mechanisms, including repo and securities-financing
transactions, remain sources of risk in the system. Capital rules are taking shape, but a
final agreement on liquidity must still be worked out, capital standards for the largest
firms are still too low, and transparent, comparable, and tough stress testing, as well as
consistent implementation of risk-based rules globally, will be critical going forward.
Ultimately, the strength of these reforms cannot be judged absent the next crisis. But
if the post-crisis reforms are to endure, the system must shift from the task of
emergency response to the project of governance, a project that will require more
institutional clarity, and more sensitivity to the concerns of legitimacy and accountabil-
ity, both globally and nationally. Conceptually ‘easy’ answers – a treaty-based World
Financial Organization, centralized adjudication, a global financial supervisor, and
resolution authority, to name a few – are neither politically feasible nor normatively
desirable. Instead, we are left with a messier, more iterative, less satisfying, but more
realistic task: to continue to make progress on making the global financial system safer,
fairer, and, one would hope, more focused on meeting the pressing needs of households
and business in the real economy.
14. International lawmaking and civil society

Barbara K. Woodward
1. INTRODUCTION
Contrary to the traditional view that only States make, administer and enforce the rules
of international law, ‘civil society’ (CS) groups have long participated in many such
‘governance’ functions.1 As the system is by definition State-centric, CS actors had to
persuade international institutions to fashion various modalities to enable their influ-
ence and participation. Consequently, the international system now consists of pro-
cesses where CS actors have had roles influencing States’ perceptions of their interests
and, with State representatives, shaped their values into legal norms. Although CS
contributions are frequently informal, indirect and unacknowledged and thus difficult to
prove empirically, individuals and CS actors have participated in international law-
making.
‘International lawmaking’ here means the diverse, continually evolving processes of
authoritative decision-making whereby State and sometimes non-State actors (NSAs)
participate in various arenas, including institutions, diplomatic conferences, confer-
ences of States parties (COPs) and judicial fora, that produce instruments having legal
effects, such as treaties, resolutions, and declarations. Lawmaking instruments create
international legal norms that may be binding rules of law or non-binding principles,
standards or other forms of ‘soft’ law. CS has initiated norm-creation or lawmaking
processes, framed international agendas, drafted legal texts, accessed lawmaking bodies
and persuaded government representatives to assume new obligations or agree to new
norms restricting States’ freedom of action. They have also assisted in monitoring
compliance leading to enforcement of international law thus confirming the authority of
such legal norms.
CS participation in lawmaking has occurred primarily in the areas of international
humanitarian, human rights and environmental law, some contributions even developing
into norms having jus cogens legal character. CS efforts have also succeeded in
developing international criminal and human security law and even economic law.
1
The terms ‘civil society’, ‘NGO’, ‘civil society organization’, ‘international civil society’,
and ‘global civil society’ are frequently used interchangeably despite obvious semantic differ-
ences. J Alvarez, International Organizations as Lawmakers (OUP 2005), 287. The term
‘governance’ broadly refers to the ‘rules, processes and behaviour’ affecting how powers are
exercised … particularly regarding openness, participation, accountability, effectiveness and
coherence’. European Commission, ‘European Governance: A White Paper’ COM (2001) 428
final (2001/C287/01). ‘Governance’ refers to arrangements for articulating interests, establishing
rights and obligations and mediating differences.
286
International lawmaking and civil society 287
Nevertheless, since the new millennium and the entrenchment of economic global-
ization,2 there is a trend of less lawmaking, and particularly, less CS influence.3
Simultaneously, the UN and other international institutions have increasingly admitted
the private sector.
This chapter first defines the concepts of ‘civil society’ as used in international law
scholarship and of ‘international lawmaking’. Then, it maps and analyses the practice
of international lawmaking in situations where members of CS in the form of
non-governmental organizations (NGOs) are important stakeholders. It focuses on
NGO practices that have contributed to the making of law that developed into binding
or important ‘soft’ international law. Finally, it addresses theoretical issues raised
concerning NGO legitimacy, representativeness and accountability.
2. DEFINITIONS
2.1 Civil Society
The concept of CS has a long philosophical history, and the meaning has changed to fit
different political realities. CS actors have long advised, influenced, and persuaded
State governments to address various international problems through binding inter-
national agreements.4 By 1914 there were an estimated 466 NGOs representing various
interest groups, primarily from the United States (US).5 The mixed international
conference developed where government officials, NGO representatives and indi-
viduals, even when not invited, met to discuss major international problems.6 Issue-
driven conferences spurred action to promote peace, worker solidarity, free trade,
international law and even NGOs.7 Early NGO efforts focused on creating rules to curb
State excesses, to protect victims of war, human rights and the environment, casting
NGOs in a positive light.
Western NGOs inspired by 1960s social movements were activist, advocacy-oriented,
better organized, mobilized and informed than their progenitors due to increased
2
Globalization is a narrative of transition from a national and international to a global
world that dominated late twentieth-century public and academic debate. It has diverse even
diametrically opposite meanings. The classic dichotomy is the somewhat imperialistic, ‘eco-
nomic globalization’ or neo-liberalism, meaning spreading Western economic policy and the
defensive response, ‘anti-globalization’ or simply ‘globalization’ focusing on the needs and
concerns of people. BK Woodward, Global Civil Society in International Lawmaking and Global
Governance: Theory and Practice, (Martinus Nijhoff 2010), 47 fn 47. Sections A and B are
derived from Woodward, ibid.
3
J Howell, I Jude, E Armine, H Seckinelgin and M Glasius, ‘The Backlash against Civil
Society in the Wake of the Long War on Terror’ (2008) 18 Development in Practice 82.
4
See eg, S Charnovitz, ‘Two Centuries of Participation: NGOs and International Govern-
ance’ (1997) 18 Michigan Journal of International Law 183.
5
B Seary, ‘The Early History: From the Congress of Vienna to the San Francisco
Conference’ in P Willetts (ed), The Conscience of the World: The Influence of Non-governmental
Organizations in the UN System (Hurst 1996), 28.
6
FP Walters, A History of the League of Nations (OUP 1952), 7.
7
Charnovitz (n 4), 192–7; Seary (n 5), 20.
tion: 2 / Date: 8/2
prosperity, education and technological advances in communications and transport, and

more challenging to established authority.8 In the 1980s, dissident Eastern European
intellectuals revitalized the CS concept to express resistance to authoritarian rule, and it
became a call of resistance against all oppressive regimes.9 The end of the Cold War
spurred a surge of worldwide optimism, and promoting CS became integrated in aid,
diplomatic and academic discourse, and the UN and international institutions adopted
the term.10
Aid donors embraced the idea of developing CS as a means of spreading demo-
cratization, good governance and development. Their enthusiasm came from several
factors, including disillusionment with State-led development in newly independent
former colonial States and the dominance of the neo-liberal model of New Public
Management, which advocated rolling-back the State and privatizing social services
delivery, and the growing emphasis on democracy promotion in US foreign policy,
which favoured greater civic participation in good governance.11 International relations
started shifting from State-centred authority, having centralized rule-making authority, a
hierarchy of institutions and universal State membership, to groups of particular
authoritative States and often ad hoc global regulatory networks that included NSAs.12
In this context global conferences swelled to accommodate increasing numbers of
interest groups, and NGOs requested greater access to UN bodies. In response, revised
1996 rules of the UN Economic and Social Council (ECOSOC) broadened accredit-
ation rights.13 International institutions increasingly enabled CS actors to participate in
tasks classically fulfilled by the State, including international lawmaking. Yet since the
attacks of 11 September 2001 and the ensuing global war on terror, growing concerns
about security and the expansion of counter-terrorist measures across the world have
led to a backlash on CS on many levels and fronts.14
As the malleable CS concept causes confusion, this chapter uses the term ‘NGO’
from the UN Charter for CS actors involved in lawmaking, except when it indicates a
broader sense is intended.15 As there is no generally applicable legal definition of
‘NGO’, it adopts Lindblom’s functional definition based on international instruments
relating to NGOs, where an NGO is understood as an organization that:
8
See concerns about anti-business sentiments expressed for members of the US Chamber
of Commerce, a member of NGO, International Chamber of Commerce, in LF Powell Jr,
‘Confidential Memorandum: Attack on American Free Enterprise System’ (Powell Memoran-
dum) (23 August 1971) Washington and Lee University, School of Law, Lewis Powell Archives
available at <http://law.wlu.edu/powellarchives/page.asp?pageid=1251>.
9
Howell (n 3), 83.
10
M Ottaway and T Carothers, Funding Virtue: Civil Society Aid and Democracy Promotion
(Carnegie Endowment 1998).
11
Howell (n 3).
12
See AM Slaughter, A New World Order (Princeton University Press 2004).
13
ECOSOC ‘Consultative relationship between the United Nations and non-governmental
organizations’ Res 1996/31 (25 July 1996).
14
Howell (n 3).
15
Art 71 Charter of the United Nations (adopted 26 June 1945, entered into force 24
October 1945) 1 UNTS XVI (UN Charter).
+ is ‘non-governmental’ in the sense that it is established by private initiative, is

free from governmental influence, and does not perform public functions;
+ has not-for-profit aims, and if profits are earned, they are not distributed to
members but used in pursuit of the NGO’s objective;
+ does not use or promote violence; and
+ has some sort of representative structure and usually, but not necessarily, a formal
existence based on a statute.16
Thus, NGOs may operate nationally, regionally or internationally and have diverse
objectives and organizational forms. They may represent, for example, interests of
business, industry, women, or indigenous groups, and may be associations, charities,
foundations, religious groups, non-profit corporations, or trade unions. Although their
designation as ‘non-governmental’ suggests they have no role in international law,
their dynamic, de facto presence throughout most international legal bodies belies their
exclusion in practice. It also indicates their important character as independent from
governments. Therefore, it is appropriate to use the term NGO for CS actors in
international law.
2.2 International Lawmaking
Lawmaking is a fundamental function of all governance systems. Contemporary

international lawmaking tends to be understood as a process involving States and often
NSAs of formulating rules in accordance with agreed, predetermined procedures. The
two main formal ‘sources’ of international law are the treaty-making process and an
international customary process.17 These processes emerge and adapt to changes in
relations among States.
Intergovernmental organizations (IGOs) and other international bodies produce
documents, treaty texts or ‘soft’ legal instruments for agreement by their State
members. Many such bodies have granted NGOs formal rights to participate in their
activities, including negotiating, drafting and concluding treaties and other documents
having legal effects. Even where there are no formal arrangements for unsolicited NGO
interaction, as in the UN Security Council (UNSC), UN General Assembly (UNGA),
and the International Court of Justice (ICJ), NGOs have developed various informal
channels of influence.
In fact, legal texts can acquire normative effects without express agreement of States
but by other means. For example, various texts may be adduced as evidence to assert a
customary international law (CIL) rule or a general principle of law exists. When a
norm is alleged to be a rule of international law, it may be found in a material ‘source’
of international law. This is normally a document containing the provisions of the rule.
16
AK Lindblom, ‘The Responsibility of Other Entities: Non-Governmental Organizations’
in J Crawford ao (eds), The Law of International Responsibility (OUP 2012), 344.
17
Art 38(1), Statute of the International Court of Justice (ICJ) (adopted 26 June 1945,
entered into force 24 October 1945) 1 UNTS xvi identifies treaties, custom and general
principles as primary ‘sources’ of international law for the ICJ, and judicial decisions and
scholarly writings are ‘subsidiary’ sources. eg MN Shaw, International Law (CUP 2008), 70
fn 3.
Such texts may be hard or ‘soft’ law and include treaties, UNSC decisions, certain
unanimous UNGA resolutions concerning matters of law, IGO instruments, UN
International Law Commission (ILC) proposals, judicial decisions, restatements of law
by a learned body or even legal textbooks and diplomatic exchanges, without regard to
the legal authority of the source.18
Another way States may become legally bound is through so-called ‘autonomous
institutional arrangements’ (AIAs), such as those common in multilateral environmental
agreements (MEAs).19 Such arrangements typically grant supervisory powers and other
functions to organs empowered to develop normative content of the regulatory regime
and adopt amendments using a special procedure that does not need a new instrument
requiring ratification. Such treaty organs can, thus, act in a quasi-legislative capacity.20
Also, States may become bound by norms, even when contained in ‘soft’ legal
instruments when these are repeated in a series of binding and non-binding instruments
or when incorporated by reference into a binding treaty, such as has occurred under the
Marrakesh Agreement Establishing the World Trade Organization (WTO).21 Finally,
although decisions of international courts, tribunals and other adjudicatory mechanisms
only bind the parties and have no precedential value, States and international lawyers
tend to regard them highly and attribute significant weight to them. Some academics
view such case law as creating legal rules.22 The quality of the court and its judges
influences the merit attributed to rulings.
Where NGO activities influence these processes, it may be sufficient to conclude that
they ‘participated’ in lawmaking. Thus, a mapping of NGO international lawmaking
must include the array of settings in which NGOs have opportunities to make
meaningful contributions to the formulation of substantive norms in international legal
instruments and in decisions by international adjudicatory bodies. As the scope of NGO
participation is vast, this chapter delineates a range of settings illustrated by examples.
3. MAPPING AND ANALYSIS OF CS LAWMAKING

Although States make international law by their consent, individuals and NGOs have
introduced features to protect what they perceive to be common human interests in
limiting State power by participating in drafting the legal texts. This section examines
areas of NGO activities that arguably affected the creation of norms. NGOs have
18
H Thirlway, ‘The Sources of International Law’ in MD Evans (ed), International Law
(OUP 2003), 118 (The ILC ‘non-exhaustive list’ of forms of material evidence of State practice
includes treaties, international and national court decisions, national legislation, diplomatic
correspondence, opinions of national advisors and IGO practice).
19
RR Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral
Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2002) 94
20
AC Kiss and D Shelton, A Guide to International Environmental Law (Brill 2007), 79–81.
21
15 April 1994 (The incorporated Agreement on Technical Barriers to Trade gives
privileged status to standards produced by the NSA, the International Organization for
Standardization).
22
See M Koskenniemi, ‘Repetition as Reform: Georges Abi-Saab Cours Général de droit
international public’ (1998) 9 European Journal of International Law 405.
succeeded particularly in the areas of international humanitarian law (IHL), human

rights law, environmental law (IEL), and criminal law and State responsibility, but they
have also influenced norm-creation in international security law and even ‘soft’
international economic law. This section maps NGO contributions within four
international lawmaking modalities: conferences, UN processes, institutions, and
adjudications.
3.1 Conference Lawmaking
Contemporary multilateral conferences continue the long-standing tradition of inter-

national lawmaking through diplomatic negotiations by State government representa-
tives to create binding legal obligations formalized by legal agreements called ‘treaties’
or ‘conventions’. Even before establishment of the UN, NGO efforts directly resulted in
the creation of international humanitarian and human rights norms.
3.1.1 International humanitarian law

IHL owes its existence to a Swiss individual, Henry Dunant, his partners and the
organization they formed, the International Committee of the Red Cross (ICRC),
promoting the belief that States should be obligated to moderate the excesses of the
destruction they cause by their wars.23 The ICRC has initiated treaty-making confer-
ences, prepared draft texts that conceived new IHL norms embodied in the Geneva
Conventions of 1864, 1906, 1929 and 1949 and in the 1977 Additional Protocols,
directly participated in diplomatic conferences for the 1949 Geneva Conventions and
the Additional Protocols, and encouraged their adoption.
The ICRC inaugurated its distinctive public and private approach to IHL lawmaking
in 1863. On the initiative of the ‘Geneva Committee’ (the early ICRC), the Swiss
Federal Council convened a diplomatic conference attended by 16 States. The ICRC
prepared the draft text, and two of its members participating as Swiss delegates
oversaw the conversion of the ICRC text into the first convention to create norms of
modern IHL, adopted by the Conference without major alterations as the 1864 Geneva
Convention for the Amelioration of the Condition of the Wounded in Armies in the
Field.24 Practical needs the ICRC identified led directly to the addition of article 44 to
Geneva Convention I governing use of the Red Cross emblem, and ICRC concerns to
create refuges for non-combatants during the 1948 Palestine conflict over Jerusalem led
to article 15 of Geneva Convention IV on ‘Neutralized Zones’.25
23
See F Bugnion, ‘The Role of the Red Cross in the Development of International
Humanitarian Law’ (2004) 5 Chinese Journal of International Law 191.
24
Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in
the Field (adopted 22 August 1864, entered into force 22 June 1865) (1864) 129 CTS 361
available at <http://www.icrc.org/ihl/INTRO/120?OpenDocument>. ‘Committee’ members Gen-
eral Dufour chaired the conference, and Gustave Moynier is considered the main architect.
Bugnion (n 23).
25
Bugnion (n 23), 204–08.
tion: 6 / Date: 8/2
3.1.2 International human rights law

In a second example, US-based NGO representatives elaborated and succeeded in
persuading States to add numerous substantive norms to the UN Charter created at the
1945 San Francisco Conference. These obligated States, inter alia, to create a UN
trusteeship system, promote positive human conditions of ‘intercultural and educational
co-operation’, and respect human rights and fundamental freedoms without regard to
age, race, sex, language, or religion.26 Article 71 on receiving recommendations from
NGOs and article 70, permitting the ECOSOC to coordinate the specialized agencies’
activities are also directly attributable to NGOs.27
3.1.3 International environmental law

Since 1945, States have negotiated and drafted treaties within relevant UN bodies,
particularly the ILC. NGOs frequently have gained access through ECOSOC consulta-
tive status accreditation, which grants various rights based on the category of status the
NGO holds to participate in ECOSOC commissions, committees, working groups and
conferences.28 NGO representatives have engaged with State delegates as experts,
rapporteurs and representatives of particular constituencies in processes that negotiate
and draft legal texts subsequently adopted by States. In some cases, they were directly
involved in formal processes of norm generation and drafting, although this was not
always formally acknowledged in the proceedings’ records.29
In the 1960–70s, a better-educated post-war generation, more aware of problems
common around the world, spawned new activist NGOs, fuelled by powerful grassroots
social movements for protection of the environment and of consumer, anti-war, racial,
civil, women’s, labour, indigenous and other rights. They viewed the UN with its
international policy-making authority as an appropriate venue to address these issues.
An example is the development of IEL. The 1972 Stockholm Conference on the
Human Environment was the first conference to emphasize environmental concerns as
an international political issue in two ‘soft’ law instruments, the Stockholm Declaration
and the Action Plan for the Human Environment. Although NGO legal contributions
were limited, their helpful activities gained them a new legitimacy.30
Another significant development occurred during the preparatory process of the third
UN Conference on the Law of the Sea (UNCLOS), leading to conclusion of the 1982
UN Convention on the Law of the Sea. Instead of the usual drafting by UN lawyers,
26
DB Robins, Experiment in Democracy: The Story of US Citizen Organizations in Forging
the Charter of the United Nations (Parkside Press 1971), 89, 104–05, 118, 135–36 fn 72.
(Women’s NGOs and the NAACP successfully lobbied to include references to equal opportun-
ity for women and all races.)
27
ibid, 128 fn 45, 132 fn 59–60, 855 (Secretary of State Stettinius credited NGOs with
sponsoring art 71).
28
ECOSOC Res 1996/31 (n 13).
29
See eg Charnovitz (n 4).
30
eg F Yamin, ‘NGOs and International Environmental Law: A Critical Evaluation of their
Roles and Responsibilities’ (2001) 10 Review of European, Comparative & International
Environmental Law 149, 151 (around 400 NGOs attended, organizing a parallel NGO confer-
ence and distributing a daily ‘newspaper’ to brief delegates – two initiatives which have become
established features of virtually all subsequent international conferences).
government delegates negotiated the text, and there was a considerable NGO presence
representing both environmental and industry interests.31 NGOs gained access through
specialized agencies, as members of State delegations, as observers through ECOSOC
consultative status and as experts. One study concluded that ‘the length and size of the
conference, the huge number of participants, and highly technical nature of the subject
matter’ enabled NGOs ‘to have a fairly direct influence on the formulation’ of this
major treaty.32
The 1990s represented a watershed for assimilating NGOs in UN conferences, and
the 1992 UN Conference on Environment and Development (UNCED) was the
principal event acknowledging the role of NGOs in IEL treaty negotiations. It provided
an impetus for their inclusion in future conferences and established the parameters for
NGO participation. The UNCED was the only major conference of this period to result
in legally binding treaties, the UN Framework Convention on Climate Change
(UNFCCC) and the Convention on Biological Diversity (CBD), as well as important
‘soft’ law instruments. Despite environmental NGOs’ claims to have directly impacted
normative language in specific UNFCCC articles, Bas Arts’ study found only indirect
influence, except on the draft Alliance of Small States Protocol, which vitally fuelled
the shift in further debates from purely technical and institutional topics to substantive
ones.33
3.1.4 International human security and criminal law

In the late 1990s, States began retreating from engagement with NGOs at conferences
and from hard lawmaking generally. Activist NGOs blocked conferences they opposed,
or tried to do so,34 and when favoured conferences stalled, they formed coalitions with
‘like-minded States’ to hold conferences outside the UN. Despite powerful opposition,
this ushered in new norms that NGOs helped create to regulate anti-personnel
landmines and cluster munitions and to enable prosecutions of individuals for commit-
ting major international crimes.35
31
A Boyle and C Chinkin, The Making of International Law (OUP 2006), 144–5; HG
Schermers and NM Blokker, International Institutional Law: Unity Within Diversity (Martinus
Nijhoff 2003), 519, section 761.
32
JK Gamble and C Ku, ‘International Law – New Actors and New Technologies: Center
Stage for NGOs’ (2000) 31 Law and Policy in International Business 221, 249.
33
B Arts, The Political Influence of Global NGOs: Case Studies on the Climate and
Biodiversity Conventions (International Books 1998), 133–8.
34
eg proposed OECD Multilateral Agreement on Investment, WTO Seattle conference in
1999.
35
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction (18 September 1997, entered into force 1 March
1999) 2056 UNTS 211; Convention on Cluster Munitions (adopted 30 May 2008, entered into
force 1 August 2010) 2688 UNTS (available at <https://treaties.un.org/pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=XXVI-6&chapter=26&lang=en>) 48 ILM 357 (2009); Rome
Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July
2002, as corrected by procés-verbaux, A/CONF.183/9 (1998), PCNICC/199/INF/3) 2187
UNTS 3.
3.2 UN Processes
3.2.1 International human rights law

International human rights law has also emerged from CS initiatives within processes
of the UN and its predecessor, the League of Nations. The NGO now known as
Anti-Slavery International (ASI) was a prime force behind the creation of anti-slavery
norms. ASI representatives initiated treaty-making activities and directly participated in
drafting the 1926 Slavery Convention and 1956 Supplementary Slavery Convention.
ASI defined acts of ‘slavery in all its forms’ listing ‘practices and institutions’
analogous to slavery that survived a long period of negotiations; when adopted as
article 1 in the Supplementary Convention, it created norms for condemning a broad
range of related practices and an ever-expanding definition of slavery.36
As members of the UN Working Group on Contemporary Forms of Slavery (SLWG),
ASI representatives were instrumental in adding apartheid and colonialism to the
definition of slavery, having the SLWG designated as a monitoring body, and then
having its recommendation to appoint a special rapporteur adopted by the Human
Rights Council (HRC).37 The last gives NGOs enhanced roles monitoring these
Conventions under the HRC Universal Periodic Review (UPR) mechanism and will
improve enforceability. Even though not all States are parties to the Conventions, the
prohibition against slavery is a jus cogens norm from which no State may derogate.
Moreover, the UPR and its complaint mechanisms are not limited to treaty parties.
Secondly, Eglantyne Jeb and the NGO she established, Save the Children, estab-
lished the concept of children’s rights. She drafted a Declaration on the Rights of the
Child, which when adopted by the League of Nations in 1924 created five ‘soft’ norms.
It was expanded and adopted by the UN in 1959. Then, NGOs for the first time
participated formally and directly in drafting the 1989 Convention on the Rights of the
Child and its Optional Protocols, recognizing new rights of all children. Fifteen articles
are directly attributable to NGOs.38
Finally, NGOs were responsible for drafting particular articles of the ‘soft’ law
Universal Declaration of Human Rights (UDHR) and the corresponding provisions in
the International Covenant on Civil and Political Rights (ICCPR) and International
Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR travaux
préparatoires reveals active participation of representatives of religious groups in the
debates during drafting at the Commission on Human Rights (UNCHR) level.39
Although State delegates clearly had greater authority, NGO contributions, particularly
women’s NGOs, although slight were meaningful. Their efforts resulted in express
reference to sex equality in article 3 of both Covenants.40 More recently, an NGO
36
S Miers, Slavery in the Twentieth Century: The Evolution of a Global Problem (AltaMira
Press 2003), 325, 327 fn 63.
37
ibid; UN Working Group on Contemporary Forms of Slavery (SLWG) Report (22 Aug
2006) A/HRC/Sub.1/58/25, 12(10).
38
M Longford, ‘NGOs and the Rights of the Child’, in Willetts (ed) (n 5), 223–4.
39
MJ Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil
and Political Rights (Martinus Nijhof 1987), 823.
40
J Connors, ‘NGOs and the Human Rights of Women in the United States’ in Willetts (ed)
(n 5) 147, 153.
tion: 9 / Date: 8/2
Coalition participated in the Open-Ended Working Group that negotiated and drafted
the 2008 ICESCR Optional Protocol and proposed rules of procedure.41
3.2.2 International criminal law and state responsibility

The Genocide Convention,42 Torture Convention and its Optional Protocol,43 UN
Convention Against Corruption (UNCAC)44 and Disappearances Convention45 created
new international crimes and related norms of international individual criminal liability
and imposed State responsibility to prohibit, prevent and prosecute violations of norms
conceived of and fashioned in part by NGOs and professional associations. Raphael
Lemkin set the precedent, coining the term ‘genocide’. His self-proclaimed ‘one-man
NGO’ campaign led to a universally agreed Convention, creation of a new jus cogens
norm of prohibition of ‘genocide’ as an international crime, State responsibility to
prevent and punish individuals for committing this crime,46 and jurisprudential devel-
opment by the International Criminal Tribunal for Rwanda47 and the ICJ.48
Particularly relevant today are the contributions initiated by the Amnesty Inter-
national (AI) project of formalizing in international law State responsibility to prohibit
and take effective measures to prevent acts of ‘torture and other cruel, inhuman or
degrading treatment or punishment’ in their jurisdictions, protect individuals under their
authority against such treatment, and criminalize individuals who commit such acts. AI
coordinated the project and participated directly in negotiating, drafting and encour-
aging adoption of the Convention against Torture, its Optional Protocol, the Disappear-
ances Convention and related ‘soft’ instruments that created several new norms.49 Most
significantly the Torture Convention created a new CIL crime and jus cogens norm
prohibiting State torture and ‘cruel, inhuman or degrading treatment or punishment’.50
NGOs and professional associations drafted ‘soft’ law texts relating to prohibiting
41
UNGA UN Doc A/RES/63/117 (adopted 10 December 2008, entered into force 5 May
2013). See eg, ‘Statement by the NGO coalition for an OP-ECESCR’, 1st session on the Human
Rights Council (June 2006) <http://www.iwraw-ap.org/news/hrc27606.htm>.
42
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9
December 1948, entered into force 12 January 1951) 78 UNTS 277.
43
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85;
Optional Protocol (adopted 18 December 2002, entered into force 22 June 2006) 2375 UNTS
237.
44
UN Convention Against Corruption (adopted 31 October 2003, entered into force 14
December 2003) 2349 UNTS 41 (UNCAC).
45
International Convention for the Protection of All Persons from Enforced Disappearance
(adopted 20 December 2006, entered into force 23 December 2010) UN Doc.A/61/448.
46
R Lemkin, ‘Genocide as a Crime under International Law’ (1947) 41 American Journal of
International Law 141–51.
47
Prosecutor v Akayesu (Judgment) ICTR-96-4-T Ch I (2 September 1998). Others have
been convicted of genocide, complicity in genocide or related crimes. See ICTR website
<www.unictr.org>.
48
See Bosnia and Herzegovina v Serbia and Montenegro (Merits) [2007] ICJ Rep 152–61.
49
Woodward (n 2), 192–205.
50
torture and related abuses.51 These have been legitimated in some cases by adoption by
international and regional institutions and confirmed in judgments of international and
national judicial bodies.
Finally, Transparency International (TI) successfully propelled a range of private,
regional and global initiatives directed at progressive elimination of State corruption
and creating ‘soft’ norms and the UNCAC.52 In a process very different to traditional
lawmaking methods, States, IGOs and NGOs, including TI, having broad participatory
rights, negotiated and drafted the UNCAC text during a mere seven sessions of a
UNGA Ad Hoc committee. In addition to other precedent setting, it created new norms
of international crimes and treatment of criminalization.53 It established a Conference
of State Parties (COP) to review implementation to which NGOs may become
accredited as observers and three open-ended working groups in which they may
participate.54
3.2.3 International security law

The UNSC is the UN body responsible for maintenance of international peace and
security.55 As a sensitive political organ, it was historically closed to NGOs; however
when the Cold War ended, conflict prevention became an important part of UN work,
and NGOs became involved in this area. Although the UNSC does not make law but
interprets and applies it, under article 25 of the UN Charter members have agreed to
‘accept and carry out’ UNSC decisions, and the UNSC has interpreted its decision-
making authority increasingly broadly.56
Although four NGOs have had long-standing special bilateral relationships with the
UNSC,57 there was no formal channel for NGO interaction. In the 1990s, as the UNSC
embarked on an active work programme, UNSC delegates, particularly elected mem-
bers, needing information, expertise and policy ideas turned to knowledgeable NGOs.
They established quasi-formal channels of interaction under a broad interpretation of
Rule 39 of the UNSC Rules of Procedure58 that has resulted in the current arrangement
of regular meetings with the select members of the NGO Working Group on the
51
UNGA Code of Conduct of Law Enforcement Officials, UN Doc A/RES/34/169 (1979);
UNGA Principles of Medical Ethics, UN Doc A/RES/37/194 (1982); UNGA Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, UN Doc A/RES/43/
173 (1988).
52
J Carver, ‘Combating Corruption: The Emergence of New International Law’ (2003) 5
International Law FORUM Du Droit International 119, 121 (eg Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions (adopted 17 December
1997, entered into force 15 February 1999)) 37 ILM 1 (OECD Anti-Bribery Convention).
53
LA Low, ‘The United Nations Convention Against Corruption: The Globalization of
Anticorruption Standards’, Conference paper, 3 May 2006, available at <http://www.steptoe.
com/assets/attachments/2599.pdf>.
54
UNCAC (n 44) Rules of Procedure (2007), rule 17.
55
Art 24, UN Charter (n 15).
56
See eg Boyle and Chinkin (n 31), 109–12.
57
I Johnstone, ‘Council Deliberations: The Power of the Better Argument’ (2003) 14
European Journal of International Law 437, 462.
58
UNSC Rules of Procedure of the Security Council UN Doc S/96/Rev.7 (1982), rule 39.
tion: 11 / Date: 16/3
Security Council. NGOs have influenced UNSC decision-making through this and
previous informal channels that may have created norms.59
3.2.4 International economic law

CS campaigns have failed to persuade States to establish legally binding norms to
regulate international activities of multinational enterprises. Instead of long-debated
hard law regulating international business, such efforts have stimulated the creation of
voluntary corporate commitments to codes of conduct designated, ‘corporate social
responsibility’ (CSR) principles, including the UN Global Compact, and related
grievance mechanisms discussed below.
3.3 Institutional Lawmaking Outside the UN
NGOs have contributed to norm-creation within IGOs, including UN specialized

agencies, programmes, MEA ‘AIAs’, and regional IGOs. IGOs are created by inter-
national agreement between States under international law and have at least one legally
autonomous entity.60 They are rarely granted lawmaking powers; however, they have
evolved from acting merely as State agents to important contemporary lawmakers in
their own right.61 As the number of these is vast, this section places these arrangements
into three classes, omitting regional IGOs, and offers examples for each where NGOs
have had influence.
3.3.1 UN specialized agencies

Like its organs, the UN’s specialized agencies, including the financial and ‘techno-
cratic’ institutions, engage in legislative or regulatory activities. Many contemporary
IGO-generated norms are in ‘soft’ forms, but they can acquire binding legal effects in
various ways, including incorporation into a legally binding treaty or domestic law, as
conditions in loan agreements, and by treaty delegation of decision-making authority to
bodies that approve changes and effective implied consent or opt-out procedures. Thus,
much UN specialized agency regulatory activity is characterized by blurred distinctions
between ‘soft’ and legally binding law.
The unique International Labour Organization (ILO) tripartite structure permits
adoption of binding conventions by its non-State members, even against the vote of
State representatives. Nonetheless, the decline of organized labour in the contemporary
neoliberal environment has weakened its social corporatist structure and ILO law-
making and caused the ILO to seek engagement with more non-labour NGOs and
business groups in its work.62 This provides opportunities for NSAs interested in
international labour rules to participate in ILO norm-making and other activities.
All International Maritime Organization (IMO) conventions include NGO input. The
IMO maintains unique relationships with NGOs representing both business and
59
JA Paul, ‘NGOs and the Security Council’ (Global Policy Forum 2004).
60
Schermers and Blokker (n 31), 26–39.
61
See Alvarez (n 1).
62
JM Diller, ‘Three Challenges Facing International Labor Law’ (2007) 101 American
Society of Internatioal Law Proceedings 401–02.
environmental interests. With years of experience and a well-developed administration,

it has successfully incorporated the views and advice of NGOs from various spheres in
all its policy-making fora and maritime conventions.63
The World Health Organization (WHO) has a well-developed but highly complex
formal system for engaging with specialized NGOs.64 Yet, NSA influence is stronger in
less visible modalities of norm creation, such as the NGO-influenced International
Code of Marketing of Breast-milk Substitutes and Codex Alimentarius food safety
standards, the latter of which became law for WTO member States by incorporation of
the Agreement on Sanitary and Phytosanitary Measures in the WTO Agreement.65
3.3.2 UN programmes
ECOSOC Resolution 1996/31 establishing criteria for NGO formal UN accreditation
also provides the framework for UN Programmes and other bodies to appoint NGO
liaison officers and develop their own rules for NGO consultation. While Programmes
do not make law themselves, like many other intergovernmental arrangements they
facilitate lawmaking.
For example, though the UN Environment Programme does not make law, it has used
its policy-making mandate to persuade States to adopt norms. Its constitutive resolution
provides an implicit legal basis for involving NGOs in its activities, and its decision-
making includes them in its extended network of multi-level subsidiary bodies.66 An
NGO coalition campaigned for States to adopt a norm of ‘Prior Informed Consent’
(PIC) requiring express approval by governments prior to importing hazardous chemi-
cals. Both NGOs from the coalition and NGOs representing chemical producers played
important roles in influencing States’ positions that resulted in the creation of a regime
that ultimately became the Rotterdam Convention on the PIC Procedure for Certain
Hazardous Chemicals and Pesticides in International Trade.67
Another example, the 2001 Joint Programme on HIV/AIDS (UNAIDS), is the first
UN programme having formal NGO representation on its governing body as full
participants rather than observers. Although technically the five NGO Delegates do not
have ‘the right to take part in the formal decision-making process’ of the governing
63
M Fitzmaurice, ‘Consent to Be Bound: Anything New Under the Sun?’ (2005) 74 Nordic
64
See C Lanord, ‘A study of WHO’s Official Relations system with Nongovernmental
Organizations’ (June 2002) WHO Civil Society Initiative available at <http://www.who.int/
civilsociety/documents/en/study.pdf?ua=1>.
65
eg Woodward (n 2), 289–90.
66
UNGA Res 2997 (XXVII) UN Doc A/RES/2997(XXVII) (15 December 1972), para IV.5.
P Van Den Bossche, ‘Regulatory Legitimacy of the Role of NGOs in Global Governance: Legal
Status and Accreditation’ in A Vedder (ed), NGO Involvement in International Governance and
Policy: Sources of Legitimacy (Martinus Nijhoff 2007), 144.
67
Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade (adopted 10 September 1998, entered into force
25 February 2004) 2244 UNTS 337 (PIC Convention). See P Hough, ‘Return to Sender:
Regulating the International Trade in Pesticides’, ECPR Workshop on The Politics of Food
(April 2000), 6.
tion: 13 / Date: 14/3
board, in practice they participate fully in all governing board activities.68 Hence, they
participated in creating the ‘soft’ law Declaration of Commitment on HIV/AIDS that
requires signatory States to submit biennial progress reports on dealing with AIDS. CS
groups have submitted shadow reports and may attend board meetings where they have
limited speaking rights.69 Thus, CS has influenced ‘soft’ lawmaking in this body and
has significant opportunities for further influence.70
3.3.3 ‘Autonomous Institutional Arrangements’

Many MEAs operate as quasi-legislative bodies or ‘AIAs’, whereby their organs or
subsidiary bodies formulate rules binding on their members. MEAs may empower a
plenary Conference or Meeting of the Parties (COP/MOP) to develop the normative
content of the regulatory regime and adopt amendments using a special procedure that
does not require a new instrument requiring ratification, thus facilitating adaptation to
changing circumstances. COP/MOPs develop practice among their members that can
develop into sufficient regional practice to create particular CIL and even general CIL
where membership is great enough and influence extends beyond MEA members.
COP/MOP sessions are frequently open to NGOs and other NSAs, and the trend is
toward increased openness to enhance transparency. This provides them with opportun-
ities for influence. Their input may contribute to lawmaking when States adopt
language they submit. Some conventions, such as the UNFCCC, explicitly require the
COP to utilize NGOs.71 Earlier MEAs similarly refer to competent or relevant
‘international bodies’, which includes international NGOs implicitly.72 It is likely that
NGOs have created norms within these processes; however, such studies are beyond the
scope of this chapter.
From the mid-1990s, development of substantive IEL and forms of available judicial
redress has stalled; however, ‘soft’ compliance mechanisms have flourished. Such
mechanisms can lead to State behavioural and attitudinal change. Various MEAs have
established committees tasked with monitoring States parties’ compliance and
68
UNAIDS, TR Corcoran, Terms of Reference of the UNAIDS PCB NGO Delegation
2007/2008, 2 available at <http://www.unaids.org/en/media/unaids/contentassets/dataimport/pub/
externaldocument/2008/20080528_unaids_pcb_ngo_delegation_tor_en.pdf>.
69
UNAIDS, ‘Global AIDS Response Progress Report 2013: Construction of Core Indicators
for Monitoring the 2011 UN Political Declaration on HIV/AIDS’, 2013, 15.
70
Note restrictions on CS in the field under the HIV/AIDS Declaration; Howell (n 3), 88–9.
71
UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force
21 March 1994) 1771 UNTS 107 (UNFCCC), art 7(2)(1). See same provisions in Kyoto
Protocol to the UN Framework Convention on Climate Change (adopted 11 December 1997,
entered into force 16 February 2005) 2303 UNTS 148 (Kyoto Protocol), art 13(4)(i); Cartagena
Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January 2000,
entered into force 11 September 2003) 2226 UNTS 208 (Cartagena Protocol), art 29(4)(c); UN
Convention to Combat Desertification (adopted 14 October 1994, entered into force 26
December 1996) 1954 UNTS 3 (UNCCD), art 22(2)(h). This provision is missing from the
CBD.
72
eg Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985,
entered into force 22 September 1988) 1513 UNTS 293, art 12(2) and Convention on Wetlands
of International Importance Especially as Waterfowl Habitat (adopted 2 February 1971, entered
into force 21 December 1975) 996 UNTS 246, art 6(2).
tion: 14 / Date: 14/3
implementation of convention terms, and CS actors generally may participate in

these.73 The most promising is the Aarhus Compliance Committee under the Aarhus
Convention because it offers broad scope for including CS claimants. Its norms of
access to information, public participation in decision-making and access to justice
have the potential to extend beyond the EU and environmental law. Other MEAs have
turned to enforceable arbitral mechanisms, such as those offered by the Permanent
Court of Arbitration. As jurisprudence develops, other adjudicatory bodies in other
sectors may utilize it, extending norms that CS actors have promoted and created.
3.4 Adjudicatory Lawmaking
As previously explained, decisions by international adjudicatory bodies do not make

law, yet, their rulings, particularly of highly regarded bodies, are very influential.
Moreover, although there is no rule on precedent in international law, nor in arbitration
and conciliation arrangements, these various adjudicatory bodies have looked to similar
bodies for guidance on new legal questions, and they are influenced by the likely
enforceability of their judgments in national courts.
International, regional and sub-regional judicial and quasi-judicial treaty bodies,
dispute resolution and compliance mechanisms dealing with questions of international
law increasingly allow submissions by NGOs, individuals, corporations and other
third-party and non-party NSAs. Such access provides opportunities to raise innovative
legal arguments and approaches to international law issues and to influence the
decision-making body. NGOs have indirectly contributed to the development of
international law through litigation in various roles.
NGO representatives have acted as court- or party-appointed experts for fact finding
or legal analysis, testified as witnesses, participated as ‘non-parties’ or amici curiae and
sometimes instituted cases or intervened as parties where procedural rules provide iuris
standi rights. Even when not formally involved, they have exerted informal influence.
The many new adjudicatory and conciliation bodies offer a wide range of mechanisms
varying with each body and providing possible access to CS actors, and CS practice has
affected the development of international legal norms articulated by such bodies. Due
to the numerous mechanisms, discussion is limited to two sectors.
3.4.1 Human rights

Although there is no authoritative UN human rights adjudicatory body, there are
numerous mechanisms for developing ‘soft’ norms. These include the HRC Resolution
5/1 procedure,74 the UPR mechanism,75 increasing numbers of human rights treaty
committees (currently 9) and one subcommittee that include individual complaints
procedures, inquiry procedures, the Interagency Support Group, a COP and NGO
monitoring role under the Disabilities Convention, and new formal NGO roles.76
73
T Treves, Civil Society, International Courts and Compliance Bodies (TMC Asser Press
2005), pt III.
74
UN Doc A/HRC/RES/5/1 (18 June 2007), annex IV, paras 85–86.
75
ibid, annex I, para 15.
76
See website <http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx>.
tion: 15 / Date: 14/3
NGOs, National Human Rights Institutions, and other CS actors have found support
and encouragement for their participation in these mechanisms through the HRC and
the UN Secretariat through its Office of the High Commissioner for Human Rights
(OHCHR). NGOs have contributed to normative development and enforcement of
human rights treaties, for example, by deliberating with treaty Committee members in
elaborating General Comments and through their reports on State compliance to treaty
bodies.77
3.4.2 Economic relations

CS has campaigned for adjudicatory mechanisms to redress perceived harmful social
and environmental consequences due to violations of economic development bank
policies. Such efforts have stimulated creation of numerous non-judicial, non-binding
and non-enforceable ‘grievance mechanisms’. The first and most effective was the
World Bank’s creation of its Inspection Panel, responsible for protecting the rights and
interests of those who might be damaged by its policies and ensuring compliance with
its mandate. A significant inducement was a mass protest of the Bank’s dam project on
the Narmada River in India.78 Using this process, NGOs have succeeded in enforcing
the Bank’s compliance with its operational policies and procedures.79
The World Bank precedent laid the groundwork for other international financial
institutions to follow, albeit with weaker mechanisms, and a flood of CSR mech-
anisms.80 The UN created the Global Compact Integrity Measures,81 its BASESwiki
database of other mechanisms,82 and Guiding Principles creating a ‘soft’ ‘protect,
respect, remedy’ framework.83 These mechanisms promise redress for violation of
internal IGO rules or CSR commitments, but in practice have had little real effect. It is
probable threats of hard law encouraged this self-regulation.
4. CONSIDERATIONS OF LEGITIMACY AND ACCOUNTABILITY

As NGO participation at the IGO level has intensified with NGOs directly shaping
political processes from inside official international arenas, questions about their
legitimacy and accountability arise. Who do they represent? And how is their
77
eg UNGA ‘Report of Committee against Torture’ UN Doc A/68/44 (2013), 4, 254
(General Comment No 3 (2012)) and 98 (reporting on ineffective redress for torture victims in
Bolivia).
78
DL Clark, ‘A Citizen’s Guide to the World Bank Inspection Panel’ (October 1999) Center
for International Environmental Law available at <http://www.unece.org/fileadmin/DAM/env/pp/
ppif/WB%20Inspection%20Panel%20Citizens%20Guide%201999.pdf >.
79
eg Cambodia: Forest Concession Management and Control Pilot Project (30 March 2006).
80
See S Tully, International Documents on Corporate Responsibility (Edward Elgar 2005).
81
See <http://www.unglobalcompact.org/AbouttheGC/integrityMeasures/index.html>.
82
See <http://semantic-mediawiki.org/wiki/BASESwiki>.
83
Human Rights Council, Report of Special Representative J Ruggie: ‘Guiding Principles on
Business and Human Rights: Implementing the UN “Protect, Respect and Remedy” Framework’
(21 March 2011) UN Doc A/HRC/17/31 available at http://www.business-humanrights.org/
media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf.
tion: 16 / Date: 14/3
representation internally organized? To whom are NGOs accountable? Legitimacy and

accountability are not the same, but they are closely related. Legitimacy may be defined
as the status of an NGO as it is perceived and that enables it to operate around the
world with the general consent of all relevant parties. Accountability is the process by
which an NGO shows itself to be responsible by reporting on its beliefs, actions and
inactions in a way that shows it has involved all concerned parties and is responding to
what it learns.84 This section seeks to clarify the nature of the legitimacy challenge and
to survey possible sources of legitimacy for NGOs and the interests they represent.
4.1 Legitimacy
The principal challenge to NGO legitimacy is: who elected NGOs to represent our
interests in the international arena?85 This implies that only democratically elected
organizations are truly legitimate and accountable. Yet, other undemocratic organ-
izations, such as multinational corporations, play significant roles in the international
sphere and influence governments in their national and international relations generally
with far less accountability and regulatory oversight. To answer the democratic
legitimacy objection, NGOs have two responses. Either they can accept that only
democratic structures are legitimate, or argue that non-democratic structures are
legitimate where appropriate accountability mechanisms exist. The first response faces
the obstacle that a typical NGO is a self-perpetuating, self-selected set of trustees or
directors, and NGOs are unlikely to change their internal structures to be democratic.
Thus, NGOs must show they can still be legitimate without being democratic.
To counter the democratic legitimacy assault, an NGO must make a strong case for
its legitimate non-democratic status and prove it with appropriate accountability
processes. NGOs derive their legitimacy from law and morality. Because they are
self-mandating, NGOs do not operate in the international arena under mandates granted
by States under international law like organizations like the ICRC and UN agencies.
They gain legal legitimacy by claiming their legality within domestic and international
law and being law-abiding. This means complying with procedural legislation in
national law, article 71 of the UN Charter and IGO rules. Internationally, NGOs can
claim to work legally in support of substantive international law by operating with
reference to international human rights, humanitarian or refugee law in their work. As
organizations of concerned people, they can claim legality, legitimacy and protection
from international human rights law because of the importance these laws place on
individuals’ duties along with rights. By meeting their own responsibilities and duties,
such as to promote respect for the human rights of others, and reflecting this in their
own actions, they remind others of these duties. NGOs gain their moral legitimacy from
84
Section C relies on H Slim, ‘By What Authority? The Legitimacy and Accountability of
Non-governmental Organisations’ (10–12 January 2001) International Council on Human Rights
Policy available at <http://www.gdrc.org/ngo/accountability/by-what-authority.html>.
85
eg American Enterprise Institute, ‘We’re Not from the Government, but We’re Here to
Help – Nongovernmental Organizations The Growing Power of the Unelected Few’, event held
11 June 2003.
tion: 17 / Date: 14/3
the foundational moral values of their missions and by expressing and recognizing the
ethical and fundamental morality of their work.
Also, NGO practice generates legitimacy by veracity, tangible support, knowledge
and performance, and intangible goodwill. NGOs must be able to prove that they
actually do what they say. They generate tangible sources of legitimacy by gaining
support from the people they seek to help and from the informed support of members
and admirers. Even if their membership cannot be considered ‘democratic’, NGOs can
make a strong case for tangible support if its membership is extensive and representa-
tive and generates support in terms of money, volunteer time, intellectual agreement
and shared convictions. The support must be directly linked to real and transparent
accountability mechanisms, such as its publicity material and supporters’ briefings.
Secondly, NGOs also generate legitimacy by demonstrating their knowledge, relation-
ships with victims and relevant authorities, and expertise. The third way NGOs can
generate legitimacy is by actually achieving their desired ends in a manner that
conforms to moral and human rights values. They must present evidence showing their
actual performance has benefitted the people they sought to help and a positive impact.
Finally, an NGO can generate intangible goodwill based on how most people without
direct experience with the organization perceive and value it in terms of trust, integrity,
reputation and credibility.
4.2 Accountability
The claims NGOs make about themselves and their legitimacy will determine what
they should do to show they are truly accountable. Accountability is primarily a process
that involves designing and operating appropriate practical mechanisms to verify both
voice authority (ie the truth of what the NGO said and the authority with which it
spoke) and performance accountability (ie what it did was effective). Veracity of what
an NGO said is essentially empirical and provable by its own project experience;
however, it is much more difficult to verify an NGO’s power to speak, which is
essentially political and the crux of the attack on NGO influence. It is not just a
technical challenge, around questions of representation, but also personal because NGO
members are not generally like the people for whom they advocate, such as the poor
and war or torture victims. Effective performance can overcome NGO vulnerability to
challenges to their authority to speak.
Methods of NGO accountability involve reporting, engaging with, and responding to,
all concerned parties. This means determining how to gauge the NGO’s performance in
the field as perceived by a broad range of identified people or ‘stakeholders’ to whom
it must be accountable, proving it has acted positively on what it has learned, then
reporting its new actions back to its supporters. The mechanisms will vary with the
context in which the NGO works, and the process must be truthful and transparent to
the extent possible without jeopardizing the NGO’s sources, contacts and method of
operation. A basic accountability framework should address accountability for what, to
whom, how and to improve. A successful accountability mechanism will prove the
effectiveness of the NGO’s activities to its stakeholders, thereby building further
support and thus its legitimacy.
tion: 18 / Date: 14/3
5. CONCLUSION
An analysis of lawmaking by international CS hinges on assessment of the concepts,
‘CS’ and ‘international lawmaking’. This chapter clarifies how NGOs have performed
as significant ‘CS’ actors in international lawmaking and enforcement processes; and
although most are ‘international’ in their activities and character, this is not required for
them to be able to play a meaningful role. Secondly, to locate CS lawmaking requires
a broader understanding of ‘international lawmaking’ than the traditional view that
‘States make international law’. By recognizing that there are more actors than just
State representatives involved in many international lawmaking processes, it is possible
to identify instances where NGO representatives have contributed to both norm creation
and enforcement.
The chapter has mapped and analysed examples of lawmaking settings where NGO
representatives have generated international legal norms by participating formally and
informally in diplomatic conferences, UN processes and other IGO processes. NGOs
have contributed to both the creation and enforcement of norms, primarily in the areas
of international humanitarian, human rights and environmental law, and in some cases
relating to international criminal law and State responsibility, human security and even
economic law. They have also helped create new adjudicatory mechanisms, raised
claims and made normative submissions to adjudicatory bodies, contributed to norma-
tive development and monitored States’ compliance with the norms those mechanisms
seek to enforce. Though this chapter only briefly touched upon examples in human
rights and economic mechanisms, NGOs have also participated in various ways in other
judicial, quasi-judicial, arbitral and compliance bodies and grievance mechanisms.
Challenges to the representativeness and legitimacy of NGOs have succeeded in
impacting NGO influence in international legal fora in the new millennium. Still, as the
analysis of theoretical issues surrounding NGO legitimacy and accountability has
suggested, NGOs may counter such assaults by making a strong case for non-
democratic legitimacy based on law, morality and practice, backed by appropriate
accountability mechanisms. They can build support and thus legitimacy by proving the
effectiveness of their activities, demonstrating the truth of what they say and their
authority to speak, and proving what they actually did through reporting, involving and
responding appropriately to all relevant stakeholders. Though the current trend in
international relations tends toward less lawmaking and a backlash against meaningful
CS influence in international fora, formal access points remain to continue partici-
pation, to enable compliance monitoring and thus enforcement of norms, and for
further lawmaking influence as the climate changes.
tion: 19 / Date: 14/3
15. Lawmaking by scholars

Jörg Kammerhofer
Nevertheless, of none, not even of my heroes, could I say: ‘this man made law’. For teachers
are not legislators, nor lawmakers in international relations. […] Without them, however, the
law would certainly not be what it is.1
1. INTRODUCTION
It may seem obvious that scholars cannot make law, just as little as lepidopterologists
can ‘make’ butterflies. If they do so (we may instinctively feel), they cease to be
scholars and become legislators. This definitional ‘truth’, however, is neither univer-
sally accepted nor can it stand as an unqualified statement. Even legal positivists realise
that scholars appear to have a uniquely influential position in the ‘process’ of
(international) lawmaking.2 Yet scholarship about scholarship has to be scholarly too
and needs to analyse the role of scholarship in a precise and methodologically coherent
manner. We will quickly realise that there are at least two (categorically) different ways
in which legal scholarship can potentially influence international lawmaking and,
concomitantly, at least two approaches to studying its role. There is, on the one hand,
the factual or empirical influence of scholarship, palpable both in municipal and
international contexts.3 On the other hand, there is the question of the specifically
normativist4 viewpoint: how and where, if applicable, are legal scholars empowered by
the law to contribute to the making of new law.
Of course, there is no automatism of ending up with these two approaches. Law can
be studied from a wide range of viewpoints: ‘it’ may also be described as a linguistic
construct, as a social sub-system, as a collective psychological delusion or as
electro-chemical reactions in our nervous system – although to be precise, each
1
M Lachs, ‘Teachings and Teaching of International Law’ (1978) 151 Recueil des cours de
2
In many countries in continental Europe – foremost Germany – doctrinal scholarship is
also considered to be an extraordinarily important factor influencing (at least judicial) norm-
creation, particularly through the publication of commentaries on important statutes. Random
examples of the manifold attempts to explain the modus Teutonicus of (public) law scholarship
to an English-speaking audience include: A Somek, ‘The Indelible Science of Law’ (2009) 7
International Journal of Constitutional Law 424; A von Bogdandy ‘The Past and Promise of
Doctrinal Constructivism: A Strategy for Responding to the Challenges Facing Constitutional
Scholarship in Europe’ (2009) 7 International Journal of Constitutional Law 364.
3
eg M Jestaedt, Das mag in der Theorie richtig sein … : Vom Nutzen der Rechtstheorie für
die Rechtspraxis (Mohr Siebeck 2006), 62–63.
4
It is proposed to distinguish here between ‘normative’ and ‘normativist’ approaches. A
normative viewpoint creates norms applicable to a specific field, eg a code of medical ethics
being developed by ethicists. A normativist viewpoint, in contrast, is scholarship that seeks to
cognise/perceive norms, eg legal scholars analysing law, theologians discussing given religious
dogmas.
305
tion: 1 / Date: 8/2
approach ‘creates’ a different object. In a sense, picking these two approaches – the
socio-empirical and the legal-normativist, is arbitrary – neither approach is better or
more ‘worthy’ than the other. The choice of the normativist and the empirical approach
may be more a matter of historical contingency and pragmatic common sense. As to the
first approach, the idea that legal scholarship is an autonomous viewpoint with its own
validation and independence is one of the basic axioms of the Pure Theory of Law, the
legal theory that the present author thinks most helpful. This axiom (and the
‘legitimacy’ of the ‘juridical’ viewpoint) is explained in section 3.2, as is the idea that
it is unhelpful to admix one with the other. In the following, we will accordingly not
argue that the empirical view is false, but stress the importance of the distinction, show
the danger of admixing them and conceptualise both approaches on their own merits.
In this chapter, we will first deal with the standard entry-point of legal scholarship to
questions of international lawmaking: article 38(1)(d) of the Statute of the International
Court of Justice (ICJ). Section 2 will discuss the role that scholars play ‘as subsidiary
means for the determination of rules of law’. It will, however, primarily show the
various restrictions of that subparagraph, both in terms of what role it accords to
scholarship and in terms of the restricted usefulness of a lex arbitri for elucidating the
wider theoretical question beyond the Court’s remit. The orthodox international legal
scholarly debate is fruitless insofar as it takes article 38(1)(d) as gospel for the wider
question. Sections 3 and 4 will focus on the two most promising methods of research in
connection with the question whether scholarship ‘makes’ international law: the
legal-scholarly and the socio-empirical. Section 3 will discuss the sources (hierarchy)
of law as the conceptual basis for the distinction between lawmaking and non-
lawmaking factors on a normativist account. It will also warn against the danger and
show the problems that manifest themselves when different methods are admixed.
However, it will also raise the problem, central to modernist accounts of epistemology
and hermeneutics, of the reconstruction of law by scholarship influencing the object of
reconstruction. Section 4 will give a brief account of the sociological view on what
factors influence international lawmaking, whether scholarship is part of that and what
the restrictions are on such a view.
2. SCHOLARSHIP IN ARTICLE 38(1)(d) OF THE ICJ STATUTE

Article 38(1) of the ICJ Statute reads, in the parts relevant for our discussion of the role
of scholars: ‘The Court […] shall apply: […] the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of
law.’ Thus does the provision on the law applicable before the ICJ include not only the
mention of ‘international law’ as well as the three classical ‘formal’ sources of
international law, but also two ‘subsidiary means’ which aid in the ‘determination of
rules of law’. This is both a powerful statement and a declaration of impotence. On the
one hand, the mention of ‘teachings of […] publicists’ – international legal scholarship
– as (in some way) determinative for the sources to be applied by the most prestigious
international tribunal appears to be of great importance. One could argue that
international law has thus made scholarship into at least an authoritative guide to the
content of the law, if not more. On the other hand, however, article 38 is merely the
Lawmaking by scholars 307
applicable law for one specific tribunal. Even within that humbler function of lex
arbitri, scholarship is accorded the place of a subsidiary means. What is more, it is
merely a subsidiary means for the determination of law, not a subsidiary source of law.
These contrasting impressions have left a deep imprint on the few scholarly writings
that have dealt with this provision and have tried to elucidate the legal meaning of that
phrase. While some of their arguments are theoretically informed, the majority are not
particularly fruitful; some platitudes are repeated over and over despite being of no help
in elucidating the legal function of article 38(1)(d).
The rather unsurprising fact that ‘[t]he Court hardly ever refers, in its judgments or
opinions, to the teachings of publicists, and when it does it is only in general terms’5 is
variously taken to signify the ‘impact [of scholarship] […] on actual decisions’6 and –
implicitly – that this is a somehow relevant piece of knowledge about the law. Some
scholars recognise the limited usefulness of the restatement of that fact: on the
pragmatic level, the absence of citations of scholarship by the Court is not indicative of
their use by the Court,7 as anecdotal evidence about the Court’s internal procedures
supports the intuition that the judges and the Registry utilise scholarship to a significant
degree. Equally, on the theoretical level, even if the Court were neither to utilise nor to
cite scholarship, this set of facts alone is not determinative of the legal position of
scholarship within article 38 as the applicable law clause for the Court. The actual use
that is made of a choice prescribed by law does not determine the question whether the
law thus restricts the choice provided – or what the legal content of the choice is. In
other words, whether or not the Court makes use of one or the other subsidiary means
does not determine its validity under international law.
This is also the answer to the second argumentative platitude: it is sometimes argued
that, ‘as the body of judicial decisions increases, the authority of the commentator is
diminished.’8 Again: this may be an accurate description of the phenomenology of ICJ
judgments, but apart from the inevitable common law cultural prejudice and the
probable inaccuracy in terms of total effort spent in preparing Court judgments, such a
factual change does not change the ‘authority’ (as legal status) of scholarship to judicial
pronouncements.
5
M Wood, ‘Teachings of the Most Highly Qualified Publicists (Art. 38(1) ICJ Statute)’ in R
Wolfrum (ed), Max Planck Encyclopedia of Public International Law vol 9 (OUP 2012) 783,
784 para 9; see also: DW Greig, International Law (Butterworths 1970), 40–41; A Pellet,
‘Article 38’ in A Zimmermann ao (eds), The Statute of the International Court of Justice (OUP
2006) 677, 791 paras 321–22; S Rosenne, The Law and Practice of the International Court
1920–2005 (Nijhoff 2006), 1558; M Sørensen, Les sources du droit international: Etude sur la
jurisprudence de la Cour Permanente de Justice Internationale (Munksgaard 1946), 180; G
Triggs, ‘The Public International Lawyer and the Practice of International Law’ (2005) 24
Australian Year Book of International Law 201, 202.
6
Greig (n 5), 40.
7
Pellet, ‘Article 38’ (n 5), 791 para 322; Wood (n 5), 785–86 para 14.
8
C Parry, The Sources and Evidences of International Law (Manchester University Press
1965) 104; see also: DP O’Connell, International Law vol 1 (2nd edn, Stevens 1970), 35; Pellet,
‘Article 38’ (n 5), 791 para 322; Sørensen (n 5), 183; Triggs (n 5), 202.
tion: 3 / Date: 8/2
It is sometimes lamented that tribunal jurisprudence and teachings are wrongly put
on the same footing by article 38(1)(d): ‘cette disposition, en attribuant à la jurispru-
dence seulement la valeur d’un moyen auxiliaire, sousestime gravement l’influence
effective des précédents sur la jurisprudence de la Cour’;9 Rosenne even goes so far as
to claim that judgments ‘cannot be regarded [merely] as subsidiary means for the
determination of rules of international law’.10 It is, of course, correct that a judgment of
an international tribunal, creating an individual norm binding on the parties, is
categorically different from the individual or collective view of the law by scholars (as
cognitive effort/hermeneutic exercise). However, while judgments or awards are, on a
normativist view, an application of higher law in order to create lower law, the
pronouncements accompanying the norm will – incidentally – also contain the judges’
views on what the law is (again: viewed as cognitive effort/hermeneutic exercise). As
such, they may have an ‘influence effective’, as Sørensen puts it, that is greater than
other such cognitive efforts, but not only does the law regulating the Court’s
jurisdiction (article 38) determine that they are both – equal – ‘subsidiary means’,11 but
also in epistemological terms, the (individual) norm-creating function of an organ
whose members also express opinions on what the law is, does not influence the
‘correctness’ of their pronouncements. In other words: in non-common law systems, a
judgment is just as much an accurate representation of the law as a scholarly
pronouncement – if they accord with the law; both are not if they do not. A priori,
neither has a privileged epistemic position. The law-creating function accorded to
humans by the law does not make their views better12 and the term ‘authentic
interpretation’ is a complete misnomer.13
What remains of the mainstream debate on the ‘teachings’ as subsidiary means?
Simply speaking: that article 38(1)(d) is relevant, but that it is subject to two influential
restrictions. The first is a formal legal restriction: even if the entry-point for the
orthodox debate on the role of scholarship in ‘making’ international law is the ICJ
Statute, article 38 is only the ICJ’s lex arbitri – the applicable law for procedures
before one specific (if very important) international tribunal and no more. That role is
fundamentally different; the article only provides rules on how the tribunal shall decide
and does not determine the formal sources of international law in its entirety. One
could argue that the difference is crucial, but is a distinction that has been taken much
too lightly in scholarship. A court whose basis for existence is international law can
also be tasked with applying a normative order other than international law. In
international investment arbitration, for example, the tribunals are allowed to have
9
Sørensen (n 5), 177; see also: Rosenne (n 5), 1550.
10
Rosenne (n 5), 1560 (the second citation precedes the first in the text cited).
11
Wood (n 5), 784 para 7.
12
Such ao because the ‘organ’ as a juristic person is constructed and non-identical with the
physiological person, a topic that this author has explored before: J Kammerhofer, ‘Non-State
Actors from the Perspective of the Pure Theory of Law’ in J d’Aspremont (ed), Participants in
the International Legal System: Multiple Perspectives on Non-State Actors in International Law
(Routledge 2011) 54, 55–57.
13
See J Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Rout-
ledge 2010), 115–16; J Kammerhofer, ‘Systemic Integration, Legal Theory and the ILC’ (2010)
19 Finnish Yearbook of International Law 2008 157, 171–72.
tion: 4 / Date: 8/2
recourse to domestic law or even a specific contract as lex arbitri – it would be a bit of
a stretch to argue that this makes the sources of, say, Pakistani law the sources of
international law tout court. International arbitration frequently allows for the parties to
freely determine the lex arbitri or to modify laws to fit its purpose. The ICJ could even
decide, if the parties so wished, on the basis of norms not contained in any legal order:
ex aequo et bono (article 38(2)). Whether or not article 38’s chapeau is right in
stipulating that the Court decides ‘in accordance with international law’, the codifica-
tion of the three classical sources is not determinative of their status as a source of
international law. This applies a fortiori to the material (epistemic) ‘sources’ in article
38(1)(d). Thus, the formal-legal ratione materiae applicability of the provision should
be taken seriously – certainly more seriously than is the case at the moment.14 Article
38 has a specific function within the Court’s procedure which does not help us much in
deciphering the theoretical position of scholarship as a ‘source’ of law in any sense of
the word.
The second restriction is substantive and quite rightly, the majority of scholarship
points to it as a limiting factor for the role of scholarship in lawmaking. Alain Pellet
probably puts it best:
[I]n marked contrast to the sources listed in the previous sub-paragraphs, jurisprudence and
doctrine are not sources of law […] they are documentary ‘sources’ indicating where the
Court can find evidence of the existence of the rules it is bound to apply by virtue of the three
other sub-paragraphs.15
Writings are, then, at best, ‘evidence of the law’,16 but, as mentioned above, neither
jurisprudence nor (a fortiori) writings have intrinsic epistemic power. Polemically
speaking: anything can be ‘evidence’ of the law. The mention of jurisprudence and
14
See J Kammerhofer, ‘Hans Kelsen in Today’s International Legal Scholarship’ in J
Kammerhofer and J d’Aspremont (eds), International Legal Positivism in a Post-Modern World
(CUP 2014) 81, 107–08. A particular trait of international legal scholarship is not to take formal
restrictions on the applicability of written norms of international law too literally, certainly less
so than their domestic counterparts, be it the restrictions imposed by arts 2(1)(a), 3, 4 and 84 of
the 1969 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980), 1155 UNTS 331, on the word-for-word applicability on non-covered agreements,
or the fact that the International Law Commission’s (ILC) Articles on the Responsibility of
States 2001 (UNGA Res 56/83 (12 December 2001), as corrected by UN Doc A/56/49(Vol.I)/
Corr.4) are not as such applicable law (on this see, for example, RD Sloane, ‘On the Use and
Abuse of Necessity in the Law of State Responsibility’ (2012) 106 American Journal of
International Law 447, 451–543). The present author has repeatedly pointed to the importance
of taking such restrictions seriously and not assuming the codificatory/crystallising abilities of
texts on customary international law – and the texts’ identity with customary regulation even if
there exist parallel norms – without further proof; see ao the author’s works cited in nn 12–14.
15
Pellet, ‘Article 38’ (n 5), 784 para 299; see also: C Hillgruber, ‘Braucht das Völkerrecht
eine Völkerrechtswissenschaftstheorie?’ in M Jestaedt and O Lepsius (eds), Rechtswissenschafts-
theorie (Mohr 2008) 113, 115; MO Hudson, The Permanent Court of International Justice
1920–1942: A Treatise (Macmillan 1943), 612–13; Lachs (n 1), 169; F Münch, ‘Zur Aufgabe der
Lehre im Völkerrecht’ in Recueil d’études de droit international en hommage à Paul Guggen-
heim (Imprimerie de La Tribune Genève 1968) 490, 504; Wood (n 5), 786 paras 17–19.
16
Wood (n 5), 786 para 17.
tion: 5 / Date: 8/2
scholarship in Article 38(1)(d) does not exclude other possible sources, nor does it
make these sources authoritative, nor would we (or the Court) be hindered from using
scholarship if article 38(1)(d) did not include it. Contrariwise, if and only if these two
reflect the state of international law are they evidence of international law.
3. THE JURIDICAL VIEW AND ITS LIMITATIONS

What lies beyond the orthodoxy’s clinging to article 38? As mentioned in the
introduction, this chapter proposes to go beyond this traditional debate and to examine
also to what extent academic discourses can/may (section 3) and do (section 4) shape
and make international law. The first of these inquiries is predicated on what one might
call the ‘juridical’ viewpoint: are scholars empowered to make law? How can we find
out whether they are? The answer proposed here is based on the present author’s own
theoretical commitment to the Pure Theory of Law. As mentioned in section 1, this is a
meta-methodological commitment, presupposing the autonomy of a specifically
normativist-positivist (‘juridical’) view. In this case, we find the answer by looking at
the positive norms that make up the international legal order. Even if these norms are
themselves unclear, they are the only way to ascertain whether scholarship makes law,
because the law regulates its own making (section 3.1). What are the problems that
ensue when we admix the various viewpoints? The answer proposed here is that while
many give in to the temptation to do so, this means not being able to tell apart what
makes law and what appears to (some of) us to do so (section 3.2). Lastly, we will draw
the conclusions from the juridical view (section 3.3).
3.1 The Sources as Basis for Assessing the Lawmaking Faculties of Scholarship
What does it mean to apply a specifically ‘juridical’ view to find out who (scholars
included) makes law? The legal training that the present author has received prompts
him to answer:17 ‘we have to find out who is authorised to make law’, in other words:
who is the competent organ? And indeed, on a normativist-positivist account, this
instinctive reaction turns out to reflect the notion that law regulates its own creation.18
The question (‘whom does the law authorise?’) is the most consistently juridical view,
ie an ‘autonomous’ view that does not rely on ‘extraneous’ elements like absolute
values or socio-empirical ‘validation’. Thus, ‘is scholarship a source of international
law?’ translates into ‘what legal norms authorise the creation of international law by
scholarship?’ While this may seem like an instinctively correct proposition – when we
set out to talk about ‘first-order law’, why should the ‘second-order of sources’ not be
law? – this argument is based on a specific theory of law. A few general and
introductory remarks on the underlying theory seem apposite.
17
A socialisation in other legal cultures may result in a different instinctive reaction,
however. This should not be read as an attempt to impose the Austro-German legal culture on
others.
18
H Kelsen, General Theory of Law and State (Russell & Russell 1945), 124.
tion: 6 / Date: 8/2
A ‘source of law’ is an empowering norm19 which authorises humans to create

norms:20 the norms created under it can therefore (figuratively speaking) be said to
‘belong’ to it: ‘A norm belongs to a legal order only because it is created under the
terms of another norm of the same order.’21 However, the sources of law are understood
here in a relative sense. Any norm that authorises norm-creation can be called a source
of law, not just the ‘original’ or ‘highest’ sources of a legal order. Articles 25, 41 and
94(1) of the UN Charter are just as much a source of international law as custom and
treaty, just on a different level. Equally, the authorising norm may be very complicated
and not confined to one level, eg in municipal law,22 but also in international law.
Sources, then, can be described as meta-norms on norm-creation. The source must be a
norm, because it establishes validity as membership of the legal order and a norm’s
validity can only be based on another norm.23 Contrariwise, one norm’s validity being
dependent upon another norm (validity-dependence) means a connection between
norms is established. Because ‘higher’ law empowers law-creation, it is the reason the
resultant law is valid.24 Hans Kelsen restates this argument in a concise way thus:
The dynamic character of law makes a norm valid, if and when it was created in a certain
fashion determined by another norm. This other norm is the immediate source of validity of
the first norm. The relationship between the norm which regulates the creation of another
norm and the norm thus created can be visualised as a spatial super-ordination and
subordination. […] The legal order is not a system of coordinated legal norms existing
alongside each other, but a hierarchical ordering of various strata of legal norms. Their unity
is constituted because a norm which has been created according to the terms of another norm
derives its validity from that latter norm, whose creation is, in turn, determined by yet another
norm …25
19
H Kelsen, Allgemeine Theorie der Normen (Manz 1979), 82–84.
20
H Kelsen, Principles of International Law (Rinehart 1952), 303.
21
‘Eine Norm gehört zu einer Rechtsordnung nur, weil sie gemäß der Bestimmung einer
anderen Norm dieser Ordnung gesetzt ist.’ H Kelsen, Reine Rechtslehre (2nd edn, Deuticke
1960), 239; Kelsen Allgemeine Theorie der Normen (n 19), 247 para 45; A Verdross, Die
Verfassung der Völkerrechtsgemeinschaft (Springer 1926), 21; T Gihl, ‘The Legal Character and
Sources of International Law’ (1957) 1 Scandinavian Studies in Law 51, 72.
22
A statute may, for example, contain one of the conditions for the creation of a
constitutional law. This is the case in the Austrian constitution, where observance of the
provisions of the Federal Law Gazette Act 2004 (Bundesgesetz über das Bundesgesetzblatt 2004,
BGBl I 2003/100) – ie publication in the Gazette – is made one of the conditions for
law-creation even of constitutional laws (Art 49 Abs 1, 4 Bundes-Verfassungsgesetz (B-VG),
BGBl 1930/1 idgF).
23
Kelsen, Reine Rechtslehre (n 21), 196.
24
Kelsen, Allgemeine Theorie der Normen (n 19), 82.
25
‘Da bei dem dynamischen Charakter des Rechts eine Norm darum gilt, weil und sofern sie
auf eine bestimmte, das heißt durch eine andere Norm bestimmte Weise erzeugt wurde, stellt
diese den unmittelbaren Geltungsgrund für jene dar. Die Beziehung zwischen der die Erzeugung
einer anderen Norm regelnden und der bestimmungsgemäß erzeugten Norm kann in dem
räumlichen Bild der Über- und Unterordnung dargestellt werden. […] Die Rechtsordnung ist
nicht ein System von gleichgeordneten, nebeneinanderstehenden Rechtsnormen, sondern ein
Stufenbau verschiedener Schichten von Rechtsnormen. Ihre Einheit ist durch den Zusammen-
hang hergestellt, der sich daraus ergibt, daß die Geltung einer Norm, die gemäß einer anderen
tion: 7 / Date: 8/2
On a normativist-positivist account, then, the sources of law are that part of the law that
allows us to make norms. For the present purpose of clarifying the ‘juridical’ view of
sources, it might be helpful to contrast this with those parts of orthodox international
legal scholarship which have proposed conceptions of sources which would muddle the
waters and endanger the possibility of us giving a clearly delineated answer to the
question of whether scholars make international law. Some misconceptions are: (1) It is
said that sources themselves are ‘methods’ or ‘procedures’,26 not norms themselves,27
based on the idea that they are mere facts or evidences; eg an ‘empirical description of
procedures which usually create norms, which are regularly obeyed […] or are seen as
being obligatory’.28 (2) Sources of law somehow reside on an absolute level29 on which
law is created. Subordinate sources, such as Security Council resolutions, are then
claimed to be equal to treaty norms,30 even though their creation is authorised by the
UN Charter, an international treaty. (3) Another argument is to distinguish the sources
of international law from the basis of obligation of international law.31 These authors
deny that the source of a norm is also its source of ‘bindingness’, at least in
international law.32 For a normativist-positivist approach, however, validity and bind-
ingness or obligatoriness is identical: a non-binding norm is just as much a contradic-
tion in terms as a non-valid or non-existing one are. A norm’s reason for validity and its
Norm erzeugt wurde, auf dieser anderen Norm beruht, deren Erzeugung wieder durch andere
bestimmt ist’ Kelsen Reine Rechtslehre, (n 21), 228.
26
eg GG Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’
in FM van Asbeck ao (eds), Symbolae Verzijl: Présentées au Prof. J.H.W. Verzijl á l’occasion de
son LXX-ième anniversaire (Martinus Nijhoff 1958) 153, 154; RY Jennings and A Watts (eds),
Oppenheim’s International Law vol 1 (9th edn, Longman 1992), 23; Parry (n 8), 4; MN Shaw,
International Law (6th edn, CUP 2008), 69–71; H Strebel, ‘Quellen des Völkerrechts als
Rechtsordnung’ (1976) 36 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 301,
302–03; M Virally, ‘The Sources of International Law’ in M Sørensen (ed), Manual of Public
International Law (Macmillan 1968) 116, 120.
27
M Bos, ‘The Recognized Manifestations of International Law. A New Theory of
“Sources”’ (1977) 20 German Yearbook of International Law 9, 10–11; Gihl (n 21), 83; P
Hulsroj, ‘Three Sources – no River: A Hard Look at the Sources of Public International Law
with Particular Emphasis on Custom and “General Principles of Law”’ (1999) 54 Zeitschrift für
öffentliches Recht 219, 234; AJP Tammes, ‘Inter-Action of the Sources of International Law’
(1963) 10 Netherlands International Law Review 225, 225–27.
28
‘lediglich als empirische Beschreibung der Verfahren, in denen üblicherweise Normen
entstehen, die regelmäßig befolgt werden […] bzw. als verpflichtend erlebt werden’ U
Fastenrath, Lücken im Völkerrecht. Zu Rechtscharakter, Quellen, Systemzusammenhang, Method-
enlehre und Funktionen des Völkerrechts (Duncker & Humblot 1991), 86.
29
Hints of this may be found in: HLA Hart, A Concept of Law (Clarendon 1961), 93–96, 98,
246–47; Jennings and Watts (n 26), 15, 23; Fitzmaurice (n 26), 154.
30
Bos (n 26).
31
PK Menon, ‘An Enquiry into the Sources of Modern International Law’ (1986) 64 Revue
de Droit International, de Sciences Diplomatiques et Politiques 181, 181; PE Corbett, ‘The
Consent of States and the Sources of the Law of Nations’ (1925) 6 British Year Book of
International Law 20; GJH van Hoof, Rethinking the Sources of International Law (Kluwer
1983); Parry (n 8), 4–5.
32
Fitzmaurice (n 26), 155.
basis of obligation is its ‘source of law’.33 A historical explanation of the origin of the
content of a norm may be perceived as grounding a norm in external factors, but on a
juridical view, only the influence of norms on other norms can count.
3.2 The Dangers of Admixture
The notion of sources has already provided a first insight into the problematique. Just
as the juridical answer to the question ‘Are scholars lawmakers?’ seems obvious (‘They
are if the sources of international law say so’), it is equally obvious that too much
depends on one’s conception of sources to be able to answer the question with absolute
finality. On the approach adopted here – and speaking only on the basis of that
approach – we at least know where to look. This does not, however, remove epistemic
difficulties in perceiving the highest echelons of positive international law, the
meta-meta-law on sources-creation.34 However, even beyond the relativity of the
concept of sources, problems are caused also by alternative views on the nature and
functions of legal scholarship – or by a more subconscious confounding of the factual
and the ideal realms, eg by activist scholars. We will first and briefly discuss visions of
a ‘theory of legal science’ (section 3.2.1), before we come to the less principled, but far
more influential scholars who attempt to change the law without reflecting on their
proper role (section 3.2.2).
In the following, we will discuss the problems of admixture of the results of the
normativist and empirical analyses before we explore the second, empirical, approach
in section 4. It may seem that this amounts to putting the cart before the horse, but it is
submitted that this modus operandi makes sense. Any disadvantages of not having
detailed information on this author’s view of the empirical approach are negated by the
consideration that the dangers of admixture is a feature of the meta-theory associated
with the Vienna School of Jurisprudence and that inserting the sociological view into a
discussion of the juridical view would create unnecessary confusion.
3.2.1 The role of legal scholarship: A theory of legal science?

Unsurprisingly, the very active debate on the nature of legal scholarship among legal
theorists has not translated into a similar debate specifically for (and amongst)
international legal scholars. This is not surprising, because international lawyers tend to
be even more pragmatic than jurists in other fields and because these are different fields
of scholarly specialisation. This is not the place for an extended discussion of
jurisprudential and philosophical debates on the ‘scientificality’ of legal scholarship,
although we will not exclude that debate entirely. However, a number of colleagues
have explicitly described their vision of what an international legal scholar should do or
not do and we will discuss these views.
33
RY Jennings, ‘What is International Law and How do We Tell it When We See It?’ (1982)
37 Schweizerisches Jahrbuch für internationales Recht 1981 59, 60; Petev, ‘Rechtsquellenlehre
und Reine Rechtslehre’ in W Kawietz and H Schelski (eds), Rechtssystem und gesellschaftliche
Basis bei Hans Kelsen (Duncker & Humblot 1984) 273, 273; Virally (n 26), 118.
34
For this particular problematique see Kammerhofer, Uncertainty in International Law
(n 13), 239–40.
Among the scholars canvassed for this chapter, the view is prevalent among both
international and domestic lawyers that ‘the exclusive task of international legal
scholarship is to state what is the content of international law. It is thus not a source of
law, it cannot create international law’;35 more generally speaking, ‘legal scholarship
[…] purports to examine controversial legal issues from a neutral, value free perspec-
tive […] Scholarship is the capacity to add new knowledge in a publicly transmittable
and acceptable form.’36 On the approach adopted here, such a restriction makes sense,
as the idea that scholarship as scholarship or that a person in her/his function as scholar
makes law is a categorical error. Scholarship is, on this approach, defined as a specific
form of cognition – and this is by definition not a form of creating in-the-world. It
could also be defined thus: ‘Scholarship is the capacity to add new knowledge in a
publicly transmittable and acceptable form.’37 Scholarship means finding ‘the truth’38 –
the word being used in a sense appropriate for legal scholars, in our case the concept of
‘validity’ as a specific form of existence.39 As Roger Cramton puts it:
Our dedication to scholarship implies at least three beliefs: First, ‘truth’ either exists or is a
meaningful concept. Second, its pursuit is not only a good in itself but an important goal of
academics. And third, the manner in which the search is conducted is governed by
agreed-upon values and conventions.40
This applies even in our post-Positivismusstreit times; as Cramton also points out:
‘Today, one need not […] believe that absolute truth exists or will ever be discovered.
The modernist view of tentative and evolving truth […] is enough.’41 It is possible to
transfer this function of scholarship to legal scholarship; as Kelsen explains, ‘Science
cannot be volition. Even a science of volitions […], of “norms”, like ethics and legal
science, is merely the sum of cognitive acts’42 – legal scholarship means cognising
35
‘Aufgabe der Völkerrechtsdogmatik ist danach ausschließlich die Ermittlung von Völker-
rechtssätzen. Sie bildet also nicht selbst eine Rechtsquelle, vermag nicht selbst Völkerrecht zu
erzeugen’ Hillgruber (n 15), 115; see also Münch (n 15), 494; A Peters, ‘Rollen von
Rechtsdenkern und Praktikern – aus völkerrechtlicher Sicht’ in Bardo Fassbender ao (eds),
Paradigmen im internationalen Recht: Implikationen der Weltfinanzkrise für das internationale
Recht (CF Müller 2012) 105, 126, 140–41.
36
RL Bard, ‘Advocacy Masquerading as Scholarship; or, Why Legal Scholars Cannot be
Trusted’ (1989) 55 Brooklyn Law Review 853, 853–54; see also: L Engi, ‘Wissenschaft und
Werturteil – Wissenschaft und Politik’ (2009) ANCILLA IURIS (anci.ch) 25, 29.
37
Bard (n 36), 854.
38
H Dreier, ‘Hans Kelsens Wissenschaftsprogramm’ in Helmuth Schulze-Fielitz (ed),
Staatsrechtslehre als Wissenschaft (Duncker & Humblot 2007) 81; FW Jerusalem, Kritik der
Rechtswissenschaft (Knecht 1948) 59; M Weber, ‘Wissenschaft als Beruf’ (unpublished, 1919) in
M Weber, Gesammelte Aufsätze zur Wissenschaftslehre (Mohr 1922) 524, 552.
39
Kelsen, Allgemeine Theorie der Normen (n 19), 143–44, 287.
40
RC Cramton, ‘Demystifying Legal Scholarship’ (1986) 75 Georgetown Law Journal 1, 4.
41
ibid, 5.
42
‘Wissenschaft ist nie Wollenschaft. Auch eine Wissenschaft von den Wollungen … , den
“Normen”, wie Ethik und Rechtslehre, ist nur eine Summe von Erkenntnissen’ H Kelsen, ‘Die
Rechtswissenschaft als Norm- oder als Kulturwissenschaft: Eine methodenkritische Unter-
suchung’ (1916) 40 Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im
Deutschen Reiche 1181, 1183, reprinted in H Klecatsky ao (eds), Die Wiener rechtstheoretische
tion: 10 / Date: 14/3
law.43 Hence, in this argument, there is a definitory/functional distinction which obtains

even if a positive norm were to authorise ‘scholars’ to make law: by definition, these
‘scholars’ do not perform the function of scholarship (cognition) if and when they
create law. Thus, even though the same physiological entities (eg ‘Christopher
Greenwood’) may be involved, the differentiation is categorical.
But even those who more or less openly disagree with this view of the dangers of
mixing scholarship and lawmaking on theoretical grounds do not bluntly state that
scholars may, legally speaking, make law. The ‘pink butterfly’ argument is probably not
applicable to them; they would not agree that a lepidopterologist’s claim that a
neon-pink butterfly exists, because the existence of such butterflies accords with his
personal idea of aesthetics, is valid scholarship. Rather, the argument is more subtle and
connects to our post-Kantian insight into the ‘constitutive’ nature of cognition44 and the
late-modern insight into the intranscendable epistemic biases we all face. We find this
argument in many forms in the literature canvassed for this chapter which range widely
in sophistication. On one end of the spectrum are ad hoc arguments, like DP
O’Connell’s claim that ‘State practice is not something discoverable but something
postulated: a mass of historical evidence is inarticulate until it is organised, and the
process of organisation is speculative, not pragmatic’45 and the scholar’s role is in some
sense constitutive: ‘it is the intellectual construction rather more than the observation
and recording of what are assumed to be facts, that gives method and vitality to the
growth of rules’.46 In contrast, Anne Peters’ arguments are far more nuanced. She starts
by reiterating the value-laden epistemic biases even of scholarship, an insight that most
do not differentiate sufficiently, however.
All scholarly treatments of international law are inherently value-laden. From the time of the
Positivismusstreit onwards […] the question is no longer whether scholars should avoid
creating values, but whether scholarship can be value-free. This is now mostly denied. Fully
value-free scholarship seems impossible to us today, since all scholarly statements and
interpretations are pre-structured by preconceptions, even if not all cognition is inevitably
value-laden.47
Schule. Ausgewählte Schriften von Hans Kelsen, Adolf Julius Merkl, Alfred Verdross (Europa
Verlag 1968) 37, 39 (3 HKW 554).
43
H Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts. Beitrag zu
einer reinen Rechtslehre (Mohr 1920), iv (4 HKW 265); Kelsen, Reine Rechtslehre (n 21), iii–iv,
72–78; F Weyr, ‘Rechtsphilosophie und Rechtswissenschaft’ (1922) 2 Zeitschrift für öffentliches
Recht 671, 672, 678.
44
In Kantian epistemology human reason processes sense-data into a view of the world
(Immanuel Kant, Kritik der reinen Vernunft (first published 1781, 1787) B 137–138). One could
argue that because this ‘processing’ is constitutive, the only way that human beings can perceive
is through this process.
45
O’Connell (n 8), 37.
46
ibid, 37.
47
‘Wertungen sind Bestandteil der wissenschaftlichen Befassung mit dem Völkerrecht. Seit
dem Positivismusstreit […] ist die Frage nicht, ob der Wissenschaftler werten soll, sondern ob er
sich der Wertung überhaupt enthalten kann. Dies wird heute überwiegend verneint. Eine totale
Wertfreiheit der Wissenschaft erscheint unmöglich, da jegliches Aussagen und Interpretieren
In this context, Tesón’s description of those who strive for objectivity of cognition as ‘a
kind of positivist doctrinalism, that is, a dry, seemingly value-free analysis’48 becomes
a symptom of the philosophical bull-in-a-china-shop syndrome. Peters avoids such
crass consequences, for she realises that there is a difference between inevitable
epistemic biases and avoidable political subjectivity.
International legal scholarship does not create norms, only statements on norms […] it is not
scholarship’s function to express subjective opinions. International legal scholars should
therefore find a happy medium between the irredeemable postulate of a value-free scholarship
and the unlimited expression of [subjective] values.49
The present author would perhaps be less inclined, though, to speak of a happy medium
or golden middle, particularly as epistemic biases may include a number of personal
values. The consequences she draws from this, however, make sense:
Rash claims that emerging norms are already positive international law means committing a
methodological error. Such a claim intermingles positive [ie norm-descriptive] with normative
[ie norm-setting] analysis and thus derives an Ought from an Is.50
And in this manner, Peters – from a different philosophical basis and with a slightly
different emphasis – largely accords with the approach presented here, for Kelsen
draws the same conclusion, based also on the distinction between epistemic constitu-
tiveness and norm-ontic objectivity. ‘[L]egal science as cognition of law – like all
cognition – has a constitutive character and ‘creates’ its object insofar as it compre-
hends the object as a meaningful whole.’51 However, he denies that this phenomenon
can go as far as being able to speak of a lawmaking function of cognition: ‘This
“creation”, however, has a purely epistemological character. It is fundamentally
different than the creation of objects by human labour or the creation of law by the
durch Vorverständnisse vorstrukturiert ist (wenn auch nicht alle Erkenntnis zwangsläufig
wertgebunden ist).’ Peters (n 35), 126.
48
W Twining , ‘The Role of Academics in the Legal System’ in P Cane and M Tushnet
(eds), Oxford Handbook of Legal Studies (OUP 2003) 920, 942 (emphasis added, pp 941–7 were
authored by F Téson).
49
‘Die Völkerrechtswissenschaft […] [generiert] nicht Normen, sondern nur Aussagen über
Normen […] es [ist] nicht der eigentliche Zweck der Wissenschaft, subjektiven Überzeugungen
Ausdruck zu geben. Völkerrechtswissenschaftler sollten deshalb einen Mittelweg zwischen dem
nicht einlösbaren Postulat der Wertfreiheit und der unbegrenzten Wertung andererseits ein-
schlagen.’ Peters (n 35), 126–27.
50
‘Die voreilige Kennzeichnung von erst in der Entstehung begriffenen Normen als bereits
geltendes Völkerrecht ist methodisch fehlerhaft, weil sie die positive und die normative Analyse
vermengt, und weil sie aus dem Sollen ein Sein ableitet.’ Peters (n 35), 152.
51
‘Es ist auch richtig, daß, im Sinne der Kantschen Erkenntnistheorie, die Rechtswissen-
schaft als Erkenntnis des Rechts, so wie alle Erkenntnis, konstitutiven Charakter hat und daher
ihren Gegenstand insofern ‘erzeugt’, als sie ihn als ein sinnvolles Ganzes begreift.’ Kelsen, Reine
Rechtslehre (n 21), 74.
legal authority.’52 While the delimitation between ‘being (epistemically) constitutional

for’ and ‘creating’ law is obviously difficult to draw, we can still draw a clear
conceptual line: perception does not amount to the creation of law in the legal sense (as
we would use the word when we speak of judges creating a judgment). Non-cognition
means that the non-cogniser does not cognise; non-creation means that the ‘thing’ (eg
the law) does not enter into ‘existence’.
3.2.2 Scholarly activism53

One virulent example where – implicit, non-theoretically reflected – scholarly claims to
lawmaking have enormous influence, where a normative (ie norm-setting) scholarship
seeks to influence its objects for its own perception of ‘the global good’ is scholarly
human rights and humanitarian law activism. The difference (and the reason why this
section is marginal) is that these scholars usually do not explicitly claim that scholars
can make law. In their over-optimistic assessments of the law, however, assessments
sometimes crossing the border towards bold claims contra legem, they do (purport to)
make law nonetheless. A brief overview may suffice to show how this is done.
Many scholars working on international human rights and humanitarian law today
incorporate a strain of political activism into their scholarship. Activism (political or
moralist) is neither new nor unique to these sub-fields of international law; it is perhaps
even more prevalent in domestic US legal scholarship than in the worlwide community
of human rights lawyers. Andás Jakab, in analysing seven roles for legal scholars,
describes two archetypes which might fit our ‘human rightists’:54 the Prophet and the
Wise Pragmatist. ‘The Prophet knows the moral foundations of our society and he will
tell us […] what to do. […] the Prophet can find out the One Single Right Moral Vision
[…] of the given society.’55 The Wise Pragmatist, in contrast, is advising us ‘about
socially best decisions. In doing so, law in a strict sense is only one factor for him
besides common sense, sociology or economy; he is using thus policy arguments very
often’.56 The attendant necessity is ‘not to have “descriptive accuracy” about law,
because it would mean that we might discover the need for (cumbersome) legislation.’57
Mark Tushnet’s analysis makes a similar point, also directed more at US legal
scholarship, but equally applicable to sections of international legal scholarship. For
him, legal scholarship currently takes three forms, of which the first two are of interest
here:
52
‘Aber diese “Erzeugung” hat einen rein erkenntnistheoretischen Charakter. Sie ist etwas
völlig anderes als die Erzeugung von Gegenständen durch menschliche Arbeit oder die
Erzeugung des Rechts durch die Rechtsautorität.’ Kelsen, Reine Rechtslehre (n 21), 74–75.
53
This section is largely based on and adapted from a previous study and uses an example
developed there (J Kammerhofer; ‘Orthodox Generalists and Political Activists in International
Legal Scholarship’ in M Happold (ed), International Law in a Multipolar World (Routledge
2011) 138, 146–53).
54
A Pellet, ‘“Droits-de-l’hommisme” et droit international’ (2001) 1 Droits fondamentaux
167, 167.
55
A Jakab, ‘Seven Role Models of Legal Scholars’ (2011) 12 German Law Journal 757,
765–66.
56
ibid, 773.
57
ibid, 775.
tion: 13 / Date: 14/3
The first is traditional legal advocacy, the second is advocacy augmented with concepts drawn
from nonlegal fields of thought […] [they] are normative enterprises [which] seek to establish
the proper or best legal rule. In doing so, they make claims to objectivity that are contradicted
by their inherent partisanship.58
Even when scholarly policy prescription, which ‘identifies some goal that the author
thinks ought to be pursued’59 is complemented with insights from other fields, the
problems persist and ‘[t]he ultimate effect is only to conceal the point at which
subjective choice is inserted into the analysis.’60 Both traits, incorporation of subjective
values and their obfuscation by means of interdisciplinary holism, can be found in
human rights and humanitarian law scholarship. Louis Sohn’s argument that ‘inter-
national law on the subject of human rights is made by the people that care’61 (where
‘people’ includes scholars) expresses the lengths to which these scholars will go to
defend their chosen cause, even if that support is mostly sublimated and not expressed
openly. This moralist-political instrumentalisation of the role of legal scholars is mostly
done in a roundabout manner. It is argued, for example, that if we were to look at the
positive law only:
[M]any important political values would seem to lack adequate protection. […] Some norms
seem so basic, so important, that it is more than slightly artificial to argue that states are
legally bound to comply with them simply because there exists an agreement between them
to that effect […]62
Jan Wouters and Cedric Ryngaert express the activists’ modus operandi well: ‘treaty
practice, custom and general principles are liberally combined so as to achieve the
desired result: increased promotion and protection of human rights.’63 The present
section will take the re-interpretation of the rules for customary international law-
making in human rights and humanitarian law as an example of the roundabout,
sublimated manner in which advocacy is proposed and scholarship seeks to perform
lawmaking. Because the humanist goals espoused by activist scholars64 seemingly clash
with traditional views on how customary international law comes about, they have tried
to develop a counter-theory: ‘new’ customary international law.
58
M Tushnet, ‘Legal Scholarship: Its Causes and Cure’ (1981) 90 Yale Law Journal 1205,
1208.
59
ibid, 1209.
60
ibid, 1210.
61
LB Sohn, ‘Sources of International Law’ (1995) 25 Georgia Journal of International and
Comparative Law 399, 399 (emphasis added); see also: B Stevens, ‘Litigating Customary
International Human Rights Norms’ (1995) 25 Georgia Journal of International and Compara-
tive Law 191, 200; RB Lillich, ‘The Growing Importance of Customary International Human
Rights Law’ (1995) 25 Georgia Journal of International and Comparative Law 1, 28–30.
62
M Koskenniemi, ‘Human Rights and Humanitarian Norms as Customary Law’ (1990) 88
Michigan Law Review 1946, 1946–47.
63
J Wouters and C Ryngaert, ‘Impact on the Process of the Formation of Customary
International Law’ in MT Kamminga and M Scheinin (eds), The Impact of Human Rights Law
on General International Law (OUP 2009) 111, 127.
64
Pellet, ‘“Droits-de-l’hommisme” et droit international’ (n 54), 168.
One argument is that different evidences for state practice may be used vis-à-vis
other sub-fields and verbal practice is double-counted as state practice and opinio
iuris.65 The traditional idea of customary law as based on customs or usage speaks
against trusting too much on statements and verbal evidence for information on
practice. Because customary norms receive their content from the repetition of similar
behaviour, they can only have content which can potentially form a pattern in reality.
On this view, the evidentiary function of statements is a priori reduced.
Another strain of the argument is that emphasis is placed more on opinio iuris; that
practice as traditionally conceived (‘battlefield practice’) is supplanted by verbal
practice and that practice contrary to the emerging opinio iuris or violations count less
than in other fields.66 This culminates in the view that customary international
law-formation itself is qualitatively different for human rights or humanitarian norms.67
The arguments for doing so smack of political advocacy (eg: ‘[t]he classical positivist
approach may […] pose serious difficulties for the legal protection and promotion of
human rights’68), but as Bruno Simma and Philip Alston argue ‘it is surely open to
doubt whether the concept of custom should be so fundamentally reshaped in a manner
which disregards [customary law’s] intrinsic limitations […] in order to accommodate a
desired […] policy outcome.’69 Thus scholarship subcutaneously seeks to change the
law itself.
A particular source of doubt is the implicit ‘special pleading’ in arguing that these
alleged changes in evidences or rules of lawmaking are confined to human rights and
humanitarian law. The differentiation is based solely on scholars ‘fighting the good
fight’; Theodore Meron confirms this suspicion when he argues that ‘[t]here is direct
relationship between the importance attributed by the international community to
particular norms and the readiness to lower the burden of proof required to establish
custom’.70 Yet what sort of constitutional law scholar would ever argue that enacting a
new fundamental right requires a smaller quorum in parliament than enacting a statute
on procedures for planning permissions? Who would argue that somehow the pro-
visions for changing the constitution are abrogated just because more human rights
protection is considered to be better than less?
65
Lillich (n 61), 12–14, 18; T Meron, ‘The Continuing Role of Custom in the Formation of
International Humanitarian Law’ (1996) 90 American Journal of International Law 238, 239–40;
T Meron, ‘International Law in the Age of Human Rights: General Course on Public
International Law’ (2004) 301 Recueil des cours de l’ Académie de droit international 9, 383,
388; O Schachter, ‘International law in Theory and Practice: General Course on Public
International Law’ (1985) 178 Recueil des cours de l’ Académie de droit international 9, 334–35,
338; Wouters and Ryngaert (n 63), 125.
66
Schachter (n 65), 334–35, 338; Wouters and Ryngaert (n 63), 112, 115.
67
Meron, ‘International Law in the Age of Human Rights’ (n 65), 387.
68
Wouters and Ryngaert (n 63), 119.
69
B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens and
General Principles’ (1992) 12 Australian Year Book of International Law 82, 96.
70
Meron, ‘International Law in the Age of Human Rights’ (n 65), 388.
3.3 Can Scholarship Make Law?
On a juridical view, then, one based on a view that looks at the law (the sources) to find
out how law can be created,71 the answer to the above question can be obtained easily
enough. As far as the present author is aware, no norm of positive international law
authorises ‘scholars’ or ‘scholarship’ to create international law. Even if the law refers
to ‘scholars’, the King Midas principle applies and ‘scholars’ are, in the process of
lawmaking, by definition not scholars – humans cognising the law – but lawmakers,
persons willing the law into ‘existence’. On a juridical view, also, no amount of
self-delusion by legal scholarship as to its own lawmaking faculties can change the law
on lawmaking, whether voiced as theoretically based opinion on inevitable biases and
value-assumptions or as sublimated activism.
4. THE SOCIO-EMPIRICAL VIEW AND ITS LIMITATIONS72

As mentioned above, however, the juridical view does not exhaust the possible
responses to asking whether scholars ‘make’ law. Our instinct tells us differently: we
believe we know that ‘in the real world’, scholars do have some (occasionally a
decisive) influence on the making of international law and we can all give examples.
But in social sciences (as in all scholarship), it is crucial not to rely on intuitions – at
least not to the point of not trying to test them – or risk committing cognitive fallacies.
Legal scholars who think that they are being interdisciplinary when all they do is
incorporate their intuitions about the socio-political world, are doing no more than ‘pop
sociology’. In this section, we will look at what it would take to somehow ‘measure’
legal scholarship’s influence on international lawmaking. In this context, previous
attempts to measure influence on lawmaking procedures will be portrayed and
evaluated to the extent possible. Since the limitations are quite severe, this section will
not delve into this dimension as deeply. This is occasioned also by the present author’s
relative lack of training in empirical sociology or political science, which prompts the
acknowledgement that his competences in that area are limited.73
71
Like many others, Peters seems to believe that a source-based view is not a necessity of
the very idea of normative orders, ie law regulating its own creation as necessary conclusion
from a categorical divide of Is and Ought. Like neo-Hartianism with its sources thesis (J Raz,
‘Legal Positivism and the Sources of Law’ in J Raz, The Authority of Law: Essays on Law and
Morality (OUP 1979) 37, 47), it seems merely a contingent perspective amongst many, to be
confirmed or denied by the ‘realities’ of international relations. It must be said, though, that at
this point in her paper it is not entirely clear whether she is merely reporting the views of others
or also agreeing with them, see Peters (n 35), 139.
72
The author would like to thank Evan Criddle, Brad Roth and Tom Ginsburg for their help
regarding this section.
73
As others have pointed out, ‘interdisciplinary’ scholarship produced by legal scholars with
relatively little training in the other disciplines in which they dabble does not fare well when
assessed by academics from those other disciplines (eg Bard (n 36); L Kalman, ‘Professing Law:
Elite Law School Professors in the Twentieth Century’ in A Sarat ao (eds), Looking Back at
Law’s Century (Cornell University Press 2002) 337; Cramton (n 40)).
tion: 16 / Date: 14/3
(a) Legal sociology relies on the juridical view. A sociological account that connects
its account with ‘the law’ or with ‘legal norms/rules’, eg by describing the efficacious-
ness of the prohibition of the use of force, must implicitly contain the normativist
view-point of legal scholarship:
Legal sociology is […] an arbitrary section of a science that cognises and explains societal
life as a whole. This is because the separation of this legal sociology can only be achieved by
using a concept which originates in a categorically different view-point than that of an
explicative sociology, ie in normativist scholarship’s concept of law. Legal sociology cannot
determine […] what law is, as it has to presuppose normativist scholarship’s concept of law.74
In order for an empirical account of the question at issue to succeed, sociology and/or
political science needs to rely on the juridical view of ‘the law’. While the question of
‘influence’ would be entirely fact-based, the success of scholars’ activities in creating
law must be established by reference to the law, understood as normative order: law has
been created if and only if the legal order has been altered, eg if a new norm has been
added to it (ie has attained validity viz. ‘existence’ in the realm of ideals). What neither
‘sloppy’ legal scholarship – that part of scholarship succumbing to methodical
syncretism – nor ‘proper’ sociology can do is to conclude that a norm is valid because
it has in fact been created (and its ‘existence’ should thus be obvious to us). This is an
example of not heeding the warning above and happens quite frequently; a random
example (on a slightly different topic) may suffice for our purposes. Both Robert
Jennings and Alfred Verdross have employed such a petitio principii in connection with
the question of how customary international law can be created. Verdross at one point
proposed that there are multiple custom-creative processes, each based on a method
that ‘usually’ succeeds in creating customary international law.75 Equally, Jennings
argues that ‘[n]ow that such [new] procedures [for making and changing law] are
actually developing before our eyes, we persist in refusing to see, and still babble about
international customary law.’76 The process of ‘it is actually there’ that they use to find
out how law is created begs the question. How can we find out what process usually
creates customary international law if we do not know when law has validly been
created? Knowing when law is created requires knowing the norm of international
law-creation – and this was the object of the exercise in the first place. This applies
equally to scholarly law-creation: on the one hand, a factual analysis of the influence of
scholars on international lawmaking necessarily relies on ‘the law’ as normative order,
74
‘Rechtssoziologie ist […] ein […] willkürlicher Ausschnitt aus einer allgemeinen, das
soziale Leben betrachtenden und erklärenden Wissenschaft. Denn die Abgrenzung dieser
Rechtssoziologie muß durch einen Begriff vollzogen werden, dessen Bestimmung von einem
ganz anderen Standpunkte aus erfolgt, als der einer explikativen Soziologie ist, nämlich durch
den normativen Rechtsbegriff. Was Recht ist, […] das kann die Rechtssoziologie nicht
bestimmen; sie muß den normativen Rechtsbegriff voraussetzen.’ H Kelsen, ‘Eine Grundlegung
der Rechtssoziologie’ (1914–1915) 39 Archiv für Sozialwissenschaft und Sozialpolitik 839, 875
(3 HKW 357) (original emphasis removed).
75
A Verdross, ‘Entstehungsweisen und Geltungsgrund des universellen völkerrechtlichen
Gewohnheitsrechts’ (1969) 29 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
635, 636.
76
Jennings (n 33), 6.
as conceptualised by legal scholarship; on the other hand, this factual analysis cannot
provide a feed-back loop to determine the legal powers of scholarship.
(b) Quantitative77 or descriptive efforts for ‘influence on lawmaking’ face significant
difficulties. As far as the present author is aware, there are as yet no studies on the
influence that international legal scholarship wields over the making of international
law. Equally, there seems to be no scholarship on domestic law, the only exception
being publications on the influence of legal scholarship on court decisions, a debate
within US scholarship.78 It makes sense to briefly critique these writings for three
reasons: first, as mentioned above, this is the only type of attempt to empirically
analyse the influence of scholarship on lawmaking. Second, there are structural
similarities to an argument that international legal scholarship employs.79 It discusses
whether the ICJ or other tribunals frequently cite scholars and could charitably be
described as a shallow, anecdotal version of citation frequency analysis. Third, on the
basis of the normativist-positivist approach adopted here, ICJ judgments, for example,
are part of the law, even if they are not highest-level sources.
Many US legal scholars, enamoured with the idea that social sciences are at least as
relevant to our knowledge of ‘the law’ as ‘traditional’ doctrinal scholarship – a notion
that could, but will not be critiqued here – are rigorous in their social-scientific
methodologies. Thus, we find in the large number of studies giving citation analyses of
judges’ ‘use’ of legal scholarship the assumption that ‘if a work of legal scholarship is
cited in a decision, then that scholarship was “used” in the decision’, where ‘use’ is
defined as when ‘a Justice’s decisional process is influenced by legal scholarship’.80
These studies’ goal of measuring influence on judicial decision-making is sufficiently
close to the question posed here to merit a critique. Indeed, as mentioned above, it is
the only avenue that has been tried in order to measure ‘lawmaking by scholars’, and
thus necessarily requires a closer look.
Citations may, however, be an expression of a judge’s disagreement with the
argument made by the cited scholar. With some imagination this ‘negative influence’
could perhaps still be considered to have shaped the judge’s views through the
disagreement.81 However, this is not the case for other variants of ‘use’. Judges may
cite to provide a convenient locus for a well-established proposition – or an idea that
the judge simply happens to agree with – and the cited piece of scholarship has no
77
The point about the limits of quantitative analysis overly reliant on statistical models is
well taken, see R Collins, ‘Statistics Versus Words’ (1984) 2 Sociological Theory 329.
78
See eg: GS Crespi, ‘The Influence of Two Decades of Contract Law Scholarship on
Judicial Rulings: An Empirical Analysis’ (2004) 57 SMU Law Review 105; WD Pierce and AE
Reuben, ‘The Law Review is Dead; Long Live the Law Review: A Closer Look at the Declining
Judicial Citation of Legal Scholarship’ (2010) 45 Wake Forest Law Review 1185; DL Schwartz
and L Petherbridge, ‘Legal Scholarship and the United States Court of Appeals for the Federal
Circuit: An Empirical Study of a National Circuit’ (2011) 26 Berkeley Technology Law Journal
1561; L Petherbridge and DL Schwartz, ‘An Empirical Assessment of the Supreme Court’s Use
of Legal Scholarship’ (2012) 106 Northwestern University Law Review 995.
79
eg Pellet (n 5), 791 para 321; Rosenne (n 5), 1558; Sørensen (n 5), 180; Wood (n 5), 784
para 9.
80
Petherbridge and Schwartz (n 78), 1000.
81
Schwartz and Petherbridge (n 78), 1573.
tion: 18 / Date: 14/3
influence on the decision-making process and scholarship lends ‘authority’ to pro-

nouncements.82 It may be as banal as the judge who drafts a judgment just happening
to have standard work A, but not B or C on his or her desk at the time. George Scott
Crespi connects this to Legal Realist scepticism about the influence of statutory law on
judicial decision-making: ‘scholarly articles are generally utilized in a superficial
manner primarily to add academic authority to decisions ultimately based upon other
grounds, rather than playing a significant role in the actual decision-making process.’83
Equally, the lack of a citation may not warrant the conclusion that a judge has not
‘used’ or been influenced by scholarship, as non-citation can also happen for a range of
reasons. It might be the case that the research on cases which in years past could be
facilitated by looking at law reviews is now more easily done via databases containing
jurisprudence.84 The legal culture of the court in question may belie our wish to be
overly reliant on citation statistics. The ICJ is a crass example; we have anecdotal
information that in the internal workings of the Court the people concerned read and
work with large amounts of scholarly writings to prepare the judgments (and in this
sense we would intuitively speak of an ‘influence’ of scholarship), but it is simply not
part of the Court’s legal culture to cite scholarship.
It is clear, therefore, that counting citations of scholarship by judges is an unfit gauge
of its influence on judgments-as-legal-norms, because its ‘use’ in judgments may belie
influence just as it may reflect it. This is something that Lee Petherbridge and David
Schwartz acknowledge – ‘We recognize that the “citation equals use” assumption is
imperfect […] but disagree that such citations can be understood as anything other than
“use” of the cited scholarship.’85 – without realising that this does not make their
analysis insignificantly less accurate (does not simply increase the error ratio), but is a
categorical problem making ‘citations’ qualitatively unfit to measure ‘influence on
judges’. They argue:
Reported decisions of the Supreme Court are documents evidencing the law […] the decision
to [cite to scholarship] is made in the context of a Justice choosing how to communicate the
law. That choice is part of the process of decisional lawmaking, and we think almost
indisputably part of the law.86
However, these choices are not necessarily connected to the content of the norm that is
the judgment and largely a matter of presentation. Citations are epiphenomenal to
judge-made law and cannot serve as a reliable guide of the socio-empirical influence of
scholar(ship) on lawmaking. For a global analysis of all lawmaking in a given legal
order, citations are even worse off. Take the legal order at issue: it borders on the
ludicrous to even suggest that we should start counting citations in treaties or Security
Council resolutions and the border is surely crossed when we suggest we do this for
customary international law. But what alternatives to citation-counting do we have? In
domestic empirical political science, questionnaires and in-depth interviews of
82
Crespi (n 78), 117; Petherbridge and Schwartz (n 78), 1000, 1020.
83
Crespi (n 78), 106.
84
Pierce (n 78), 1194–95.
85
Petherbridge and Schwartz (n 78), 1000.
86
ibid.
decision-makers would be standard measures. For a study on the various ‘roles’ of

international lawyers, Anne Peters has indeed conducted empirical research on the basis
of a combination of questionnaires and interviews.87 Outside Peters’ research interest,
however, such methods are of limited use. If we started sending questionnaires to those
who make international law, we would quickly find that they do not work. States (their
officials), judges and international civil servants cannot afford to be talkative or honest
enough, nor to be disinterested and unreflective of the consequences of their answers:
‘strategic behaviour’88 is the norm, not the exception and all empirical research would
be mired in cognitive biases. There is a reason why so little international relations
scholarship (even of the Realist variant) that attempts to describe and predict state
behaviour is based on (quantitative) empirical scholarship. We are therefore left with
our intuition that yes, scholarship can be a factor in international lawmaking. However,
this intuition is marred by a quantitative and a qualitative restriction: on the one hand,
scholarship is always only one factor in today’s complex decision-making processes
that lead to lawmaking and seldom is it the decisive factor. On the other hand these
intuitions are just that: intuitions, not empirical data, which may turn out to support
counter-intuitive conclusions.
5. CONCLUSION
We have looked at the phenomenon of lawmaking by scholars from three perspectives
in this chapter. First, on an orthodox international lawyer’s perspective, we have turned
to article 38(1)(d) of the ICJ Statute, but it is not trivial to say that this provision has a
limited scope of application. On a theoretically consistent view, article 38 is overrated:
it is ‘only’ a lex arbitri and its prescription does not extend beyond ICJ procedure.
Even within its scope of application, the teachings of publicists are only helpful if they
reflect the law. Second, on the specifically juridical – legal scholarly – perspective, we
have found that the question is deceptively easy. True, the recourse to sources is
mandated by a juridical view and – on the basis of that view – not arbitrary. It is not a
‘sources thesis’ that can be applied or ignored. Rather, the law, as a normative order, is
created, ordered and unified by its sources, which are part of that law. However, even if
we did not have any epistemic problems in cognising the highest echelons of positive
international law and even if we eliminate activism masking as scholarship, we can at
best come to a dogmatic stop. Lawmaking by scholarship is by definition not possible,
because ‘legal scholarship’ is defined as the cognition of law, not as lawmaking. That
the same human being may exercise the functions of scholar and lawmaker does not
make his or her task, in creating law, an exercise in scholarship. Third, if we attempt a
sociological or political-scientific explanation that goes beyond a mere description of
what happened and attempts to garner ‘hard data’ on how much influence scholars
have, we are in a major methodological conundrum. But again: the present author is not
a social scientist and there may be ways of measuring influence. What will never do,
however, is for our jaded scepticism of the possibility of a legal science to be replaced
87
Peters (n 35), 35.
88
As Petherbridge and Schwartz (n 78), 1001 acknowledge even for domestic judges.
by a naïve and child-like belief in the powers of the social sciences. We can, however,
at least be comforted by our intuition, supported by anecdotal evidence, that the
activities of some scholars some of the time seem to be an important factor in the
creation and application of international law.
PART IV
IN SELECTED ISSUE AREAS
tion: 1 / Date: 9/2
tion: 2 / Date: 9/2
16. The making of international human rights law

Vassilis P. Tzevelekos*
‘Une telle innovation vaudrait à l’imprudent bâtisseur une éternelle réputation de mau-
vaise tête, et il serait à jamais perdu auprès des gens sages et modérés qui distribuent la
considération […]. Dans le fait, ces gens sages y exercent le plus ennuyeux despotisme;
[…] La tyrannie de l’opinion, et quelle opinion!’
Stendhal, Le Rouge et le Noir (Chronique du XIXe siècle)
1. THE MAKING OF HUMAN RIGHTS IN INTERNATIONAL LAW:

THE SHORT AND THE LONG VERSION OF THE STORY TO
TELL
How are international human rights (hereinafter HR) made? There is a rather direct,
brief, and simple (but also simple-minded) answer to that question. With no regard to
whether they are natural, inalienable, of divine origin or deduced from recta ratio,
whatever their philosophical premises may be, for them to be rights, they are required
to be posited in a given legal system, that is to say, transformed into law and the
corresponding obligations and rights that law establishes.1 For HR to acquire legal
substance within the order of international law, they need to be formed as international
legal norms. As such, they can only be created by the usual means which international
law employs for that purpose, ie the sources one can find in Article 38(1) of the Statute
of the International Court of Justice (ICJ), or the slightly more extended version
contained in textbooks of international law, adding to the list of Article 38 sources like
unilateral acts2 and the relevant ICJ case law that confirms their lawmaking function.3
That is the short version of the story. It could bring this chapter to a rather premature
end and also help in breaking the myth that verbosity is typical of lawyers. Yet, is this
* The author thanks Dr Richard Burchill, Dr Kanstantsin Dzehtsiarou, Dr Dimitrios

Kagiaros, Dr Panos Kapotas, Dr Lucas Lixinski and Mr Francis Mortin for their comments on
earlier drafts of this chapter.
1
See the critical approach by C Douzinas, ‘The Poverty of (Rights) Jurisprudence’ in C
Gearty and C Douzinas (eds), The Cambridge Companion to Human Rights Law (CUP 2012)
56; see also J Griffin, ‘The Presidential Address: Discrepancies between the Best Philosophical
Account of Human Rights and the International Law of Human Rights’ (2001) 101 Proceedings
of the Aristotelian Society 1.
2
Among others, F Poirat ‘Chapitre 7: Actes unilatéraux’ in D Alland (ed), Droit
international public (PUF 2000), 310; See also International Law Commission (ILC), ‘Guiding
Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obliga-
tions’ (1 May–11 August 2006) UN Doc A/61/10.
3
Nuclear Tests Case (New Zealand v France) (Judgment) [1974] ICJ Rep 457, paras 46ff.
329
a satisfactory answer? Rather not. For, pointing to the mechanisms that generate HR
rules explains neither where from the normative force of their output stems, nor how
these mechanisms really operate. Indeed, these are considerably thornier questions.
However, what makes the situation further convoluted is that the long version of the
story that follows does not suffice to fully answer the questions introduced here either,
including the one found in the very first line of the study – forcing its author to humbly
admit his feebleness, being a lawyer, to provide a satisfactory answer.
Section 2 sketchily explains why the task undertaken in this chapter is a rather
difficult one and why no satisfactory answers can be given. The argument in that
respect is that there is a genuine methodological impasse, that is, an inherent
epistemological deadlock lying in the very systemic foundations of the international
legal order. For (HR) law to be law, legal positivism requires it to stem from one of its
sources.4 Yet, international positivism tells only by approximation how these sources,
and especially custom, function, and why their fruits have a normative force. What the
chapter argues is that, as a source of international law, custom is neither sufficiently
formal (as positivism claims it to be), nor neutral and ‘waterproof’ to its extra-legal
foundations, such as social values, the way these emerge within the international
society of states, but also beyond them, within the civil society or within the
international community lato sensu – personified by the term ‘humanity’. Be they
formally posited, HR can hardly be disconnected from morality and the milieu social5
within which this emerges.
International law does recognise these origins and traits of HR and offers them a
special place within its order. Because HR cannot be truly dissociated from the values
found in their existential core, international law has developed mechanisms, such as a
special class of obligations (part of which HR are) that are owed erga omnes, enabling
this way the collective enforcement and protection of what in essence constitutes
‘legitimate community interests’.6 In the absence of a centralised public authority
similar to the one that exists within states, the decentralised system of international law
invites (but does not oblige)7 each and every state in the world to partake in the
collective enforcement of the values and their corresponding rules, thereby shaping an
international public order.
4
For a brief but comprehensive introduction, R Ago ‘Droit positif et droit international’
(1957) 3 Annuaire français de droit international 14, 22.
5
See for instance, MW Reisman ‘The Democratization of Contemporary International
Law-Making Processes and the Differentiation of Their Application’ in R Wolfrum and V Röben
(eds), Developments of International Law in Treaty Making (Springer 2005) 23. cf the positivist
objections raised by G Abi-Saab, ‘Comment’, in ibid 31, 32. See also the delicate analysis by A
Skordas ‘Hegemonic Custom?’ in M Byers and G Nolte (eds), United States Hegemony and the
Foundations of International Law (CUP 2003) 321.
6
UN Human Rights Committee, ‘General Comment No 31, The Nature of the General
Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc
CCPR/C/21/Rev.1/Add.13, para 2.
7
See ILC, ‘Articles on the Responsibility of States for Internationally Wrongful Acts’ in
Report of the International Law Commission on the Work of its 53rd Session, GAOR 56th
Session Supp 10 UN Doc A/56/10 chap V (2001), art 48(1), especially (b).
The making of international human rights law 331
Yet, this is about the way HR function once they have entered the order of
international law – which is a question beyond this chapter’s limited scope. Thus, to
remain faithful to the positivist premises of its analysis, section 3 observes how, outside
treaty law, but also by furthering it, new and ‘renewed’ HR are built in international
law. In that respect, the chapter points to the role of one of international law’s auxiliary
sources: international courts as agents having the authority to formally recognise the
existence of law, that is, to certify that a given HR exists in positive international law
and use it as the basis for adjudicating the dispute before them. The boundaries
between interpretation and lawmaking are blurred,8 not least because the former
presupposes the existence of, refers to and relies on the law. For courts to exercise
jurisdiction they need first to juris dicere, that is, to say what the law is, ergo to
identify it. This leads to a kind of ‘judicialised’ variation of HR-making which in
tandem complements ‘traditional’ HR-making. Admittedly, expanding the effect of case
law beyond the parties to a dispute and endowing it with a broader interpretative one,
that is, an ersatz general normative effect is not free of problems; this much is apparent
within a decentralised system of sovereigns, where judges only have competence
because states gave it to them, whereas state voluntas appears to be one of the
cornerstones of the system.
Nevertheless, as the chapter argues in section 4 – which concludes the study – the
law recognisance function of judges alludes to act as a de facto substitute to the
shortcomings of international legal positivism and, particularly, to the absence of
formalism and certainty that are inherent to custom and, more generally, to the dearth
of the Hartian ‘rule of recognition’.9 As all ancillary solutions, this one too has its own
handicaps. It gives wide discretion to courts not only concerning the normative
outcome (whether they will recognise the existence of a right), but also regarding the
method they will use to that end. Evidently, each one of the methods and criteria used
by courts (and identified in the chapter) has virtues and demerits.
2. A METHODOLOGICAL IMPASSE AND TWO STRANDS OF

SHORTCOMINGS WITHIN INTERNATIONAL LEGAL
POSITIVISM
The argument in the introduction was that the question raised by the chapter could only
be answered superficially. The reasons for such a distinction remain thus: first, for HR
to have normative force they must be posited as law; secondly, positivism only
recognises the normative outcome of the sources it employs in a given legal system;
and thirdly, in the case of international law, positivism explains unsatisfactorily (and
mainly based on a number of narratives, or extra-legal presumptions that can hardly be
verified by the tools lawyers master) the function of one of its principal sources, that is,
custom, and the foundations of the normative force of its outputs.
8
See also, A Boyle and C Chinkin, The Making of International Law (OUP 2007), 263.
9
HLA Hart, The Concept of Law (2nd edn, Clarendon 1994), 214 and, on the effect of
recognition 94ff.
The general outline of legal positivism is well known.10 It purports to provide full
account of its sources, as well as a comprehensive explanation of the normative
underpinnings of their products. By setting formal criteria that constitute preconditions
for the validity of the rule, positivism distinguishes between law (its famous lex lata)
and what is not (yet) law. It is not the content of the rule that counts, but the formal
channels that generated it, that is, the ‘box’ that encapsulates and ‘spawns’ the rule and
which needs to have a certain ‘shape’, namely, a legal form. Thereby, positivism
proclaims neutrality11 and, mostly, legal certainty. If only things where that simple and,
indeed, safe criteria existed regarding what is valid international law.
With the exception of treaties (and also case law, which however is only an auxiliary
means for the determination of law, with its binding effect being limited, as such, to the
parties to a dispute) international law finds it difficult to satisfy the exigencies of
formalism by any standards. The danger to oversimplify here is inescapable, but the
constraints of a short book chapter are rather inflexible. However, in the case of treaties
things are rather clear. This does not mean that law cognisance is always straight-
forward, as questions as to whether a document is a valid international law treaty may
arise. Yet, there are formal criteria for the legal validity of the negotium, which, as such,
reflects the will of the parties. The ‘contract’ creates obligations for the parties only
(the so-called relative effect12), whereas its normative force stems from their will.
Criteria apply to distinguish between law and non-law, and sufficient justification is
offered regarding the validity of contractual rules, whose normative power is owed to
the consent of the states accepting to be bound by the agreement. In a nutshell, treaties
are a success story for international legal positivism.
Indeed, an increasingly wide range of contracted rules exist for the protection of HR,
with a good number of international treaties protecting various classes of rights (such
as civil-political and socioeconomic) of diverse groups (spanning from general protec-
tion that applies to all human beings to the special protection of minorities, for
instance, or children), at both the universal (United Nations (UN)) and the regional
level (Council of Europe (CoE), for instance). This has been the main tool for the
internationalisation of HR in the aftermath of the Second World War, in Europe and
within the UN system. Besides, treaty-making remains an important tool states
continue to employ when history and/or the defence of their interests13 call for the
enrichment of HR protection. Treaty-making may be a long, studious and laborious
10
For a comprehensive introduction to positivism, see H Batiffol, La philosophie du droit
(PUF 1960).
11
Which is linked with the idea of empirically observable and formalised channels for
lawmaking. M Virally ‘Le phénomène juridique’ in M Virally (ed), Le droit international en
devenir. Essais écrits au fil des ans (PUF 1990), 55. On the separation between moral aspirations
and law, see R Ago, ‘Science juridique et droit international’ (1956) 90 Recueil des cours de
12
January 1980) 1155 UNTS 331, art 34.
13
This explains why new instruments, such as the CoE Framework Convention for the
Protection of National Minorities (adopted 1 February 1995, entered into force 1 February 1995,
ETS 157), have been designed in the aftermath of the dissolution of the former USSR and
Yugoslavia.
process, resulting from negotiations (that might also benefit from the insights of
non-governmental organisations (NGOs)14), and involving, as a consequence, a great
deal of compromise too, but the outcome is in a sense rewarding: written rules that bind
states because they reflect their sovereign will, the way this has been formally
expressed when they accepted to be bound, following a pre-established purpose-made
procedure.
However, one might wonder at that point why, since treaties are a fit for purpose
source that also happens to suit legal positivism, this is not the end of the story? HR
enter the normative sphere of the international legal order through the ‘gate’ of treaties.
Thereby, they become international law. Isn’t it enough?
The example that can be given in that respect is the Convention on the Prevention
and Punishment of the Crime of Genocide, which defines the concept and criminalises
it, imposing positive obligations15 on states to protect the human being by halting
(through punishment as well) genocides. To date, more than six decades after its
adoption, that instrument counts 147 parties.16 This is the optimistic version of the
story, seeing the glass half full. Yet, there is another perspective as well: as such, one of
the most significant treaties, related to an imperative question of international law, over
which allegedly a consensus exists within the international community, is not binding
for a good 46 states (if one wants to stick to the UN member states). The same applies
with the UN International Covenant on Civil and Political Rights (ICCPR), providing
for first generation – as they are traditionally called – fundamental HR. The 50-year
milestone since its adoption is soon to arrive and, as such, the Covenant binds 168
states.17 To make a long story short, it is difficult to find a HR treaty that binds all
states of the UN18 (let alone the globe). Conversely, there is good reason why this is so.
Treaties are binding only if, and because, states consent. Contracted law may be sitting
comfortably within the logic of positivism, but, as a source, it is highly inadequate for
the establishment of general international law, including fundamental public order rules
for the protection of the human being irrespective of, or even against state will and
14
T van Boven, ‘The Role of Non-Governmental Organisations in International Human
Rights Standard-Setting: A Prerequisite of Democracy’ (1989) 20 California Western Inter-
national Law Journal 207, 217–20, and C Chinkin ‘The Role of Non-Governmental Organ-
isations in Standard Setting, Monitoring and Implementation of Human Rights’ in J Norton ao
(eds), The Challenging World of International Law in the Twenty-First Century: A Tribute to the
Late Kenneth R. Simmonds (Kluwer 1998) 53. More generally, on the drafting process of human
rights conventions, BG Ramcharan ‘The Law-Making Process: From Declaration to Treaty to
Custom To Prevention’ in D Shelton (ed), The Oxford Handbook of International Human Rights
Law (OUP 2013) 501.
15
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43,
especially paras 431ff.
16
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9
December 1948, entered into force 12 January 1951) 78 UNTS 277.
17
International Covenant on Civil and Political Rights, 19 December 1966 (adopted 16
December 1966, entered into force 23 March 1976) 999 UNTS 171.
18
To give an example, the Convention on the Rights of the Child (adopted 20 November
1989, entered into force 2 September 1990, 1577 UNTS 3) counts 196 parties, but not all the UN
members as the US, for instance, is not party to it.
tion: 5 / Date: 9/2
sovereignty. After all, this is the very meaning and scope of a public order: to impose
limitations to the will of the subjects in a legal system in the name of values ranked by
the society as important.
Of course, seen from the viewpoint of positivism (and especially from that of the
Kelsenian normative school of thought, which proclaims to be neutral and sees law as
an ensemble of norms hierarchically structured19) the question asked here regarding the
adequacy of treaties as a source of HR law is highly irrelevant. Subjects endowed with
lawmaking powers in a given legal system may use the apparatuses of positivism to
remedy any problem they may identify, including lacunae and inefficiency. A more
voluntarist argument would suggest that states wishing to commit to the idea of a
public order at the international level in the field of HR protection are free to do so by
acceding to already existing HR treaties that are open to new parties or even by
negotiating new ones. The international system is primarily comprised of sovereigns
and, if a state does not appear in the list with the parties to an open for accession HR
treaty, this is, presumably, because it does not wish to be bound by it, that is, because
it does not consent to partake in it. Could it be then that these states are exempted from
the right to life or the prohibition of torture, to give two examples of fundamental rights
protected by the ICCPR, in articles 6 and 7 respectively? Can a non-party to the ICCPR
escape, for instance, the prohibition of slavery?
Treaties are a very fine source of international law. Yet, if international law were to
be circumscribed by treaty law and limited to it, there would be no general
international law, nor one single international order, but a variable geometry ‘net’ of
treaties. This is why international law needs the other big source of international law as
well. Be it a typical feature of all primitive legal systems, custom complements
contracted law and provides the international order with one single and common to all
states normative framework. This is the idea of general international law.20 It is only
‘natural’ (especially if one accepts that living in a society is a biological phenomenon)21
then that, when HR treaty law proves to be ‘insufficient’, the surrogate solution is
customary law.
Does positivism deliver what it promises in the case of custom too? Is there an
equally eloquent explanation for custom? Admittedly, other than the main path to
general international law, custom is also a very difficult ‘animal’ to domesticate. The
term refers both to the source generating a rule and to the rule itself, ie the normative
output of the source.22 Unlike treaties, custom is a par excellence informal source.23 It
19
For Kelsen, states too are simply an ensemble of norms. H Kelsen, Théorie pure du droit.
Introduction à la science du droit (H Thévenaz tr, La Baconnière 1953), 186 and 178.
20
cf Y Onuma ‘The ICJ: An Emperor Without Clothes? International Conflict Resolution,
Article 38 of the ICJ Statute and the Sources of International Law’ in N Ando ao (eds), Liber
Amicorum Judge Shigeru Oda vol I (Kluwer 2002) 203.
21
G Scelle, Précis de droit des gens (Principes et systématiques I et II) (republication,
CNRS 1984), 2–3.
22
PM Dupuy, ‘L’unité de l’ordre juridique international’ (2003) 297 Recueil des cours 9,
159.
23
On formalism and custom, see J d’Aspremont, Formalism and the Sources of Inter-
national Law. A Theory of the Ascertainment of Legal Rules (OUP 2011), 151. The informal
nature of the process leading to the formation of custom renders its identification problematic.
does not result from a formal, pre-established procedure, but from a process within the
society.24 Thus, there can only be limited (if any at all) space for legal certainty. Indeed,
the requirement for state practice to be translated into customary law is the so-called
psychological or subjective element, that is, that states share a conviction/belief 25 (and
not voluntas)26 that a certain practice has now been transformed into a legal obligation.
Yet, by definition, such a conviction or general acceptance that state practice has
transformed into law is difficult to be evidenced and empirically observed. This is why
it has been argued that the passage27 from is (social fact, that is, practice) to ought
(law) remains a mystery28 – at least to lawyers, who cannot but observe what in the
eyes of many is a spontaneous29 socio-legal phenomenon. Custom is a social reality,
which, somehow, changes into law. It is law because it is fact and, once it has turned
into law, it is fact because it is law. Yet, what is a factum (ie practice) in HR? Can mere
abstention from violation count as evidence of customary practice? This question
brings us to yet another problematic point of international positivism, that is, the
relationship between the validity of a rule and effectiveness.30 Ex factum jus oritur –
but how? And, can it stand as law if it turns out to be ineffective? Especially in a legal
system like the international one, which, because of its very decentralised, sovereignist
and state-centric nature, that is, because of its inherent systemic traits, it often lacks
effective enforcement, and the more political it gets to be, the more ineffective it is too.
These are, in a nutshell, the shortcomings of international legal positivism with
regard to a source of non-written law, which, be it highly problematic, is equally
precious and indispensable as the principal avenue for the establishment of universal
rules binding all states irrespective of their consent.31 This is also why this study
On the identification of custom, ILC, ‘Formation and evidence of customary international law’
(6 May–9 August 2013) UN Doc A/68/10, especially paras 69 and 76ff.
24
M Virally, ‘Panorama du droit international contemporain’ (1983) 183 Recueil des cours
9, 181.
25
North Sea Continental Shelf (Federal Republic of Germany/Netherlands) (Judgment)
[1969] ICJ Rep 3, para 77.
26
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States
of America) (Judgment) [1986] ICJ Rep 392, para 184.
27
C Tomuschat ‘International Law: Ensuring the Survival of Mankind on the Eve of a New
Century’ (1999) 281 Recueil des cours 9, 331. See also J Combacau ‘Ouverture: de la régularité
à la règle’ (1986) 3 Droits 3.
28
P Weil, ‘Le droit international en quête de son identité’ (1992) 237 Recueil des cours 9,
161 and G Abi-Saab ‘Cours général de droit international public’ (1996) 207 Recueil des cours
9, 174.
29
Ago (n 11), 851ff, especially 932ff. cf G Arangio-Ruiz ‘Customary Law: A Few More
Thoughts about the Theory of ‘Spontaneous’ International Custom’ in N Angelet (ed), Droit du
pouvoir, pouvoir du droit. Mélanges offerts à Jean Salmon (Bruylant 2007) 93.
30
C de Visscher, Les effectivités en droit international public (Pedone 1967), 13, and G
Distefano, L’ordre internationale entre légalité et effectivité. Le titre juridique dans le conten-
tieux territorial, (Pedone 2002), 257.
31
This approach rejects the doctrine of tacit agreement as the basis for the normativity of
custom. The idea of tacit agreement has been defended by eminent voluntarists, such as D
Anzilotti, Cours de droit international (republication, LGDJ 1999), 73–9; GI Tunkin, ‘Remarks
on the Juridical Nature of Customary Norms of International Law’ (1961) 49 California Law
Review 419, 422–23; and GM Danilenko ‘The Theory of International Customary Law’ (1988)
cannot, but in a very poor manner, answer the question raised by the editors of the
volume. With no regard to the inner, profound, material origins of HR, their
philosophical sources and the axiological (ie related to values) load they carry, these
cannot have any legal substance in a given legal system, unless if they are transformed
into law. Positivism is not satisfied with material sources only. These are highly valued
as they reveal the raison d’être, the teleology of the law and they trigger its creation –
but, as such, they do not suffice. Their transformation into law requires the tools and
the criteria of positivism to be used and met, respectively. Nevertheless, this is exactly
where the methodological impasse identified in the introduction of the study lies. For
(HR) law to be law, positivism requires it to stem from one of its sources. Yet,
international positivism tells only nebulously what one of its principal sources really is,
how it acquires its normative force and what distinguishes it from non-law, including
fruitless in normative terms practice (that is, habits, facts or, more generally, social
reality) or moral aspirations (that is, mere ideology).
In a sense, this study is trapped into that sort of methodological impasse. The path it
has followed thus far is easily detectable. First, it pointed to the formal (or rather
‘formal’) sources of international law; then it briefly portrayed the weaknesses of
custom and the limitations in that respect of positivism. Alas, at the same time, these
very limitations, that is, the shortcomings of international legal positivism, circumscribe
the confines of the study itself. For, every time one asks if there is ‘X’ HR in
international law, the method s/he will have to follow is to check if such a right stems
from, that is to say, has been established as a legal right by the means of one of the
sources of the international legal order. Yet, what happens when the ‘law of the sources’
is unclear? And what happens if at stake is the rise at the rank of law (the juridisation,
as it is called in the French jargon) of an area so recognisably interlinked with ideology
and, indeed, nourished with morality?
For, morality is by no means immaterial to positive HR law.32 As such, this is not a
problem in terms of legal positivism. It is not only selfish state interests but also
common interests, shared values and ideology that find their way into the legal system
and penetrate the world of law as inner, material sources that support the posited rule.
However, in the case of HR, because of their overshadowing ideological underpinnings,
the metamorphosis of ideology to law comes with a danger. Purely moral aspirations
can pass for law;33 and custom offers an easy channel to it. As already argued, if
treaties were the only available means to that end, HR would not succeed to bind all
31 German Yearbook of International Law 9. According to a different approach, the will of all
states is not necessary. What counts in custom making is that there is a majoritarian trend within
the society of states. This could be described as a ‘softer’ version of voluntarism or even an
expression of sociological objectivism. Among other scholars, see MH Mendelson, ‘The
Formation of Customary International Law’ (1998) 272 Recueil des cours 155, 176; AA
Cançado Trindade ‘Contemporary International Law-Making: Customary International Law and
the Systematization of the Practice of States’ (1992) 19 Thesaurus Acroasium 45, 78; and
Tomuschat (n 27), 325–26.
32
cf J d’Aspremont ‘The Foundations of the International Legal Order’ (2007) 18 Finnish
Yearbook of International Law 219.
33
A Pellet ‘‘Human Rightism’ and International Law’ (2000) 10 Italian Yearbook of
states or, allegedly,34 even all subjects of the international legal order. When HR treaty
law appears not to bind as such a state, the alternative is customary law.35 Irrespective
of state will and the network of contractual obligations this has established, funda-
mental36 rights, at least the ones found in the UN Universal Declaration,37 are seen as
custom. It is not within the purposes of the study to enter the interminable debate over
the universality of HR and whether this is not yet another Western construction, linked
to neo-colonialism and cultural imperialism within the highly pluralistic, and, therefore,
also both culturally and legally fragmented world. Suffice it here to contend that
custom, for the reasons that were previously given, mainly because of its informal
nature and the lack of certainty this entails, is easier to manipulate. If things in the case
of treaties are pretty much clear, in a source like custom pure ideology can be easier
disguised as law. For, beyond or even against state voluntas, what counts in the latter
source is the opinio juris (allegedly, sive necessitatis38).
Thus, next to the unclear foundations of custom in positive law, this is the second
major difficulty the study is facing. For, the term state voluntas is far from neutral. It
implies the voluntarist conception of international positivism, as this is juxtaposed to a
contrasting school of thought – always within legal positivism – that is, the sociological
objectivist scholarship, which accentuates social necessity. Thus, as if things were not
complicated enough, and although many may think that international positivism is
exhausted with state voluntarism, there is no one single version of positivism in
international law.39 Concurrently, this makes the drawing of the nuanced line distin-
guishing posited rules from pure ideology an even harder enterprise.
To conclude this part of the study, positivism fails not only to fully explain custom,
which is in essence an informal source that can more easily ‘absorb’ and veneer as law
34
Institut de droit international, ‘Obligations Erga Omnes in International Law’, Krakow
session (2005) available at <http://www.idi-iil.org/idiE/resolutionsE/2005_kra_01_en.pdf>.
35
P Alston and B Simma ‘The Sources of Human Rights Law: Custom, Jus Cogens and
General Principles’ (1992) 12 Australian Yearbook of International Law 82, 102, who argue that,
because state practice as an element of custom is quite problematic in the case of HR, HR norms
should be general principles of international law. See also J Tasioulas ‘Opinio Juris and the
Genesis of Custom: A Solution to the “Paradox”’ (2007) 26 Australian Yearbook of International
Law 109, 203–04, and L Henkin, ‘Human Rights and State Sovereignty’ (1995) 25 Georgia
Journal of International and Comparative Law 31, 38.
36
Which raises yet another issue as to which are those fundamental rights. The limited
scope of the study does not allow entering that debate. Suffice it to mention that the term has no
legal significance and is used here in a rather descriptive way, signifying rights seen as
‘important’.
37
cf the, admittedly, rather old reservations by A Cassese, International Law in a Divided
World (Clarendon 1986), 299.
38
Which allows ideology and moral aspirations to pass as law (see also the case law in n
93). On the origins of the term, K Wolfke ‘Some Persistent Contoversies Regarding Customary
International Law’ (1993) 24 Netherlands Yearbook of International Law 1, 5, and P Guggen-
heim ‘L’origine de la notion de l’opinio juris sive necessitatis’ comme deuxième élément de la
coutume dans l’histoire du droit des gens’ in H Accioly (ed), Hommage d’une génération de
juristes au Président Basdevant (Pedone 1960) 258.
39
See E Jouannet ‘A Century of French International Law Scholarship’ (2009) 61 Maine
Law Review 83, especially on the theory of sociological objectivism, 95ff.
the material sources (including ideology40) underlying HR, but also to speak with one
voice, with its very foundations remaining ambiguous as to whether they are owed to
the will of the state within a traditionally sovereignist legal order, or to the needs of a
broader, increasingly participatory society.41
3. THE ROLE OF JUDICIAL RECOGNITION

The section that follows delves in the question that was raised at the very beginning of
the chapter, attempting to identify how international law overcomes the systemic
impasses of international positivism and, by ‘stretching’ or, sometimes, even com-
pletely bypassing state will, allows HR to enter its normative sphere. Explaining how
HR are made, entails inquiring how the system reacts to its stalemates. Although (as it
will be argued in the last paragraph of the chapter) it is not free of defects, the role of
international judges is indeed central in that respect. For, courts have the authority to
interpret rules, that is, to identify the law. Hence, they may operate as an ‘escape
window’ to the systemic deadlocks of international law, and as a source of legitimate,
authoritative change against inertia within its order.
Thus far, the argument in the chapter has been that positivism requires certain
(tenuous in the case of custom) preconditions to be met before HR can acquire the
force of law. Against that background, the analysis that follows aims at demonstrating
that, be it rigid, positivism too can accommodate some degree of flexibility. Between
black and white there are several shades of grey, allowing social necessity (that is, also
ideology) to permeate law. What is needed is mobility within the society, which is then
‘echoed’ within and by institutions, fora, scholarship and also soft law instruments.
This may lead to inflation and proliferation of concepts and ideas proclaiming to be
‘new’ rights.42 Inevitably, all this shall remain in status nascendi, that is, in the twilight
between law and non-law, until it is officially ‘labelled’ as a legally binding rule by the
means of one of the sources of international law or by an agent, such as the ILC or
courts, exercising their authority to juris dicere. It is the second scenario this part of the
40
Which may have an impact on custom-making, the definition of custom and the
‘primacy’ of opinio juris over practice. See, AE Roberts (‘Traditional and Modern Approaches to
Customary International Law: a Reconciliation’ (2001) 95 American Journal of International
Law 757) who places the accent on opinio juris. See also, T Meron Human Rights and
Humanitarian Norms as Customary Law (Clarendon Press 1989), 94ff, especially 97 and 112ff;
JF Flauss ‘La protection des droits de l’homme et les sources du droit international: Rapport
général’ in SFDI, La protection des droits de l’homme et l’évolution du droit international
(Pedone 1998) 65.
41
According to J Wouters and C Ryngaert (‘Impact on the Process of the Formation of
Customary International Law’ in MT Kamminga and M Scheinin (eds), The Impact of Human
Rights Law on General International Law (OUP 2009) 131), the idea of a ‘new’ type of custom
in HR law ‘may in due course have an impact on general international law […] the traditional
requirements of consistency of state practice may be played down a bit, provided that a strong
opinio juris, democratically informed by global state consent, has crystallized in international
fora’.
42
See the critical comments by P Alston ‘Conjuring Up New Human Rights: A Proposal for
Quality Control’ (1984) 78 American Journal of International Law 607.
study mainly discusses, seeing ‘lawmaking’ by the means of judicial recognition as an

alternative avenue that permits positive international law to side-step its own systemic
deficiencies and evolve beyond the sovereign state.
3.1 Broadening already Existing Rights and the Usefulness in that Respect of
Tools like Soft Law or the Positive Effect of Human Rights
The example that can be given in that respect is the celebrated ‘right to truth’,
permitting victims and their families to know the truth about the circumstances in
which gross HR violations took place and, especially in the case of death or
disappearance, the victims’ fate. As such, this was first codified in the field of jus in
bello.43 Recently, it also entered the contiguous regime of HR. In 2006, the UN adopted
the International Convention for the Protection of All Persons from Enforced Dis-
appearance, which, inter alia, requests states to investigate disappearances (article 3)
and safeguards the right to know (in the preamble, for instance, as well as in article
24(2)). Arguably, this could also be seen as customary international law.44 Nonetheless,
the reservations of the study regarding custom have already been expressed and,
therefore, the argument would be that, even if there is such a custom, it is difficult to
conclude with certainty about its existence – and, in any case, scholarship lacks the
authority to do so.
However, outside hard law and before acquiring such a quality, aspects of the right to
truth have been the object of several soft law instruments, including United Nations
General Assembly (UNGA or GA)45 and full ECOSOC Resolutions, with the latter
promoting a ‘set of principles for the protection and promotion of human rights through
action to combat impunity’,46 which provides in Part II for the right to know. Exactly
the same applies in the case of other questions as well, where there is a demand in the
society for protection. This is the case, for instance, of the UN Global Compact, which
is one of the existing soft law tools for the extension of HR obligations to businesses
and which devotes its first two ‘principles’ to the general support and respect of the
protection of HR, as well as to the prohibition for businesses to be complicit in HR
abuses.47 Another example of a right rapidly emerging by the means also of soft law is
water. In 2010, the GA adopted a seminal Resolution,48 recognising in its first
paragraph ‘the right to safe and clean drinking water and sanitation as a HR that is
43
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June
1977, entered into force 7 December 1979) 1125 UNTS 3, art 32.
44
In the area of humanitarian law, see International Committee of the Red Cross,
Customary International Humanitarian Law vol I Rules (CUP 2005), 421.
45
‘Assistance and cooperation in accounting for persons who are missing or dead in armed
conflicts’ UNGA Res 3220 (XXIX) (6 December? 1974); ‘Question of enforced or involuntary
disappearances’ UNGA Res 47/32 (22 February 1993) UN doc A/RES/47/132.
46
UN Doc E/CN.4/2005/102/Add.1 (8 February 2005).
47
See <www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html>.
48
The human right to water and sanitation, UNGA Res 64/292 (28 July 2010) UN doc
A/64/292.
essential for the full enjoyment of life and all HR’, whereas, a few weeks later, the HR
Council followed with a Resolution affirming:
that the human right to safe drinking water and sanitation is derived from the right to an
adequate standard of living and inextricably related to the right to […] health, as well as the
right to life and human dignity.49
Nevertheless, be they vital, as such, all these examples remain infertile in normative
terms. They definitely are signs of movement, evolution and emergence of consensus
within the international community, but unless they are reproduced in a treaty or attain
the status of custom, they remain soft law. The ‘noise’ about new HR generated within
the society must either be posited as law by states (in which case the reservation
expressed regarding the limits and imperfections of the named sources apply), or wait
for an authority, such as an international court to recognise them by incorporating them
into its reasoning and, commonly, attaching them to other, more general rights that are
explicitly mentioned in the instrument on the basis of which that court operates.
Thereby, judicial interpretation allows already existing rights to act as an ‘umbrella’
widening their semantic field to the extent that they acquire a new dimension and
accommodate an enriched scope.
This has been the case, for instance, of the right of juvenile offenders to have their
privacy protected and identity not revealed in criminal proceedings against them,
which, according to the European Court of Human Rights (ECtHR), falls within the
ambit of the prohibition of ill-treatment enshrined in article 3 of the European
Convention on Human Rights (ECHR). To reach that conclusion and, thereby, also
‘refresh’ the ambit of the named provision of the ECHR, the Court chose to refer –
among other documents – to a soft law medium, the GA’s so-called ‘Beijing Rules’,
concerning the ‘standard minimum rules for the administration of juvenile justice’.50
Accordingly, it is not a surprise that the HR Council, in its effort to arm with its
aforementioned Resolution the right to water with the power of law, it associated it
with the rights to health and, even more generally, life. Under that logic, these more
wide-ranging rules appear in a sense to ‘absorb’ the right to water, which, to the degree
that it overlaps or can be covered by them, becomes one of their special expressions,
while – thanks to them and by ‘appropriating’ their normative effect – it also gains
normative power. This is besides the path followed by the Committee of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) in its
General Comment No 15 (constituting an authoritative interpretation of the named
instrument), where water appears to earn legal protection under the rights to adequate
standard of living and health (articles 11 and 12 respectively).51
49
‘Human rights and access to safe drinking water and sanitation’ Res 15/9 (6 October
2010) A/HRC/RES/15/9, para 3.
50
V v United Kingdom App no 24888/94 (ECtHR 16 December 1999).
51
UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 15, The
right to Water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural
Rights)’ (20 January 2003) UN Doc E/C.12/2002/11, para 3 (General Comment No 15).
tion: 12 / Date: 14/3
Yet, what is very interesting in that case is that Comment No 15 relies on the idea of
interdependence and indivisibility52 of HR. Thereby, it holds that, next to the classic
dimension all social rights have, ie progressive fulfilment, the right to water also
develops a negative dimension, requiring respect, as well as a positive one, corres-
ponding to the idea of protection.53 Thus, not only the right to water obtains legal
recognition (under the ‘auspices’ of two more general legal bases), but it is also given
ample effect. According to the negative pillar, states have a ‘hands-off’ duty to abstain
from interfering with the enjoyment of the right (for instance the state should not
pollute water); the positive effect consists in a due diligence54 obligation for the state
authorities to do whatever is possible to them (that is, an obligation of means55) to
prevent and deter persons or, more generally, situations endangering the enjoyment of
the right (when, for instance, a corporation pollutes the water); the last dimension,
fulfilment, is more of a policy-oriented obligation with a view to progressive realisation,
by building for instance the appropriate infrastructure. The latter facet, however, highly
depends on the resources (which by definition are limited) a state disposes, as well as
on the priorities its society sets, that is to say, on how highly such a policy is ranked,
when compared to other similar ones – such as education, for instance – equally
requiring progressive realisation.
The example of the right to water (as an attribute of the right to health) is convenient
not only because it shows how authoritative interpretation may recognise a ‘new’ right
as part of already established rights, but also because it shows how the broad effect
given to it on the basis of the triptych classification of respect-protection-fulfilment
offers wider space, ergo more opportunities for emerging ‘rights’ to be accommodated
within hard law rules and acquire concrete normative content.
To return to the example of the right to truth, this is exactly what the ICCPR
Committee did when it called the government of Nicaragua to:
52
On the triptych respect-protect-fulfil, see A Eide, ‘Economic, Social and Cultural Rights
as Human Rights’ in Α Eide ao (eds) Economic, Social and Cultural Rights (Springer 2001) 9.
See also Ο De Schutter, International Human Rights Law: Cases, Materials, Commentary (CUP
2010) 242ff.
53
General Comment No 15 (n 51), paras 18ff.
54
On the links between positive HR obligations and the principle of due diligence, see
Velásquez-Rodriguez v Honduras Inter-American Court of Human Rights Series C No 4 (29 July
1988), para 172. On due diligence, see R Pisillo Mazzeschi ‘The Due Diligence Rule and the
Nature of the International Responsibility of States’ (1992) 35 German Yearbook of International
Law 9. See also T Koivurova ‘Due Diligence’ (2008) Max Planck Encyclopedia of Public
International Law available at <http://www.arcticcentre.org/loader.aspx?id=78182718-d0c9-48
33-97b3-b69299e2f127>.
55
PM Dupuy ‘Reviewing the Difficulties of Codification: On Ago’s Classification of
Obligations of Means and Obligations of Result in Relation to State Responsibility’ (1999) 10
European Journal of International Law 371, 378–82. To give an example in judicial practice,
González et al (‘Cotton Field’) v Mexico Inter-American Court of Human Rights Series C No 20
(16 November 2009), para 252.
tion: 13 / Date: 14/3
take all pertinent measures to avoid cases of impunity and, especially, to allow the victims of
HR violations to find out the truth about those acts, to know who the perpetrators of such acts
are and to obtain appropriate compensation.56
In that case, the right to know was inferred from the fight against impunity, which can
be said to correspond to the positive effect of the right to life. In the case law of the
Inter-American Court of Human Rights (I-ACHR) and the ECtHR the link is
significantly more apparent. For instance, the former Court has recognised that right in
its seminal case Velásquez-Rodriguez, where it held that, as regards the right to life,
there is a:
duty to investigate [which] continues as long as there is uncertainty about the fate of the
person who has disappeared. [Whereas], the State is obligated to use the means at its disposal
to inform the relatives of the fate of the victims and, if they have been killed, the location of
their remains.57
Similar case law has also been developed by the ECtHR since its McCann judgment,
linking again the right to life with the positive obligation of state authorities to
effectively investigate killings,58 and, more closely related to the right to truth, the
Kurt59 judgment (concerning a missing person), which gave the Court the opportunity
to associate the aforementioned obligation (and consequently the right of kin to know)
with the positive effect of the right to liberty and security, and condemn thereby the
respondent for its failure to offer explanations ‘about the whereabouts and fate of
the applicant’s son after he was detained’.60 In short, the right to know is seen as the
counterpart of and the rationale behind the positive obligation states have to investigate
the conditions under which a person has suffered HR violations. This has been
explicitly acknowledged by the I-ACHR in its Castillo-Páez jurisprudence, where the
Court referred to the right to truth (and information, as it calls it) in the context of the
rights of the family (article 17 of the American Convention), stating that the former
right:
does not exist in the […] Convention, although it may correspond to a concept that is being
developed in doctrine and case law, which has already been disposed of in this Case through
the Court’s decision to establish Peru’s obligation to investigate the events that produced the
violations of the American Convention.61
Space constraints do not allow examining in further detail the relevant case law. Suffice
it to mention that the right to truth has been inferred from various bases, such as the
56
Human Rights Committee, ‘Concluding Observations of the Human Rights Committee:
Guatemala’ (3 April 1996) UN Doc CCPR/C/79/Add.63, para 25.
57
Velásquez-Rodriguez (n 54), para 181.
58
McCann and others v United Kingdom App no 18984/91 (ECtHR 27 September 1995),
para 161.
59
Kurt and others v Turkey App no 15/1997/799/1002 (ECtHR 25 May 1998),
paras 119–129.
60
ibid, para 129.
61
See, for instance, Castillo-Páez v Peru Inter-American Court of Human Rights Series C
No 34 (3 November 1997), para 86.
right to access to justice,62 the right to family life63 or the prohibition of ill-treatment,64
with the ECtHR delivering a seminal judgment in the El-Masri case.65 This case is
important not only because of what was at stake (extraordinary renditions to CIA), but
also because the Court explicitly referred to various soft law instruments,66 such as the
latest HR Council Resolutions on the right to truth,67 while it also took into account the
public statements and meticulous interventions made by various NGOs with regard to
that right,68 the existence of which it explicitly recognised.69 Thus, the general
conclusion to be reached is that, what initially was merely a soft law rule now is seen
as a ‘mature’ right that ‘has been developed in international HR law [… establishing]
an expectation regarding which the State must satisfy the next of kin of the victims and
[the] society as a whole’.70
3.2 The Case of Ethically Sensitive Questions and the Role of Consensus
That last dictum of the I-ACHR gives the opportunity to raise another question
regarding the limits of the power international justice has to recognise ‘new’ rights, as
well as what are the pertinent tools that a court may legitimately use for that purpose.
The question that could be asked is what if the ‘next-of-kin’ of the victim was her/his
same-sex partner? Of course, that person would fall within the concept of the ‘society
as a whole’. But, would that person be individually entitled to receive information and
learn the truth in her/his capacity as a partner? Could a court recognise the right of
same-sex couples to know? Giving already existing rights a new direction that was not
initially envisaged by the drafters of an international treaty may not raise problems in
the case of rights that are not morally sensitive or socially controversial – especially if
these are sufficiently backed up by soft law instruments or have undergone a process of
maturing within the society. Yet, what shall happen in the case of contestable or
62
19 Merchands v Colombia Inter-American Court of Human Rights Series C No 109 (5
July 2004), paras 157ff and especially para 188.
63
See, for instance, Zorica Jovanović v Serbia App no 21794/08 (ECtHR 26 March 2013),
where the respondent state has been condemned for its continuing failure to provide information
concerning the fate of a missing newborn baby in hospital care.
64
An example that can be given is the cases of Greek Cypriots missing since the 1974
military operations in northern Cyprus by the respondent state. Among other, Varnava and
others v Turkey App no 16064/90 and several others (ECtHR 18 September 2009), and the
comments by N Kyriakou, ‘Enforced Disappearances in Cyprus: Problems and Prospects of the
Case Law of the European Court of Human Rights’ (2011) 2 European Human Rights Law
Review 190.
65
El-Masri v The Former Yugoslav Republic of Macedonia App no 39630/09 (ECtHR 13
December 2012).
66
ibid, paras 98ff.
67
ibid, para 104.
68
ibid, paras 113ff, and mainly 176ff.
69
70
Bámaca-Velásquez v Guatemala Inter-American Court of Human Rights Series C No 91
(22 February 2002), para 76. cf Blanco-Romero et al v Venezuela Inter-American Court of
Human Rights Series C No 138, para 62, where the Court refused to recognise the right to know
the truth as a separate right enshrined in other rights in the American Convention.
tion: 15 / Date: 14/3
ethically ambiguous questions, such as same-sex couples rights, bioethics, euthanasia,

or the right to abortion?
In that respect it is interesting to note that the ECtHR has developed a judicial
practice (reflecting of course a concrete doctrinal approach, but also a certain choice),
in terms of which HR may evolve, as long as a consensus71 exists within the European
society. Thus, because ‘a rapid evolution of social attitudes towards same-sex couples
has taken place in many member States’,72 they fall (even if they only are in de facto
partnership) within the ambit of protection of family and private life, under Article 8
ECHR.73 By the same token, however, the absence of such a consensus equally
signifies that same-sex couples do not have (yet) a right to marriage,74 as, for exactly
the same reasons, ie absence of consensus amongst the European states, the European
Court has similarly refused to recognise the right of homosexuals to adopt.75 Yet,
because of consensus, when a state decides to enact alternative forms (such as civil
partnership) of legal recognition for families, it cannot discriminate between different-
sex and same-sex couples,76 whereas states now have a positive duty in Europe to offer
(at least) the option of recognised by law same-sex partnership/union.77
Where consensus is missing, states enjoy a wider margin of appreciation,78 giving
them the liberty to regulate in accordance with the values prevailing within their order.
In cases ‘rais[ing] sensitive moral or ethical issues, the margin will be wider’.79 This is,
for instance, the case of unborn foetuses, which, because of the lack of consensus as to
when life begins, cannot be seen by the ECtHR as falling under article 2 (right to
life).80 Despite, finally, the existence of clear consensus in Europe in favour of
abortions (and here one may wonder whether the Court is not inconsistent in its case
law), because states have wide discretion in the way they regulate questions related to
the unborn foetus, they shall be free to decide the balance to be maintained between the
protection they want to offer to the foetus, on the one hand, and the conflicting rights
of the mother wishing to proceed with an abortion, on the other.81
Once again, space limits are an impediment to a more comprehensive discussion of
the doctrine of consensus and the questions that this raises. Yet, there are two points
71
For a comprehensive, critical overview, see L Wildhaber, A Hjartarson, S Donnelly, ‘No
Consensus on Consensus? The Practice of the European Court of Human Rights’ (2013) 33
Human Rights Law Journal 248.
72
Schalk and Kopf v Austria App no 30141/04 (ECtHR 24 June 2010), para 93.
73
74
ibid, paras 58ff.
75
Fretté v France App no 36515/97 (ECtHR 26 February 2002), para 41.
76
Vallianatos and others v Greece App no 29381/09, 32684/09 (ECtHR 7 November 2013),
especially para 91.
77
Oliari and others v Italy App no 18766/11, 36030/11 (ECtHR 21 July 2015).
78
S and Marper v United Kimgdom App no 30562/4, 30566/04 (ECtHR 04 December
2008), para 102.. See also the critical comments by Judge C Rozakis [‘Through the Looking
Glass: An ‘Insider’s View of the Margin of Appreciation’ in La Conscience des Droits. Mélanges
en l’honneur de Jean-Paul Costa (LGDJ 2011) 527, especially 536] who advocates the
disentanglement of consensus with the application of the margin of appreciation.
79
A, B and C v Ireland App no 25579/05 (ECtHR16 December 2010), para 232.
80
Vo v France v Ireland App no 53924/00 (ECtHR 8 July 2004), para 82.
81
A, B and C (n 79), paras 235ff.
tion: 16 / Date: 14/3
that are central to this chapter and need to be briefly examined. The first concerns the
relationship between that method of interpretation and custom. The second relates to
the overly excessive role that method may be giving to state will, to the detriment
maybe of the raison d’être of HR and the principles from which these emanate.
3.2.1 Consensus as the basis for custom

Without entering into the questions of the distinction and the overlap between
consensus-based and contiguous methods of interpretation, such as the dynamic/
evolutive82 or the systemic integration ones,83 what matters here is that the former
method too subscribes to the logic of HR treaties as instruments that are living84 and
may therefore take into account and eventually ‘absorb’ evolution within the society. Of
course, the ECtHR is absolutely free to quest evolution behind the borders of Europe
and be inspired by the practice of and within a big number of actors such as the UN
and other international organisations, the civil society, and of course states world-
wide.85 If there is an emerging trend within the broader system and society of
international law, the Court may take this duly into account. Thus:
in defining the meaning of terms and notions in the text of the Convention, [it] can and must
take into account elements of international law other than the Convention, the interpretation
of such elements by competent organs, and the practice of European States reflecting their
common values. The consensus emerging from specialised international instruments and from
the practice of Contracting States may constitute a relevant consideration for the Court when
it interprets the provisions of the Convention in specific cases86 (emphasis added).
However, for the purposes of the argument that follows, it is the narrower version of the
consensus method of interpretation, consisting in the comparative examination of the
domestic laws and practices of the contracting parties to the ECHR only, which is more
pertinent. In that case, the Court limits its comparative scrutiny for the establishment of
consensus to the practices followed within a narrow ‘pool’ of states, that is, the
82
Among others, K Dzehtsiarou, C O’Mahony ‘Evolutive Interpretation of Rights Pro-
visions: A Comparison of the European Court of Human Rights and the US Supreme Court’
(2013) 44 Columbia Human Rights Law Review 309. For an overview beyond the ECtHR,
especially with regard to state practice after a state has accepted to be bound by a treaty,
see ILC, ‘First report on subsequent agreements and subsequent practice in relation to treaty
interpretation, by Georg Nolte, Special Rapporteur’ (2013) UN Doc A/CN.4/660, 23ff
paras 54ff.
83
Among many others, VP Tzevelekos ‘The Use of Article 31(3)(c) of the VCLT in the
Case-Law of the ECtHR: an Effective Anti-Fragmentation Tool or a Selective Loophole for the
Reinforcement of the Teleology of Human Rights? Between Evolution and Systemic Integration’
(2009) 31 Michigan Journal of International Law 621.
84
Among several other cases, Tyrer v United Kingdom App no 5856/72 (ECtHR 25 April
1978), para 31.
85
Christine Goodwin v United Kingdom App no 28957/95 (ECtHR 11 July 2002),
paras 84–85.
86
Demir and Baykara v Turkey App no 34503/97 (ECtHR 12 November 2008), para 85.
European continent. The question asked here is how far is this from the recognition of
a (regional, in that scenario) custom for the protection of a new HR.87
A more ‘formalist’ approach would squarely reject this as the Court does not
explicitly address the question of general acceptance/shared conviction amongst states,
that is, the existence of opinio juris that their practice has transformed into an unwritten
rule of international law at the regional level. The second counter-argument would be
that, for the ECtHR, it appears to suffice that a significant number (if not a majority88)
only of states (and not all of them) support with their practice at the national level a
given evolution in the area of HR. Yet, regional/local custom is seen as being closer to
a tacit agreement between states. State consent is of weight in that case.
Against these very reasonable arguments, the study suggests that, although the
ECtHR does not use the European consensus (hereinafter EuC) method with a view to
identify the existence of custom,89 that interpretative technique is contiguous to, and
indeed reminiscent of, judicial custom recognition. What the ECtHR did in the case law
mentioned earlier was to observe in essence state practice and, when this was
sufficiently widespread, recognise its legal effect, by furthering and updating the text of
the ECHR.
As far as the counterargument regarding opinio juris is concerned, as already
mentioned, this concept is hard to be evidenced. Furthermore, its existence depends on
the subjective appreciation of involved actors, such as courts and states. In reality,
courts need to interpret the evidence they collect regarding the psychological element
of custom. If the ECtHR is not proceeding with that type of analysis, it is just because
it does not need to do so. For, its purpose is not to identify custom, but to justify by the
means of the comparative analysis lens of EuC the expansion of the ECHR’s semantic
field. The Court does not recognise through EuC a right ex nihilo; it simply relies on
evolving state practice with a view to upgrading already existing rules, which are
thereby ‘modernised’ and extended by acquiring new dimensions supported by the
consensus of European states – that is, the very same states as the ones that have
initially posited and/or subscribed to these rules. If this is not custom,90 then it is close
to it.
But – to turn to the second counterargument, namely the majoritarian dimension of
EuC – what is custom? The laconic and lacunary text of Article 38 of the ICJ statute
tells very little and, as such, is not formally binding for the ECtHR. The definition of
custom as a source of international law is a non-written (‘meta’)rule of systemic
purpose and nature. To identify custom, ie the normative product of the customary
87
I Ziemele ‘Customary International Law in the Case Law of the European Court of
Human Rights: The Method’ (2013) 12 The Law and Practice of International Courts and
Tribunals 243, 248.
88
Among several other cases, Demir and Baykara v Turkey (n 86), para 86, and Marckx v
Belgium App no 6833/74 (ECtHR 13 June 1979), para 41.
89
Hence, the ECtHR is not identifying through EuC regional custom.
90
If it would be custom, it would be regional only, ie European. The ultimate test for that
would be whether the normative output of EuC could have an autonomous standing outside the
ECHR, that is, whether such a rule would continue to be binding for European states in the
absence of the ECHR. On regional/local custom see, among others, G Cohen Jonathan, ‘La
coutume locale’ (1961) 1 Annuaire Français de Droit International 119.
tion: 18 / Date: 14/3
process, judges necessarily (re-)define custom as a source of law, ie the process leading
to the customary rule. The comparative overview of the judicial definition of custom
demonstrates that, as a source of positive international law, this is far from static; it
depends on the context of each case, it evolves over time and, mainly, it vacillates
between two theoretical (and highly ideological) extremes to which that article has
extensively relied thus far: voluntarism and sociological objectivism. The study lacks
the necessary space to trace the full trajectory of custom in international case law, but
one needs only to juxtapose91 Lotus, defining custom as a rule ‘binding upon States
[because it] emanates from their own free will as expressed […] by usages generally
accepted’,92 with the Wall opinion, referring to the ‘elementary considerations of
humanity’ as a ground imposing obligations on states against their will.93 Whether
custom requires all states to agree or simply a majority of them forming a social trend
is a question of definition of custom, which is to be decided also by judges. Hence, the
bottom line of the argument built here is that EuC presents many of the qualities of
custom. Should an international court (like the ECtHR) wish to apply it as a basis for
the identification of custom, this could produce the effects of (regional) custom, in
accordance with the definition of custom that would be given by that court.94
3.2.2 Consensus versus principles

The passages given from the ICJ jurisprudence pose a question that is not new to the
study. International positivism has not yet fully answered whether the normative force
of its rules stems from, and depends on the will of the sovereign state exclusively. The
answers in that respect are far from clear, raising issues not only of validity and
legality, but also of legitimacy, outside the confines of positive law, where indeed the
foundation of all social constructs – such as law – lies. The problem of the extra-legal
foundations is even more critical in the case of HR, which are ‘special’ exactly because
of their value-stemming extra-legal grounds. One may wonder if, given the nature,
constitutional origins, and function – which primarily concerns the relationship
between the human being and state authorities, and then inter-state relationship – of
HR, state consensus should be given such a weight in the recognition of HR rules by
courts. The critique in that respect against the EuC method is that intentionalism95
should not be allowed to impact upon international HR. Put in different terms, why gay
91
One could also compare the opinion of the majority in Lotus with the dissenting opinion
by Judge Nyholm (n 92, 60) who defines custom as the ‘united will of several and even of many
States constituting a union of wills, or a general consensus of opinion among the countries […],
or a manifestation of international legal ethics which takes place through the continual
recurrence of events with an innate consciousness of their being necessary’.
92
The Case of the S.S. ‘Lotus’ (France v Turkey) [1927] PCIJ Series A No 10, 18.
93
(Advisory Opinion) [2004], para 157. See also Prosecutor v Kupreškić et al (Judgment)
ICTY-95-16-T (14 January 2000), para 527.
94
Admittedly, there is pluralism in the definition of custom, whereas it is argued that both
regional custom and HR custom differ from general international law custom. As far as HR
custom is concerned, see n 40–41.
95
G Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP
2007), 58–72.
tion: 19 / Date: 22/3
marriage, for instance, should be a matter of consensus within the European society/
ies? After all, the majority rule does not apply in the case of civil and political rights.96
The purpose of that class of rights is to protect the individual, even when the majority
disagrees. Otherwise, there would be no minority rights.
This is why, according to that line of reasoning, HR should be interpreted in the light
of the foundational philosophical principles that underpin them. The rationale behind
gay marriage is non-discrimination, which stems from the principle of equality. Mutatis
mutandis, rather than waiting for states to formally establish the right to the internet, a
court could recognise (always under the logic of respect-protect-fulfil) that right by
drawing a line linking it for instance with freedom of expression, which, on its own
turn, reflects the idea/principle of liberty. In a nutshell, rather than waiting for the states
to agree or even give the tempo in the evolution of HR, international courts could
generate evolution by translating general principles into modern life rights. In that vein,
they should be allowed to even go against state practice to interpret their respective
conventions, if not contra, at least praeter legem. Equality could be proven to be a solid
foundation for interpreting the text of article 12 ECHR or 23 ICCPR, which provides
for the right of men and women to marry, as not necessarily implying that a man can
only marry a woman and vice versa, whereas dignity, liberty or autonomy could allow
a court to recognise euthanasia, even if, admittedly, the right to life ‘cannot, without a
distortion of language, be interpreted as conferring the diametrically opposite right,
namely a right to die’.97
Yet, what has been shown is that, instead of relying on that type of generic
philosophical foundations, the ECtHR often attempts to collect the elements that
support and offer legitimacy98 to its ‘activism’ in state practice within Europe, as well
as within the broader international legal system. In that respect, one could argue that
this is the price HR had to pay for their internationalisation. The consensus-based
approach does not rely on majorities in the society, nor is it a form of judicial
‘referendum’. What the ECtHR is valuing is state practice, reflecting the will of
sovereigns. Unlike national judges, whose powers stem from constitutions, international
judges are competent because states allow them to be. Furthermore, they do not deal
with one single demos, but with many, each one of which constitutes a distinctive
sociolegal entity, that is, a state with its own legal order, system and society. Be they
‘special’, international HR are also international. They are posited within and by the
system of international law, and that very system, despite the aforementioned ambiguity
about the inner sources of its normativity, remains state-centric, with rules being
created either by treaties that reflect state will, or by custom that stems from state
practice that is accepted as law again by states. This is besides why the argument has
been in this study that the consensus technique is akin to recognition of regional
custom.
96
See, for instance, Young, James and Webster v The United Kingdom App no 7601/76,
7806/77 (ECtHR 13 August 1981), para 63. cf A, B and C (n 79), especially paras 222ff.
97
Pretty v United Kingdom App no 2346/02 (ECtHR 29 April 2002), para 39.
98
K Dzehtsiarou ‘Does Consensus Matter? Legitimacy of European Consensus in the Case
Law of the European Court of Human Rights’ (2011) Public Law 534.
tion: 20 / Date: 22/3
On the other hand, consensus and state practice are not the only means international
HR courts, including the ECtHR, use for the recognition of ‘fresh’ HR. For instance,
relatively recently, that last Court delivered its judgment in the Vinter case,99 holding
that, although states maintain margin of appreciation on the length of prison sentences,
an irreducible life sentence on an adult could raise an issue under the prohibition of
ill-treatment. Interestingly, for the Court to reach that conclusion, among other
arguments similar to the ones that have already been examined in this study, such as
reliance on international soft and hard law instruments, it also referred to German
jurisprudence with a view to suggest that the rationale behind its findings is the idea of
human dignity.100 By a similar token, the I-ACHR, in its judgment in the case of Atala
Riffo and Children v Chile, confirmed older case law linking the ideas of freedom (that
is, liberty) and self-determination with sexual orientation.101 Although the interests of
the child need to be duly taken into account in a custody dispute case between parents
because of the mother’s sexual orientation and her co-habitation with a same-sex
partner, that balancing process shall exclude any assessments on the basis of ‘specula-
tions, assumptions, stereotypes, or generalized considerations regarding the parents’
personal characteristics or cultural preferences regarding the family’s traditional
concepts’.102 After resorting, inter alia, to relevant soft law documents,103 the Court
concluded that the:
lack of consensus regarding sexual orientation as a prohibited category for discrimination [or]
regarding full respect for the rights of sexual minorities cannot be considered a valid
argument to deny or restrict their HR or to perpetuate and reproduce the historical and
structural discrimination that these minorities have suffered104 (emphasis added).
4. CONCLUDING REMARKS: THE MAIN ARGUMENT, ITS

THEORETICAL FOUNDATIONS AND THE QUEST FOR
LEGITIMACY
For a rule to be given special normative effect in international law – as happens in the
case of the erga omnes nature of HR – it needs first to be, that is, to exist as a rule. To
earn such an existence in international law, it must have been posited by the means of
one of its sources. Yet, treaties only have a relative effect and custom is in essence
informal, depending on elusive preconditions, consisting, inter alia, on the general
acceptance by states that their practice has turned into a non-written legal obligation;
such a conviction is neither formally recognised, nor easily evidenced/observable as it
99
Vinter and others v United Kingdom App no 66069/09, 130/10 and 3896/10 (ECtHR 9
July 2013).
100
ibid, para 113. As the ECtHR has recognised, ‘[t]he very essence of the Convention is
respect for human dignity and human freedom’. Pretty (n 97), para 65.
101
Atala Riffo and Children v Chile Inter-American Court of Human Rights Series C No
239[I-ACHR, 24 February 2012], para. 136.
102
ibid, para 109.
103
ibid, para 90.
104
ibid, para 92.
tion: 21 / Date: 14/3
corresponds to the psychological or subjective element of custom-making. This is a sort

of shortcoming for international positivism, which, especially in the case of HR
customary law has to overcome one extra inconvenience. HR have forceful and quite
often overwhelming material foundations, reflecting the values of the society as to what
is deemed important and therefore also necessary. This is after all why they are granted
a special normative place within international law.
That being explained, the main argument suggested in the chapter is that inter-
national judicial mechanisms, apart from fostering the enforcement and effectiveness of
HR protection, may also recognise the existence of ‘new’ or ‘renewed’ HR. Quite often,
they do so by widening already existing, relevant and contiguous legal bases that are
interpreted in an evolutive way. This is of course a characteristic of all legal systems.
Yet, in the case of international law it acquires a particular importance owed to the
traits of the decentralised and state-centric international system and the impact these
have on the function of positivism, the limitations of which have been briefly discussed
earlier.
The study has expressed a number of reservations regarding treaties and custom,
arguing that the inconvenience they cause to the system of international law may be
remedied – and is indeed de facto remedied – thanks to the role of an auxiliary source
of international law: case law. The function of international judicial instances is such
that allows them to overcome the shortcomings of international legal positivism by
acting as a de facto substitute to the absence of rules of recognition in international law,
and exercise their authority105 to formally recognise the existence of a rule, which is
often ‘attached’ to other rules contained in the text of an international HR instrument.
The theoretical premises of the law-recognising authority of courts can be found in
Hart, who maintained that:
it is […] a mistake to suppose that a basic rule or rule of recognition is a generally necessary
condition of the existence of rules of obligation or ‘binding’ rules. This is not a necessity, but
a luxury, found in advanced social systems whose members not merely come to accept
separate rules piecemeal, but are committed to the acceptance in advance of general classes
of rule, marked out by general criteria of validity. In the simpler form of society we must wait
and see whether a rule gets accepted as a rule or not.106
105
One cannot but refer to the seminal and very systematic work of von Bogdandy on the
concept of public authority, initially in the context of global governance and public adminis-
trative law, and mutatis mutandis in the context of international judicial organs as well.
Regarding the first aspect, and the criteria surrounding the concept, see A von Bogdandy, P
Dann, M Goldmann ‘Developing the Publicness of Public International Law: Towards a Legal
Framework for Global Governance Activities’ in A von Bogdandy ao (eds), The Exercise of
Public Authority by International Institutions: Advancing International Institutional Law
(Springer 2010), 5 and 11ff. On the authority of courts in ‘lawmaking’ and ‘stabilising normative
expectations’ see A von Bogdandy and I Venzke ‘On the Functions of International Courts: An
Appraisal in Light of Their Burgeoning Public Authority’ (2013) 26 Leiden Journal of
106
Hart (n 9), 235, 214 and, on the effect of recognition, 94ff and especially 100ff.
International law is by definition a simpler form of society (and legal order), which
relies on non-written rules that cannot be recognised as such, unless if judges exercise
authority for that purpose. Thus:
[…] it is in this light that we are asked to view customary rules which have the status of law
in a legal system. Till the courts apply them in particular cases such rules are mere customs,
in no sense law. When the courts use them, and make orders in accordance with them which
are enforced, then for the first time these rules receive legal recognition.107
Faithful to its positivist framework, the study has tried then to observe how judges fulfil
that function and recognise the existence of rules. In that respect, two grosso modo
paths have been discussed. As far as the first one is concerned, this is more apposite to
the logic of international law and could even be seen as germane to, or even
reminiscent of (a certain type of ‘new’) custom-making relying on consensus within
state practice or, more generally, on trends within the international society. Outside
state practice, social evolution can be observed in institutional practice, soft law,
interventions and, more generally, activism by the civil society, and so on and so forth.
However, because of international law’s state-centricism, in the case especially of the
consensus method of interpretation, state practice remains central. Under that first
scenario, rather than creating law ex nihilo, courts appear to translate social evolution
into law – usually by relying on the interpretation of already existing rules. Yet, it is the
society that makes the law and not courts themselves.108 Judges only recognise in an
authoritative manner evolution and formally ‘label’ it as law. After all, this is something
that allows judicial practice to justify the legitimacy of the choices it is called to make
when it identifies or refuses to recognise the emergence of a new right. Courts simply
echo the society. By exercising authority they translate social evolution into law.
The second avenue appears to marginalise the international context of HR protection,
to the benefit of their (ideology-driven) material underpinnings and philosophical
premises. It is similar to the first method in that material sources acquire formal
substance by the means again of judicial interpretation. As for the differences, these
mainly consist in that the latter path invites judges to close their ears to the sirens of
social desires, state practice and, more generally, international trends, and focus on the
ideological core, philosophical matrixes and teleology of HR. In that case, judges are
not called to translate social reality into law, but general principles needed to acquire
effect within concrete contexts. Equality, liberty and dignity are all-embracing concepts
that offer elasticity, flexibility and adaptability to HR, which, under that scenario, shall
apply against the will of states or the prevailing tendencies within the society.
One may wonder whether this dilemma is not a reproduction of the foundational
political philosophy question regarding the ‘tensions’ between democratic/majoritarian
decision-making and (the limits of) judicial review.109 What is certain is that no ideal
107
ibid, 46.
108
See in that respect the distinction between the formation of the rule and its ‘formulation’
by the judge; J Charpentier, ‘Tendances de l’élaboration du droit international public coutumier’
in SFDI, L’élaboration du droit international public. Colloque de Toulouse (Pedone 1975) 106.
109
In that respect, one could refer to the representation-reinforcing theory and the so-called
new public law movement in the US, justifying judicial intervention to correct democratic
tion: 23 / Date: 14/3
situation and no costless solution exists within the artificial environment of legal
positivism – especially the way this applies within the idiosyncratic international legal
system. Life means trade-offs. The exercise of authority by courts in the area of HR
cannot escape that simple rule. If one would wish to opt for a less ahistorical approach,
s/he would observe that HR change over time, due to the fact of course that the values
within the society change too. This is a rather relativist approach, favouring a dynamic,
consensus-based reading of HR. However, the handicap of that approach is that it
comes with the following oxymoron. Although civil and political rights, once they have
been posited, exclude the logic of majoritarianism and reject the ‘tyranny of public
opinion’ (to refer to the passage by Stendhal opening this study), they appear to owe
their very existence and legitimacy to that very same ‘tyranny’, that is, the ‘despotism’
of social majorities.
Yet, the other path too is far from being flawless. First, the underpinning principles
are not neutral; quite the opposite, they are too the ideological product of the society.
Second, like all principles, they are general, abstract, subject to subjective interpret-
ation,110 and fail to constitute a coherent ensemble offering comprehensive answers.
This leads to fragmented, conflicting and irreconcilable outcomes.111 This is of course
because their philosophical premises112 are fragmented too and nourished by divergent
ideologies. The Universal Declaration of HR may start in its preamble by saying that
‘the inherent dignity and […] the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world’. Yet, a
dignitarian approach might reject euthanasia, whereas a liberal approach favouring
freedom might allow self-determination, with the reservation of course placed by
utilitarianism that liberty shall be limited if such a solution would not maximise
happiness for the society as a whole.
It is within that environment that judges are given the authority to juris dicere. They
enjoy discretion and may choose either to impose their own ideological preferences
upon the society, or turn to the society and allow it to impose the ‘tyranny’ of its public
opinion. These are the two extremes, the two poles, which tend of course to be more
apparent where consensus lacks. Yet, this is inherent to law, which always, albeit to
different degrees, limits individual freedom for the purposes of social co-existence.
With the only difference that, in the international context, because of the nature of its
legal system, the judicial function is called on to vacillate between these two poles
within a socio-legal context that requires it also to decide whether it shall prioritise
failure. See, for instance, WN Eskridge and G Peller, ‘The New Public Law Movement:
Moderation as a Postmodern Cultural Form’ (1991) 89 Michigan Law Review 707, and JH Ely,
Democracy and Distrust. A Theory of Judicial Review (Harvard University Press 1980).
110
This refers to the distinction between concepts and conceptions. WB Gallie ‘Essentially
Contested Concepts’ (1956) Proceedings of the Aristotelian Society 167; R Dworkin, Law’s
Empire (Harvard University Press 1986) 87ff.
111
See, for instance, R Brownsword ‘Making People Better and Making Better People:
Bioethics and the Regulation of Stem Cell Research’ (2005) 1 Journal of Academic Legal
Studies 5, regarding the different outcomes one may reach in morally sensitive areas such as
bioethics, depending on her philosophical premises.
112
For a comprehensive and critical account of the history and philosophy of HR,
C Douzinas, The End of Human Rights (OUP 2000).
state will, subscribing thereby to the perception of a society of sovereigns, or, more
broadly, social necessity, reflecting the idea of a more enriched and humanised
international society. This is yet another ideological dipole within the context of which
the already ethically polarised regime of HR operates. This is also one of the reasons
why international positivism proves to be inadequate, and why the study has pointed to
the role of authorities, like courts and judges, who, within that framework, cannot but
play a central role.
17. The making of international criminal law

Sergey Vasiliev*
1. INTRODUCTION
By what actors and processes international criminal law (ICL) is and may legitimately
be made is the key question of this discipline. International criminal justice is now an
established and thriving field that prides itself on a developed system of norms and
institutions. It is thus something of a paradox that the issues raised by lawmaking in
ICL are more in the foreground today than at its nascence. The proceedings held at the
Nuremberg and Tokyo International Military Tribunals (IMT and IMTFE, respectively)
in the aftermath of World War II mark the year zero in the grand narrative of ICL. The
Nuremberg trial in particular is commonly seen as a pivotal lawmaking moment.
Despite the IMT judges’ assurances that the Charter reflected pre-existing law, the
question whether the boundaries of lawmaking were duly respected remains contested.1
Sceptics will doubt that earnest engagement with this issue was possible at the time. A
strong moral demand for substantive justice, to be achieved through the new tool of
ICL, and the political impetus to deal with Nazi atrocities judicially rendered the issue
practically, if not legally, irrelevant.
By contrast, nowadays the limits of international criminal lawmaking are tested, as
legal business-as-usual, in a plethora of international courts and tribunals which have
mushroomed during more than the past two decades. In this post-ontological phase, the
tensions between legal positivism, preoccupied with the quest for objectified law, and
natural law as a moral force driving behind the law’s evolution have nowhere
disappeared.2 These are congenital to the project of ICL and continue to shape its
lawmaking, albeit more subtly than seven decades ago. Contemporary ICL is hall-
marked by regulatory volume, sophistication, and density which easily rival those of
advanced domestic legal systems and make it an atypical branch – or a sub-system – of
* This chapter was written when the author was a postdoctoral researcher at the Faculty of
Law and fellow of the Center for International Criminal Justice, VU Amsterdam. It is part of the
research project ‘Pluralism and/or Harmonization of International Criminal Law’, funded by the
Netherlands Organisation for Scientific Research (NWO).
1
Judgment, in The Trial of Major War Criminals before the International Military
Tribunal, Nuremberg, 14 November 1945–1 October 1946 vol I (IMT 1947) (hereafter ‘IMT
Judgment’), 218. Cf H Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a
Precedent in International Law?’ (1947) 1 International Law Quarterly 153, 161–62.
2
B Van Schaack, ‘Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and
Morals’ (2008) 97 Georgetown Law Journal 119, 157; R Cryer, ‘International Criminal Justice
in Historical Context: The Post-Second World War Trials and Modern International Criminal
Justice’ in G Boas ao (eds), International Criminal Justice: Legitimacy and Coherence (Edward
Elgar 2012), 156; N Arajärvi, ‘Between Lex Lata and Lex Ferenda? Customary International
(Criminal) Law and the Principle of Legality’ (2010–11) 15 Tilburg Law Review 163, 163.
354
The making of international criminal law 355
international law. The idiosyncrasy of purposes, addressees, and methods sets ICL apart
from many other specialized subject-matter areas. Not only does international criminal
lawmaking present a unique configuration of ‘law-creating processes’ and ‘law-
determining agencies’, which underlines the distinctive character of ICL, but it also
illustrates the methodological diversity of international law itself. This may invite a
reappraisal of traditional paradigms and assumptions regarding international lawmaking
writ large.
It is these distinctive aspects of international criminal lawmaking – and what they
teach about international lawmaking generally – that this chapter puts into the
limelight. The objective is neither to provide a retrospective of the genesis and
evolution of ICL, nor to assess the end-result. Instead, the chapter provides a tour
d’horizon of international criminal lawmaking with a methodological bent – a
justifiable approach given the scarcity of accounts of the theory and practice of
lawmaking in ICL. Many of the analyses so far have been limited to the formal status
of international law sources and precedents in ICL, while a few works presenting a
realist and constructive take on the subject have typically focused on ‘judicial
lawmaking’,3 which refers to the formulation or creation by courts of principles and
rules with normative effects beyond individual cases.4
This chapter starts by illustrating the complexity of the concept and phenomenon of
international criminal lawmaking. Following clarifications of the underlying approach,
section 2 highlights the causes of that complexity and, in particular, the profusion and
increasing specialization of norms in the field of ICL, which accommodates multiple
lawmakers, sources, and institutions. The formal status of a norm as ‘law’ depends on
the validity and proper exercise of lawmaking authority, and the elusiveness of the
applicable normative constraints in ICL complicates the task of delimiting ‘law’ and
‘lawmaking’ in this field. Section 3 turns to the function of legality as a normative
constraint on the making of substantive ICL. A hybrid of international and criminal
law, ICL is riven by the contest between the incongruent doctrines of sources and
interpretive methods. Section 4 zeroes in on these formal constraints and queries
whether international legal formalism squares with the actual role of, and relationship
between, the law-creating processes and law-determining agencies in ICL. To the extent
that ICL has been forged by courts legislating on the fringes of traditional lawmaking
authority, it can be described as ‘autopoietic law’, and its legitimacy is open to
challenges despite the decentralized character of the system of international criminal
lawmaking. The chapter links the ongoing uncertainties about the parameters of
legitimate lawmaking to the pluralism of legislative arrangements in ICL. The recurring
3
M Swart, ‘Is There a Text in This Court? Purposive Method of Interpretation and ad hoc
Tribunals’ (2010) 70 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 767; M
Ajevski, ‘Judicial Law-making in International Criminal Law: The Legitimacy Conundrum’ in J
Crawford and S Nouwen (eds), Select Proceedings of the European Society of International Law
vol III (Hart Publishing 2010), 127; A Marston Danner, ‘When Courts Make Law: How the
International Criminal Tribunals Recast the Laws of War’ (2006) 59 Vanderbilt Law Review 1.
4
M Kuhli and K Günther, ‘Judicial Lawmaking, Discourse Theory, and the ICTY on
Belligerent Reprisals’ in A von Bogdandy and I Venzke (eds), International Judicial Lawmaking:
On Public Authority and Democratic Legitimation in Global Governance (Springer 2011), 395.
tion: 2 / Date: 9/2
questions about its legitimacy can in part be attributed to the deep-seated reasons for
which states have designed some ICL regimes as more ‘autopoietic’ than the others.
2. COMPLEXITIES OF LAWMAKING IN ICL
2.1 Bridging Formalist and Realist Views
Before proceeding further, two remarks on the approach to lawmaking developed here
are in order. First, the baseline is that particularly in the field of ICL there is a need to
bridge the gap between the formalist and realist takes on lawmaking. Each of them
offers advantages but, taken in isolation, none of them provides an adequate framework
for understanding and critiquing the genesis and evolution of ICL. Realist accounts not
undergirded by a normative frame of reference may provide a good snapshot of the
social practice of lawmaking but, at the same time, be indulgent about its irregularities
and unaccountability, viewing the social or moral need for law as a substitute for the
method of bringing it about. Objectionable lawmaking could then be justified by the
exigencies of law-identification in pursuit of goals such as the ‘fight against impunity’.
On the other hand, formalism observes lawmaking through a static and spotless prism
of traditional sources and establishes clear defining criteria for what amounts to law.
But the sterility of such accounts poses a risk of misreading the complex social reality
of lawmaking, whereby the practice of derivation (or generation) as well as the
interpretation of the applicable norms by courts would be pressed into the Procrustean
bed of the positivist orthodoxy. An axiom that legal formalism works (or must work)
will foster neglect of how the ‘sausage of ICL’ gets made. Disinterest in the reasons
behind deviation of the law-identification practice from the formalist paradigm
decreases its explanatory power and ability to provide realistic normative criteria of
legitimate lawmaking. Only the combined, two-legged approach that keeps an eye on
both the (formalist) theory and the (social) practice of lawmaking would be able to
capture the inadequacies of either of them and attend to both the normative and
empirical aspects of the question.
The second remark concerns the difficulty of marrying the two strands, which stems
from their different interpretations of ‘law’ and ‘lawmaking’. The social practice, which
occupies a centre stage in realist accounts, is an exceedingly broad category. It is a
cobweb of decisions and interactions between multiple actors operating at different
levels of the international legal system and contributing to the production of ICL in
ways available and preferable to them. Delimiting the scope of this practice that ought
to be considered presents challenges because in a more inclusive, sociological sense,
lawmaking cannot be reduced to the formal enactment of law through the promulgation
of its formal source. One cannot deny that contributions to the production of ICL by
actors not vested with formal lawmaking powers have been substantial. This includes
judges, who nominally do not make (substantive) law, parties to the proceedings, and
outside actors – NGOs and advocacy groups, academics, and so on. The input of these
‘participants’ as facilitators, advocates, and experts in the making of ICL has been
tion: 3 / Date: 9/2
important and even decisive at times.5 However, without a formally conferred com-
petence to make ICL (whether categorized as the creation or the ascertainment of law),
their participation does not in and of itself have law-generating effects. It is up to actors
endowed with such a role – most notably, states and international organizations (IOs)
within their delegated authority – to elevate a standard or practice to the rank of law.
Therefore, in order to remain operable, the concept of lawmaking for the present
purpose refers to the ascertainment or enactment of law in the exercise of delegated or
inherent lawmaking authority, to the exclusion of other forms of participation in the
shaping of ICL’s content.
Hence, the methodological premise of the following discussion is formalist in
essence, although not overly so. It is recognized that the lawmaking function in ICL,
like in other areas, is not reserved to a single category of actors but spread over a
medley network of entities and officials – which is not conceivable without inter-
national courts and judges. The thesis that ICL can be – and has been – made in the
shadow of traditional lawmakers, in particular by judges, is by no means rejected,
although the status of their normative output as law is not a given. As a matter of fact,
it is contradicted by the tribunals’ own ‘master narrative’ endorsing legal formalism and
denying the law-generating effects of their judicial decisions.6 Thus, international
criminal lawmaking denotes the bringing into effect of ICL norms binding on those to
whom they are addressed and producing respective obligations, by actors who possess
competence to make law and exercise it within appropriate limits. The circularity and
closedness of this definition is readily conceded. In essence, it hinges on, and boils
down to, the two unknowns on which the formalist and practice-based takes diverge,
namely the questions of who holds jus-generative powers and what are the relevant
constraints.
2.2 Specialization and Profusion: Norms, Institutions, Sources
The discussion of the making of ICL must start by highlighting factors which account
for its complexity. A product of expansive growth and compartmentalization of
international law (better known under the menacing name of fragmentation), ICL has in
itself become utterly profuse, narrowly specialized, and increasingly fragmented. This
is evident in respect of: (i) the constituent legal standards and their cumulative density
and breadth of subject-matter; (ii) the proliferating enforcement frameworks – courts
charged with the application and, incidentally, elucidation of ICL (law-determining
agencies); and (iii) the mechanisms by which ICL is produced, ie its sources
(law-creating processes).
First, it bears noting that ICL stricto sensu, or the body of international law that
directly establishes individual criminal responsibility for ‘core’ international crimes, is
a composite and multilayered corpus of norms. In a traditional sense, it is a shorthand
for substantive law providing for grounds and forms of criminal responsibility,
including jurisdiction, definitions of crimes, modes of attribution, circumstances
5
From a New Haven perspective on the participants, see C Steer, ‘Non-state Actors in
International Criminal Law’ in J d’Aspremont (ed), Participants in the International Legal
System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011), 295.
6
On ‘master narratives’, Ajevski (n 3), 127, 131–32.
excluding responsibility, penalties, and sentencing principles. But in a broader meaning,

it also encompasses procedural, institutional, and penitentiary law as adjectival sub-
fields of law and distinct legal disciplines. Modern substantive ICL has been the subject
of codification efforts and scholarly treatises at least since the late 1940s, and its status
as an established body of law and an object of study is beyond question. The same can
now be said of procedure.7 International penitentiary law, governing non-procedural
aspects of detention under the jurisdiction of international and special tribunals and the
execution of penalties, is an emerging field.8 An account of lawmaking that pretends to
be both comprehensive and sufficiently nuanced at the same time would have to come
to grips with the considerable diversity and stretch of the subject matter of this
ever-expanding universe of ICL norms, as well as beware over-generalizing the
principles of lawmaking existing within these semi-autonomous sub-domains. Despite
close links between them, there are material differences resulting from their distinct
regulatory methods. Therefore, the rest of this section focuses on substantive and
procedural limbs of ICL.
The second factor contributing to the complexity of lawmaking in the field of ICL,
broadly understood, is its rampant ‘judicialization’. The dynamics of proliferation of
judicial bodies set up to apply ICL in the past decennia has been unmatched in other
areas of international law. From early 1990s, a number of international, hybrid, and
special tribunals have been brought into existence: the UN ad hoc tribunals (ICTY and
ICTR), the International Criminal Court (ICC), the Special Court for Sierra Leone
(SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the
Special Tribunal for Lebanon (STL). The operation of these courts boosted lawmaking
in all of the above-mentioned segments of ICL, endowing it with regulatory density
that may be deemed atypical for international law. Each court was equipped with a
statute setting out, in varying degree of detail, the institutional, substantive law, and
procedural frameworks. Each was provided with (or adopted) subordinate instruments
covering the procedural and administrative minutiae: Rules of Procedure and Evidence
(RPE), Elements of Crimes (at the ICC), regulations, practice directives, etc. These
technocratic sources – unavoidable trivia of judicial bureaucracies the practical
importance of which is not to be underestimated – also contain ICL, in the widest sense
of the term, and add extra structures to the architecture of international criminal
lawmaking. By way of self-regulation, and working from their incomprehensive
statutes, the courts have built full-fledged legal regimes that are ‘thick’ enough (or
nearly so) to cover all aspects of their functioning as criminal jurisdictions. In this
sense, the judicialization and the accretion of the law have been co-constitutive
phenomena.
The third factor responsible for the abundance of ICL norms relates to the presence
of multiple lawmakers and sources as a consequence of specialization and institutional-
ization. ICL is made and ascertained by actors endowed with incommensurable powers
and ranging from states to IOs (most importantly UN) and their organs (UNSC),
including the tribunals, which are either IOs with legal personality (ICC) or subsidiary
7
eg G Sluiter ao (eds), International Criminal Procedure: Principles and Rules (OUP
2013).
8
eg D Abels, Prisoners of the International Community (TMC Asser Press 2012).
organs of the UNSC (eg ICTY and ICTR). A variety of law-creating processes are
available to different lawmakers and may be chosen depending on circumstances. The
aggregate body of ICL is spread over a variegated tapestry of sources – multilateral
international treaties, bilateral agreements between states and IOs (including the
tribunals themselves), and resolutions of IOs or their organs (eg UNSC); other sources
of international law (customary law and general principles of law); and the tribunals’
sub-laws.
In decades between the post-WWII proceedings and the modern revival of inter-
national criminal justice in the 1990s, substantive ICL was developed by states through
traditional treaty-making process, next to the creeping and less visible process of
customary law-formation. Those treaties lay down norms prohibiting certain conduct,
violation of which would later become criminalized, and state obligations regarding
their (penal) repression. This concerns, in particular, the norms of international
humanitarian law (IHL) applicable in international and non-international armed con-
flicts, including the ‘grave breaches’ regime and other laws and customs of war
codified in the four Geneva Conventions of 1949 and the 1977 Additional Protocols.
Other conventions – among which the 1948 Genocide Convention and the 1984 UN
Convention Against Torture – were also addressed to states but had a more express
penal nature. They provided for definitions of crimes, modes of liability, defences,
unavailability of official immunities; envisaged an obligation of states to extradite or
prosecute (aut dedere aut judicare) and set the parameters for the exercise of
jurisdiction (eg statutes of limitations); and presaged an international criminal juris-
diction. These conventions (and accompanying customary law) became the substratum
for the future ‘judicialization’ of ICL and the criminalization of respective violations in
the tribunals’ statutes. Besides, multilateral treaties between states and state–IO
agreements served as the legal vehicles to bring those institutions into existence. The
Nuremberg and Tokyo Tribunals as well as the ICC were a progeny of multilateral
treaty-making,9 whereas the SCSL and the ECCC were set up per bilateral agreements
between individual states and the UN.10 By contrast, the ICTY, ICTR, and STL draw
their authority from the UNSC resolutions adopted under Chapter VII.11 As IOs with
9
Charter of the IMT (annexed to the Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis, London, 8 August 1945) (‘IMT Charter’); Rome
Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July
2002) A/CONF.183/9 (‘ICC Statute’). The Charter of the IMTFE (adopted on 19 January 1946,
annexed to the Special Proclamation of the Supreme Commander for the Allied Powers (SCAP)
General D MacArthur) (‘IMTFE Charter’) had indirect basis in (multilateral) agreements.
10
Statute of the SCSL (annexed to Agreement between the UN and the Government of
Sierra Leone on the Establishment of a Special Court for Sierra Leone, adopted 16 January
2002, entered into force 12 April 2002, 2178 UNTS 138); Agreement between the United
Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian
Law of Crimes Committed During the Period of Democratic Kampuchea (adopted 6 June 2003,
entered into force 29 April 2005, 2329 UNTS 117).
11
Statute of the ICTY, UNSC Res 827 (1993), 25 May 1993 (‘ICTY Statute’); Statute of
the ICTR, UNSC Res, 8 November 1994 (‘ICTR Statute’); Statute of the STL, UNSC Res 1757
(2007), 30 May 2007.
legal personality or organs thereof, tribunals have themselves concluded agreements

with states and other IOs regarding cooperation in different areas.12
The scope of issues that are in need of regulation is very broad when it comes to the
functioning of criminal courts. Neither the skeletal constitutions of the UN ad hoc
tribunals nor even the ICC Statute – the most ambitious ICL codification undertaken by
states thus far – provide full coverage. Unavoidably, the tribunals were authorized or
simply left to fill in the gaps, either by identifying applicable law in general
international law sources or by exercising their delegated lawmaking competence. This
deepened the specialization of sources of the substantive and procedural components of
ICL, each subject to its own logic of law-genesis.
Substantive ICL has remained – at least nominally – based in treaty and customary
law, insofar as the principle of legality prohibits the application of ex post facto
criminal law.13 The UN Secretary-General stated in his Report on the ICTY Statute that
respect for the principle mandated that the Tribunal’s ratione materiae competence be
limited to the application of IHL rules ‘which are beyond any doubt part of customary
law so that the problem of adherence of some but not all States to specific conventions
does not arise.’14 The determination of other substantive law matters – in particular
defences – was left to the judges, who were to draw upon ‘general principles of law
recognized by all nations’.15 Tying the ICTY’s material jurisdiction to customary law
had the unintended effect of allowing the judiciary considerable room for creativity,
quite contrary to the professed rationale of safeguarding legality.16 The mandatory
recourse to custom gave judges both the reason and means to progressively develop
substantive ICL through expansive interpretation, arguably turning them into de facto
lawmakers.17 The possibility of relying on general principles of law also
12
eg Negotiated Relationship Agreement between the ICC and the UN, ICC-ASP/3/Res.1,
4 October 2004; Agreement between the United Nations and the Republic of Albania on the
Enforcement of Sentences of the ICTY, 19 September 2008.
13
See section 3.1.
14
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808 (1993), 3 May 1993, UN Doc S/25704 (‘UNSG Report on the ICTY Statute’), para 34. See
also Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone,
UN Doc S/2000/915, 4 October 2000 (‘UNSG Report on the SCSL Statute’), para 12. This was
different for the ICTR: ‘a more expansive approach to the choice of the applicable law’ was
taken in defining its subject-matter jurisdiction, including the conduct prohibited under inter-
national instruments binding on Rwanda, irrespective of whether they reflected customary law
and whether criminal responsibility for such conduct had been provided for: Report of the
Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), UN Doc
S/1995/134, 13 February 1995, para 12.
15
UNSG Report on the ICTY Statute (n 14), para 58.
16
cf Judgement, Galić, IT-98-29-A, AC, ICTY, 30 November 2006, para 83; Decision on
Preliminary Motions Filed by MlaWo Radić and Miroslav Kvočka, Kvočka et al, IT-95-14/2, TC
I, ICTY, 1 April 1999, para 22. See also T Meron, ‘The Revival of Customary Humanitarian
Law’ (2005) 99(4) American Journal of International Law 817, 821.
17
VD Degan, ‘On the Sources of International Criminal Law’ (2005) 4(1) Chinese Journal
of International Law 45, 48; J Powderly, ‘Judicial Interpretation at the Ad Hoc Tribunals:
Method from Chaos?’ in S Darcy and J Powderly (eds), Judicial Creativity at the International
Criminal Tribunals (OUP 2010), 26, 30–32.
enhanced opportunities for judicial creativity, even if to a lesser extent. It is a widely

accepted, if still slightly blasphemous, view that judicial endeavours of law-elucidation
on the basis of traditional sources have often amounted to lawmaking. It is here that the
rift between conservative formalism and constructive accounts of international law-
making becomes most visible. Naturally, in their (majority) rulings and scholarly
writings judges deny any lawmaking ambitions, which would stray from the formalist
paradigm and be problematic from the legality perspective.18 However, the line between
the ‘discovery’ and the creation of law is by definition elusive, especially as concerns
non-codified sources such as international custom and general principles of law.
By contrast, much of international criminal procedure (other than the rules contained
in the statutes) is formally judge-made. An important exception is the ICC, whose RPE
were adopted by the Assembly of States Parties in accordance with the Statute.19 In the
case of the ICC, the prevailing sentiment on the part of negotiating states, characterized
as ‘mistrust of judges’,20 precluded states from ceding control over procedural law to
the judges. ICC judges were provided very limited means to legislate by drawing up
provisional rules (subject to the Assembly’s validation) and subordinate Regulations of
the Court necessary for its ‘routine functioning’.21 The bulk of procedural lawmaking
elsewhere was entrusted to, and carried out by, judges.22 In modern jurisdictions, judges
have actively exercised their legislative powers and continuously amended the rules: as
of December 2015, the ICTY Rules have been revised 50 times in the span of 21 years,
the ICTR Rules 23 times (in 20 years), the SCSL Rules 14 times (in 11 years); the
ECCC Internal Rules 9 times (in eight years); and the STL Rules eight times (in six
years).
International criminal procedure has been the realm of judge-made law also because
the value of customary law and general principles of law as sources of conclusive
guidance is limited, not least due to significant differences among domestic procedural
traditions of common law and civil law as well as across individual jurisdictions.
Moreover, state practice relating to international criminal justice from which the
tribunals could potentially infer their own customary law obligations relevant to the
organization of criminal process, was scarce to non-existent. Domestic practice in
fashioning criminal procedure has been the source of inspiration but not necessarily
suitable as the source of direct guidance for the tribunals. The international and
18
T Meron, ‘The Principle of Legality in International Criminal Law’ in T Meron (ed), The
Making of International Criminal Justice: The View from the Bench: Selected Speeches (OUP
2011), 110. cf M Shahabuddeen, ‘Judicial Creativity and Joint Criminal Enterprise’ in Darcy and
Powderly (n 17), 185; Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
Tadić, ICTY-94-01, AC, ICTY, 2 October 1995 (‘Tadić jurisdiction appeal decision’), Separate
Opinion of Judge Li, para 13 (on the majority decision: ‘an unwarranted assumption of
legislative power’).
19
Art 51(1) ICC Statute (n 9).
20
A Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflec-
tions’ (1999) 10 European Journal of International Law 144, 163.
21
Arts 51(3) and 52(1) ICC Statute (n 9).
22
Art 13 IMT Charter (n 9); art 7 IMTFE Charter (n 9); art 15 ICTY Statute (n 11); art 14
ICTR Statute (n 11); art 14 SCSL Statute (n 10); art 28 STL Statute (n 11).
regional human rights conventions – in particular the ICCPR and ECHR23 – have had a
significant impact on their procedural law and practice – not as sources of treaty-based
obligations (since those conventions are not formally binding on the tribunals), but as
an integral part of general international law subject to application (ICCPR) or as
putative evidence of customary law (regional conventions).24 Even more importantly,
the fact that procedural provisions in the statutes mirrored the language of the
conventions has served as the point of entry into the extensive body of human rights
jurisprudence from which the tribunals could draw legal rationales for the purpose of
framing, construing, and applying human rights norms in the context of their own
criminal procedure.
This sketchy overview illustrates that ICL consists of a set of relatively autonomous
subject-matter areas of law condensed around judicial organs established to apply it and
pushing its development forward; that it is a field with a plethora of legislators, sources,
norms, and institutions; and that it is a creation of a loose network of heterogeneous
lawmakers employing different law-creating processes. Principles and constraints of
lawmaking vary depending on the segment of ICL and the specific lawmaking
modality. The next section highlights a methodological paradox rooted in the specialist
character of ICL, demonstrating the difficulty of distinguishing legitimate lawmaking
from usurpation and improper exercise of lawmaking powers. Tensions are most visible
in substantive ICL, the making of which is constrained by the cornerstone principle of
legality. By contrast, international criminal procedure has its own pantheon of
principles, and procedural lawmaking therefore raises distinct issues. It is not con-
strained by the principle of legality in the same way as substantive law: for example,
there is no discernible right to be tried under pre-existing, foreseeable, and sufficiently
precise procedural law contemporaneous to the conduct. Instead, procedural lawmaking
is subject to the imperative duty to ensure fairness and legal certainty, which are
important preconditions for the effective protection of the rights of the accused and
exercise of prerogatives and rights by other parties and participants. Fairness militates
against the application of newly adopted or amended procedural rules in the case while
it is still underway to the detriment of the defendant. But legal certainty is subsumed
under fairness and arguably not an autonomous constraint in the making of inter-
national criminal procedure. The next section focuses exclusively on substantive law.25
23
Art 6 Convention for the Protection of Human Rights and Fundamental Freedoms
(adopted 4 November 1950, entered into force 3 September 1953) (‘ECHR’); art 14 International
Covenant on Civil and Political Rights, GA Res 2200A (XXI), 16 December 1966 (‘ICCPR’).
See eg art 21 ICTY Statute (n 11); art. 20 ICTR RPE (n 11); art 19 SCSL Statute (n 10).
24
eg Decision, Barayagwiza, ICTR-97-19-AR72, AC, ICTR, 3 November 1999 (‘Barayag-
wiza appeal decision’), para 40; Judgement, Kajelijeli, ICTR-98-44A-A, AC, ICTR, 23 May
2005, para 209.
25
On procedural lawmaking, see eg G Sluiter, ‘Procedural Lawmaking at the International
Criminal Tribunals’ in Darcy and Powderly (eds) (n 17); S Vasiliev, International Criminal
Trials: A Normative Theory (OUP forthcoming 2016), chs 1 (on the state-made v judge-made
procedure) and 12 (on legal certainty).
3. SUBSTANTIVE CONSTRAINTS ON LAWMAKING: LEGALITY

IN A PARADOX FIELD
The difficulty of delineating legitimate lawmaking in substantive ICL relates to an
obvious but sometimes underappreciated fact that it is a hybrid of international and
criminal law. The formation of ICL as a specialist field did not lead to its methodo-
logical self-containment and definitive break-away from general international law,
when it comes to law-ascertainment and legal interpretation. The problem is that
international law and criminal law traditionally draw on sources and are premised on
normativities that are not only different, but also potentially incompatible. This turns
ICL into a paradox field that is torn apart by conflicting philosophies, aspirations, and
methodologies. These tensions imbue it with the perceived irrationality and structural
contradictions, which may be conceived in terms of an ‘identity crisis’ or ‘normative
pluralism’.26 ICL is an arena of encounter, conversation, and competition between
several professional and epistemic communities, most notably criminal and inter-
national lawyers and human rights (and victims’ rights) advocates. The representatives
of those ‘tribes’ tend to go about their business in accordance with (the constraints of)
the agendas promoted by their respective epistemic communities, each asserting its
exclusive ‘ownership’ of the methodological apparatus of ICL. Not only does this put
under strain the idea of ICL belonging to either international or criminal law, but it
also undermines its least pretentious claim to being law as opposed to an institutional-
ized form of global moralism.27 While the critique that it is lacking legal normativity
may seem extreme, ICL is indeed an odd-one-out from either of the two perspectives
that give it its name. This section considers how the methodological hybridity of ICL
complicates the demarcation of lawmaking authority in this field.
3.1 Sources of ICL: Legality between Positivism and Natural Law
The interdisciplinary contestation in ICL starts with sources. The principal approaches
to this issue squarely fall along the dialectic lines – and can be viewed through the
epistemic lenses – of positive v natural law, lex lata v lex ferenda, and legality v
morality.28 It is commonsensical to international lawyers that ICL, as a creature of
international law, is contained in its traditional sources listed in article 38(1) of the ICJ
Statute. But criminal lawyers will excoriate those sources as defective because they
26
eg D Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21 Leiden
Journal of International Law 925; E van Sliedregt and S Vasiliev, ‘Pluralism: A New Framework
for International Criminal Justice’ in E van Sliedregt and S Vasiliev (eds), Pluralism in
International Criminal Law (OUP 2014), 32–34; P Pinto Soares, ‘Tangling Human Rights and
International Criminal Law: The Practice of International Tribunals and the Call for Rationalized
Legal Pluralism’ (2012) 23 Criminal Law Forum 161, 162 and 174–76; L Grover, ‘A Call to
Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of
the International Criminal Court’ (2010) 21(3) European Journal of International Law 543,
550–53.
27
M Dubber, ‘Common Civility: The Culture of Alegality in International Criminal Law’
(2011) 24(4) Leiden Journal of International Law 923, 923 and 932–36.
28
eg Arajärvi (n 2), 163, 168ff.
create room for judicial lawmaking fraught with the legality problem. Nullum crimen
nulla poena sine lege is a cornerstone principle of criminal law that has been cherished
historically in domestic systems and may with reason be regarded as a general principle
of law. To keep it manageable, the discussion here will tackle legality as it relates to
crimes (nullum crimen sine lege) rather than to penalties (nulla poena sine lege).
In its strict version, nullum crimen comprises at least four interrelated requirements
going to the legal bases for criminal responsibility and principles of interpretation:
(i) lege praevia (prohibition on retroactive application of criminal law, except in favour
of defendant: favor rei); (ii) lege stricta (principles of specificity and strict construction,
including lenity, or in dubio pro reo, and the prohibition on extensive interpretation by
analogy); (iii) lege certa (certainty, foreseeability, and accessibility of law); and (iv)
lege scripta (written or codified law). These elements do not attract uniform under-
standing and equal emphasis in different legal traditions. At common law, criminal law
had for a long time developed as unwritten, judge-made law, before it became codified
by legislature. With judicial precedent being a source of law under the doctrine of stare
decisis, common law crimes were not deemed per se inconsistent with legality. The
Strasbourg jurisprudence does not regard lege scripta as indispensable for compliance
with the nullum crimen principle as reflected in Article 7 of the ECHR.29 Next to the
rationale of protecting individual freedoms against the abuse of power and ensuring
separation between the legislative and judicial powers, legality plays an essential
regulatory and legitimizing function in criminal law. It is inextricably linked to its
normative pillars – the principles of culpability and due process. No punishment is fair
and morally or legally justified if the person is not culpable for the alleged misconduct.
This principle is undermined where the required mental element is negated by a
mistake of law, ie if the person is unaware of the criminal character of the conduct and
unable to anticipate its legal consequences and adjust behaviour accordingly. Strict
conformity with the legality principle is important in criminal law, where stakes for an
implicated individual (and the costs of its violation) are so high. International criminal
tribunals have also internalized this way of thinking.30
The principle of legality is a quintessential constraint on lawmaking. Demand for a
pre-existing, specific, foreseeable, and accessible law as the basis for conviction
impregnates criminal law normativity with a strong sense of legal positivism. Under
this approach, allowing judges to use international law sources for the ‘exegesis’ of
crime definitions or modes of liability vests them with broad discretion and risks
compromising legality. There are several issues with the system of international law
sources that may cause discontent on the part of the proponents of strict legality. First,
the lack of a hierarchy among law-creating processes means that several, possibly
non-identical, norms as may be contained in treaties, other international instruments, or
in customary law, could compete for application in a specific case, thereby decreasing
legal certainty and foreseeability. Second, that system has several tiers of sources that a
law-determining agent may consult in order to find an answer to the legal question in
29
eg SW v United Kingdom App no 20166/92 (ECtHR 22 November 1995), para 35;
CR v United Kingdom App no 20190/92 (ECtHR 22 November 1995), para 33.
30
eg Judgement, Tadić, IT-94-01-A, AC, ICTY, 15 July 1999 (‘Tadić appeal judgment’),
para 186.
tion: 11 / Date: 14/3
avoidance of non liquet. However, in criminal law a non liquet scenario is impossible
because the lack of law in itself provides a conclusive answer: the prosecution must be
discontinued or the person must be acquitted. Third, different categories of inter-
national law sources may also appear deficient from a criminal law perspective.
Treaties, especially those of non-penal character, will by default lack the requisite
specificity: being addressed to states rather than individuals, they generate obligations
of result and leave implementation to each state. Reliance on customary law and
general principles of law is even more problematic. Criminal lawyers will recoil from
the idea of grounding responsibility on those nebulous sources, which are potentially
bottomless reservoirs of normativity.31 Due to their unwritten character, the validity of
law (claimed to be) contained therein is vulnerable to challenges as unspecific,
uncertain, unforeseeable, and inaccessible to potential offenders.
Customary law poses difficulties of ascertaining its status at a given time, while the
ability to do so is a safeguard against retroactivity. In fact, the content of customary law
is not formulated or known in advance until a competent law-determining agency (ie
court) is seized with the task of establishing it. Adjudicators in later cases may fall back
on previous judicial decisions indicating the emergence or existence of a customary
rule, but there will always be that critical ‘first’ the validity of which die-hard legalists
will have reason to question. Criminal law is apprehensive about the role of judge
surpassing that of mere ‘mouthpiece of the law’. In the sense that custom is judicially
derived (or made), the putative law can plausibly be claimed not to have existed or been
known to the perpetrator at the time of the alleged conduct. Therefore, it has been
argued that customary law is not a suitable or even appropriate source of (substantive)
criminal law and its use by the tribunals must be restricted or avoided altogether.32 By
contrast, to international and human rights lawyers and advocates, the insistence on a
rigid construction of legality, perhaps apposite in domestic jurisdictions, is an absurdity
in the international legal domain given the importance of customary law as a source.33
Hence criminal lawyers’ aversion to judge-framed international law and its lifeblood,
custom, is misconceived and tantamount to cutting ICL off its disciplinary and
methodological roots.34 This insular approach is unnecessarily distrustful of the judges’
ability to establish the (evolving) content of the law and would congeal its progressive
development.35
The tensions between the international and criminal law perspectives on legality took
an unprecedented scale during the debates around the codification of crimes within the
ICC’s jurisdiction. States which negotiated the Rome Statute were keenly aware of the
31
eg CL Blakesley, ‘Comparing the Ad Hoc Tribunal for Crimes Against Humanitarian Law
in the Former Yugoslavia and the Project for an International Criminal Court: An Appraisal’
(1996) 67 Revue internationale de droit pénal 139, 148.
32
Degan (n 17), 51, 67.
33
A Pellet, ‘Article 21’ in A Cassese ao (eds), The Rome Statute of the International
Criminal Court: A Commentary vol II (OUP 2002), 1056.
34
ibid, 1056 and 1258; Meron (n 18), 113.
35
D Hunt, ‘The International Criminal Court: High Hopes, Creative Ambiguity, and an
Unfortunate Mistrust in Judges’ (2004) 2 Journal of International Criminal Justice 56, 59 and
61.
tion: 12 / Date: 14/3
possibility that their members of government and military personnel might one day end
up in the dock. Therefore, they strove for the lex scripta ideal of having as much
precision and clarity as possible in the Statute, especially in respect of crime definitions
and general principles of criminal law. States hoped this would reduce the scope for
judicial creativity and leeway enjoyed by the judges in the ad hoc tribunals.36 This
mindset is evidenced by an ambitious and pedantic effort of laying down the crime
definitions in articles 6–8 (and 8bis adopted at the 2010 Review Conference in
Kampala). Notably, the relevant ICC provisions do not adhere in all respects to the
more progressive exegeses of customary law made by the ICTY.37 Typically for a
methodologically and politically contested domain, this circumstance has triggered both
criticism and praise.38 Be that as it may, the architects of the Rome Statute created a
special treaty regime that was intended neither to constrain the development of ICL
beyond the ICC system, nor to faithfully codify or restate the contemporaneous
customary law.39
Notably, the unprecedentedly detailed ICC Statute was supplemented by the even
more fine-toothed Elements of Crimes – a subordinate non-binding instrument setting
out material and mental elements for each offence and meant ‘to assist the Court in the
interpretation and application’ of articles 6–8 and 8 bis.40 The mention of the Elements
was included in the Statute upon insistence of the US and their adoption is easily the
greatest tribute to legal positivism states have ever paid in the ICL domain.41
Depending on one’s perspective, this approach can be explained by the principled
concerns of nullum crimen or by the opportunistic motives and self-interest of states.42
In fact, the two sets of considerations are inseverable, given the ICC’s broad
jurisdictional reach. That said, the nature of the ICC codification ruled out neither the
36
B Broomhall, ‘Article 22’ in O Triffterer (ed), Commentary on the Rome Statute of the
International Criminal Court: Observer’s Notes, Article by Article (2nd edn, C.H. Beck 2008)
714; WA Schabas, ‘Interpreting the Statutes of the ad hoc Tribunals’ in LC Vohrah ao (eds),
Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer
2003), 886–87.
37
For examples, see Grover (n 26), 564–65.
38
eg Pellet (n 33), 1056, referring to the ICTY’s finding regarding art 7(1)(h) ICC Statute
(persecution as a crime against humanity) that ‘although the Statute of the ICC may be
indicative of the opinio juris of many States, Article 7(1)(h) is not consonant with customary
international law’. Judgement, Kupreškić et al, ICTY-95-16-T, TC, ICTY, 14 January 2000
(‘Kupreškić et al trial judgment’), para 580; cf C Kress, ‘International Criminal Law’ in R
Wolfrum (ed), Max Planck Encyclopedia of Public International Law, 2009, Oxford Public
International Law <http://opil.ouplaw.com>, para 32 (‘Art. 7 (2) ICC Statute correctly deviates
from the more recent and overly progressive case-law of the ICTY in maintaining the
requirement of a State or organizational policy behind the collective activity.’).
39
Arts 10 and 22(3) ICC Statute (n 9).
40
Art 9(1) ibid.
41
Proposal submitted by the United States of America, Elements of offences for the
International Criminal Court, UN Doc A/AC.249/1998/DP.11, 2 April 1998. For critical views,
Pellet (n 33), 1059–62; Schabas (n 36), 887 (‘obsessive exercise in legal positivism known as the
Elements of Crimes’). Cf Grover (n 26), 552 (‘extraordinary advances … in terms of legal
certainty’).
42
WA Schabas, The International Criminal Court: A Commentary on the Rome Statute
(OUP 2010), 407–08.
tion: 13 / Date: 14/3
need nor the possibility for the judges to refine law through interpretation, as evidenced
by the ICC’s practice to date.43 However, the normative and political spaces for judicial
activism shrank considerably, first, by virtue of the legal constraints ingrained into the
ICC legal framework and, second, due to the fact that the relationship between states
parties and the Court is constructed on a consensual basis. The latter circumstance
alerts the ICC judges to the need to tread more carefully than their brethren in the ad
hoc tribunals could afford, if they wish states parties to continue cooperating with the
Court, providing financial and political support, and perceiving it as a legitimate
institution.
The Herculean codification effort undertaken in the ICC context has received
strikingly different assessments falling along the disciplinary divide. The proponents of
strict legality considered the hands-on approach of states warranted, including in
respect of the Elements of Crimes, insofar as it ensured a stricter separation between
the legislative and judicial functions.44 The pillars of legality – non-retroactivity and
favor rei – were given a pride of place among the general principles of criminal law
enshrined in the Statute.45 However, international lawyers (and some judges among
them) tended to view this exercise in positivism as a paranoid criminal law operation,
manipulated by powerful states willing to protect their ulterior interests against an
‘unsafe’ court.46 They questioned the credibility of this approach as it might deprive the
ICC judges of the necessary powers to elucidate and develop law, and would limit them
to a mechanical function, with ‘the effect of stultifying the further growth in law’.47
The inclusion of article 21 on applicable law was another way of limiting judicial
discretion and making law-determination more accountable at the ICC. One specific
trace of the same clash between the international and criminal law approaches can be
found in article 21(1) providing for the sources of law the Court ‘shall apply’. The
drafters eschewed the term ‘customary law’, opting instead for its loose (and no less
cryptic) equivalent: ‘the principles and rules of international law, including the
established principles of the international law of armed conflict’, which is said to imply
nothing else but customary law.48 However, this is not self-evident considering that not
every principle or rule of international law amounts to custom. It is also unclear how
this vague formula could allay the concerns of criminal lawyers about the prospect of
the Court adopting an expansive approach to the identification of the applicable
substantive law in international custom, but it did the trick in securing the necessary
consensus.
For a more complete appreciation of this contention, it should be viewed against the
backdrop of the development of ICL in the tribunals of the pre-ICC era (and, for that
matter, in the courts post-dating it). In retrospect, the status and parameters of the
principle of legality have been ambiguous throughout the history of ICL. It oscillated
43
eg art 7(1)(k) ICC Statute (‘Other inhumane acts of a similar character …’) (n 9). On the
ICC practice regarding modes of liability, see section 4.1.
44
eg Kress (n 38), para 30; Degan (n 17), 71, 80; Grover (n 26), 552, 576 (‘praiseworthy
for their usefulness as an interpretive aid’).
45
Arts 11(1), 22(1), and 24 ICC Statute (n 9).
46
Pellet (n 33), 1057 and 1071; Schabas (n 42), 408.
47
Hunt (n 35), 59–60. See also Pellet (n 33), 1056–59.
48
Art 21(1)(b) ICC Statute (n 9). See Pellet (n 33), 1071–72.
tion: 14 / Date: 14/3
between that of an inviolable legal rule and that of a flexible principle that can be
outweighed by a superior ‘natural law’. Such law would be, in particular, the need to
avoid impunity for the gravest violations of legal or moral norms, whether or not
formally proscribed as crimes at the time of their commission. In Nuremberg, the
defendants challenged the accusation of crimes against peace on the basis of nullum
crimen, ‘a principle of jurisprudence sacred to the civilized world’.49 They had a point:
aggression had been unlawful under international law as it applied to states, including
under the 1928 Briand-Kellogg Pact, but it had not been subject to individual
responsibility under criminal law applicable at the time of the alleged offences. As
opposed to illegal war as a breach of treaty or customary obligations of states, crimes
against peace as an offence committed by individuals had no basis in international law,
whether treaty-based or customary, not least due to the lack of consistent positive state
practice. The same concerned the charge of crimes against humanity, although no
similar challenges have been raised. In these respects, the IMT Charter was clearly an
ex post facto legislation incongruent with the strict interpretation of the principle of
legality.
In response to the defence challenge regarding crimes against peace, the IMT judges
at first took a positivistic position that the law of the Charter was decisive and binding
on the Tribunal.50 But they also felt compelled to tackle the claim of retroactivity,
which they dismissed on ambivalent grounds combining naturalist and positivist
arguments. The IMT held famously that ‘the maxim nullum crimen sine lege is not a
limitation of sovereignty, but is in general a principle of justice’, which, however, was
inapplicable to the facts in issue.51 Thus they viewed legality not as an absolute rule,
but rather as a non-binding natural law principle which could be set aside if a
higher-ranking principle of natural justice so required. At the same time, as if still in
doubt, the Tribunal sought to anchor its argument to legal positivism and cited a
number of non-binding pre-WWII instruments in support of the conclusion that
aggressive war had not only been illegal, but also criminal under the Briand-Kellogg
Pact.52
This tortuous line of reasoning reflected the natural law impulse to conflate illegality
with criminality. The IMT chose to pursue ‘substantive justice’ at the cost of rigorous
interpretation of legality and a related demand for pre-existing and foreseeable penal
law. While perfectly defensible to legal naturalists, the IMT judgment failed to
convince those in the positivist camp on this particular point.53 However, shortly
thereafter, the freshly minted principles of international law, as reflected in the IMT
49
‘Motion adopted by all defence counsel, 19 November 1945, filed by Dr Stahmer’ in The
Trial of Major War Criminals (n 1), 169.
50
IMT Judgment (n 1), 216–17.
51
ibid, 219.
52
ibid, 218–20.
53
eg Kelsen (n 1), 155–56 and 164. See also C Kress, ‘Nulla Poena Nullum Crimen Sine
Lege’ in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law, 2009, Oxford
Public International Law, <http://opil.ouplaw.com>, para 16; C Tomuschat, ‘The Legacy of
Nuremberg’ (2006) 4 Journal of International Criminal Justice 830, 833; Van Schaack (n 2),
127–28; Cryer (n 2), 156. cf Q Wright, ‘Legal Positivism and the Nuremberg Judgment’ (1948)
42 American Journal of International Law 405; Q Wright, ‘The Law of the Nuremberg Trial’
tion: 15 / Date: 14/3
Charter and Judgment, were promulgated as law by a fiat of the UN General

Assembly.54 This was in time for the judgment of the Tokyo Tribunal, which dismissed
the defence complaint about the IMTFE Charter being an act of ex post facto
legislation. It pointed out, as the IMT had done, that the Charter is binding and decisive
and then simply expressed its ‘complete accord’ with, and ‘unqualified adherence’ to,
the opinion of the Nuremberg Tribunal.55 Furthermore, the major international human
rights instruments adopted in the following decades feature the similarly worded
nullum crimen provisions conferring legality on the Nuremberg precedent after the fact.
The principle does not preclude ‘the trial and punishment of any person for any act or
omission, which, at the time when it was committed, was criminal according to the
general principles of law recognized by civilized nations’.56
The dialectics between positivist and natural law paradigms also permeated the work
of the tribunals in the post-Nuremberg era. As noted above, the UNSG issued an
unambiguous instruction that respect for nullum crimen mandated the ICTY judges to
apply, for the purpose of articles 2–5 of the Statute, the IHL norms that were ‘beyond
any doubt part of customary law’, and listed treaties reflecting, in his view, the
customary foundation of those statutory provisions.57 It is telling that the principle of
legality was not enshrined in the ICTY Statute and, as with other issues, judges were
left to define its content.58 The ICTY has repeatedly affirmed that reliance on
customary law is not inconsistent with legality and emphasized the requirements of
foreseeability and accessibility.59 As already mentioned, the duty on the judges to
ensure that substantive criminal law applied is founded on custom was meant to operate
as a fetter on judicial lawmaking.60 Yet, the scarcity and vagueness of positive law (a
circumstance the judges eagerly acknowledged),61 prodded them to engage in dynamic
and creative interpretation when fleshing out the definitions of crimes, available
defences, and modes of liability, which raises the spectre of lawmaking.
(1947) 41 American Journal of International Law 37; L Wright, ‘War Crimes under International
Law’ (1946) 62 Law Quarterly Review 40.
54
UNGA Res. 95 (I) ‘Affirmation of the Principles of International Law recognized by the
Charter of the Nürnberg Tribunal’, 11 December 1946.
55
Judgment of IMTFE, 4 November 1948 in J Pritchard and SM Zaide (eds), The Tokyo
War Crimes Trial, vol XXII: Proceedings in Chambers (Garland 1981), 48439.
56
Art 7(2) ECHR (n 23). See also art 15(2) ICCPR (n 23) and art 11(2) Universal
Declaration of Human Rights (10 December 1948).
57
UNSG Report on the ICTY Statute (n 14), paras 35–49 (referring to the law of armed
conflict contained in the following treaties: (i) the 1949 Geneva Conventions; (ii) the 1907
Hague Convention (IV) respecting the laws and customs of war on Land and the Regulations
annexed thereto; (iii) the 1948 Genocide Convention; and (iv) the IMT Charter).
58
Arajärvi (n 2), 175.
59
eg Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command
Responsibility, Hadžihasanović et al, ICTY-01-47-A, AC, ICTY, 16 July 2003 (‘Hadžihasanović
et al appeal decision’), para 34; Decision on Dragoljub Ojdanic’s Motion Challenging Juris-
diction – Joint Criminal Enterprise, Milutinović et al, ICTY-99-37-AR72, AC, ICTY, 21 May
2003 (‘Milutinović et al appeal decision’), paras 37–39.
60
Meron (n 18), 116 (‘superimposition of a limiting factor on jurisprudence, rather than as
an expansive one’).
61
Milutinović et al appeal decision (n 59), para 18.
tion: 16 / Date: 14/3
One example is the move by the ICTY Appeals Chamber in Tadić to extend the
notion of war crimes, qua violations of laws and customs of war under article 3 of the
Statute, to all serious violations of IHL committed in non-international armed conflicts.
All acts, whether or not listed in that article (but excluding those covered by articles 2–
5), committed in non-international armed conflict were brought within the scope of
article 3, although their status as ‘crimes’ under customary law had hardly been
‘beyond any doubt’.62 This led to the erosion of the line between international and
non-international armed conflicts for the purpose of defining the conduct entailing
criminal responsibility and, arguably, expanded the scope of criminalized conduct. In
the same case, the Appeals Chamber formulated (or invented) a mode of liability
known as ‘joint criminal enterprise’ (JCE), which it read into the notion of committing
a crime under article 7(1). JCE became the principal device for the attribution of
responsibility in the cases before the ICTY. On the strength of a handful of domestic
post-WWII jurisprudence, the court found that JCE, including its most controversial,
extended form (JCE III) had a firm basis in customary law.63 Ever since, the legality of
JCE under customary law has been reaffirmed by the ICTY with reference to its own
jurisprudence, although this finding continued to be questioned, including by some of
the judges.64 JCE III extends responsibility for the crimes committed by others that are
not covered by a common plan, to all participants in the plan, regardless of whether
they personally intended those crimes, where such crimes were a natural and foresee-
able consequence of the planned course of conduct. This expansive theory of attribution
puts a strain on the principle of culpability, and its customary law nature at the time of
the alleged crimes was not beyond any doubt to say the least.
Another example of a judicial pronouncement that appears as lawmaking is the
finding of the ICTY in Kupreškić et al that reprisals against civilians are unlawful
under customary law and the defence of tu quoque invoked to justify a breach of IHL
by similar misconduct of an adversary is therefore invalid.65 Morally valid as it were,
the authority for this standpoint was derived from opinio juris and only scant and
inconsistent state practice interpreted through the prism of the Martens clause.66 In the
same case, the defence concern that ‘other inhumane acts’67 as a category of crimes
against humanity lacks precision and specificity required of a criminal law statute was
discarded. The Chamber held that the provision was ‘deliberately designed as a residual
category, as it was felt undesirable for this category to be exhaustively enumerated’,
which ‘would merely create opportunities for evasion of the letter of the prohibition’.68
It then proceeded to identify the constituent crimes in ‘international standards on
62
Tadić jurisdiction appeal decision (n 18), paras 87–137.
63
Tadić appeal judgment (n 30), paras 193–229.
64
Judgement, Furundžija, ICTY-95-17/1-A, AC, ICTY, 21 July 2000 (‘Furundžija appeal
judgment’), paras 119–20; Judgement, Delalić et al, ICTY-96-21-A, AC, ICTY, 20 February
2001 (‘Delalić et al appeal judgment’), paras 365–66; Milutinović et al appeal decision (n 59),
paras 18, 29–30; Judgement, Stakić, ICTY-97-24-A, AC, ICTY, 22 March 2006 (‘Stakić appeal
judgment’), paras 62, 100–03. cf eg Shahabuddeen (n 18), 188ff.
65
Kupreškić et al trial judgment (n 38), paras 511, 515–36.
66
67
Art 5(i) ICTY Statute.
68
Kupreškić et al trial judgment (n 38), para 563.
tion: 17 / Date: 14/3
human rights’ – the approach that other Chambers have found problematic from the
legality perspective.69 Further, in Kunarac et al, the Trial Chamber revisited a definition
of the crime of torture that followed the Torture Convention and had been recognized to
mirror customary law in previous ICTY jurisprudence. Based on a review of human
rights conventions and case law, the Chamber concluded that official capacity was not
an element of the crime under customary law and removed this requirement.70
Needless to say, a trend to wrap natural law and morality into a positivistic discourse,
presenting lex ferenda as the binding law in force, has not been unique to the ICTY. In
the CDF case, the SCSL found conscripting or enlisting children under the age of 15
years into armed forces or using them to participate in hostilities to already have been
criminal under customary law in 1996, ie prior to the adoption of the ICC Statute, the
first instrument to penalize this type of conduct.71 Again, a cogent argument can be
made that recruitment of child soldiers was unlawful under applicable international law
at the time, but the existence of contemporary customary law providing for individual
criminal responsibility for this violation was far from evident.72 Reasonable doubt
about the penal character of the prohibition and its compliance with the requirement of
pre-existing and specific penal law is all but dispelled by the approach to law-
ascertainment adopted by the Chamber, which cited little state practice and invoked the
ICC definition as reflecting custom rather than amounting to new legislation.73
The example from the STL that cannot be missed is the Appeals Chamber’s
‘discovery’ of an international crime of terrorism under customary law.74 Article 2 of
the Statute unequivocally directs the STL to apply a definition of that crime under
Lebanese law. But the Chamber, presided by Judge Cassese, surveyed treaties, UN
resolutions, and domestic legislation and jurisprudence, to hold, despite the scarcity of
state practice, that there had existed a customary norm defining that crime. The
Chamber then used this supposed definition as an aid in the interpretation of Lebanese
law as a way to modernize and expand upon the domestic definition. In its view, this
did not compromise the principle of legality.75 This decision can be criticized for its
69
ibid, para 566. See Judgement, Stakić, ICTY-97-24-T, TC, ICTY, 31 July 2003, paras
719–22; Decision on Rule 98 bis Motion for Judgement of Acquittal, Stakić, ICTY-97-24-T, TC,
ICTY, 31 October 2002, para 131.
70
Judgement, Kunarac et al, ICTY-96-23-T&IT-96-23/1-T, TC, ICTY, 22 February 2001,
paras 465–97. cf Judgement, Delalić et al, ICTY-96-21-T, TC, ICTY, 16 November 1998
(‘Delalić et al trial judgment’), para 459; Judgement, Furundžija, ICTY-95-17/1-T, TC, ICTY,
10 December 1998 (‘Furundžija trial judgment’), paras 160–61.
71
Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment),
Norman, SCSL-2004-14-AR72(E), AC, SCSL, 31 May 2004 (‘Norman child recruitment
decision’), paras 17–53. See art 4(c) SCSL Statute (n 10) and art 8(2)(b)(xxvi) and (e)(vii) ICC
Statute (n 9).
72
UNSG Report on the SCSL Statute (n 14), paras 17–18.
73
Norman child recruitment decision (n 71), paras 31–36, 40–45, 49–53; cf Dissenting
Opinion of Justice Robertson, paras 24, 31–47. See critical views in Van Schaack (n 2), 162–3;
Cryer (n 2), 161.
74
Interlocutory Decision in the Applicable Law: Terrorism, Conspiracy, Homicide, Perpe-
tration, Cumulative Charging, Ayyash et al, STL-11-01/I/AC/R176bis, AC, STL, 16 February
2011 (‘Ayyash et al decision on applicable law’), paras 42–44, 83–113.
75
ibid, paras 131–48 (finding no conflict with nullum crimen).
tion: 18 / Date: 14/3
approach to customary law-identification, which has been said to rest on a tendentious

analysis and misinterpretation of sources, as well as for its effect – the ex post facto
creation of an offence under international law through an act of judicial legislation.76
Lest these examples be taken as a total disregard of legality, it bears noting that the
tribunals’ jurisprudence has recurrently pronounced that principle to be fundamental in
ICL. In their discourse, the tribunals have affirmed the validity of the criteria such as
foreseeability, accessibility, and specificity,77 with some decisions, including the STL
ruling just mentioned, going as far as to assert that nullum crimen is a peremptory norm
– ironically enough, given the findings arrived at in that ruling.78 Furthermore, the
robust version of legality has at times been relied upon for turning down the expansive
interpretations of crime definitions and modes of liability invoked to broaden the scope
of criminal responsibility with reference to custom. In Hadžihasanović et al, the ICTY
Appeals Chamber rejected as having no firm basis in custom the Trial Chamber’s
interpretation of command responsibility to the effect that a commander can be held
responsible for the crimes committed by a subordinate prior to the assumption of
command on account of a failure to punish him, given that such a duty could not be
ascertained to exist.79
Such cases can be invoked to show that custom has solely operated as a bulwark
against judicial lawmaking and never as a device enabling judges to legislate.80 But the
many counter-examples, some cited above, rather indicate that to accept this claim
would be to miss the forest for the trees. If one juxtaposes the present state of
development of ICL with that at the time the ad hoc tribunals started off, it becomes
evident that the impact of legality as a restraint on (judicial) lawmaking has been
moderate if not negligible. Except for the ICC, the practice of modern tribunals
regarding the sources of law provides little empirical basis to assert the applicability of
the strict version of the principle in ICL. Legality has mainly subsisted in its weaker
form, malleable to ‘inner morality’ and natural law arguments and open to judicial
lawmaking through the vehicle of customary law-determination. Robert Cryer referred
to this phenomenon as ‘presentational positivism’.81 But considering that in essence it
has little to do with positivism, the term ‘diffident naturalism’ may be more apposite.
The progressive approach to law-formulation could be defended as not really
compromising legality. It is less of a problem, the argument goes, where defendants
broadly know that their conduct (killing, torture, rape, etc.) is prohibited by municipal
76
B Saul, ‘Legislating from a Radical Hague: The United Nations Special Tribunal for
Lebanon Invents an International Crime of Transnational Terrorism’ (2011) 24(3) Leiden Journal
of International Law 677, 678.
77
eg Judgement, Vasiljević, ICTY-98-32-T, TC, ICTY, 29 November 2002 (‘Vasiljević trial
judgment’), paras 193–203.
78
Delalić et al trial judgment (n 70), paras 402–04; Milutinović et al appeal decision (n 59),
paras 10 and 37; Norman child recruitment decision (n 71), para 25. See Ayyash et al decision
on applicable law (n 74), para 76 (‘by now it has the status of a peremptory norm (jus cogens),
imposing its observance both within domestic legal orders and at the international level’);
Hadžihasanović et al appeal decision (n 59), para 55.
79
Hadžihasanović et al appeal decision (n 59), paras 44–56.
80
Meron (n 18), 110–12, 116.
81
Cryer (n 2), 155.
tion: 19 / Date: 14/3
laws and/or by a general principle of law. When it is so manifestly illegal and morally
repugnant (malum in se) as not to require a pre-existing international criminal
prohibition for enforcing criminal responsibility in an international jurisdiction, it is a
jurisdictional rather than a legality issue.82 This position may be true with respect to
most but not necessarily all categories of conduct treated as criminal by the tribunals. It
will be returned to at the end of this section, but prior to that it is necessary to highlight
another methodological struggle within ICL: legal interpretation.
3.2 Interpretation as Spectrum: Elucidating, Developing, Making ICL
The rules of interpretation in ICL are an adjacent battlefield. Here as well, the
constraining effect of the principle of legality on lawmaking has been weakened by
the contest of methodologies. The interpretation of treaty provisions is governed by the
rules set out in the Vienna Convention on the Law of Treaties (VCLT), which according
to widespread (judicial) opinion reflect customary law. Among others, the VCLT
stipulates that ‘a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose’.83 It is evident that the purposive interpretation may be at
odds with the principle of strict construction and the prohibition of interpretation by
analogy demanded by the legality principle. The jurisprudence of the European Court
of Human Rights does not regard gradual clarification and development of criminal law
through judicial interpretation to violate the principle, provided that the essence of the
offence remains the same and the defendant has been put on notice.84
Particularly in ICL, due to its undeveloped character prior to the arrival of the
tribunals, the need for incremental elucidation of norms by judges has been imperative.
Addressing the statutory ambiguities and gaping lacunae was the essential part of the
judicial mission at the ICTY and ICTR. Armed only with meagre statutes, the judges
were expected to fill in the substantive law gaps with the applicable customary rules
and had no better way than to tackle this task creatively.85 In this legal wilderness,86 the
‘anything goes’ approach to interpretation served judges as an unfailing device to derive
law from murky sources. Considering the explosive growth in the scope and detail of
ICL brought about by jurisprudence, the assertion that judicial interpretation has made
modern ICL is anything but a rhetorical figure: it captures well the social reality of
international criminal lawmaking, certainly so in the pre-ICC era. In order to secure the
legitimacy of law-creation, and to enhance the chance of acceptance by stakeholders
and interpretive communities, the judges took great pains to camouflage their legal
innovations by notionally positivistic reasoning and demonstrable use of authoritative
82
Schabas (n 42), 887; Meron (n 16), 821.
83
Arts 31–33 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered
into force 27 January 1980, 1155 UNTS 331).
84
SW v United Kingdom (n 29), para 36; CR v United Kingdom (n 29), para 34.
85
eg P Wald, ‘Note from the Bench’ in Darcy and Powderly (eds) (n 17), xxxvi; Kuhli and
Günther (n 4), 369 (‘vague statutes are a means of delegating lawmaking authority; they are de
facto delegations’); Schabas (n 36), 848.
86
Powderly (n 17), 17–19; A Zahar and G Sluiter, International Criminal Law: A Critical
Introduction (OUP 2009), 80 (‘hunter-gatherers in a legal wilderness’).
tion: 20 / Date: 14/3
rules of interpretation. In clarifying the meaning of the principle of legality, the ICTY
has consistently upheld the permissibility of (legitimate) elucidation and ‘progressive
development’ of law, as opposed to the impermissible making of the law.87 However,
the thin line between interpretation and lawmaking vanishes when the judiciary’s
value-ridden agenda meets flexibility of interpretive methods. The hermeneutical
disarray at the tribunals has enabled a variety of forms of judicial engagement with the
law. They can be located anywhere on a sliding scale from elucidation of law to
progressive development of law to lawmaking, in the sense of bringing new norms into
existence.
At the ad hoc tribunals, neither the statutes nor the UNSG’s reports and debates in
the UNSC offered judges adequate guidance on the methods of interpretation.88 Only
the UNSG’s statements on the sources and the principle of legality already cited served
as (inconclusive) indications of what interpretive techniques were appropriate for the
judges to adopt. On the one hand, the Chambers have on occasions emphasized the
importance of strict construction and non-extension of crime definitions by analogy, as
a corollary of nullum crimen.89 On the other hand, the judges have regularly, if
implicitly at times, turned to the VCLT canons of treaty interpretation.90 This is despite
the fact that the tribunals’ constituent instruments are not treaties but sui generis
instruments (and partially criminal statutes), and the VCLT could not be presumed
applicable out of hand.91 In its first annual report, the ICTY clarified that, when
adopting the Rules, judges ‘attempted to strike a balance between the strictly
constructionist and the teleological approaches in the interpretation of the Statute’.92
Although it is uncertain whether the two methods can be reconciled without sacrificing
the essential rationale of either of them, the same combined (or oxymoronic) approach
has held sway in respect of substantive law. In this entropy of interpretive practice, no
single hermeneutical method can be identified as having been applied in a principled
and consistent fashion.93 The lax approach to the identification of applicable law in
87
eg Judgement, Aleksovski, ICTY-95-14/1-A, AC, ICTY, 24 March 2000 (‘Aleksovski
appeal judgment’), paras 126–27; Delalić et al appeal judgment (n 64), para 173; Milutinović et
al appeal decision (n 59), para 38; Vasiljević trial judgment (n 77) para 196.
88
Schabas (n 36), 847; Powderly (n 17), 26 and 43 (‘a major design flaw’ in the statutes).
89
eg Delalić et al trial judgment (n 78), paras 408–13; Judgement and Opinion, Galić,
ICTY-98-29-T, TC, ICTY, 5 December 2003, para 93.
90
eg Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and
Witnesses, Tadić, ICTY-94-1-T, TC, ICTY, 10 August 1995, para 18; Tadić jurisdiction appeal
decision (n 18), paras 71–93 (developing literal, logical and systematic, and teleological
interpretations); Delalić et al trial judgment (n 78), para 1161; Delalić et al appeal judgment (n
64), paras 67–70; Decision on Preliminary Motions, Milošević, ICTY-99-37-PT, TC, ICTY, 8
November 2001, para 47; Reasons for Decision on Assignment of Defence Counsel, Milošević,
ICTY-99-37-T, TC, ICTY, 22 September 2004, para 31; Decision on the Admissibility of the
Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against
Théoneste Bagosora and 28 Others, Bagosora et al, ICTR-98-37-A, AC, ICTR, 8 June 1998,
paras 28–29.
91
Schabas (n 36), 850–52; Powderly (n 17), 33–34.
92
First Annual Report of the ICTY, UN Doc A/49/342-S/1994/1007, 29 August 1994,
para 53.
93
Grover (n 26), 547-49; Schabas (n 36), 886; Powderly (n 17), 42.
formal sources opened opportunities for the judges to mold norms through interpret-
ation, going beyond and displacing the plain text. As some examples above confirm,
rules identified as (emerging) customary norms have been used not only as directly
applicable standards, but also as aids in the interpretation of statutory provisions, which
essentially merged the source-based law-identification and interpretation.94 This gave
scope for the opportunistic use of interpretive devices to promote agendas and policies
favoured by the judges.
From the criminal law perspective, most troubling is the tribunals’ reliance on
teleological interpretation of provisions concerning subject-matter jurisdiction at the
cost of strict construction. On occasions, the ad hoc tribunals have declared the latter to
be crucial in criminal matters, given its status as a general principle of law, and seemed
to treat it with deference.95 But at other times crime definitions and modes of liability
were interpreted ‘progressively’ with reference to the ‘object and purpose’ or the ‘spirit’
of the Statute (whatever that means). Speculations about the legislative intent were
corroborated by the discussion of the content of human rights law and IHL instruments
that is not necessarily relevant to establishing the existence of a criminal prohibition.96
Worse still, these interpretive efforts have routinely expanded the scope of criminalized
conduct. The judges have tended to construe the ‘spirit’ and ‘object and purpose’ of the
Statute in the way enabling them to advance humanitarian ideology and prioritize its
core values – the ‘humanization’ of IHL, protection of human dignity of victims, and
giving teeth to the ‘fight against impunity’ – over strict adherence to legality and
culpability principles.97 But this is not a sound approach: reduction of the fundamental
purpose of the Statute to the punitive and victim-centred objective can only be a result
of a skewed reading. The ‘full respect for the rights of the accused’, and for the
principle of culpability, best served by an uncompromised fidelity to legality, are (and
should be) the equally important aspects of that purpose.98 A different interpretation
would have displaced ICL’s true identity by that of international (human rights) law on
the matters which must be the reserved domain of criminal law. As the ICTY Appeals
Chamber stated in Halilović:
The lack of a clear basis in international law for the present prosecution cannot be
side-stepped by drawing upon the object and purpose of IHL, in general, and the Statute of
the ICTY. … The protection of humanity and preservation of world order as the overriding
aims of IHL cannot serve as basis to criminalise behaviour beyond the existing law. There
would be no limit on the scope of IHL if the only guiding criterion was whether the
prosecution was broadly in the interests of the spirit of IHL. Where the rights of the accused
94
Grover (n 26), 549.
95
Delalić et al trial judgment (n 78), 408–12 and 424; Judgement, Kayishema and
Ruzindana, ICTR-95-1-T, TC, ICTR, 21 May 1999, para 103; Appeal Chamber Decision – Joint
and Separate Opinion of Judge McDonald and Judge Vohrah, Kanyabashi, ICTR-96-15-A, AC,
ICTR, 3 June 1999, para 16.
96
For criticism, see Pinto Soares (n 26), 164–65 and 190.
97
Robinson (n 26).
98
Art 20(1) ICTY Statute (n 11); Report on the ICTY Statute (n 14) para 106. For
discussion, Vasiliev (n 25), ch 2.
tion: 22 / Date: 14/3
in a criminal trial are concerned, utmost respect for legality, for certainty and foreseeability of
the law are required.99
At the ad hoc tribunals, the respect for legality has not been exactly ‘utmost’. The
chambers have not always contented themselves with the strict interpretation of the
statutes conforming to in dubio pro reo.100 Consider how the Tadić Appeals Chamber
relied on the systemic and logical interpretation, as well as on ‘the object and purpose
behind the enactment of the Statute’ to conclude that article 3 criminalizes the full
spectrum of serious violations of IHL, whether committed in non-international or
international armed conflicts that are not covered by other provisions.101 A stringent
construction and non-resort to analogy would have meant that article 3 only covered
violations of IHL applicable in international armed conflicts – an outcome that would
have undoubtedly been criticized as conservative, timid, and regressive. In Tadić, the
same Chamber stepped over the text (noting sacramentally that: ‘The Statute does not
stop there.’) to apply teleological reasoning in construing article 7(1) as including
common purpose within the notion of commission.102 As mentioned previously, the
effect of this interpretation was the institution of a far-reaching theory of liability the
basis of which in customary law at the time of the alleged conduct was dubious. JCE
III expanded the grounds for criminal responsibility without defendants having had
foresight of the possibility of (vicarious) responsibility for the crimes they neither
personally committed nor intended.
Subsequently, the legality of JCE was challenged on the basis of in dubio pro reo as
an interpretive principle, but the Appeals Chamber retorted that its application was not
warranted. The Chamber’s analyses of article 7(1) in Tadić and elsewhere ‘simply leave
no room for it’; there is no doubt about the recognition of JCE in customary law that in
dubio pro reo could help resolve.103 Of course, the existence of a doubt depends on
how much of it suffices to trigger the protection under the principle of legality, and on
how far the court is determined to go to refute it. Extensive reliance on interpretive
principles antithetical to strict construction, which helped the Tadić court to extract JCE
out of the ‘customary law’ nebula, went a long way to eliminate that doubt, which was
anything but merely speculative or fanciful. The issue here is what interpretive method
is to be accorded priority; in this case, the purposive interpretation was allowed to
trump the legality-based principles. But no such methodological competition, much less
99
Interlocutory Decision on the Joint Challenge to Jurisdiction, Halilović, ICTY-01-47-A,
AC, ICTY, 27 November 2002, para 25.
100
eg Furundžija trial judgment (n 70), paras 250–54 (a broad definition of (co-)perpetration
of torture with reference to the ‘object and purpose’); Judgement and Opinion, Akayesu,
ICTR-96-4-T, TC, ICTR, 2 September 1998, para 516 (interpreting ‘genocide’ under art 2 as a
crime against ‘any stable and permanent group’ with reference to ‘the intention of the drafters of
the Genocide Convention’); Judgement, Rutaganda, ICTR-96-3-T, TC, ICTR, 6 December 1999,
paras 55–57.
101
Tadić jurisdiction appeal decision (n 18), paras 71–137, viz paras 189–90.
102
Tadić appeal judgment (n 30), paras 189–94.
103
Milutinović et al appeal decision (n 59), paras 28–29; Stakić appeal judgment (n 64),
paras 102–03.
tion: 23 / Date: 14/3
when it results in the interpretation-driven expansion of criminalization, should be

contemplated in a healthy criminal law system.
The ad hoc tribunals have often favoured ‘progressive’ interpretations of provisions
establishing crime definitions and modes of attribution, sealing those by a firm
rejection of any doubt raised about their legality. While any such neutralization of the
lenity requirement may invite a justified critique, some commentators seemed un-
impressed by the concerns surrounding the ad hoc tribunals’ ‘bold approach to
interpretation’, insofar as it generally did not criminalize anew the conduct that had not
been criminal and known to be so (eg under domestic law).104 This may hold for the
archetypal offences constituting international crimes, subject to penal proscriptions in
most national jurisdictions and possibly under general principles of law. A degree of
openness in formulations is inescapable and, like in domestic contexts, the pursuit of
‘excessive rigidity’ is not warranted.105 However, the risk is rather the opposite in ICL,
where the categorization of conduct as criminal through an expansive interpretation of
crime definitions or modes of attribution may be less clear than portrayed. For acts that
are broadly framed (eg ‘other inhumane acts’) or not evidently criminal, the penal
consequences do not always lend themselves to a reasonable foresight at the time of
commission, particularly in combination with the judicially-devised liability theories.
They might well go beyond the judicial ‘development … consistent with the essence of
the offence’ that is allowed in human rights jurisprudence.
The risk of expansive interpretations of the ICC Statute’s substantive provisions was
exactly what the drafters intended to shield future defendants from when they inserted
a mandatory principle of interpretation of crime definitions within the Court’s
regime.106 For the first time in the history of ICL, the Statute places a major emphasis
on the principles of strict construction, non-extension by analogy, and in dubio pro
reo.107 The fear of ‘lawmaking from the bench’ (the so-called ‘Cassese approach’) was
an essential motive for adopting a stern formulation of legality.108 The non-binding but
authoritative Elements of Crimes further contain the judges’ interpretive freedom,
without taking it away completely. Besides, the Statute’s provision on applicable law,
article 21, sets forth a general consistency rule demanding that ‘[t]he application and
interpretation of law pursuant to this article must be consistent with internationally
recognized human rights’.109 While the scope for bold hermeneutical method looms in
this norm, article 22, as a special interpretive rule tailored for substantive law, precludes
using article 21(3) to construe crime definitions in the way inconsistent with its terms.
Moreover, even accepting the possibility of a tension between the two guidelines, the
principle of legality will have to be considered as a part of ‘internationally recognized
human rights’ that must inform the interpretation and application of the ICC law.
Although the ICC’s legal framework provides more adequate guidance than the ad hoc
104
eg Schabas (n 42), 887.
105
Kokkinakis v Greece App no 14307/88 (ECtHR 25 May 1993) available at
<http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57827#{“itemid”:[“001-57827”]}>,
para 40.
106
Grover (n 26), 552; Broomhall (n 36), 725.
107
108
Schabas (n 36), 886–87.
109
tribunals had, the emergence of a coherent interpretive methodology – and the

legitimacy of the ICC as a veritable ‘improvement’ on the ICTY and ICTR in this
regard – depends on how judges approach this task.
3.3 Reclaiming Legality in the March of Progress
ICL’s genesis and evolution have shown the weaker version of nullum crimen to be
more fitting, as it better corresponds to the nature of international criminal justice as a
modality in response to past atrocities. The philosophy underlying that reaction is
imparted by utilitarian considerations of future prevention, more so than by measured
retributivism that honours legality, culpability, and other principles of liberal criminal
justice. From the outset, ICL was deployed not in reaffirmation of the existing legal
order through unfaltering enforcement, but as a way of breaking with the past. It was
an extraordinary post hoc device to ‘reset’ the law and (re)construct the ‘international
community’ around the – refined and reaffirmed – moral values shrouded in new legal
principles.110 The method of advancing the law at the basis of that community was to
generate groundbreaking, if far from legally impeccable, precedents. From one pre-
cedent to another, the flawed character of ICL’s legislative moments never was an
obstacle to its success and growth. The forward-looking logic of the project allowed
any doubts to be exorcized by reiteration in the new rounds of lawmaking. The
importance of progress in the name of the better, atrocity-free future of the humanity it
portended, outweighed the legal niceties that may have stood in the way of performing
justice on the ‘villains’ of this world.
In this triumphal march of progress, the principle of legality was regularly balanced
against the more pressing considerations – ‘substantive justice’, ‘effectiveness of law’,
and even the ‘preservation of world order’.111 It is unsurprising then it got demoted to
a second-rank ‘soft’ rule. Ever since Nuremberg, the idea became entrenched that for
particularly heinous transgressions – the class that cannot be defined ex ante with
absolute certainty and specificity – strict legality must give in to the higher (natural
law) principles. Positivists from Hans Kelsen112 to our contemporaries113 have leaned
towards a relativist position on legality, and have only been mildly critical about the
admitted instances of retroactive application of law. In practice too, legality has been
pushed to the backseat of legal progress – not only as a result of (political) legislative
acts insensitive to such concerns,114 but also as a part of the policy-driven and legally
innovative adjudication. It is disingenuous to claim that defendants caught up in the
whirl of the law’s progress were at all times protected against retroactive (unforesee-
able, inaccessible, or unspecific) criminal law.
110
Tomuschat (n 53), 839 (‘the hallmark of the emergence of an (or the) international
community’).
111
eg Delalić et al trial judgment (n 78), para 405.
112
Kelsen (n 1), 165.
113
Pellet (n 33), 1059; Grover (n 26), 554; Schabas (n 42), 887.
114
The examples are the adoption of the IMT Charter and the UNSG (and UNSC’s) position
on the applicable law for the ICTR, going beyond adherence to customary law as the basis of
criminalization (see n 14 and section 3.1).
tion: 25 / Date: 14/3
This progressive paradigm sits uneasily with the normative strictures and methods of
criminal law, which remains ICL’s quintessential modus operandi. ICL may have fallen
short of the liberal principles of criminal justice – culpability and legality – while it
prides itself on adhering to them. The tribunals have often been pardoned for the
ends-driven use of sources and legal interpretation and reasoning because, for example,
their jurisprudential legacy leaves an overall positive balance. They have played a major
role in the development of the law, best attested by the thriving body of ICL, and made
significant advances in the ‘fight against impunity’.115 But even without being a strict
positivist, one is led to question whether ‘some method’ is enough. To say, like Kelsen
did in 1947, that retroactive punishment is not ‘absolutely incompatible with justice’
does not mean that it is compatible with it. ‘One can’t make an omelet without
breaking eggs’ is not a convincing justification. The issue of the problematic methods
of (judicial) making and retroactive application of ICL cannot simply be solved by
reference to the legal progress thus enabled. The foremost legacy of any criminal court,
and the one that truly matters, is its fairness. Other aspects of legacy depend on it and
are but side-benefits incidental to the proper administration of criminal justice, of
which legality is the touchstone.116
Criminal law is not a receptacle that can house just any methodology, but a system
that comes with its own devices, values, and normativity gravitating irresistibly towards
positivism. The damage done by ill compromises cannot be compensated by the moral
and legal validity of ICL’s normative content that promotes laudable goals and gives
teeth to humanitarian protections. Where international (human rights) law employs
criminal law to protect its core values through penal repression, it must concede
methodological ground to criminal law for this enterprise to be credible and for ICL to
remain criminal law proper. In order for legality, its highest-order principle, to reclaim
its status as the constraint on the making and application of law, the doctrine of sources
and interpretive methods in ICL ought to be subordinated to legality. The emancipation
of ICL from international law does not mean a break away or normative insulation, but
the communication between them must be methodologically sound and orderly. The
autonomy of method is required for ICL to function as a truly liberal criminal law
enterprise – it must be allowed its own ‘legal proprium’.117 It is in dealing with
reprehensible conduct that ‘deeply shock[s] the conscience of humanity’ that legality
becomes especially important.118 The question of what interpretation of legality should
prevail in ICL must be solved by unhesitating preference for its stricter version.119
Although this would go much against the logic that has pervaded the evolution of ICL,
a qualitative change is necessary for international criminal justice to amount to a
credible system that privileges adherence to fundamental principles over utilitarian
considerations or tactical advantages.
115
eg Powderly (n 17), 42.
116
Vasiliev (n 25), Chapter 3.
117
Pinto Soares (n 26), 179 (‘The ‘legal proprium’ comprises the axiological set and the
deontological principles that identify and singularize international criminal law.’). See further G
Teubner, ‘The Two Faces of Legal Pluralism’ (1992) 13 Cardozo Law Review 1442, 1452.
118
Dissenting Opinion of Justice Robertson, Norman child recruitment decision (n 71),
para 12.
119
Against this backdrop, it is a welcome development that the attenuated version of

legality characteristic for the earlier phase of international criminal lawmaking gave
way to a more positivist and criminal law-oriented approach in the context of the ICC.
At least as a matter of law, legality obtained a formal recognition in the ICC system as
a dominant constraint on lawmaking and judging, providing a basis for a principled
distinction between the two functions. While this change was motivated largely by the
self-serving agenda of states, a stronger emphasis on legality reinvigorates respect for
the defendants’ rights and displaces the ‘culture of alegality’. A degree of creativity in
interpreting statutory provisions is unavoidable, but the ICC adjudication must remain
faithful to this cornerstone principle. This would help deflect the criticism that, despite
what the Statute says, the Court continues the same tradition of ICL as a guided
machinery for ‘administrative elimination of wrongdoers by command of those in
power’ and a rule by ‘global moral police’ rather than by law.120
4. SOURCE ORTHODOXY IN ICL AND DYNAMICS OF LAW

(RE)PRODUCTION
While legality is a substantive constraint, the doctrine of international law sources
serves as a formal constraint on international criminal lawmaking. The recognition of a
norm as law depends on its origin in an authoritative law-creating process, as a
precondition of legality. The doctrine limits the function of law-determining agencies
(eg courts and highly qualified publicists) to that of ‘subsidiary means for the
determination of rules of law’. The tribunals fall back on the formalist doctrine, but
their practice raises questions about its descriptive power and practical validity. It is
barely supported by the judges’ approach to law-ascertainment and misrepresents their
actual role in the making of ICL. At odds with the official story, judges have shaped
much of ICL’s content, and they have done so in a relative autonomy from primary
legislators (states). Therefore, ICL can be conceived in terms of an ‘autopoietic system’
– or almost so because state consensus continues to be the bottom line and yardstick of
the legitimacy of ‘autopoietic law’.121 Not all of the judge-made law is accepted and
(re)produced by states as binding when updating treaty law or creating new ICL
regimes. However, in a decentralized system of international lawmaking, this is not
necessarily fatal to the legitimacy of autopoietic law. Contrary to legal formalism
theory, international courts produce norms which under certain circumstances (or for
limited purposes) may amount to or become law. If endorsed and validated by other
actors, judge-made law will exert normative law-like effects, and command compliance
by the subjects.
120
See Dubber (n 27); Dissenting Opinion of Justice Robertson, Norman child recruitment
decision (n 71), para 14.
121
Van Sliedregt and Vasiliev (n 26), 10.
4.1 Creation v Determination of Law: Whither, Old Formalism?
The infirm grip of international legal formalism on ICL is evidenced by the tribunals’
treatment of recognized law-creating processes. The ICTY and ICTR Statutes provide
no taxonomy of sources the judges are to consult, but, as noted, indications could be
drawn from mentions of customary law and general principles of law in the accom-
panying UNSG’s reports.122 As a corollary of the tribunals’ international nature, and
because ICL is a part of international law, the notion that they must have recourse to
the ICJ Statute article 38(1) sources gained recognition in early ICTY jurisprudence
and has since become the orthodox view.123 The validity of traditional sources was
inferred from the customary pedigree of article 38; the underlying customary norm was
presumed to apply to, and be binding upon, the tribunals.124 However, the traditional
system of international law sources was not framed with international criminal
adjudication in mind. Although its relevance in that context has rarely been interro-
gated, it is not self-evidently suited to guide law-ascertainment by the tribunals.125
Consider, for example, the obvious need for them to apply, in the first place, their
statutes and internal instruments: clearly, article 38 can only apply mutatis mutandis. It
would be logical for states and international organizations to (implicitly) depart from it
when creating international criminal jurisdictions, given their unique functions and
specialization.
The ad hoc tribunal judges have been aware of the inadequacy of the traditional
system of sources as a gap-filling algorithm. On most substantive and procedural law
questions, neither customary law nor general principles of law could provide conclusive
answers upon which judges could base criminal responsibility or build a fair and
workable procedure without applying some creativity. While nominally clinging to the
seasoned methods of law-identification, judges have on the quiet tailored them to the
perceived needs of adjudication, adopting an inconsistent and cavalier approach to
sources.126 Jurisprudence provides a score of examples of deviations from the article 38
taxonomy that add up to the counter-narrative, namely that judges have not applied
pre-existing law but occasionally created law anew, whereas the legal formalist
122
See nn 14–15. See Barayagwiza appeal decision (n 24), para 40.
123
Kupreškić et al trial judgment (n 38), paras 539 and 591; Judgement, Erdemović,
ICTY-96-22-A, AC, ICTY, 7 October 1997 (‘Erdemović appeal judgment’), Joint and Separate
Opinion of Judge McDonald and Judge Vohrah, para 40; Furundžija trial judgment (n 100),
para 177.
124
Kupreškić et al trial judgment (n 38), para 540; Declaration of Judge Patrick Robinson,
Furundžija appeal judgment (n 64), paras 273 and 281 note 10.
125
See also F Mégret, ‘The Sources of International Criminal Procedure’ in Sluiter ao (eds)
(n 7), 68; B Perrin, ‘Searching for Law While Seeking Justice: The Difficulties of Enforcing
International Humanitarian Law in International Criminal Trials’ (2007–8) 39 Ottawa Law
Review 367, 369.
126
eg I Bantekas, ‘Reflections on Some Sources and Methods of International Criminal and
Humanitarian Law’ (2006) 6 International Criminal Law Review 121, 121; S Vasiliev, ‘General
Rules and Principles: Definition, Legal Nature, and Identification’ in G Sluiter and S Vasiliev
(eds), International Criminal Procedure: Towards a Coherent Body of Law (Cameron May 2009)
62, 72–74; Arajärvi (n 2), 166.
tion: 28 / Date: 14/3
discourse served to guise progressive interpretations and confer legitimacy on the

‘identified’ norms.
In several early cases, the ICTY improvised new ‘sources’ that have nothing to do
with the article 38 list and, under closer scrutiny, do not even amount to formal aspects
of law. The textbook example is the Furundžija Trial Chamber’s invention of ‘sources’
such as ‘general principles of international criminal law’, ‘general principles of
international law’, and ‘principles of criminal law common to the major legal systems
of the world’. The issue before the court was whether a definition of the crime of rape
under international law should be extended to cover forced oral penetration.127 Having
found a uniform definition of rape neither in traditional nor in freshly minted ‘sources’,
the Chamber resolved to search further – so much for foreseeable and accessible law!
– for the most suitable label of this form of sexual assault in the ‘general principles of
international criminal law or, if such principles are of no avail, … the general principles
of international law’.128 Without providing any reasoning or authorities in support, it
formulated the ‘general principle of respect for human dignity’ (‘the basic underpinning
and indeed the very raison d’être of international humanitarian law and human rights
law’), concluding on that basis that forced oral penetration should be classified as rape
rather than as sexual assault.129 While the depravity of this conduct is writ large and
distinction from rape may be morally unjustified, this finding rests on a flawed
syllogism, and the Chamber’s approach to sources appears wholly arbitrary and
end-driven.130 A similar taxonomy, collapsing sources (formal aspects) of law and the
law itself (material aspects), was used in Kupreškić et al.131 The Chamber used the
Martens clause as a conduit to reliance on the ‘principles of humanity’ and ‘dictates of
public conscience’ which, it admitted, fell short of ‘independent sources of international
law’ given the negative practice, but could nevertheless complement the ‘[in]sufficiently
rigorous or precise’ rules of IHL.132 The Chamber’s reasoning may be taken to imply
that such principles and dictates would have been ‘sources’ had they been supported by
practice (which is a very liberal interpretation of ‘source’ at best). Regardless, the
Chamber had recourse to those sources for the gap-filling purpose.133 This is an
example of how formalism was side-stepped in a law-ascertainment process and a
doctrine with uncertain legal status that was imported through the backdoor of dynamic
interpretation came to exercise a decisive influence on the conclusion.
Apart from circumventing the doctrine of sources, judges have not consistently
followed the methodology for the identification of law in the sources. Much of the
ICTY practice evinces the ‘modern approach’ to custom prioritizing opinio juris (or
even opinio necessitatis) over widespread and uniform state practice.134 The latter has
been interpreted broadly as hinging on declarations, ratifications of instruments,
127
Furundžija trial judgment (n 70), para 177.
128
ibid, para 182.
129
ibid, para 183.
130
Similarly, Bantekas (n 126), 126–27.
131
132
ibid, para 525.
133
134
B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles’ (1988–9) 12 Austrian Yearbook of International Law 84; AE Roberts,
tion: 29 / Date: 14/3
statements, and soft law, rather than on actual conduct of states underpinned by the
sense of legal obligation. Controversially, judges have been keen to identify custom
with reference to treaties and international instruments, including those post-dating the
conduct in issue, qua evidence of crystallizing customary norms.135 This made it
possible to cut corners and bypass the cumbersome methodology for the discovery of
customary law. However, the approach is flawed because treaties are a distinct
law-creating process and do not necessarily codify existing generally binding custom.
Criticism can also be raised in relation to the judicial approach towards the identifi-
cation of general principles of law.136 The comparative research into domestic legal
systems the judges and their staff are prepared to undertake tends to be selective, less
than in-depth, and limited to jurisdictions they are most familiar with or the infor-
mation about which they can access, given the linguistic and logistical constraints.
The methodology for ascertaining customary law or general principles is not a mere
obstacle thrown in to complicate the search for the applicable law, but the means to
ensure that judicial statements of law have a foothold in the consensual will of primary
lawmakers. The de-formalization of law-ascertainment has as the consequence the
delinking of the judge-determined (or judge-made) norms from state consent. The
tribunal judges have walked a tightrope: overambitious presentations of law in force
removed from what states regard and are ready to accept as law may be bereft of
legitimacy and lead to state objections and legislative backlash. In the law-generative
environment of the ad hoc tribunals, the system of sources was set adrift. On
presentation, the tribunals have deferred to international law doctrine, but their
jurisprudence shows a substantial mismatch between the theory and practice.
In order to counteract the chaotic approach to sources as a judicial lawmaking
facility, the ICC was endowed with an unprecedented statutory provision laying down
the ICC’s sources of law.137 While it resembles the ICJ’s list, article 21(1) departs from
it and is a lex specialis rule adapted to the unique character of an international criminal
jurisdiction.138 The nuances reflect the specificity of the criminal law method, most
notably the principle of legality. Article 21(1) introduces a stringent order and
conditions in which the categories of sources listed are to be consulted. This reduces
the possible overlap and competition between applicable norms, increases legal
‘Traditional and Modern Approaches to Customary Law: A Reconciliation’ (2001) 95(4)

135
eg Tadić jurisdiction appeal decision (n 18), para 223 and Furundžija trial judgment
(n 70), para 227 (referring to the ICC Statute as custom); Judgement, Kordić and Čerkez,
ICTY-95-14/2-A, AC, ICTY, 17 December 2004, paras 62–66 (on Additional Protocols as
custom) and n 73 (Elements of Crimes); Judgement, Krstić, ICTY-98-33-T, TC, ICTY, 2 August
2001, para 541 (Elements of Crimes).
136
eg Bantekas (n 126), 129.
137
In 2004, the SCSL judges adopted Rule 72 bis, which closely tracked art 21(1) ICC
Statute (n 9).
138
M McAuliffe deGuzman, ‘Article 21’ in Triffterer (n 36), 702–3 (‘the first codification of
the sources of international criminal law’); Perrin (n 125), 393, 395. cf D Akande, ‘Sources of
International Criminal Law’ in A Cassese (ed), The Oxford Companion to International Criminal
Justice (OUP 2009), 43 (art 21(1) repeats the ICJ sources, ‘though not in precisely the same
way’).
tion: 30 / Date: 14/3
certainty, and neutralizes the apprehensive attitude towards non liquet which character-
ized ICTY adjudication. Article 21(1) creates a presumption of exhaustive regulation in
respect of the ICC’s internal law (Statute, Elements of Crimes, and RPE, to which
Regulations must be added), and gives it priority over ‘external’ sources – applicable
treaties and the principles and rules of international law – to be consulted only ‘[i]n the
second place, where appropriate’. As compared to the ad hoc tribunals, the role of
custom as a law-generating and interpretive device is expectably lower at the ICC. The
third step in law-determination (general principles of law) is only to be made in the
exceptional and unlikely scenario when no applicable rules can be identified in the first
and second-order sources (‘[f]ailing that’).139 For that purpose, the Statute authorizes
the Court to have recourse to ‘national laws of legal systems of the world including, as
appropriate, the national laws of States that would normally exercise jurisdiction over
the crime, provided that those principles are not inconsistent with this Statute and with
international law and internationally recognized norms and standards’. This way of
framing ‘general principles’ accentuates specificity and potentially makes the method-
ology more transparent, given the proven impossibility for the courts to undertake a
comprehensive comparative analysis.140 Considering these features, the ICC Statute’s
system of sources is an attempt to breathe new life into international law formalism and
reframe it in light of the special nature of criminal adjudication. Arguably, this system
is better grounded in the social practice of law-determination by criminal tribunals and
more capable of exerting a normative pull on it.
One weak spot of legal formalism in the tribunals’ adjudication has been the
mismatch between the theoretical and actual roles of law-determining agencies – courts
and academics. As is known, their output – judicial decisions and scholarship – is not
a source but mere ‘subsidiary means’. This position was endorsed by the ad hoc
tribunals, which disavowed the status of precedent as a source and reserved to rulings
of other courts the function of optional aids, as potential evidence of existing or
emerging customary rules.141 This methodology rests on shaky ground, especially as far
as domestic court decisions are concerned,142 but it has served the tribunals as a potent
device for locating (or creating) customary rules.
Moreover, the ICTY Appeals Chamber held that ratio decidendi of its own decisions
is binding vis-à-vis Trial Chambers, and that normally, ‘in the interests of certainty and
predictability, the Appeals Chamber should follow its previous decisions, but should be
free to depart from them for cogent reasons in the interests of justice’ (namely, if the
decision was premised on a wrong legal principle or given per incuriam).143 This is
tantamount to introducing an analogue version, if not a strict equivalent, of stare decisis
– an ‘internal’ stare decisis limited to appellate decisions. This construct is not based
on a formal duty of the court to follow previous rulings but on a judicially instituted
obligation and, for trial courts, also on the sheer necessity to accord deference to the
established appellate jurisprudence to avoid reversal on appeal. The effects of this
139
Art 21(1)(c) ICC Statute (n 9).
140
Pellet (n 33), 1075.
141
142
ibid, para 541.
143
Aleksovski appeal judgment (n 87), paras 107–11 and 113.
tion: 31 / Date: 14/3
arrangement on the function of internal precedent and on the nature of the relationship
between adjudication and lawmaking have been far-reaching. This imbued the law-
development by the ad hoc tribunals with a discernible common-law logic, whereby
judges habitually reasoned on the strength of cases in order to legitimize their rulings.
This development should be seen against the backdrop of de-formalization of law-
ascertainment, or its growing detachment from the formal sources. The confluence
of the two trends – increasing detachment from formal sources manifesting the will of
states and self-referentiality – enabled judges to construct and consolidate a system of
(judge-made) law in its own right. Being largely a discretionary (rather than source-
driven) process and only nominally subject to formal constraints, it unfolded independ-
ently from the consensus of primary lawmakers.
The operation of the stare decisis analogue in the deformalized system of law-
ascertainment strengthened the role of judges as law-determining agents. First, as the
chambers were expressing themselves on a growing number of legal issues of relevance
in other cases, and as their case-law was becoming increasingly developed, the need for
them to consult ‘external’ sources and means of law-determination (eg other courts’
jurisprudence) was declining. Both in the interests of consistency enforced by the
Appeals Chamber and due to judicial economy, by way of sparing research effort,
judges have relied heavily on the legal rationales contained in the tribunals’ own
previous decisions. They have used jurisprudence as the primary device of law-
ascertainment, ie the evidence and authoritative interpretations of existing law. Over
time their decision-making became ever more precedent-driven, self-referential, and
enclosed vis-à-vis the nominal sources.
Second, this also led to the ascension of the figure of a judge as an oracle, purveyor,
and ‘material source’ of (customary) law. The seminal contributions by the judges to
the progressive development and the making of ICL are on the record. With some of
them also being distinguished scholars, the two traditional classes of law-determining
agents became interweaved. In ICL ‘scholars in robes’ have not shied away from
vindicating their academic positions through jurisprudence, even though especially in
criminal law there may exist cogent reasons for keeping the two hypostases apart.
International law professor and prominent judge late Antonio Cassese, the first
president of the ICTY and of the STL, was known for his creative and bold approach to
customary law-identification. Widely considered as a champion of judicial lawmaking,
Cassese’s judicial fingerprints can be discerned on many highly influential rulings
which set the pace for the explosive development of ICL in different areas. Among
others, he is credited with the ‘discovery’ of JCE and the extension of article 3 to
non-international armed conflict in Tadić,144 the outlawing of reprisals against civilians
in Kupreškić,145 the formulation of the ‘customary’ international crime of terrorism at
the STL,146 next to his high-powered separate opinion on the defence of duress in
Erdemović.147
144
See n 62–64 and 101.
145
See n 65–66.
146
See n 74–76.
147
Judgement, Erdemović, ICTY-96-22-A, AC, ICTY, 7 October 1997, Separate and
Dissenting Opinion of Judge Cassese (‘Erdemović dissent of Judge Cassese’).
tion: 32 / Date: 14/3
Describing tribunals simply as ‘law-determining agents’ and case law as a ‘sub-

sidiary means’ is a grotesque understatement: a lion’s share of the normative content of
ICL is an outgrowth of judicial law-ascertainment. The old formalist paradigm does not
square with the actual contribution of judges (and judge-academics) to the making of
ICL.148 As far as academic writings are concerned, the ad hoc tribunals have cited them
with regularity, although not nearly as often as their own jurisprudence. The role of
scholarship as the ‘subsidiary means’ was in decline as ICL was maturing, and the
importance of the judge as the ‘material source’ was on the rise. That said, other than
the judges’ occasional use of scholarly writings for reference and in order to confirm
the conclusions already reached by other means, scholarship has had a substantial
influence indirectly through the agency of ‘academic judges’ with a sense of mission.
Considering what the phenomenon of ‘judge-academic’ has meant for international
criminal lawmaking, it is fair to say that scholarship not only measures up to the
modest function reserved for a ‘subsidiary means’ but has also acquired a new quality
exceeding that function by far.
At the ICC, the notion that the judges may rely on the ICC’s previous decisions to
establish the applicable principles and rules of law is reflected in article 21(2). The
Statute accords the ICC’s precedents the role of interpretational aids, hence ‘subsidiary
means’, rather than sources. Their use is optional (‘may’), as befits a formal
source-driven as opposed to a stare decisis-based system. The Statute does not mention
‘publicists’ likely because its architects, put on notice about the phenomena of
‘judge-academic’ and the ‘Cassese approach’, rejected the notion that the Court would
draw authoritative statements of law from scholarly opinions. However, this has not
precluded the ICC judges from using scholarship as a ‘subsidiary means’ for the
determination of applicable law. In some areas, the impact of doctrine on the ICC’s
practice has been substantial. The prime example is the Chambers’ interpretation of the
concept of joint perpetration under article 25(3)(a) of the Statute with reference to the
‘control over the crime’ theory drawing upon the work of German scholar Claus
Roxin.149 This case law has generated a rich body of critical commentary and has not
escaped controversy within the Court itself. Judge Fulford and Judge Van den Wyngaert
were of the opinion that the interpretation of that article in light of the control theory
strayed too far from the text of the Statute.150 The majority’s method, they opined, was
inconsistent with the ICC’s system of sources, in that it accorded inordinate deference
to domestic (more specifically, German) criminal law doctrine which falls short of a
general principle of law. According to Judge Van den Wyngaert, the principles of strict
148
Ajevski (n 3), 128 (‘in a very realist sense, judges and courts are law-makers’).
149
Decision on Confirmation of Charges, Lubanga, ICC-01/04-01/06-803, PTC I, ICC, 29
January 2007, paras 326–67; Judgment pursuant to Article 74 of the Statute, Lubanga, ICC
01/04-01/06-2842, TC I, ICC, 14 March 2012 (‘Lubanga trial judgment’), paras 980–1018;
Decision on the Confirmation of Charges, Katanga and Ngudjolo, ICC-01/04-01/07-717, PTC II,
ICC, 30 September 2008, paras 480–539.
150
Separate Opinion of Judge Adrian Fulford, Lubanga trial judgment (n 149), paras 6–18;
Judgment pursuant to Article 74 of the Statute, Ngudjolo, ICC-01/04-02/12-4, TC II, ICC, 18
December 2012, Concurring Opinion of Judge Christine Van den Wyngaert, paras 5–21, 65–70.
tion: 33 / Date: 16/3
construction and in dubio pro reo enshrined in article 22(2) were compromised by the
expansive interpretation of article 25(3)(a).151
Be that as it may, this upsurge in the use of academic writings at the ICC illustrates
the substantial impact of the law-determination function on the normative content of
ICL as the ‘living law’, and the supremacy of judges as law-determining agents.
Despite the drafters’ efforts to reduce the scope for judicial creativity through stringent
regulation of lawmaking processes in article 21, such creativity is inherent in the
international judicial function and not easily extricated. Judicial exegesis has
lawmaking-like effects and serves as a vehicle for importing foreign legal doctrines into
the Court’s legal regime while bypassing the strictly formalist method of identifying the
applicable law. This leads inexorably to the question of the status and legitimacy
of judge-made ‘quasi-law’ as law, including in the eyes of primary international
lawmakers.
4.2 An (Almost) Autopoietic System? Legitimacy of International Criminal

Lawmaking
The foregoing discussion goes some way to demonstrating the implications of the
judicialization of international criminal justice for the nature and dynamics of law-
making in this field. The judicial endeavour of ascertaining and applying ICL in the
plural regimes of international criminal tribunals has ushered in its rapid growth and
consolidation. Much of ICL’s normative substance has come about through the exercise
of lawmaking authority delegated to judges by states and parent IOs. Such authority
was expressly provided to them with a view to gap-filling, or it was implicit in their
judicial function. The legal environment of the tribunals has proved intolerant to gaps,
which were found across the entire body of ICL. Those gaps could not be patched
operatively by traditional lawmakers who placed themselves at a relative distance and
adopted a hands-off legislative approach, in the interests of ensuring legality and
judicial independence. Therefore, judges sought to fill in the numerous lacunae through
deployment of their quasi-legislative powers and by making law at the interstices of
legislative authority, even if at times possibly exceeding the implicit terms of
delegation. Within their judicial turf, judges took control over, and responsibility for,
the progressive development of ICL from states. Judicial law-elucidation efforts had
norm-generating effects not only within and across the tribunal regimes but also
potentially beyond, insofar as the courts’ statements of the law have often been framed
as reflecting the status of customary international law. In other words, judicial
lawmaking was driven by an ambition of laying down general law that creates
normative expectations outside of specific cases.152
This dynamic process of making ICL as the ‘living law’ at the tribunals can be best
captured in terms of ‘autopoiesis’ – self-reproduction of law in operationally-closed
systems through their functioning away from states as traditional centres of lawmaking.
This perspective on ICL as an ‘autopoietic system’, drawing upon the work of legal
151
Concurring Opinion of Judge Christine Van den Wyngaert (n 150), paras 16–20, 68.
152
Kuhli and Günther (n 4), 378.
sociologists such as Niklas Luhmann and Günther Teubner, can be illuminating.153 It

might explain some of the patterns and regularities of the (re)production of ICL as a
tribunal-made ‘global law without a state’. The existence and importance of a network
of criminal courts weaving global normative expectations in the sphere of substantive
and procedural ICL has to a certain extent shifted the state-produced ICL to the
periphery of international criminal lawmaking.154 This weakened the traditional linkage
of law to state that is at the heart of the étatist paradigm. Indeed, there is a broad
correspondence between the accounts of ‘autopoietic systems’ and adjudication-driven
lawmaking in the tribunals. Despite Teubner’s scepticism about the prospect of a
globalized autonomous law emerging from international courts, the lawmaking by
international criminal tribunals loosely corresponds to the developmental model of
‘global law’.155 This concerns in particular the de-formalization of law-ascertainment,
its decoupling from sources and distancing from state (and more broadly, political)
consent, as well as the institution-based variation in law and multiplicity of sources.
Similarly, one cannot help noticing the increasingly self-sufficient and auto-validating
character of tribunals’ adjudication.156 It has been sustained by the loyal attitude of
judges towards the output of previous law-ascertainment endeavours – for the most part
and not without striking exceptions, of which the recent strife in the ICTY Appeals
Chamber regarding the ‘specific direction’ requirement for the aiding and abetting
liability is the prime example. But otherwise, the strong habit of relying on internal
precedent as the predominant modus operandi reduced the need for the judges to
bootstrap law-identification to formal sources on every occasion. This modus sup-
planted the ‘law-creating processes’ at large, and the tribunals became essentially
self-standing ‘autopoietic systems’, operating autonomously from formal lawmakers.
ICL has been subject to intermittent and largely (albeit not totally) absent attention of
states, which goes a long way to defy the outdated state-centric paradigm of
international lawmaking.
With non-state actors having borne the bulk of legislative responsibilities under this
division of labour, ICL is a quintessential example of a field of polycentric law-
making.157 At the same time, it would be mistaken to absolutize the autopoietic
character of international criminal lawmaking: it remains such only to the extent
allowed or acquiesced to by states. As in other areas of international law, despite the
growing challenges to their monopoly on lawmaking, states (directly and through IOs)
153
N Luhmann, Law as a Social System (OUP 2004); G Teubner, ‘Global Bukowina: Legal
Pluralism in the World Society’ in G Teubner (ed), Global Law without a State (Darthmouth
1996) 3; G Teubner, ‘How the Law Thinks: Toward a Constructive Epistemology of Law’ (1989)
23 Law and Society Review 727, 739–40.
154
cf Teubner (n 117), 1459 (on ‘legislative law’ as ‘peripheral law’ and the hierarchy of
courts as the centre of lawmaking, given that they ‘create congruently generalized expectation’).
155
Teubner, ‘Global Bukowina’ (n 153).
156
See Teubner, ‘How the Law Thinks’ (n 153), 736.
157
See also J d’Aspremont, ‘Cognitive Conflicts and the Making of International Law: From
Empirical Concord to Conceptual Discord in Legal Scholarship’ (2014) 46 Vanderbilt Journal of
tion: 35 / Date: 14/3
continue to exercise control over the making of ICL.158 State consensus sets the
boundaries of delegated lawmaking authority, being grafted into the methods of
ascertaining the law in respective sources. Thus states demarcate the playing field for
other actors with delegated authority, whereby the parameters of legality serve as
guideposts in substantive law and fairness in procedure. States have means of ensuring
the secondary lawmakers’ compliance with these constraints. They are in a position to
ensure (or not) enforcement and cooperation and provide (or withhold) political and
financial support. With states being important and powerful stakeholders, the grounding
of (judicial) lawmaking in state consensus ultimately is a key – albeit not the only –
yardstick of legitimacy and authority of judge-made law outside a specific tribunal’s
regime. Judges, as ‘shadow legislators’ concerned with the recognition of their
pronouncements as valid law with outbound effects, will unavoidably look back to
states, and accord weight to their normative view about the content of the law. The
formal validation of autopoietic ICL comes in the form of compliance by states and
other actors, as well as its (re)production in the context of future exercises in
However, the curious dynamics of interaction and alternation between states and
non-state actors in respect of international criminal lawmaking raises intricate legitim-
acy issues relating to its pluralism of forms and different legislative arrangements in
use. On the one hand, self-production of ICL through adjudication is an inherently
contested process because, as noted, judges are not supposed to make law under the
predominant formalist paradigm. Without a niche in the pantheon of sources, the status
of judge-made law as law is not a given. In the absence of legislature’s backing and any
real checks, its legitimacy as such cannot be presumed.159 Even where judges are
authorized or tacitly allowed to legislate, they are considerably more vulnerable to
criticism than primary lawmakers on account of misconceived policy choices or
overreach of delegated authority. Staying within its bounds is a crucial way for the
judges to decrease the risk of non-compliance with their decisions and prevent the
decline in the court’s reputation and effectiveness. The legitimacy of judge-made ICL
remains open to challenges by other lawmakers, law-appliers, and subjects of law.
Lawmakers in particular may disagree that it is an accurate reflection of custom in
force or a timely and necessary development in the status of international law. If so,
states and IOs may feel inclined to depart from the standards pronounced in the
tribunals’ jurisprudence at subsequent occasions for lawmaking, for example when
adopting a new multilateral treaty or creating another specialized regime (a new
tribunal). Just like the proof of the pudding is in the eating, the traditional certification
of judge-made law is in its non-reversal and reproduction by the community of
states.160 Many of the ad hoc tribunals’ legal innovations were taken into account and
158
See J d’Aspremont, ‘From a Pluralization of International Norm-making Processes to a
Pluralization of the Concept of International Law’ in J Pauwelyn ao (eds), Informal International
Lawmaking (OUP 2012), 185.
159
Ajevski (n 3), 128 (‘It is the restraint and legitimization of this judicial normative pull
where a lot of confusion as to whether international judgments are law lies.’).
160
eg Schabas (n 42), 888 (‘no greater tribute to the judge than having his or her
interpretations endorsed, and not overruled, by the legislator’).
tion: 36 / Date: 14/3
incorporated into the ICC Statute, but far from all ‘autopoietic law’ received states’
imprimatur of legality for the purpose of the ICC. The list of war crimes that can be
committed in non-international armed conflict contained in article 8(2)(e) of the Statute
is a testament to the impact of the Tadić jurisprudence on the changing views of states
regarding the need for the criminalization of serious IHL breaches regardless of the
nature of conflict. But at the same time, states in Rome did reverse the Erdemović
Appeals Chamber majority’s rejection of duress as a complete defence to charges of
war crimes and/or crimes against humanity involving killings of innocent civilians.
Instead, they preferred the position on this issue expressed by Judge Cassese in his
famous dissenting opinion.161
Importantly, this does not mean that state consent is the touchstone and sole source
of legitimacy of judge-made law. Its status and content are interrogated by classes of
actors other than formal lawmakers, including potential or actual defendants and their
defence counsel, judges in other courts dealing with similar subjects, academics,
NGOs, and so on. Subjects of law may ‘vote’ against the authority of autopoietic law
through persistent objection and non-compliance on the ground that, in their view, it
does not reflect the law in force. An epistemic community may reject it as (legitimate)
law if it fails to give effect to the objectives and policies deemed desirable (due to, say,
its insensitivity to victim protection, insufficient or excessive deference to state
sovereignty, or unbalanced humanization of conflict), or because of the methodological
flaws in the process of law-ascertainment.162 Courts are keenly aware of their wider
audiences and address them on a regular basis. Especially when ‘progressively
developing’ ICL, judges not only speak to parties but also to states, IOs, domestic
authorities, and the public at large. They engage in persuasion, agenda-setting, and
discourse-framing. If not states eventually, then other courts and interpretive com-
munities might vindicate the judges’ expressed normative positions, thereby validating
the judicially-produced (quasi-)law as legitimate on legal policy, moral, or ideological
grounds.163 In the long run, the informal legitimization of judge-made law might help
enhance compliance and affirm its ‘law’ status, regardless of whether it has passed the
formal adoption process involving states.
The anchorage of judicial lawmaking to state consensus has a dark side. The control
states have been willing to assert over semi-autonomous judicial environments, the
breeding grounds of ICL autopoiesis, has been far from random or sporadic; on the
contrary, it has been deliberately selective. States have ICL firmly on their leash, which
they are free to tighten or loosen when they see fit. It is an evident and striking fact that
some of the ICL regimes (eg the ICTY and ICTR) were designed and cultivated as
more autopoietic than the others (eg the ICC). There is an ironic disparity in the reach
and intensity of control (powerful) states have been eager to retain over lawmaking
within specific ICL regimes, depending on whether ‘autopoietic law’ could pose a
threat to their own political elites. At the ad hoc tribunals, the de-formalization of
161
Art 31(1)(d) ICC Statute (n 9). cf Erdemović dissent of Judge Cassese (n 147) and
Erdemović appeal judgment (n 123), para 19.
162
eg Powderly (n 17), 32; Saul (n 76), 699.
163
Swart (n 3), 769 (implied consent of an interpretive community serves to legitimize
judicial creativity).
tion: 37 / Date: 14/3
judicial lawmaking was acquiesced to, and connived by, states which were not too
disturbed by the prospect (and then reality) of uninhibited judicial activism.164 At the
same time, the ad hoc experiments sent an alarm signal to states as to what degree of
deference they could expect of an empowered and mission-driven judiciary, if it were to
be left alone to deal with glaring gaps in the applicable law. It is telling that this
harbinger of ‘judicial tyranny’ did not lead states to strongly react to the ad hoc
tribunals’ treatment of sources or take issue with their findings on the state of
customary law in that same context. Nor did states act on any perceived overreach of
delegated lawmaking authority by the ICTY and ICTR, which would, of course, have
been an affront to judicial independence. But it is only when states decided to go
beyond the limited and ‘safe’ experiments of the ICTY and ICTR (and, for that matter,
SCSL and STL), which were tailor-made to deal with specific conflict situations, to
create a self-addressed adjudicative and enforcement regime, embodied in the ICC, that
they abandoned their theretofore passive and disinterested stance. For the ‘limited’
purpose of the ICC – limited in the sense that it would have jurisdiction over future
crimes that could possibly (unlikely) be committed by their own servicemen – states
retook the reigns of lawmaking over from judges and made sure to reduce the scope for
judicial creativity as much as possible.
It is a melancholy fact that the relative freedom that the judges in the ad hoc
tribunals had to develop the law was considered by states to be unfitting for the
permanent ICC, given its broad jurisdiction. The same states demonstrated indifference,
acquiescence, or approval when allowing judge-made autopoietic law to thrive as a
perfectly legitimate system in the other, less ‘dangerous’, jurisdictional contexts. This
circumstance provides a leitmotif for legitimacy critiques of the codification approach
within the ICC system, with the Elements of Crimes having invited most severe
acrimony.165 This is not the place to discuss in detail the legitimacy of each of the
constellations that emerged in the area of international criminal lawmaking, but merely
to point out that the pluralism of arrangements for the division of legislative
responsibilities between states and non-state actors is fraught with a serious legitimacy
problem. The calculated variation in such arrangements per regime obscures the
parameters of legitimate lawmaking and lays bare the double standard at work in the
ICL system as a whole. The consequence of the opportunistic choice of lawmaking
arrangements is that both the progressive paradigm of ICL as judicial autopoiesis and
its counterpart – the more conservative, sovereignty-based and state-controlled, strand
of ICL – can be cogently argued to be anything but legitimate, depending on what
constituency or interpretive community is engaged.166
164
Kuhli and Günther (n 4), 369 (‘states were willing to leave the ICTY alone with a vague
statute because the court was created for a limited purpose connected to the Yugoslavian
conflict’).
165
See section 3.1.
166
On legitimacy of international criminal justice, see eg S Vasiliev, ‘Between International
Criminal Justice and Injustice: Theorising Legitimacy’ in N Hayashi and C Bailliet (eds),
Legitimacy and Effectiveness of International Criminal Tribunals (CUP forthcoming 2016).
tion: 38 / Date: 14/3
5. CONCLUDING REMARKS
The ICL field has been subject to the similar metamorphoses and is struggling with the
same conceptual questions that confront international lawmaking generally. Consider-
ing the dynamics of the making of ICL, there are several themes it shares with other
areas of international law. One should mention its normative profusion and specializa-
tion, boosted by judicialization and resulting in the emergence of semi-autonomous
sub-disciplines; pluralization of norm-generative processes and practices of law-
ascertainment; de-formalization of lawmaking, or its detachment from the formal
sources and consent of traditional lawmakers; the erosion of boundaries between law
and non-law (along with related cognitive dissonances); and, unavoidably, the quanda-
ries of legitimacy. The manifestations of these phenomena in ICL are unique, given the
nuances of its genesis, purposes, and methods, and make it an atypical species, without
de-linking it completely from the general corpus of international law. Instead, the
specificity of ICL attests to the diversification of international law itself and its
evolutionary capacity to expand into new areas and accommodate new forms and
methods of legal normativity when doing so.
International criminal lawmaking is hallmarked by polycentrism, pluralism of
legislative arrangements, and a degree of detachment from state consensus, being in
this respect at odds with the state-centric paradigm. ICL has no single legislator but is
produced by a loose network of relatively autonomous lawmakers, regardless of their
formal status as such, ranging from states to IOs to courts and judges. Therefore, the
construction sites of ICL are not limited to diplomatic conferences, UN offices, and
other fora associated with legislative moments in international law. The variegated and
multilayered system of its sources is not reducible to traditional forms of international
law hinging on state consent. It also includes binding instruments of international
organizations, technocratic sub-laws adopted by judicial bureaucracies in the exercise
of their delegated or incidental lawmaking powers, and, controversially, the courts’
precedents.
Unlike other areas of international law, ICL is a system of law addressed to, and
primarily dealing with, individuals rather than states. By definition therefore, the
making of ICL is subject to unique material constraints; in substantive ICL, it is the
principle of legality. It is troubling that ICL’s half-hearted methodological emancipation
from international law has affected the content and stringency of this principle. The
principle as it has been applied in ICL became afflicted by perennial tensions with the
moral imperatives of ‘substantive justice’ – a philosophical red thread running through
the historical genesis, socio-political mission, and situational deployment of inter-
national criminal justice. In international criminal lawmaking and adjudication, the
principle of legality fell into a twilight existence, in spite of all rhetorical affirmations
to the contrary. Recurrently, both the formal legislative process and the ‘shadow’
lawmaking by judges collapsed immorality with criminality, and lex lata with lex
ferenda. The hybrid character of ICL as criminal and international law enabled judges
to step in for the absent or passive legislator as they were prodded to fill in the legal
gaps, occasionally at the cost of strict adherence to legality. Given the scarcity of
positive law, the judges of the ad hoc tribunals have progressively developed – and in a
true sense made – law by having recourse to customary law and dynamic teleological
tion: 39 / Date: 14/3
interpretations of substantive law norms. The judges have used the vehicles of
customary law-ascertainment and ‘object and purpose’ construction to import into
adjudication the rationales which are alien to the ‘legal proprium’ of criminal law. This
took a toll on the right of individual defendants to a sufficiently foreseeable, accessible,
and specific penal law.
This chapter argued that the principle of legality must be disambiguated and regain
its gravitas as a constraint on lawmaking for ICL to correspond better to the ideals of a
truly liberal criminal law that it professes. This would only be possible if it could
secure itself the necessary methodological autonomy from international law in part of
the sources doctrine and interpretation. The strong emphasis on legality in the ICC law
portends stricter compliance with the principle in the future. To the extent that the ICC
Statute evinces a consolidation of state practice and opinio juris in support of strict
legality in international criminal tribunals, one may ask whether the principle as it
applies in ICL has crystallized into a customary norm. This may be a wishful argument,
however, given that negative practice continues well into the ICC era. Judges in other
contemporary tribunals remain virtually unrestrained in progressively developing or
making law and cannot help it, while states tend to keep unconcerned as long as
judicial creativity does not actually or potentially collide with their interests.
The international law doctrine of sources, along with the traditional distinction
between law-creating processes and law-determining agencies, serves as a formal
constraint on law-ascertainment by the tribunals. But, in fact, it fails to capture and
predict the social practice of norm-generation and, despite its rhetorical endorsement in
the jurisprudence, has not been an effective limitation. An impression of law-
identification patterns of tribunals provided in this chapter reveals their disregard of the
official taxonomy of sources and a degree of legal de-formalization. Particularly at the
ICTY, international legal positivism was a way for the judges to camouflage and
legitimize their discretionary treatment of sources and free choice of methods of
interpretation – the ‘presentational positivism’ thus being a flipside of the judges’
‘diffident naturalism’. The notion that judges (and academics among them) do not
make law but merely divine its pre-existing content, and that judicial precedents only
restate, not enact, law has pervaded ICL discourse. But considering where the judges
have derived the law from, and what methods they have employed, there can be little
room for doubt about the nature of their function and contributions to law-formation.
Legal formalism has a long way to go to rehabilitate and re-establish itself in the
realm of international criminal tribunals. The traditional understanding of sources and
their relationship with ‘subsidiary means’ must be updated or give way to a modernized
– more normatively adequate and practice-grounded – theory developed specifically for
ICL. Formalism would wield a greater explanatory force and operate more effectively
as a constraint with respect to lawmaking, if it were reformed in accordance with the
nature of ICL as criminal law, including the principled emphasis on legality. The
recourse to customary law as a source of penal proscriptions and modes of responsibil-
ity, as well as an interpretive aid, should be more stringently regulated to accord with
the strict version of legality. In ICL, questions have arisen whether the notion of
customary law may be detached from the requirement of state consent by way of
privileging opinio juris over usus, as propounded by the ‘modern approach’ favoured
by some of the Chambers. There is a pressing need for a transparent, workable, and
tion: 40 / Date: 14/3
robust methodology for the identification of (customary) norms that could both assist
judges in their search for the law and enhance their accountability. Developing one
based on the canons of legal positivism and the critical review of the experience of
international criminal adjudication in the past decades is the important task that
theorists must be prepared to shoulder. The first steps in that direction have been made,
but more remains to be done.167
Finally, as this chapter explained, the dynamics of norm-generation in the tribunals
invite a parallel with ‘autopoietic law’, not least in view of its drifting away from the
formal lawmaking processes and self-referential reproductive logic. These courts have
exploited their autonomous position to legislate at the interstices of international
lawmaking authority and, to a substantial degree, took over the role of states as
originators of law. However, states still hold a grip over the process, and state
consensus demarcates, normatively and politically, the playing field for the courts as
lawmakers. Given that it continues to be a formal, albeit not exclusive, benchmark of
legitimacy, one cannot discard the importance of the acceptance as law of judge-made
ICL by states. The division of legislative labour between states and other lawmakers
has been uneven in ICL, and it has varied greatly by specific ICL jurisdiction (eg ad
hoc tribunals v the ICC). There is a striking asymmetry in part of the lawmaking setup
among different regimes in international criminal justice, depending on whether or not
states are apprehensive about judicial activism in respective contexts. For the purpose
of the ICC, states exercised tight control because they saw the prospect of ‘autopoietic
law’ as a threat: it can never be sufficiently deferential to political sensitivities.
Opportunism in the choice of lawmaking arrangements blurs the parameters of
legitimacy and makes all ICL, whether state- or judge-made, vulnerable to formidable
challenges of authority.
167
eg Arajärvi (n 2), 181 (proposing to develop standards on the method of customary law
formation by recourse to legal theory); Steer (n 5), 305 (vouching for the methodological
solution based on solid comparative law research); Grover (n 26) (discussing the admissible role
of custom and the proper interpretation methodologies at the ICC).
tion: 41 / Date: 14/3
18. The making of international trade law

Mary E. Footer
1. INTRODUCTION
The making of international trade law is both simple and highly complex. It is simple
because modern international trade law is founded upon a major multilateral treaty, the
Agreement Establishing the World Trade Organization (WTO) or WTO Agreement
(WTO Agreement),1 which establishes a normative framework for the regulation of
multilateral trade.2 It is complex because the mere presence of the WTO Agreement,
and synonymous with it the establishment of the WTO, masks the true extent of
normative developments within this framework treaty.
In theory the WTO Agreement provides the means for amending the WTO’s
constituent instrument together with the annexed multilateral trade agreements. In
practice the WTO provides a forum for some supplementary lawmaking, which not
unlike other legal regimes, may allow the international trade regime to adapt more
flexibly to changed needs and circumstances.3
International lawmaking – in the sense that it is used in this chapter – refers to the
creation and progressive development of rules that normatively govern the relationships
of individual WTO Members with, and between, each other. In the era of globalisation
multilateral treaty-making, of the type that has led to the creation of the world trading
system, while it remains the preferred outcome for the making of international trade
law, faces some considerable challenges.
Specialist treaty regimes, like the WTO multilateral trading system have become
increasingly anachronistic; they are caught in a twilight zone where formal treaty-
making is prescribed but is increasingly difficult to achieve. Thus, WTO Members are
bound to comply with the formal, institutional process of lawmaking by treaty arising
from rounds of multilateral trade negotiations. At the same time they are bound to
apply the WTO’s ‘common institutional framework’ to all matters concerning their
trade relations arising out of the matrix of multilateral trade agreements, which are
annexed to the WTO Agreement.4
1
Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April
1994, entered in force 1 January 1995) 1867 UNTS 3, 33 ILM 1125 (1994) (WTO Agreement),
reproduced in The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal
Texts (CUP 1999) (The Legal Texts) 4–14.
2
ME Footer, An Institutional and Normative Analysis of the World Trade Organization
(Martinus Nijhoff 2006), 18.
3
R Wolfrum, ‘Introduction’ in R Wolfrum and V Röben, Developments of International
Law in Treaty Making (Springer 2005) 1, 7.
4
Arts I and II:1, WTO Agreement (n 1), The Legal Texts (n 1), 4–5.
395
In line with the exposé on the law of treaties by ILC Special Rapporteur Sir Gerald
Fitzmaurice in the late 1950s, it is possible to categorise the WTO Agreement and its
Annexes as being ‘a reciprocal grant or interchange between the parties of rights,
benefits, concessions or advantages’.5 It is also possible to conceive of those treaties as
comprising a set of lawmaking treaties in the sense of ‘inherent’ treaties.6 This is
because the WTO Agreement establishes an international organisation, which encom-
passes a complex of conventional (in the sense of normative) and institutional
provisions.7 Additionally, the operation of these provisions within the WTO’s common
institutional framework resembles a ‘living’ treaty regime with ‘the prospect of
virtually continuous legislative activities’8 by means of consensus-driven lawmaking,
interpretative devices and institutional practice.9
Within the context of an inherent treaty system the making of international trade law
occurs in two senses. First, the WTO is a validly constituted international organisation
while effectively being ‘a regulatory agency’ that offers its Members ‘a forum for
agenda-setting and policy review, as well as the negotiation, adoption, amendment and
authoritative interpretation of WTO agreements’.10 Second, the WTO has another
secondary lawmaking function arising from the decisions of its institutional bodies.
As is well known the origins of public international trade law date back to
developments in the post-war international political economy and a new era of
‘institutionalism’. Following the founding of the International Monetary Fund and the
International Bank for Reconstruction and Development or World Bank, at the Bretton
Woods Conference in 1944,11 there was a call by the international community for the
detailed regulation of governmental restraints on international trade. However, the
5
Art 19 of the Draft Expository Code, Second Report on the Law of Treaties by Sir Gerald
Fitzmaurice, art 19(1)(ii)(a), YILC (1957), 31; see further C Brölmann, ‘Law-Making Treaties:
Form and Function in International Law’ (2005) 74 Nordic Journal of International Law 177,
177, 180.
6
Brölmann ibid, 181 who refers to the fact that it was Arnold McNair who drew attention
to the idea that constitutive treaties of international organisations were ‘inherent’ treaties in his
seminal piece on ‘The Function and the Differing Legal Character of Treaties’ (1930) XI British
Yearbook of International Law 100, 116–18.
7
Footer (n 2), 19.
8
Wolfrum (n 3), 7 with reliance on G Handl, ‘Environmental Security and Global Change:
The Challenge of International Law in Environmental Protection and International Law’ in W
Lang and H Neuhold (eds), Environmental Protection and International Law (Graham and
Trotman 1991) 199.
9
A Boyle and C Chinkin, The Making of International Law (OUP 2007), 22 and 134–41;
see further ME Footer, ‘The WTO as a “living instrument”: The Contribution of Consensus
Decision-making and Informality to Institutional Norms and Practices’ in T Cottier and M Elsig
(eds), Governing the World Trade Organization: Past, Present and Beyond Doha (CUP 2011)
217.
10
Boyle and Chinkin ibid, 135.
11
Proceedings and Documents of the United Nations Monetary and Financial Conference,
Bretton Woods, New Hampshire, 1–22 July 1944 (vol 1, 1947) 941.
The making of international trade law 397
Charter for an International Trade Organization (ITO Charter), which was adopted at a
specially convened conference in Havana in 1947,12 never entered into force.
Instead, the General Agreement on Tariffs and Trade (GATT 1947 or GATT),13
which had been negotiated separately, but parallel, to the ITO Charter and represented
a set of trade disciplines designed to protect wide-ranging tariff cuts, entered into force.
Initially applied on a ‘provisional basis’, the intention was that once the ITO Charter
came into force the GATT would be wound up; however, with the demise of the ITO
project, the GATT moved to fill the normative gap.
A further provision in the GATT called for regular, periodic tariff negotiations14 in
so-called rounds of ‘multilateral trade negotiations’ (MTN). These MTNs came
increasingly to include both negotiations for further tariff reductions and adjustments in
primary treaty obligations by the contracting parties in the form of additional trade
measures and agreements through to the Uruguay Round MTN (1986–94).15
The WTO emerged from the former GATT regulatory framework with a strong
normative continuity between the two multilateral trade regimes. The WTO builds upon
the normative structure of the former GATT 1947 through the maintenance of its core
disciplines in the GATT 1994.16 These include: the principle of non-discrimination,
which is applied through the most-favoured-nation (MFN) standard and national
treatment standard; the principle of market access or trade liberalisation; the principle
of reciprocity in trade concessions; the right to waive a trade obligation on exceptional
grounds or to deviate from it provided certain conditions are met; and the principle of
special and differential treatment or the development norm.
There is also continuity in the WTO treaty regime itself, which consists of the WTO
Agreement and its ‘agreements and associated legal instruments’ in the four Annexes17
that are attached to it. Some of those agreements added new obligations on sectoral
issues or rules-based disciplines. Others included the revision of an agreement
previously undertaken on a plurilateral basis, by some GATT contracting parties, at the
end of the Tokyo Round MTN (1973–79).18 Alongside these agreements, there are a
12
‘Final Act and Related Documents of the United National Conference on Trade and
Employment’ (Havana, Cuba, 21 November 1947 to 24 March 1948) with draft Charter for an
International Trade Organisation, UN Doc ICITO/1/4 (1948).
13
1 January 1948) 55 UNTS 194 (1947), reproduced in The Legal Texts (n 1), 424–92 (GATT
1947).
14
Art XXVIIIbis GATT 1947 (n 13), 464–5.
15
The Uruguay Round MTN was launched at the Ministerial Meeting held in Punta del
Este, Uruguay; see Declaration of Punta del Este, Ministerial Meeting, GATT Basic Documents
and Selected Documents (BISD) 33S/19.
16
The General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into
force 1 January 1995) 1867 UNTS 187, 33 ILM 1153 (1994), reproduced in The Legal Texts
(n 1), 17–19 (GATT 1994).
17
Art II:1 WTO Agreement (n 1), The Legal Texts, ibid, 4.
18
The seventh round of GATT Multilateral Trade Negotiations (MTN) was launched at the
Ministerial Meeting, which was held in Tokyo on 14 September 1973 and continued through to
12 April 1979. The results of the Tokyo Round MTN, which constitute a set of plurilateral
agreements between certain GATT Contracting Parties, can be found at 1186 UNTS 2 and 1235
UNTS 126.
series of associated legal instruments, which include prior decisions under the GATT
such as the 1979 ‘Enabling Clause’.19 These associated legal instruments form part of
what is known as the ‘GATT acquis’,20 which is relevant for the interpretation and
application of WTO law21 most notably in the context of WTO dispute settlement.
This chapter charts the evolution of the making of international trade law since the
establishment of the WTO in 1995. The focus in the next section is on the current status
of primary lawmaking by means of treaty, whether of the multilateral, plurilateral,
regional or bilateral type. WTO treaty-making is supplemented by the accession
protocols of new Members that may modify the set of WTO rights and obligations
between the acceding WTO Member and existing ones and/or contain ‘WTO-plus’ type
obligations for the acceding Member. There is also a brief reflection on the effect of
modifying WTO treaty obligations by means of amendment, authoritative interpret-
ation, subsequent agreement and subsequent practice, and WTO Members’ use of the
general waiver power.
The third section analyses secondary lawmaking in the WTO. Generally speaking
secondary lawmaking within the institutional framework of an international organ-
isation like the WTO can be understood as the adoption of rules arising from decisions
of the organisation, or one of its institutional bodies, that have normative effect. Such
rules may be binding on Members, in accordance with the organisation’s constituent
instrument, ie the WTO Agreement. Where those rules do not initially bind the
members, they may become binding upon them through the practice of the organisation
(or one of its institutional bodies), coupled with a certain belief by the members that
they are so bound.22 Delegated lawmaking – albeit somewhat putative – and waiver
decisions as secondary legal acts are presented as forms of secondary lawmaking. The
fourth section offers a set of conclusions that reflects upon the current status and future
prospects for the making of international trade law in the WTO.
2. PRIMARY LAWMAKING IN THE WTO

The principal means of creating rights and obligations, which are binding on WTO
Members, is through the adoption of treaty norms by formal lawmaking processes and
19
The reference is to the Decision on Differential and More Favourable Treatment,
Reciprocity and Fuller Participation of Developing Countries, Decision of the CONTRACTING
PARTIES (28 November 1979) GATT Doc L/4903, BISD 26S/205 (1979) (Enabling Clause).
20
The GATT acquis is to be found in art XVI:1 WTO Agreement (n 1), The Legal Texts
(n 1), 13. It states that ‘the WTO shall be guided by the decisions, procedures and customary
practices followed by the CONTRACTING PARTIES to the GATT 1947 and the bodies
established in the framework of the GATT 1947’.
21
WTO, Japan: Taxes on Alcoholic Beverages – Report of the Appellate Body (1 November
1996) WT/DS8/AB/R. WTDS10/AB/R and WT/DS11/AB/R (Japan: Alcoholic Beverages II),
15, as to the importance of the GATT acquis in ensuing continuity and consistency in the
GATT/WTO trade regime.
22
Footer (n 2), 271, albeit that the term ‘subsidiary’, rather than ‘secondary’, is used to
describe this type of secondary lawmaking in an institutional context.
tion: 4 / Date: 9/2
other treaty norms that revise or modify those basic treaty obligations.23 Thus, treaties
remain central to the development of international trade law.
2.1 Negotiation and Adoption of WTO Treaty Instruments
The WTO legal order consists of a body of principles, rules and standards, the
antecedents of which are to be found in the GATT 1947 and subsequent practice of the
GATT Contracting Parties. With the establishment of the WTO the original GATT 1947
has been supplemented by: (i) the results of the negotiations and primary lawmaking
processes that took place during the Uruguay Round MTN; and (ii) the Protocols of
Members that have acceded to the WTO since the organisation was established in 1995.
2.1.1 The MTN process

The Uruguay Round MTN was characterised by a process of negotiation and
deliberation among the GATT contracting parties as part of a ‘package deal’. In the
minds of trade officials this approach to negotiations led to ‘a single undertaking’,
whereby parties made ‘mutually interdependent agreements in order to achieve a
compromise acceptable to all’.24 Adherence to the single undertaking meant that each
GATT Contracting Party had to take on all WTO obligations, including ‘original
membership, accession, non-application, acceptance and withdrawal’ as well as ‘an
integrated dispute settlement system’,25 thereby underscoring the supposedly integral
character of the WTO.
The Final Act of the Uruguay Round (Final Act), which was formally adopted at the
final meeting of the Trade Negotiations Committee in Brussels on 15 December 1993,
is the most comprehensive set of rules in the history of the making of international
trade law. The Final Act was subsequently signed by Ministers, and representatives of
the European Communities, at Marrakesh on 15 April 1994.26 The Final Act is both
constitutive and declaratory, and is important in two respects. First, it explicitly
recognises the fact that States have concluded a negotiating round.27 Participating
States bound themselves: to submit the WTO Agreement for approval by their
competent authorities; and to adopt the Ministerial Declarations and Decisions in the
23
The relevant conventional international law that is applicable to the formation, perform-
ance and amendment of WTO treaties is the Vienna Convention on the Law of Treaties (adopted
23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, 8 ILM (1969) 689 (VCLT).
The VCLT applies either because WTO Members are parties to it or, in the event they are not,
because a large number of its provisions are declaratory of customary international law rules on
treaty law and practice.
24
Boyle and Chinkin (n 9), 126, with reliance on AF Lowenfeld, International Economic
Law (2nd edn, OUP 2002), 61–67.
25
WTO, Brazil: Measures Affecting Desiccated Coconut – Report of the Appellate Body
(20 March 1997) DS22/AB/R, 18 (Brazil – Desiccated Coconut).
26
Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negoti-
ations (15 April 1994) LT/UR/A/1 (Final Act), to which is attached the WTO Agreement (n 1)
and its Annexes, The Legal Texts (n 1), 2 and 4–14 respectively, together with the Tariff
Schedules and Schedules of Services Commitments.
27
Final Act (n 26), 2, first recital.
tion: 5 / Date: 9/2
Final Act,28 thereby bringing the WTO into existence.29 Second, signature of the Final
Act authenticated the legal texts attached to it. In other words, it was one of the final
steps in the treaty-making process for all the GATT Contracting Parties, whereby the
WTO Agreement, its Annexes, the various Ministerial Decisions and Declarations,30
together with all the thousands of pages of Schedules of Tariff Concessions and
Schedules of Services Commitments, became binding upon them as Members of the
WTO.
The process of large-scale treaty-making in the WTO, following completion of a
further MTN, remains largely untested. This is because the negotiations that were
launched at the Fourth Meeting of the Ministerial Conference at Doha in 200131
(known as the ‘Doha Development Round’ or simply the ‘Doha Round’) have not yet
been concluded. The Doha Round was supposed to deliver further reductions in bound
tariffs, the tariffication of agricultural subsidies, improved market access on services,
and new or revised rules in trade disciplines such as anti-dumping, subsidies and
safeguards.
Although the process of completing the Doha Round almost came to a standstill at
the Ninth Meeting of the Ministerial Conference at Bali in 2013,32 a decision was taken
to establish a Preparatory Committee on Trade Facilitation.33 It has drawn up a Protocol
of Amendment that allows for the insertion of the negotiated Agreement on Trade
Facilitation34 into Annex 1A of the WTO Agreement.35 Effectively, it means that WTO
practice is following the time-honoured GATT tradition whereby treaty amendments
were sought through individual Protocols,36 as occurred with the GATT 1947 treaty
28
This is without prejudice to the Understanding on Commitments in Financial Services,
The Legal Texts (n 1), 478–82, which is treated somewhat differently. It was negotiated as an
optional package that a WTO Member could choose to reference in their Schedule of
Commitments. The Understanding is therefore plurilateral rather than multilateral in character.
29
Final Act (n 26), The Legal Texts (n 1), 2, second recital.
30
ibid, sixth recital.
31
WTO Ministerial Conference, Fourth Session, (Doha 9–14 November 2001) Ministerial
Declaration, (14 November 2001) WT/MIN(01)/DEC/1 (20 November 2001) (Doha Ministerial
Declaration).
32
WTO Ministerial Conference, Ninth Session (Bali 3–7 December 2013) Ministerial
Declaration WT/MIN(13)/DEC (11 December 2013), para 1.8 (Part II – Doha Development
Agenda).
33
WTO Ministerial Decision – Agreement on Trade Facilitation (7 December 2013)
WT/MIN(13)/36, WT/L/911 (11 November 2013) (Ministerial Decision on Trade Facilitation),
para 2.
34
The text of the Agreement on Trade Facilitation is annexed to the Ministerial Decision on
Trade Facilitation, ibid.
35
Ministerial Decision on Trade Facilitation, ibid, paras 2 and 3.
36
This option, which was eventually adopted for the results of the Ninth Session of the
GATT Contracting Parties (28 October 1954 – 18 March 1955) (the 1954–55 Review Session),
can be found in the Report of the Legal and Drafting Committee on the Procedure for the
Approval of Amendments to the General Agreement, W.9/173, 2, Analytical Index: Guide to
GATT Law and Practice, GATT/LEG/2 (6th edn, Geneva 1994), 930.
amendments arising from the GATT Review Session of 1954–55.37 At the same time, it
marks a break away from the notion of seeking to arrive at a single undertaking in
order to complete an MTN.
2.1.2 WTO accession protocols

For those states or customs territories that are seeking accession to the WTO the
process is set out in article XII WTO Agreement.38 This provision is remarkable for the
brevity of its language; paragraph 1 states that ‘[A[ny State or separate customs
territory possessing full autonomy in the conduct of its external commercial relations
[…] may accede to this Agreement, on terms to be agreed between it and the WTO.’
(emphasis added). No guidance is given as to the meaning of the wording ‘on terms to
be agreed’ nor is any procedure prescribed for negotiating the terms of accession with
existing WTO Members. Instead, there has developed an extensive practice on
accession among the contracting parties to GATT that has been retained by the WTO
Membership.39
The accession of a new Member is not usually thought of as an amendment but the
WTO Agreement is modified without being an actual amendment to it.40 This is
because a new layer of obligations is added with each accession41 and the process
provides for ‘an additional subject of international law’.42 Thus, the complex web of
treaty relationships among all Members, and the basis upon which they operate, is
changed. Consequently WTO accession may raise important legal issues concerning the
rights and obligations of existing Members and the acceding Member. Occasionally this
may give rise to a conflict of norms in something as fundamental as the application of
article XX GATT 1994,43 which is a provision that permits a general exception from
key GATT obligations, provided specific conditions are met.
As the WTO Appellate Body ruled in China – Various Raw Materials,44 China could
not rely on recourse to this general exception in order to justify a breach of its
obligation to eliminate export duties under article 11.3 of its Accession Protocol. This
was because the language in the Protocol referred only to article VIII GATT 199445
37
The 1954–55 Review Session, ibid, was charged with examining and restructuring the
GATT, in accordance with art XXIX:4 GATT 1994 (n 16); for further details, see Footer (n 2),
17.
38
Art XII:1 WTO Agreement (n 1), The Legal Texts (n 1), 12.
39
Footer (n 2), 245–48.
40
ibid, 241.
41
S Charnovitz, ‘Mapping the Law of WTO Accession’ in ME Janow ao (eds), WTO at
Ten: Governance, Dispute Settlement and Developing Countries (Juris Publishing 2008) 855,
904–5.
42
C-D Ehlermann and LEhring, ‘Decision-making in the World Trade Organization: Is the
Consensus Practice of the World Trade Organization Adequate for Making, Revising and
Implementing Rules on International Trade?’ (2005) 8 Journal of International Economic Law
51, 57.
43
Art XX GATT 1994 (previously GATT 1947) (n 1), The Legal Texts (n 1), 455–6.
44
WTO, China: Measures Related to the Exportation of Various Raw Materials – Report of
the Appellate Body (22 February 2012) WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R
(China – Various Raw Materials).
45
Art VIII GATT 1994 (previously GATT 1947) (n 1), The Legal Texts (n 1), 434–5.
tion: 7 / Date: 9/2
without specifically including reference to the defence of article XX GATT 1994.

Consequently, China enjoys a qualitatively different normative relationship vis-à-vis the
other WTO Members when it comes to the invocation of the general exception under
article XX GATT 1994.46
Likewise, there may be other normative consequences for a newly acceded Member
arising from additional WTO-Plus obligations47 to which that Member may have
agreed, as part of its negotiations with existing Members. For example, a number of
newly acceded developing and least developing country (LDC) Members have agreed
in their Accession Protocols to adhere to higher intellectual property standards than
they would otherwise be required to maintain under the TRIPS Agreement.48
2.2 Modification of WTO Treaty Obligations
In the WTO context, the modification of international trade law represents a mixture of
general international law practice under the law of treaties and the customary practice
of the Membership of the organisation. It takes place by way of treaty amendment, by
means of a collective waiver decision or as a result of authoritative interpretation.
2.2.1 Treaty amendment

Since the establishment of the WTO in 1995 there has been only one attempt at formal
treaty amendment in accordance with article X:3 of the WTO Agreement.49 It concerns
an amendment to the TRIPS Agreement, which gives effect to the Doha Declaration on
the TRIPS Agreement and Public Health50 and the so-called ‘Paragraph 6 Decision’.51
The ‘amending’ decision of the General Council52 provides for the addition of a new
article 31bis TRIPS in accordance with the ‘Protocol Amending the TRIPS Agree-
ment’, which is annexed to the aforementioned decision. The amending Protocol has
46
China – Raw Materials (n 44), para 291.
47
Charnovitz (n 41), 878.
48
Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April
1994, entered into force 1 January 1995) 1869 UNTS 299, 33 ILM 1197 (1994), reproduced in
The Legal Texts (n 1), 320–53 (TRIPS Agreement or TRIPS); for details of WTO plus
obligations on intellectual property protection in China’s Protocol of Accession, see J Ya Qin,
‘“WTO-Plus” Obligations and Their Implications for the World Trade Organization Legal
System: An Appraisal of the China Accession Protocol’ (2003) 37 Journal of World Trade 483,
498–500.
49
Art X:3 WTO Agreement (n 1), The Legal Texts (n 1), 10.
50
WTO Ministerial Conference, Fourth Session (Doha 14–21 November 2001) Declaration
on the TRIPS Agreement and Public Health) WT/MIN(01)/DEC/2 (20 November 2001)
(Declaration on TRIPS and Public Health), pursuant to the Doha Ministerial Declaration (n 31),
para 17.
51
Decision of the General Council on Implementation of paragraph 6 of the Doha
Declaration on the TRIPS Agreement and Public Health (30 August 2003) WT/L/540 and Corr.1
(1 September 2003) (Paragraph 6 Decision). This is a so-called ‘waiver’ decision, adopted by the
Membership on the basis of art IX:3 WTO Agreement (n 1), The Legal Texts (n 1), 9.
52
Decision of the General Council on Amendment of the TRIPS Agreement of 6 December
2005, WT/L/641 (8 December 2005) with attached Protocol of Amendment (Protocol Amending
the TRIPS Agreement).
been submitted to the Membership for acceptance, pursuant to article X of the WTO
Agreement, but so far has failed to garner the required two-thirds of acceptances that
are needed in order to bring it into force.53 At such time as the Protocol Amending the
TRIPS Agreement comes into force it must be registered in accordance with article 102
of the UN Charter.54
More recently in 2014, the General Council adopted a decision to amend the WTO
Agreement by means of a Protocol that will add the Agreement on Trade Facilitation to
Annex 1A of the WTO Agreement.55 It has been opened for acceptance, in accordance
with article X:3 of the WTO Agreement56 and will enter into force once two-thirds of
WTO Members have completed their domestic ratification process.
2.2.2 Modification by waiver

Another, more unusual type of modification is the exercise on a collective basis of the
general waiver power that, in certain circumstances, may have the effect of ‘abstractly
modifying existing legal rules for either all or abstractly defined groups of members.’57
In GATT/WTO law the grant of a waiver from a treaty obligation is seen as an
exceptive norm,58 which must be expressly provided for in the underlying multilateral
treaty (article XXV:5 under the GATT 194759) or the constituent instrument of the
organisation (article IX of the WTO Agreement60).
WTO practice in the matter of waivers continues the previous practice under the
GATT 1947.61 There is a category of collective waiver decisions that ‘[defines]
measures or situations in general terms to which a certain obligation shall not apply’
and in so doing ‘[creates] … general exceptions to the waived obligation and thus
[modifies] it’.62 These collective waiver decisions do not merely tolerate a Member’s act
of non-compliance with its WTO obligation(s); instead, they seek to further the objectives
of the organisation. To that end they are intended to change the law in accordance with the
interests of the Membership63 and thereby modify primary treaty obligations.
The most significant example of a modification by collective waiver in GATT/WTO
practice is the 1979 Enabling Clause.64 It provides the legal basis for developed
53
54
Art XVI:6 WTO Agreement (ibid), The Legal Texts (n 1), 14.
55
Protocol Amending the Marrakesh Agreement Establishing the World Trade Organ-
ization, Decision of the General Council, 27 November 2014, WT/L/940 (28 November 2014)
with attached Annex to the Protocol Amending the Marrakesh Agreement Establishing the World
Trade Organization – Agreement on Trade Facilitation.
56
57
I Feichtner, The Law and Politics of WTO Waivers: Stability and Flexibility in Public
International Law (CUP 2012), 130.
58
Footer , ‘The WTO as a “living instrument”’ (n 9), 253.
59
Art XXV:5 GATT 1947 (now GATT 1994) (n 13), The Legal Texts (n 1), 461.
60
Art IX:3 and 4 WTO Agreement (n 1), The Legal Texts (n 1), 9.
61
Feichtner (n 59), 58–62.
62
ibid, 130.
63
See JH Jackson, World Trade and the Law of GATT (Bobbs-Merill 1969), 126–8 and 130
para 5.4, who notes that the waiver power was used to add new objectives to the GATT 1947
(n 13).
64
Enabling Clause (n 19).
countries to grant preferential treatment to developing countries and incorporates by

reference an earlier 1971 waiver decision.65 The latter waiver provided the legal basis
for various industrialised countries to suspend the application of MFN treatment in
article I:1 GATT 194766 for ten years to developing and LDCs in favour of a system of
generalised, non-reciprocal and non-discriminatory trade preferences (known as the
‘Generalized System of Preferences’ or ‘GSP’).
The scope of the Enabling Clause (and the earlier 1971 GATT Waiver) is such that
measures or situations are defined in general terms, to which a specific obligation – in
this case the grant of MFN treatment – shall henceforth not apply. Besides this, the
covered preference schemes under the waiver are referred to in abstract terms.67 The
exercise of this collective waiver created an exceptive norm that effectively ‘amended’
the application of the core MFN obligation in article I GATT 1947 in favour of the
creation of individual GSP schemes by participating GATT contracting parties. The
Enabling Clause decision has subsequently been made permanent through its incorpor-
ation into GATT 1994,68 as part of the GATT acquis,69 following completion of the
Uruguay Round.
Another example is the Paragraph 6 Decision70 concerning the compulsory licensing
of pharmaceutical products and access to essential medicines, which implements
paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health.71 The
Paragraph 6 Decision henceforth waives the requirement, providing certain conditions
are met, for an exporting country to have to rely on a compulsory licence for a
pharmaceutical patent to supply the domestic market in the importing Member’s
territory (article 31(f) TRIPS), and the obligation of the importing Member to pay
adequate remuneration to the rights holder when such a compulsory licence is issued
(article 31(h) TRIPS). Any LDC or other WTO Member that has formally notified the
TRIPS Council of its intention to use the system as an importer is eligible under the
waiver decision. Given that the Paragraph 6 Decision adjusts the balance of economic
and competing, non-economic values within the TRIPS Agreement it can be said to
modify the underlying legal norm.72
Already under the former GATT regime the modifying effect of the general waiver
raised concerns about its proper relationship to the amending powers of the CON-
TRACTING PARTIES under the General Agreement.73 This concern persists. While it
may be true that modification by waiver allows WTO Members to achieve a norm
65
Decision of the CONTRACTING PARTIES, 25 June 1971, relating to the establishment
of ‘generalized, non-reciprocal and non-discriminatory preferences beneficial to the developing
countries’ GATT Doc L/3545 BISD 18S/24-26 (1971).
66
Art I:1 GATT 1947 (now GATT 1994) (n 13), The Legal Texts (n 1), 424.
67
Feichtner (n 57), 135.
68
See para 1(b)(iii) of the GATT 1994, The Legal Texts (n 1), 17, and WTO, European
Communities – Conditions for the Granting of Tariff Preferences – Report of the Appellate Body
(20 April 1994) WT/DS246/AB/R/, para 108.
69
For an explanation of the GATT acquis see above (n 20).
70
Paragraph 6 Decision (n 51).
71
Declaration on TRIPS and Public Health (n 50), para 6.
72
Feichtner (n 57), 139 and 143.
73
Jackson (n 63), 138 para 5.6.
tion: 10 / Date: 15/3
change more rapidly than treaty amendment, with its formal and more time-consuming
requirements, there is a disadvantage. As the Paragraph 6 Decision demonstrates, such
a modification may have the unintended consequence of substituting for a treaty
amendment where the latter fails to enter into force. This is precisely what has
happened with respect to the proposed amendment to the TRIPS Agreement to include
a new article 31bis TRIPS in order to replace the Paragraph 6 Decision waiver and the
reason is not hard to find.
The text of the Paragraph 6 Decision provides that it ‘shall terminate for each
Member on the date on which an amendment to the TRIPS Agreement replacing its
provisions takes effect for that Member’.74 However, the Protocol Amending the TRIPS
Agreement can only come into effect for those WTO Members that have already
accepted it (approximately a quarter of the Membership so far) but not for each other
Member until that other Member also accepts the amendment, in accordance with
article X:3 WTO Agreement.
This leads to the incongruous situation that once the amending Protocol eventually
enters into force, the WTO Members that have accepted it can no longer rely on the
waiver, which is the Paragraph 6 Decision. Similarly, the ‘accepting Members’ can no
longer rely on the actual amendment, which introduces a new article 31bis TRIPS, with
respect to those WTO Members have not accepted it, ie the ‘non-accepting
Members’.75 This creates an unanticipated gap between the two legal instruments and
acts as a disincentive to wider acceptance by the WTO Membership of the Protocol
Amending the TRIPS Agreement and the eventual termination of the waiver embodied
in the Paragraph 6 Decision.
2.2.3 Authoritative interpretation

A further possibility for the modification of WTO treaty obligations exists where the
WTO Members, acting through the Ministerial Conference, or the General Council, are
able to adopt an authentic interpretation to the WTO Agreement or one of the annexed
Multilateral Trade Agreements, on the basis of paragraph 2 of article IX WTO
Agreement.76 The adoption of an authoritative interpretation requires a three-fourth
majority of the Membership and hence is more stringent than the acceptance of a treaty
amendment, which requires two-third acceptance by Members.77
Scholars have noted that the ‘process of interpretation … is legally distinct from
modification’ while acknowledging that in practice ‘the distinction is often rather
fine’.78 In the context of international trade lawmaking article XI:2 WTO Agreement
makes clear that the power of authoritative interpretation ‘shall not be used in a manner
that would undermine the amendment provisions in article X’,79 ie there shall be no
74
Paragraph 6 Decision (n 51), para 11.
75
M Kennedy, ‘When will the Protocol Amending the TRIPS Agreement Enter into Force?’
(2010) 13 Journal of International Economic Law 459, 463.
76
Art IX:2 WTO Agreement (n 1), The Legal Texts (n 1), 9.
77
Art X:3 WTO Agreement (n 1), The Legal Texts (n 1), 10. However, certain amendments
of key WTO provisions require unanimity; see art X:2 WTO Agreement, ibid.
78
J Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2013), 386;
see also A Aust, Modern Treaty Law and Practice (2nd edn, CUP 2007), 239.
79
See the final sentence of art IX:2 WTO Agreement (n 1), The Legal Texts (n 1), 9.
tion: 11 / Date: 15/3
détournement de pouvoir. Were an authoritative interpretation to be seen as a disguised

amendment it could be open to challenge as is evident from WTO practice.80
In 1999 the European Communities (now European Union) made a request to the
General Council for an authoritative interpretation81 in respect of certain provisions in
the Dispute Settlement Understanding (DSU).82 At the time, its request was opposed by
the US on the grounds inter alia that an authoritative interpretation would amount to an
amendment of substantive provisions of the DSU, contrary to the final sentence of
article IX:2 WTO Agreement.83 The US considered that it ‘would needlessly damage
the institutional fabric of this organization’.84
While WTO Members have never officially adopted an authoritative interpretation,
despite scholarly exhortations to the contrary,85 there have been further attempts to
modify WTO law in this way. Just three years after the European Communities’
demarche in 1999 Japan proposed a possible amendment to the DSU by means of
authoritative interpretation.86 The use of the power of authoritative interpretation was
also considered as one of the options for amending article 31 TRIPS in order to take
account of the Paragraph 6 Decision.87
2.2.4 Subsequent agreement and subsequent practice

It is well established that during the interpretative process the panel or Appellate Body
may take into account ‘subsequent agreement’ and ‘subsequent practice’, in the sense
80
Proposals on Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public
Health: Thematic Compilation, Note by the Secretariat, Revision, IP/C/W/363/Add.1 (23 July
2002) (Secretariat Note: Thematic Compilation), 2 para 9.
81
Request for an Authoritative Interpretation Pursuant to Article IX.2 of the Marrakesh
Agreement Establishing the World Trade Organization, Communication from the European
Communities, 21 January 1999, WT/GC/W/133 (25 January 1999). It was combined with a call
for a special meeting of the General Council to deal with the matter; see Communication from
the European Communities to the General Council, 4 February 1999, WT/GC/W/143
(5 February 1999). Both are reported in Secretariat Note: Thematic Compilation (n 80), 3 para
10 fn 5.
82
Understanding on Rules and Procedures Governing the Settlement of Disputes
(adopted15 April 1994, entered into force 1 January 1995) 1869 UNTS 401, 33 ILM 1226
(1994) reproduced in The Legal Texts (n 1), 354–79 (Dispute Settlement Understanding or DSU),
arts 3.7, 21.5, 22.2, 22.6, 22.7 and 23 DSU, 356, 369, 370, 371, 372 and 372–73 respectively.
83
84
General Council – Procedures for Amendment and Interpretation of the Dispute Settle-
ment Understanding – Response to European Communities’ Request for an Authoritative
Interpretation of the Dispute Settlement Understanding Pursuant to Article IX:2 of the WTO
Agreement, Communication from the United States (4 February 1999) WT/GC/W/144 (5
February 1999).
85
C-D Ehlermann and L Ehring, ‘The Authoritative Interpretation under Article IX:2 of the
Agreement Establishing the World Trade Organization: Current Law, Practice and Possible
Improvements’ (2005) 8 Journal of International Economic Law 803.
86
Proposal by Japan, Minutes of the Meeting of the Special Session of the Dispute
Settlement Body, (13–15 November 2002), TN/DS/M/6 (31 March 2003), 2 para 3.
87
Secretariat Note: Thematic Compilation (n 80), 2–3 paras 7–10. See also the statement by
Brazil in the Meeting of the Council for Trade-Related Aspects of Intellectual Property Rights
(17–19 September 2002) IP/C/M/37 (11 October 2002), 16 para 60.
tion: 12 / Date: 15/3
of article 31(3) paragraphs (a) and (b) of the VCLT respectively.88 It is also understood
that in dispute settlement both form part of the ‘customary rules of interpretation of
public international law’.89 At the same time, the recommendations and rulings adopted
by the Dispute Settlement Body may not ‘add to or diminish the rights and obligations
provided in the covered agreements’.90
In terms of potential lawmaking this enforced judicial restraint is at odds with the
institutional dynamic of the WTO. The subsequent conduct for a treaty regime that
establishes an international organisation, like the WTO, may mean that it is more
‘susceptible to the use of subsequent practice by its parties (as well as its organs) for
interpreting the powers and constraints upon that organization over time’.91 Likewise,
subsequent agreement may make it easier for the organisation to interpret or modify the
underlying treaty provision through decisions of its organs. When, as is the case of the
WTO, ‘the regime includes an authoritative dispute settler’,92 then such subsequent
conduct is more likely to be tested and authenticated.
A brief review of some WTO jurisprudence, where either subsequent agreement or
subsequent practice has been invoked ‘in order to clarify … existing provisions’ in
accordance with article 3.2 DSU,93 confirms these points for subsequent conduct in
terms of the WTO’s relevance as a treaty regime and as an international organisation.
What is, however, puzzling is that the panels and Appellate Body ‘do not always
distinguish clearly between subsequent agreement and subsequent practice’.94
Taking the issue of subsequent agreement first, the interpretative standard set out in
article 31(3)(a) VCLT records that ‘any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its provisions’95 may be
relevant in interpreting the performance of treaty obligations. In US – Clove
Cigarettes96 the Appellate Body was called upon to determine whether paragraph 5.2 of
the Doha Ministerial Decision on Implementation-Related Issues and Concerns,97
which defines the term ‘reasonable interval’ in article 2.12 of the Technical Barriers to
88
Art 31(3) (a) and (b) VCLT (n 23).
89
Art 3:2 DSU (n 84), The Legal Texts (n 1), 355.
90
ibid.
91
SD Murphy, ‘The Relevance of Subsequent Agreement and Subsequent Practice for the
Interpretation of Treaties’ in George Nolte (ed), Treaties and Subsequent Practice (OUP 2013)
82, 93.
92
ibid.
93
Art 3.2 DSU (n 82), The Legal Texts (n 1), 355.
94
G Nolte, ‘Jurisprudence Under Special Regimes Relating to Subsequent Agreements and
Subsequent Practice, Second Report of the ILC Study Group on Treaties over Times’ in Nolte
(ed) (n 93) 210, 216.
95
Art 31(3) (a) VCLT (n 23).
96
WTO, United States: Measures Affecting the Production and Sale of Clove Cigarettes –
Report of the Appellate Body (24 April 2012), WT/DW469/AB/R (US – Clove Cigarettes).
97
Doha Ministerial Decision on Implementation-Related Issues and Concerns, Decision of
14 November 2011, WT/MIN(01)/17, para 5.2., which states that subject to the conditions of art
2:12 TBT ‘[t]he phrase “reasonable interval” shall be understood to mean normally a period of
not less than six months, except when this would be ineffective in fulfilling the legitimate
objectives pursued’.
tion: 13 / Date: 15/3
Trade Agreement (TBT Agreement or TBT)98 ‘to mean normally a period of not less
than 6 months …’, could be relied upon by the complainant, Indonesia.
Having established that the Doha Ministerial Decision was not an authoritative
interpretation, in the sense of article IX:2 WTO Agreement, because it had not been
adopted in accordance with the procedures set out in that provision, the Appellate Body
was of the view that it ‘may constitute a “subsequent agreement” concerning the
interpretation of a provision of a covered agreement under article 31(3)(a) of the Vienna
Convention’.99 It reasoned that the Decision had been adopted – in a temporal sense –
subsequent to the relevant covered agreement, ie the TBT Agreement.100 Moreover, its
terms and content expressed ‘a common understanding and an acceptance of that
understanding among Members’ on the interpretation or application of a provision of
WTO law, namely what ‘reasonable interval’ meant in article 2.12 TBT.101
In another TBT case, that of US – Tuna II (Mexico),102 the Appellate Body ruled that
a Decision of the TBT Committee103 could be ‘considered as a “subsequent agreement”
within the meaning of article 31(3)(a) of the Vienna Convention’.104 This was based on
the context in which the decision of the relevant WTO organ, ie the TBT Committee,
had been taken. In this case, it was ‘[w]ith a view to developing a better understanding
of international standards within the Agreement’ … ‘to ensure the effective application
of the Agreement’ and to ‘clarify and strengthen the concept of international standards
under the Agreement’.105
At the same time, however, the Appellate Body cautioned that ‘[t]he extent to which
this Decision will inform the interpretation and application of a term or provision of the
TBT Agreement in a specific case […] will depend on the degree to which it “bears
specifically” on the interpretation and application of the respective term or provi-
sion’.106 This careful, case-by-case approach reaffirms Georg Nolte’s view that the
‘WTO Appellate Body has adopted a rather restrictive approach to subsequent
agreements as a means of interpretation within the WTO system.’107
Even so, such restrictiveness may be more apparent than real. Where an act of a
WTO organ ‘demonstrates that the parties [or Members] intended their understanding
98
Agreement on Technical Barriers to Trade, opened for signature 15 April 1994, in force
1 January 1995, 1868 UNTS 120 (1994) [hereinafter TBT Agreement or TBT], reproduced in
The Legal Texts (n 1), 121–42.
99
US – Clove Cigarettes (n 96), para 260.
100
ibid, para 263.
101
ibid, para 267.
102
WTO, United States: Measures Concerning the Importation, Marketing and Sale of Tuna
and Tuna Products – Report of the Appellate Body (13 June 2012) WT/DS381/AB/R (US – Tuna
II (Mexico)).
103
Second Triennial Review of the Operation and Implementation of the Agreement on
Technical Barriers to Trade, para 20, and Annex 4, Decision of the Committee on ‘Principles for
the Development of International Standards, Guides and Recommendations with relation to
Articles 2, 5 and Annex 3 of the Agreement’ G/TBT/9 (13 November 2000).
104
US – Tuna II (Mexico) (n 102), para 372.
105
ibid.
106
ibid, para 371.
107
Nolte (n 94), 224.
tion: 14 / Date: 16/3
to constitute an agreed basis for interpretation’,108 it must be ‘taken into account when
interpreting’ the relevant provision.109 Arguably though, the Appellate Body’s treatment
in US – Tuna II (Mexico) of a decision of the TBT Committee, as an ‘aid to
interpretation’ in arriving at a better understanding of international standards under the
TBT Agreement rather than as a decision that might constitute the basis for a form of
secondary lawmaking by a WTO organ110 (about which see next section), reveals a very
narrow and formalistic approach to subsequent conduct.
Turning to the issue of subsequent practice under a treaty instrument, article 31(3)(b)
VLCT is quite clear in stating that the standard includes ‘any subsequent practice
between the parties regarding the interpretation of the treaty or the application of its
provisions’.111 Early in the life of the new organisation, the Appellate Body in Japan –
Alcoholic Beverages II112 was called upon to define the term ‘subsequent practice’. In
its view, when interpreting a treaty, subsequent practice must consist of ‘a “concordant,
common and consistent” sequence of acts or pronouncements which is sufficient to
establish a discernible pattern implying the agreement of the parties regarding its
interpretation’.113
Then in US – Gambling the Appellate Body clarified the requirements for subsequent
practice when it stated that such practice must be both ‘a common, consistent,
discernible pattern of acts or pronouncements’ and ‘those acts or pronouncements must
imply agreement on implementation of the relevant provision’.114 In EC – Chicken
Cuts115 the Appellate Body conducted the most extensive examination of what
constitutes subsequent practice. It was called upon to decide whether the unilateral acts
of the European Communities (now European Union) in classifying salted meat under
the Harmonized System treaty,116 which were met by silence by other Members
(potentially giving rise to their acquiescence), could qualify as subsequent practice.
Noting that subsequent practice ‘constitutes objective evidence of the understanding
of the parties as to the meaning of the treaty’,117 the Appellate Body proceeded to
examine: a) what type of practice qualifies and by whom; b) how to establish
agreement among parties who have not engaged in the practice; and c) whether there
was consistency of practice. It found that: a) the practice must be capable of affecting
108
A Roberts, ‘Power and Persuasion in Investment Treaty Interpretation: The Dual Role of
States’ (2010) 104 American Journal of International Law 179, 199.
109
P Van den Bossche and W Zdouc, The Law and Policy of the World Trade Organization
(3rd edn, CUP 2013), 54.
110
H Ruiz-Fabri, ‘Subsequent Practice, Domestic Separation of Powers, and Concerns of
Legitimacy’ in Nolte (n 94) 160, 164.
111
Art 31(3)(b) VCLT (n 23).
112
Japan – Alcoholic Beverages II (n 21).
113
ibid, 13.
114
WTO, United States: Measures Affecting the Cross-Border Supply of Gambling and
Betting Services – Report of the Appellate Body (20 April 2005) DS/285/AB/R, para 192.
115
WTO, European Communities: Customs Classification of Frozen Boneless Chicken Cuts
– Report of the Appellate Body (27 September 2005) WT/DS269/AB/R, WT/DS286/AB/R (EC –
Chicken Cuts).
116
International Convention on the Harmonized Commodity Description and Coding System
(adopted 14 June 1983, entered into force 24 July 1986) 1035 UNTS 3.
117
EC – Chicken Cuts (n 155), para 255.
tion: 15 / Date: 15/3
the ‘common’ intention of the parties118 and ‘practice by some, but not all parties’ was
not the same as ‘practice by only one, or very few parties’;119 b) the lack of reaction or
silence by a party was not an indication of acceptance (or acquiescence) in that
practice;120 and c) the element of consistency was not implied in article 31(3)(b);
practice could evolve over time. Nevertheless, there had to be ‘[a]very high degree
of consistency and strict conditions as to duration … for prior practice to be
established.’121
However, the issue of whether the practice of a WTO organ, such as a committee or
even the General Council, may count as subsequent practice, rather than subsequent
agreement, remains untested in the WTO dispute settlement system. Arguably, subse-
quent practice may lead to tacit modification of the underlying treaty obligation,122 as
the following example demonstrates.
In November 1995 a statement was issued by the Chairman of the WTO General
Council. It records the Member’s agreement that:
On occasions when the General Council deals with matters related to requests for waivers or
accessions to the WTO under Articles IX and XII of the WTO Agreement respectively, the
General Council will seek a decision in accordance with Article IX: 1.123
In other words, decisions on waivers and accessions shall henceforth be taken on the
basis of a consensus decision124 rather than by means of a vote as otherwise required
by article IX:3125 and article XII:2126 of the WTO Agreement respectively, which
modifies the original rule. Testimony to such subsequent practice is the fact that since
1995 all Protocols of Accession to the WTO have been adopted by consensus,
notwithstanding the clear language of article XII:2 WTO Agreement, which requires
decisions on accession to be approved by the Ministerial Conference ‘by a two-thirds
majority of the Members’.127
118
ibid, paras 239 and 264–266.
119
ibid, para 259.
120
ibid, para 272.
121
ibid, para 287.
122
I Buga, ‘Subsequent Practice and Treaty Modification’ in MJ Bowman and D Kritsiotis
(eds), Conceptual and Contextual Perspectives on the Modern Law of Treaties (CUP forthcom-
ing 2016) at section 3 on ‘Subsequent Practice as a Means of Tacit Treaty Modification’.
123
The reference is to the statement of the Chairman of the General Council, upon this
body’s adoption of decision-making procedures under art IX and XII of the WTO Agreement
(n 1), at its meeting of 15 November 1995, item 3, WT/GC/M/8 (13 December 1995), section V,
7–8; the relevant decision was issued in the ‘L’ or Legal Series, as a Statement by the Chairman
WT/L/93 (24 November 1995).
124
The rule on consensus decision-making is contained in arts. IX:1 WTO Agreement (n 1)
The Legal Texts (n 1), 8–9.
125
Art IX:3 WTO Agreement, The Legal Texts (n 1), 9; the text is vague in requiring ‘three
fourths of the Members’ taking a waiver decision rather than a ‘three fourths majority of the
Members’.
126
Art XII:2 WTO Agreement, The Legal Texts (n 1), 12.
127
ibid.
tion: 16 / Date: 15/3
3. SECONDARY LAWMAKING IN THE WTO

Secondary lawmaking in the international legal order is of growing importance due to
the intensification of inter-State cooperation, the effects of globalisation and ‘the
creation of international institutions with a functionally limited mandate’.128 It has led
both to an expansion of the subject matter regulated by international law and to an
increase in the normative density in the subject matter that is regulated. In practice
many international organisations require ‘flexible tools to adapt to changing situations
and needs’ for which traditional inter-State treaty-making is too cumbersome and
slow.129
3.1 Framework for Analysis of Secondary Lawmaking
All forms of secondary law, irrespective of the legal system in which they are found,
are derived from primary law, which in the case of the WTO consists of the treaty
obligations that make up the WTO Agreement and its Annexes. The secondary law of
international organisations, like the WTO, is comprised of acts produced by those
organisations, or more properly their institutional bodies.
The exercise of secondary lawmaking in the WTO, as with any international
organisation, depends on the extent to which lawmaking powers have been attributed or
delegated, either explicitly or implicitly,130 to it or to one of its constituent bodies. Even
so, the institutional context may raise questions about the nature and normative force of
a secondary legal act, which is the product of an institutional resolution or decision, in
terms of its bindingness. Where such an act is binding, the additional question may
arise as to whether the act binds some or all of the members of the organisation. When
it comes to secondary lawmaking in international organisations, it is not always
possible to establish a ‘bright-line’ between legal and non-legal acts or between those
acts that are binding and those that are not;131 the WTO is no exception.
Additionally, the effects of any secondary legal acts arising from a resolution or
decision of the organisation, or one of its constituent bodies, will depend on whether
the secondary norm forms part of the internal secondary law of the organisation. In the
WTO there are rules that are based on decisions, which are internal in terms of their
source, substance and normative effect, and which are essential for the functioning of
the organisation on the internal plane (internal secondary law).
Secondary rules that form part of the internal law of the organisation include the
rules of procedure for meetings and inter-institutional arrangements between the
different WTO organs, ie the General Council, the specialised Councils, committees
128
M Benzing, ‘International Organizations or Institutions, Secondary Law’ in R Wolfrum
(ed), Max Planck Encyclopedia of International Law vol 3 (OUP 2012–13) 74, 75.
129
ibid.
130
Footer (n 2), 271–72 with reliance on K Zemanek, ‘The Legal Foundations of the
International System’ (1997) 266 Recueil des cours de l’Académie de droit international 9,
202–23.
131
C Chinkin, ‘Normative Developments in the International Legal System’ in D Shelton
(ed), Commitment and Compliance: the Role of Non-Binding Norms in the International Legal
System (OUP 2000) 21.
tion: 17 / Date: 15/3
and working parties, and operational rules such as those governing the WTO budget,
finance and administration.132 In most instances of secondary lawmaking at the WTO,
the addressees of the rules are the Members. There are however, a number of secondary
rules, such as WTO staff rules and regulations that apply to personnel employed by the
organisation,133 and secondary rules on diplomatic privileges and immunities that
operate in respect of certain categories of Secretariat staff and the Director-General.134
It is also possible for secondary legal acts to have normative force on the external
plane (external secondary law).135 Then, such external secondary law may arise where
the legal act has binding effect on the organisation’s members,136 or where it has legal
effects vis-à-vis third states or vis-à-vis a non-state actor such as a natural or corporate
body,137 or another international organisation, such as the UN.138
When thinking about secondary lawmaking in the WTO context it is important to
determine what types of decision are of a potentially norm-creating character and may
lead to legal acts.
This characterisation to some extent coincides with the definition on ‘rules of the
organisation’ found in the Vienna Convention on the Law of Treaties between States
and International Organizations or between International Organization (VCLTIO).139
According to article 2:1(j) VCLTIO such ‘rules’ may be contained not only in the
organisation’s ‘constituent instruments’ but also in ‘decisions and resolutions adopted
in accordance with [the organisation’s constituent instrument], and established practice
of the organization’.140
Applying this understanding of institutional legal acts together with the VCLTIO
definition on rules of the organisation, the issue of secondary lawmaking in the WTO
raises the following question, namely:
132
See generally Footer (n 2), 295–302 and 302–04 respectively.
133
ibid, 304–07.
134
Zemanek (n 130), 210–13; for the WTO, see ibid, 308.
135
Benzing (n 128), 76.
136
HG Schermers and NM Blokker, International Institutional Law: Unity within Diversity
(4th edn, Martinus Nijhoff Publishers 2003), 824–27 and 828–29 respectively, paras 1323, 1327
and 1328 on the effects of decisions addressed to governments; see also Benzing (n 128), 76–77,
who includes among secondary legal acts of the WTO, those decisions of the Members that lead
to the modification of primary WTO law such as amendments, authoritative interpretations and
modification by waiver.
137
An example of the external legal effect of a decision of a WTO institutional body can be
found in art 3 of the TBT Agreement (n 98), The Legal Texts (n 1), 122, whereby the TBT
Committee is explicitly authorised to adopt decisions relating to the preparation, adoption and
application of technical regulations by non-governmental bodies within the territories of
individual WTO Members.
138
Benzing (n 128), 77–78; for the WTO, see Footer (n 2), 308–10.
139
Vienna Convention on Law of Treaties between States and International Organizations or
between International Organizations (adopted 21 March 1986, not yet in force) 25 ILM (1986)
543, 547 (VCLTIO).
140
Art 2:1(j) VCLTIO ibid.
tion: 18 / Date: 15/3
whether the different ‘functions’ and decision-making powers bestowed … on the different
WTO organs lead to the creation of a true system of ‘secondary law’ of the WTO that is
derived from a legal basis laid down in the agreements; or whether most WTO decisions have
a sui generis character or are even of a primary law type … ?141
Taking this question as the point of departure, it is possible to develop a framework for
analysis of secondary lawmaking in the WTO even though the opportunity for creating
such a system is limited by the organisation’s scope and functions.142 Notwithstanding
any primary lawmaking that may arise out of an MTN143 or treaty modification, the
WTO operates mainly as ‘a forum for agenda-setting and policy review’.144 The
unfinished Doha Development Round MTN has cast a long shadow over the treaty-
making process while the single treaty amendment to date – the Protocol Amending the
TRIPS Agreement145 – has not yet entered into force. Instead, there has been a stream
of ‘legislative-like’ activity arising from the policy-making function of the organisation,
which gives effect to the ‘implementation, administration and operation’ of the
Multilateral Trade Agreements.146
In line with the first strand of the question, legislative activity that is based on
powers, which have been attributed to certain institutional bodies (on the basis of a
system of pouvoirs d’attribution) or which are implied,147 may be classed as a form of
secondary lawmaking in the making of international trade law.148 Secondary lawmaking
may arise where a legal basis for its adoption has been explicitly or implicitly set out in
one of the Multilateral Trade Agreements; both forms are apparent in delegated
lawmaking at the WTO, which is discussed below.
The second strand of the question points in the direction of waiver decisions that
have been adopted by a WTO institutional organ on the basis of a competence set out
in the organisation’s constituent instrument, ie the WTO Agreement, and therefore
qualify as secondary law of the WTO.149 The presence of waivers as secondary legal
acts in the multilateral trading system is examined below. It should, however, be noted
that the categorization of some waivers is ambiguous. They may be conceived of as
both sui generis instruments and as capable of modifying primary WTO law.
141
PJ Kuijper, ‘WTO Institutional Aspects’ in D Bethlehem ao (eds), The Oxford Handbook
of International Trade Law (OUP 2009) 79, 95.
142
Arts II and III WTO Agreement (n 1), The Legal Texts (n 1), 4–5.
143
Art III:2 WTO Agreement, The Legal Texts (n 1), 5.
144
145
Protocol Amending the TRIPS Agreement (n 54), 54.
146
Art III:1 WTO Agreement (n 1), The Legal Texts (n 1), 5.
147
Footer (n 2), 28–29 and 280 with reliance on the doctrine of implied powers of
international organisations, as determined by the International Court of Justice in Reparation for
Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174,
179.
148
PJ Kuijper, ‘Some Institutional Issues Presently Before the WTO’ in DLM Kennedy and
JD Southwick (eds), The Political Economy of International Trade Law: Essays in Honour of
Robert E Hudec (CUP 2002) 81, 85–6 who concludes that the WTO has a mixed system of
pouvoirs d’attribution and implied powers.
149
Feichtner (n 57), 164 and Kuijper, ibid, 109–10.
tion: 19 / Date: 15/3
3.2 Forms of Secondary Lawmaking in the WTO
The most prominent means by which secondary lawmaking takes place, ie delegated
lawmaking and waiver decisions as secondary legal acts, are examined hereunder and
illustrated with specific examples of each type. While the established practice of the
WTO, or one of its bodies, could potentially be a source of secondary lawmaking, it
has been dealt with as subsequent practice under the treaty that may lead to the
modification of primary treaty law, for which see previous section.
3.2.1 Delegated lawmaking

There are a few instances where the basis for secondary lawmaking has been expressly
laid down in the WTO Agreement or one of the Multilateral Trade Agreements. A
characteristic of the Uruguay Round MTN is that it led to the elaboration of new
disciplines and deference to national rules and standards provided they did not lead to
the imposition of domestic regulatory barriers. During the Uruguay Round there were a
series of domestic regulatory issues, such as harmonisation, mutual recognition and
equivalence of Members’ rules and standards, considered by GATT contracting parties
to be too sensitive that their negotiation had to be put off to a future date.
Article VI:4 GATS150 explicitly authorises the Council for Trade in Services,
‘through appropriate bodies’, ie through further delegation to committees or working
parties, to establish any multilateral disciplines necessary to ensure that Members’
licensing requirements, qualification requirements and procedures and technical stand-
ards do not create unnecessary barriers to trade in services. On the basis of this
somewhat ‘broad and ambitious mandate’,151 a Working Party on Professional Services
(WPPR)152 (now the Working Party on Domestic Regulation (WPDR)153), was estab-
lished to examine and report on the work programme set out in article VI:4 GATS.
Within a few years the WPPR had agreed on the text of Disciplines on Domestic
Regulation in the Accountancy Sector (Accountancy Disciplines)154 concerning new
disciplines on domestic regulation in the accountancy sector. They contained a
mandatory ‘necessity test’ for all applicable regulatory measures, which should ‘not be
more trade-restrictive than necessary to fulfil a specified legitimate objective’.155
Despite this early achievement of delegated lawmaking in the services sphere, the
Accountancy Disciplines have not yet entered in force because they await completion
150
Art VI:4 General Agreement on Trade in Services (adopted 15 April 1994, entered into
force 1 January 1995) 1869 UNTS 183 (GATS), The Legal Texts (n 1), 333.
151
Van den Bossche and Zdouc (n 109), 534.
152
Decision on Professional Services (1 March 1995) S/L/3 (4 April 1995).
153
The Working Party on Domestic Regulation (WPDR) was established to replace the
WPPR by the Decision on Domestic Regulation adopted by the Council for Trade in Services on
26 April 1999, S/L/70 (28 April 1999), para 1 with its mandate set out in paras 2 and 3 of the
Decision.
154
Council for Trade in Services, Disciplines on Domestic Regulation in the Accountancy
Sector (14 December 1998) S/L/64 (17 December 1998) (Accountancy Disciplines).
155
Accountancy Disciplines, ibid, para 2.
tion: 20 / Date: 15/3
of the broader Doha Round negotiations on services.156 Instead the Accountancy

Disciplines are applied on a voluntary basis by Members who have taken accountancy
commitments in their Schedules of Services Commitments,157 thereby reducing their
authority and effectiveness. They therefore serve as an example of a putative form of
explicitly delegated lawmaking.
Since 1999 the successor WPDR has continued to work on the development of
horizontal disciplines on domestic regulation in trade in services that are ‘generally
applicable’ to all individual services sectors and groups. Within its work programme158
the WPDR has focused on the elaboration of a necessity test, which introduces the
principle of proportionality, enhanced transparency, and the related issues of equiva-
lency (of qualifications) and international standards. However, the WPDR has failed to
produce any further general and abstractly formulated rules of conduct for the services
sector that either develop a necessity test or give recognition to the principles of
transparency and equivalency in line with the GATS and the WPDR’s own work
programme.
What initially appeared to be a very promising area for secondary lawmaking, based
on explicit delegation, is now looking increasingly unlikely to materialise. It calls into
question the extent to which explicitly delegated lawmaking has any future in the
making of secondary law in the multilateral trading system.
The work of the SPS Committee under the Agreement on Sanitary and Phytosanitary
Measures or SPS Agreement (SPS Agreement or SPS)159 reveals an example of a
legislative-like measure160 that rests on an implied power. In response to a request from
the General Council the SPS Committee began examining developing country Mem-
bers’ concerns regarding the equivalence of SPS measures for the protection of human,
animal or plant life or health (including food safety and environmental measures), and
to develop recommendations to meet those concerns.161
It eventually led to the adoption by the SPS Committee of the Decision on the
Implementation of article 4 of the Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS Equivalency Decision),162 which supplements article 4
SPS.163 It should be noted that from a substantive and doctrinal point of view, the SPS
Equivalency Decision is somewhat equivocal in terms of its authority, given that it does
156
A Lang and J Scott, ‘The Hidden World of WTO Governance’ (2009) 20 European
Journal of International Law 574, 585–86.
157
See Footer (n 2), 287.
158
‘Article VI:4 of the GATS: Disciplines on Domestic Regulation Applicable to All
Services’, Note by the Secretariat (1 March 1999) S/C/W/96.
159
Agreement on Sanitary and Phytosanitary Measures (adopted 15 April 1994, entered into
force 1 January 1995) 1867 UNTS 493 (1994), The Legal Texts (n 1), 59–72 (SPS Agreement or
SPS).
160
J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures (OUP 2009), 71.
161
Lang and Scott (n 156), 598.
162
Decision on the Implementation of art 4 of the Agreement on the Application of Sanitary
and Phytosanitary Measures (SPS Equivalence Decision), adopted by the Committee on Sanitary
and Phytosanitary Measures, G/SPS/19 (26 October 2001). Subsequently, it has been clarified
and revised on several occasions, the latest being G/SPS/19/Rev.2 (23 July 2004).
163
Scott (n 160), 162–67.
tion: 21 / Date: 15/3
not go much beyond the scope of article 4 SPS. Where it does so, the Decision
introduces ‘a disjuncture between deemed level of protection, and actual level of
protection’ on the part of the importing Member so that where such disjuncture exists
‘then the latter is to prevail’,164 ie the actual level of protection prevails.
The SPS Equivalency Decision was adopted by the SPS Committee, on the basis of
article 12:1 SPS, which is silent as to the Committee’s authority to exercise lawmaking
powers. However, the wording of that provision indicates that the Committee ‘shall
carry out the functions necessary to implement the provisions of … [the] Agreement
and the furtherance of its objectives, in particular with respect to harmonization’.165 In
other words it may do so on the basis of an implied power because it is essential to the
operation of the SPS Agreement or to the achievement of its objectives. It is clear that
the SPS Committee has already adopted a decision which is addressed to all Members.
Arguably the SPS Equivalency Decision has a measure of normative force. It is
addressed to Members for the maintenance of their domestic regulatory measures in
accordance with the SPS Agreement. While not technically, legally binding the SPS
Equivalency Decision may have persuasive authority in any dispute between Members
involving the issue of equivalency in the interpretation and implementation of an SPS
measure.166 This is supported by the Panel decision in EC – Poultry (China)167 that
considered the SPS Equivalency Decision as ‘not binding and [it] does not determine
the scope of article 4’.168 And yet the Decision expanded on ‘the Members’ own
understanding of how article 4 relates to the rest of the SPS Agreement and how it is to
be implemented’.169
3.2.2 Waiver decisions as secondary legal acts

A further area of secondary lawmaking could be said to arise when it comes to the
exercise of the general waiver power under the WTO Agreement. This is because
waiver decisions, which are adopted by the Ministerial Conference (or the General
Council acting on its behalf) and are taken on the basis of an attributed competence laid
down in article IX:3 WTO Agreement,170 may constitute a secondary legal act of the
organisation.171
164
ibid, 166.
165
Art 12:1 SPS (n 159), The Legal Texts (n 1), 65.
166
Arguably this could be considered as ‘subsequent practice between the parties regarding
the interpretation of the treaty or the application of its provisions’ in the sense of art 31(3)(b)
VCLT (n 23).
167
WTO, United Stated – Certain Measures Affecting Imports of Poultry from China – Panel
Report (25 October 2010) WT/DS392R (US – Poultry (China)).
168
US – Poultry (China) ibid, para 7.136.
169
ibid.
170
171
According to Feichtner (n 57), 164, under GATT 1947 (n 13) waiver decisions were a
form of secondary law of the ‘CONTRACTING PARTIES acting jointly under Article XXV’,
which was an institutional arrangement under a de facto organisation. For the latter, see RR
Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental
Agreements: A Little-Noticed Phenomenon in International Law’ (2009) 94 American Journal of
tion: 22 / Date: 15/3
In EC – Bananas III (Article 21.5 – Ecuador II, US)172 the Appellate Body failed to
address the question whether ‘the Bananas waiver’, which was adopted during the
Doha Ministerial Conference so as to legalise the EC’s preferential tariff quota for
bananas from African, Caribbean and Pacific (ACP) countries,173 was a (secondary)
legal act of an international organisation or simply an agreement between its Members.
In distinguishing a general waiver from an amendment under article X WTO
Agreement174 the Appellate Body remarked that a waiver is a ‘decision taken by the
Ministerial Conference, which [does] not require formal acceptance by the Membership
as foreseen under Art. X:7 [WTO Agreement]’ for it to take effect.175 While laying
emphasis on formal process requirements, including compliance with ‘strict disciplines
set out in Article IX:3 of the WTO Agreement’,176 this pronouncement by the Appellate
Body essentially ‘supports the view that waivers are decisions of the organization and
not agreements among its members’.177 Potentially, they could be a form of tacit treaty
modification.
On another reading, the Appellate Body in EC – Bananas III (Article 21.5 – Ecuador
II, US) noted that ‘a decision granting a waiver is an exceptional instrument’.178 It
suggests that a waiver may fulfil the criteria for secondary lawmaking identified above
for three reasons. First, there is a specific legal basis laid down in paragraphs 3 and 4
of article IX WTO Agreement;179 second, waiver decisions are of a sui generis type;
and third, where a waiver modifies a WTO treaty obligation it may constitute primary
law.
4. CONCLUSIONS
A number of conclusions can be drawn about the making of international trade law.
First, the primary means of lawmaking in the multilateral trading system is by means of
treaty. As far as most WTO Members are concerned the MTN process is still the main
forum for negotiating new rights and obligations that may lead to the adoption of new
or revised treaties.
172
WTO, European Communities: Regime for the Importation, Sale and Distribution of
Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador – Report of the Appellate
Body (11 December 2008) WT/DS27/AB/RW2/ECU (EC – Bananas III (Article 21.5 – Ecuador
II)) and WTO, European Communities: Regime for the Importation, Sale and Distribution of
Bananas – Recourse to Article 21.5 of the DSU by United States – Report of the Appellate Body
(22 December 2008) WT/DS27/AB/RW/USA (EC – Bananas III (Article 21.5 – US)), para 394.
173
WTO Ministerial Conference, Fourth Session (Doha 9–14 November 2001) European
Communities – the ACP-EC Partnership Agreement WT/MIN(01)/15 (14 November 2001) and
Annex relating to importation of bananas (the Bananas waiver).
174
Art X WTO Agreement (n 1), The Legal Texts (n 1), 10–11.
175
EC – Bananas III (Article 21.5 – Ecuador II, US) (n 172), para 398.
176
ibid.
177
Feichtner (n 57), 167.
178
EC – Bananas III (Article 21.5 – Ecuador II, US) (n 172) para 398.
179
Art IX: 3 and 4 WTO Agreement (n 1), The Legal Texts (n 1), 9.
tion: 23 / Date: 15/3
While the Doha Development Round MTN has so far failed to deliver on the promise
of much-needed reform to some of the multilateral trade agreements at the Bali
Ministerial Meeting in 2013, a potential Agreement on Trade Facilitation was adopted.
The text of the Agreement has been transformed into a binding Protocol of Amendment
although it has not yet come into force.
Normatively speaking the process of accession to the WTO brings in not only a new
Member of the organisation but also ‘amends’ the underlying complex set of treaty
obligations between the new and the existing parties to the underlying Multilateral
Trade Agreements.
The Multilateral Trade Agreements are proving as difficult to amend as the former
GATT 1947. While the WTO Agreement contains a number of provisions that are
designed to revise or modify existing WTO provisions, all of which meet the criteria
that are generally accepted for the amendment of multilateral treaties on the basis of the
VCLT, the practice of the Membership reveals a different picture. Currently, the only
treaty amendment that has been approved, and is designed to add a new article 31bis to
the TRIPS Agreement, has thus far failed to garner the required number of acceptances
to bring it into force.
However, other means of modifying existing obligations include the use of the
general waiver, on the basis of article IX:3 and 4 WTO Agreement, and the exercise of
the power of authoritative interpretation on the basis of article IX:2 WTO Agreement.
An authoritative interpretation has never been adopted. Possibly, this is because an
authoritative interpretation could be used to circumvent a formal amendment, as has
been suggested in WTO practice.
Uniquely in the WTO context, the panels and Appellate Body are increasingly
applying either subsequent agreement or subsequent practice, as an aid to the
interpretation of WTO obligations in the organisation’s compulsory dispute settlement
system. However, the extent to which current jurisprudence, on either subsequent
agreement or subsequent practice, reinforces the notion that there has been a tacit
modification through subsequent conduct, is unclear.
While there appears to be some scope for secondary lawmaking in the WTO, so far
this has been limited and Members remain cautious about endorsing a process that
could lead to legally binding rules. The most obvious form of secondary lawmaking are
those waiver decisions that lead to secondary legal acts. There is also some lawmaking,
based on explicit delegation of powers (the Accountancy Disciplines) and some on the
basis of implied powers (the SPS Equivalency Decision) but even so such delegated
lawmaking is largely putative in character.
tion: 24 / Date: 15/3
19. The making of international environmental law

1. INTRODUCTION: THE ORIGINALITY OF INTERNATIONAL

ENVIRONMENTAL LAW
The transboundary character of many natural resources, the continuous changes in the
environment, together with the constant evolution of scientific findings are among the
elements that deeply influence international environmental law.
While traditionally the development of international environmental law is associated
with Multilateral Environmental Agreements (MEAs), which since the 1990s have
greatly contributed to shaping the fundamental principles of this field, nowadays a
more complex picture should be designed, which includes treaties and institutions
pertaining to other legal areas of international law that are relevant to environmental
matters.1
Contemporary environmental matters indeed are increasingly linked with economic
development and human rights issues.2 These linkages are at the heart of the notion of
sustainable development.3 In this polyhedric dimension, multiple branches of inter-
national law are directly and indirectly relevant to address the complexities of today’s
most pressing environmental and sustainable development challenges. As for the
economic-related fields, trade in environmental goods and services is one of the ‘bones
of contention’ under World Trade Organization (WTO) negotiations, while vice versa
under the climate regime, competitiveness is the underlying reason behind the impasse
in the design of a new climate treaty. Moreover, bilateral and multilateral investment
treaties increasingly recognize the relevance of environmental protection within their
1
E Brown Weiss, ‘The Evolution of International Environmental Law’ (2011) 54 Japanese
Yearbook of International Law 1, 12; D Bodansky, The Art and Craft of International
Environmental Law (Harvard University Press 2010), 10.
2
The distribution of natural resources has important reflections on how States are divided
when they negotiate international agreements: deep divisions existing between the North and the
South of the world on biodiversity protection, between oil-exporting countries and low-lying
States in climate change negotiations, and between coastal States and land-locked States with
regard to access to marine resources and fisheries. Beyond the horizontal inter-State dimension,
in a ‘vertical’ perspective, the environment provides means to ensure the livelihood of human
beings and the enjoyment of their fundamental human rights, as the right to life, and the right to
food and health. In this perspective, individuals and other non-state actors, such as non-
governmental organizations (NGOs) and local communities, increasingly and actively participate
in environmental matters at the international level.
3
This concept is generally defined as the ‘development which meets the needs of the
present without compromising the ability of future generations to meet their own needs.’ Report
of the World Commission on Environment and Development, Our Common Future (Brundtland
Report) (OUP 1987), 46.
419
tion: 1 / Date: 9/2
scope. Also relevant is the legal framework governing the investments financed by
International Financial Institutions (IFIs). Development banks touch upon environ-
mental matters by setting conditionalities to their lending activities, particularly in
developing countries. Moreover, IFIs’ accountability mechanisms manage and settle
environmental-related claims and ‘provide data and precedents that can influence the
evolution of […] international environmental law’.4 As for the human right dimension,
while environment-related cases are increasingly brought to human rights bodies, the
independent expert of the UN Human Rights Council adopted several resolutions on
environmental matters, such as climate change, the adverse effects of the movement
and dumping of toxic and dangerous wastes.5
In such a context, the term ‘law’ encompasses a wide range of normative instru-
ments, which include treaty provisions and decisions adopted by MEAs treaty bodies,
judgments and awards by judicial and quasi-judicial bodies, and their influence on the
formation of customary environmental principles. In parallel, ‘lawmaking’ describes the
procedures through which these norms are created. Often these original and creative
regulatory tools and processes do not meet the requirements and the definitions of
traditional public international law, and have raised criticisms with regard to their
legitimacy and effectiveness.
In this perspective, this chapter focuses first on distinctive features of MEAs’
decision-making procedures that go beyond inter-State patterns. Secondly, it highlights
how environmental matters are taken into account by international judiciaries, by trade
and investment regimes and in non-state actors’ rules, which – although not having a
specific environmental mandate – influence the evolution of international environ-
mental law. Finally, the concluding remarks suggest ways to improve the integration
and synergies among these legal regimes.
2. LAWMAKING BY MULTILATERAL ENVIRONMENTAL

AGREEMENTS
While discussions on the creation of a global environmental organization have been
unable to reach concrete results, in the meanwhile, international environmental law
developed mainly through multilateral conventions addressing one environmental
problem at the time.
During the 1970s and 1980s, wetlands, endangered species of flora and fauna,
atmospheric pollution and damage to the ozone layer have been individually addressed
4
D Bradlow, ‘Private Complainants and International Organizations: A Comparative Study
of the Independent Inspection Mechanisms in International Financial Institutions’ (2005) 36
Georgetown Journal of International Law 403, 410. D Freestone, ‘The World Bank and
Sustainable Development’ in M Fitzmaurice and D Ong (eds), Research Handbook on Inter-
national Environmental Law (Edward Elgar 2010), 164.
5
Report of the Human Rights Council (28th Session), Resolution 28/11, A/70/53 (9
September 2015).
The making of international environmental law 421
by a treaty.6 The booming of MEAs started in the wake of the UN summit in Rio de
Janeiro in 1992 with the adoption of treaties on biodiversity, climate change and
desertification,7 and then continued for the next two decades with more technical and
specific treaties.8 In the meantime, at the regional level, under the auspices of the UN
Economic Commission for Europe, several conventions on public participation in
environmental decision-making were adopted.9 This ad hoc approach to environmental
matters results today in more than 200 treaties.
In the last decade, international environmental law has shifted from the adoption of
new treaties to focus on the implementation and effectiveness of the existing ones. The
establishment of compliance bodies under MEAs to monitor compliance with treaty
commitments should be read in this perspective.
Dynamism and evolution characterize the mandate of MEAs, their decision-making
procedures and eventually the legal nature of their institutions and of the acts they
adopt. Although MEAs developed according to a range of different models, some
similar characteristics can be identified in their institutional features as well as in their
decision-making procedures.
6
Convention on Wetlands of International Importance Especially as Waterfowl Habitat
(adopted 2 February 1971, entered into force 21 December 1975) 996 UNTS 246; Convention
on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973,
entered into force 1 July 1975) 993 UNTS 244 (CITES); Convention on Long-Range
Transboundary Air Pollution (adopted 13 November 1979, entered into force 16 March 1983)
1302 UNTS 217; Convention on the Control of Transboundary Movements of Hazardous Wastes
and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS 57
(Basel Convention); Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16
September 1987, entered into force 1 January 1989) 1522 UNTS 3 (Montreal Protocol).
7
Convention on Biological Diversity (adopted 22 May 1992, entered into force 29
December 1993) 1769 UNTS 79 (Biodiversity Convention); UN Framework Convention on
Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107
(UNFCCC); Convention to Combat Desertification in those Countries Experiencing Serious
Drought and/or Desertification, particularly in Africa (adopted 14 October 1994, entered into
force 26 December 1996) 1954 UNTS 3 (UNCCD).
8
Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade (adopted 10 September 1998, entered into force
25 February 2004) 2244 UNTS 337 (PIC Convention); Cartagena Protocol on Biosafety to the
Convention on Biological Diversity (adopted 29 January 2000, entered into force 11 September
2003) 2226 UNTS 208; Stockholm Convention on Persistent Organic Pollutants (adopted 22
May 2001, entered into force 17 May 2004) 2256 UNTS 119 (POP Convention); International
Treaty on Plant and Genetic Resources for Food and Agriculture (adopted 3 November 2001,
entered into force 29 June 2004) 2400 UNTS 303; Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits (adopted 29 October 2010, not yet in
force) is a legally binding instrument regulating mercury.
9
Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25
February 1991, entered into force 10 September 1997) 1989 UNTS 309 (Espoo Convention) and
its Protocol on Strategic Environmental Assessment (adopted 21 May 2003, entered into force 11
July 2010) Doc ECE/MP.EIA/2003/2; Convention on Access to Information, Public Participation
in Decision-making and Access to Justice in Environmental Matters (adopted 25 June 1998,
entered into force 30 October 2001) 2161 UNTS 447 (Aarhus Convention).
2.1 The Normative and Institutional Architecture: The Framework Model
MEAs are commonly designed as framework conventions, in which Parties originally

agree to general obligations and set an institutional structure as a basis for their future
cooperation. Member States then meet periodically to further develop and progressively
strengthen their commitments. Through the framework approach, the initial commit-
ments can be deepened, as in the case of the ozone and climate regimes, where
increasingly more demanding obligations to reduce substances covered are agreed. In
other framework convention ‘models’, new activities and matters are added to the ones
initially envisaged in the ‘mother’ convention, as in the ‘Barcelona system’ for the
protection of the Mediterranean Sea, which is composed of a framework convention
that is accompanied by seven protocols, each of which enlarges ratione materiae the
scope of the treaty regime.10
The plenary organ governing a MEA is the Conference of the Parties (CoP) that
convenes generally every year. Its main functions, as envisaged in the respective
constitutive treaty, are to further develop and specify the obligations contained in the
treaty and to monitor their implementation. Beside these explicit functions, MEAs may
‘delegate’ to their respective CoP the power to adopt the decisions that are necessary to
ensure the further implementation of the treaty.11
In carrying out its mandate, the CoP is assisted by a Secretariat providing
administrative support and technical expertise. Secretariats of MEAs actively partici-
pate in the lawmaking activity – although often behind the scenes – by setting the
agenda of the various meetings and preparing informative background papers. Through
these activities, Secretariats may greatly influence the discussions on certain topics and
de facto the decisions eventually adopted.
At a lower level in the institutional structure, subsidiary organs meet periodically
when the CoP is not convened and keep an ongoing dialogue. Open-ended working
groups, scientific and legal bodies address relevant matters from a technical rather than
a political perspective and contribute to disentangle complex issues and facilitate
reaching an agreement in the plenary. In some cases, due to their specific mandate, not
all Parties are represented in these bodies and individuals may serve in their personal
capacities. This is the case, for instance, of certain compliance bodies recently created
under MEAs to ensure – in general – the effective implementation of the treaty and –
10
Convention for the Protection of the Marine Environment and the Coastal Region of the
Mediterranean (adopted 16 February 1976, as amended on 9 July 2004). The seven protocols
cover various matters, including: pollution from dumping from ships and aircraft, pollution from
land-based activities, pollution from activities in the continental shelf and in the seabed,
pollution from transboundary movements of hazardous wastes, protection of biological diversity,
and integrated coastal management in the Mediterranean (available at http://www.unepmap.org).
11
On CoPs see R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in
Multilateral Environmental Agreements: A Little Noticed Phenomenon in International Law’
(2000) 94 American Journal of International Law 623. F Romanin Jacur, ‘Les Conférences des
Parties des conventions internationales de protection de l’environnement en droit international
général’ in S Maljéan Dubois and L Rajamani (eds), La mise en œuvre du droit international
de l’environnement/Implementation of International Environmental Law (Martinus Nijhoff
Publishers 2011), 251.
in the specific case – the return to compliance of the Party under review. The active
management of non-compliance situations has brought to the development of an
important body of secondary law under MEAs that further specifies and provides
interpretation of treaty provisions. 12
Describing the lawmaking by environmental treaties should consider the aggregate
activity of the treaty bodies of the MEA architecture in light of the great influence
these bodies have in the moulding of CoP decisions.
2.1.1 The decision-making procedures

MEAs are periodically updated to respond to evolving and sometimes urgent environ-
mental challenges and their decision-making procedures are designed – or they should
be – to meet these requirements.
Acts adopted by MEAs bodies vary greatly in their content and in their legal nature:
they include ‘soft law’, namely political and hortatory declarations; ‘hard’ protocols
and amendments; and other ‘hybrid’ decisions regarding the treaty implementation.
CoPs therefore may ‘wear many hats’, depending on the kind of lawmaking activity
they perform.
For example, when negotiating and adopting protocols to the treaty, CoPs act like
diplomatic conferences. The power of CoPs to adopt protocols is often expressly
envisaged in the treaty.13 In this intergovernmental capacity, CoPs exercise only an
‘indirect’ lawmaking function, as the protocols and amendments, once adopted, require
State ratification to enter into force.14 Generally this procedure requires that the
amendment proposal be circulated among the Member States before the CoP meeting,
to allow Parties to submit comments. The amendments are then discussed during the
CoP, where all efforts are made to reach consensus on their adoption. When reaching
consensus is not feasible, a qualified majority of voting States may be required.
There are, then, so-called ‘adjustment procedures’, in which annexes or amendments
to annexes enter into force following a simplified procedure where State ratification is
not required. In these cases, the acts will enter into force and thereby become legally
binding for all States, except for those that declare to opt-out within a certain time.15
12
These bodies operate on the assumption that often States fail to respect their obligations
not because of lack of will but because of lack of capacity. In this perspective, situations of
non-respect are dealt with in a preventive, cooperative and supportive way. For an overview of
non-compliance mechanisms, see T Treves et al. (eds), Non-Compliance Mechanisms and the
Effectiveness of International Environmental Agreements (TMC Asser Press 2009).
13
See, for instance, Biodiversity Convention (n 7), art 28; Basel Convention (n 6), art
15.5(d); Aarhus Convention (n 9), art 10.2 (e).
14
J Brunnée, ‘COPing with Consent: Law-Making under Multilateral Environmental Agree-
ments’ (2002) 15 Leiden Journal of International Law 1, 18: ‘The COP is merely the forum in
which the parties elaborate and adopt the protocol or amendment; its decisions as such do not
alter the rights or obligations of the parties.’
15
International Convention for the Regulation of Whaling (adopted 2 December 1946,
entered into force 10 November 1948) 161 UNTS 72 (Whaling Convention), art V.3; CITES (n
6), art XV; International Convention for the Prevention of Pollution From Ships (adopted 2
November 1973, as amended by the protocol of 1978, entered into force 2 October 1983) 1340
UNTS 184 (MARPOL), art 16.2. Similar procedures are found in international organizations
operating in technical sectors, such as the Convention on International Civil Aviation (adopted
More innovative are the procedures of certain MEAs, according to which modifi-
cations to annexes enter automatically into force – after a certain period following their
adoption – for all Parties without the possibility to opt-out. The more progressive
procedure of this kind is envisaged by the Montreal Protocol on the protection of the
ozone layer with regard to decisions that modify the ozone depletion potential of
certain substances or that reschedule their phase-out. These latter adjustments are
adopted by consensus or, if consensus is not reached, by a two-thirds majority that
includes developed and developing countries.16 Other MEAs envisaging automatic
entry into force of adjustments, upon adoption by consensus, are the POP and PIC
Conventions and certain protocols to the Convention on long-range transboundary air
pollution.17
The reasons that justify these simplified procedures lie in the need to update quickly
the parts of the treaties that are of a technical and scientific character. On this
assumption, priority is given to accelerate the procedure with a lower consideration of
State consent, as traditionally conceived.18 While the presumption is that changes are
regarding minor and non-contentious matters, it should not be underestimated that ‘the
devil is in the details’ and that modifications of annexes may involve sensitive
matters.19 Practice under CITES, for instance, shows that the listing or de-listing of
species in different annexes may touch sensitive interests.20
7 December 1944, entered into force 4 April 1947) 15 UNTS 295 (Chicago Convention), art
37(c), 54 and 90(a); Constitution of the World Health Organization (adopted 22 July 1946,
entered into force 7 April 1948) 14 UNTS 185 (WHO Constitution), art 21 and 22; Constitution
of the International Telecommunication Union (adopted 22 December 1992, entered into force
1 July 1994) 1825 UNTS 331, art 43.3; Constitution of the Universal Postal Union (adopted 10
July 1964, entered into force 1 January 1966) 611 UNTS 7, art 38.
16
Montreal Protocol (n 6), art 2.9. See J Lammers, ‘The Mechanism of Decision-Making
under the Vienna Convention and the Montreal Protocol for the Protection of the Ozone Layer’
in GPH Kreijen ao (eds), State, Sovereignty, and International Governance (OUP 2002), 407.
17
See art 22.5 of the PIC and POP Conventions (n 8) respectively; Protocol to the 1979
Contention on Long-Range Transboundary Air Pollution on Further Reduction of Sulphur
Emissions (adopted 14 June 1994, entered into force 5 August 1998) 2030 UNTS 122, art 11.6;
Protocol to the 1979 Convention on Long-range Transboundary Air Pollution to Abate
Acidification, Eutrophication and Ground-level Ozone (adopted 30 November 1999, entered into
force 17 May 2005) 2319 UNTS 81, art 13.6.
18
G Ulfstein, ‘Reweaving the Fabric of International Law? Patterns of Consent in Environ-
mental Framework Agreements’ in R Wolfrum and R Röben (eds), Developments of Inter-
national Law in Treaty-Making (Springer 2005), 145, 146: ‘[…] although the formal right to
make a notification about non-acceptance is retained, there may be a considerable political
pressure not to make such a notification. By requiring an activity from states in order not to
become committed rather than to become committed, the effectiveness of law-making is greatly
enhanced.’
19
AC Kiss, JP Beurier, Droit International (Pedone 2004), 52: ‘On peut donc véritablement
parler d’une procédure de modification des traités à deux vitesses: la petite vitesse pour les
clauses générales des traités, une plus grande pour les dispositions déterminant des normes
“techniques” qui, par ailleurs, peuvent contenir des éléments essentiels des traités’.
20
It took more than ten years to include the Big Leaf Mahogany in CITES (n 6), Appendix
II regime and thereby upgrade its conservation (see the discussions during the CoP 12, and in
particular Proposal no 50, available at http://www.cites.org/eng/prog/mwg.php). Similar issues
While these acts can still be linked, although narrowly or indirectly, to State consent,
another crucial regulatory activity of CoPs can hardly be categorized according to
traditional tools: the adoption of decisions that are directly effective for their address-
ees, without the need for further acceptance by States.
This category includes acts necessary to ensure the effective implementation of the
treaty, which may specify general obligations and interpret vague treaty provisions.
These acts may also create subsidiary bodies and envisage their functioning, conclude
agreements with States hosting treaty bodies, and legal arrangements with international
organizations or other entities, such as the United Nations or the World Bank.
Moreover, certain CoPs, being the bodies of last resort in non-compliance matters, may
adopt decisions that sanction non-complying Parties.
2.1.2 The legal nature of CoPs’ decisions

The legal nature of these wide-ranging regulatory tools is rather controversial for
several reasons.
First, as a preliminary procedural remark, the rules governing the adoption of these
decisions are generally found in the Rules of Procedure adopted by the CoP itself – ie
a secondary treaty-derived source – and not in the treaty.
Moving to the substantive aspects, their scope and mandate are found in general or
specific ‘enabling clauses’, whose meaning is not always straightforward.
Indeed enabling clauses are often termed with generic wording and leave broad
discretion to CoP:
‘The Conference of the Parties […] shall keep under regular review the implemen-
tation of this Protocol and shall make, within its mandate, the decisions necessary to
promote its effective implementation. […] and shall: […] (j) Exercise such other
functions as may be required for the implementation of this Protocol’.21
Similar clauses grant to the CoP the necessary powers to react effectively to
unforeseen circumstances, in addition to the ones expressly recognized by the treaty.
Enabling clauses may delegate to the CoP the adoption of specific decisions on
predetermined matters as in the case of art. 15.7 of the Basel Convention stating that:
‘The Conference of the Parties shall undertake […] an evaluation of its effectiveness and, if
deemed necessary, consider the adoption of a complete or partial ban of transboundary
occurred under the Whaling Convention (n 15) with regard to certain whales species considered
endangered by protectionist States, while other States, traditionally relying on whaling, saw the
matter differently.
21
Kyoto Protocol to the UNFCC (n 7) (adopted 11 December 1997, entered into force 16
February 2005) 2303 UNTS 148 (Kyoto Protocol), art 13.4 (j). Similar provisions are: Vienna
Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22
September 1988) 1513 UNTS 293, art 6.4(k); Montreal Protocol (n 6), art 11.4(j); UNFCCC (n
7), art 7.2(m); Whaling Convention (n 15), art VI; Convention on Wetlands of International
Importance Especially as Waterfowl Habitat (n 6), art 6.2(f); CITES (n 6), art XI.3(e);
Biodiversity Convention (n 7), art 23(i); UNCCD (n 7), art 22(j); PIC Convention (n 8), art
18(c); POP Convention (n 8), art 19(d); Basel Convention (n 6), art 15(c); Espoo Convention
(n 9), art 11(e); Aarhus Convention (n 9), art 10, (g).
tion: 7 / Date: 9/2
movements of hazardous wastes and other wastes in light of the latest scientific, environ-
mental, technical and economic information’.22
On the basis of this provision, the CoP prohibited the transport of hazardous wastes
from OECD countries to developing ones.23 While the CoP decision was adopted by
consensus of all Parties, some Parties later questioned the legally binding force of this
act, claiming that CoP decisions cannot have such a character. To end this querelle, the
next CoP adopted a formal amendment to the Convention, which literally restated the
contentious decision. The amendment has not yet entered into force.24
In view of the minor space left to interpretation of this treaty provision, a specific
obligation – even though conditional – could be considered as already present in the
treaty text. On this assumption, the Basel CoP would be acting within its mandate when
adopting the Ban, as it does nothing more than implement a treaty provision.
Furthermore, in this specific case, considering the substantive character of the measure
at stake, namely a ban, it would be counterintuitive to envisage that the establishment
of a ban is not mandatory. The deadlock of the Basel Ban is often cited as a telling
example of the dynamics of CoP decision-making, as it shows its shortcomings and
highlights the tradeoffs to consider between legitimacy and effectiveness.
The legal basis of certain MEAs bodies’ decisions may also be deduced from the
theory of implied powers, which maintains that States, when creating an international
organization, are deemed to have transferred to the new entity the necessary powers to
ensure that the latter can effectively carry out its mandate.25 This lawmaking technique
is broadly used in the implementation of MEAs. In the climate change regime, for
instance, the CoP is responsible for major developments in the treaty implementation
and its decisions are the main normative instrument used to further specify treaty
provisions, to establish compliance bodies and the so-called ‘flexibility mechanisms’ to
facilitate the achievement of greenhouse gases emission reductions.26
22
Basel Convention (n 6), art. 15.7.
23
Report of the Second Meeting of the CoP to the Basel Convention (25 March 1994)
UNEP/CHW.2/30 Decision II/12, 19.
24
Report of Ninth Meeting of the CoP to the Basel Convention (27 June 2008) UNEP/
CHW.9/39, President Statement, 51.
25
This theory has been endorsed by the International Court of Justice (ICJ) in the advisory
opinion on Reparation for injuries suffered in the Service of the United Nations (Advisory
opinion) [1949] ICJ Rep 174, 179. On the theory of implied powers, see CF Amerasinghe,
Principles of Institutional Law of International Organizations (CUP 2004), 46; N Blokker,
‘Beyond “Dili”: On the Powers and Practice of International Organizations’ in Kreijen ao (eds)
(n 16), 299. More broadly on implied powers and MEAs, see F Romanin Jacur, The Dynamics of
Multilateral Environmental Agreements. Institutional Architectures and Law-making Processes
(Editoriale Scientifica 2013), 98.
26
Report of the CoP serving as the meeting of the Parties to the Kyoto Protocol on its first
session (30 March 2006), see Decision 2/CMP.1 ‘Principles, nature and scope of the mechanisms
pursuant to Articles 6, 12 and 17 of the Kyoto Protocol’ and Decision 27/CMP.1 ‘Procedures and
mechanisms relating to compliance under the Kyoto Protocol’.
2.1.3 Legitimacy concerns: Loosening or losing state consent?

The large recourse to these decisions coupled with uncertainties on their legal nature
and the fact that CoPs may – and indeed often do – expand their competences through
these acts, has raised criticisms and concerns with regard to their legitimacy. In fact, the
loosening of the formalistic State-centric decision-making model based on consent has
resulted in concerns by States worried at being bound without or even against their
will.27
Beside concerns on the legitimacy of CoP decisions, other criticisms are manifested
with regard to the further delegation of decision-making to their subsidiary bodies. This
other layer of rules, which is becoming increasingly technical and informal in an effort
to keep the pace with the urgency of environmental problems, often results in specific
decisions that have substantial effects also on non-state actors, such as individuals and
private companies. This multi-level system of governance has attracted criticism
because of weaknesses in terms of accountability and due process guarantees. These
actors, in fact, still have a very limited role in these international decision-making
processes and often do not have any means of defending themselves from adverse
effects deriving from these acts.28
The framework-protocol approach originally favoured for its flexibility and evolving
character is showing notable shortcomings, such as lengthy negotiations, inability to
agree to new commitments and consequent lack of effective outcomes. In this scenario,
CoP decisions may be used to anticipate future commitments that States are not yet
ready to include in a formal legally binding instrument. Current negotiations under the
climate change regime are emblematic in showing a situation of impasse where
obligations are watered-down in the effort of keeping the negotiating process alive.
Here a blurred terminology referring to an ‘agreed outcome with legal force’ is used to
describe one of the options for the ‘successor’ to the Kyoto Protocol.29 This solution
hides a delicate political balance among the different constituencies and may refer to a
CoP decision. In this case, the uncertain legal nature of CoP decisions could turn in
favour of finding an acceptable solution at the political level, because of the
indeterminate legal nature of these acts.
A new trend of informal norms and flexible lawmaking seems here to arise. It is
dubious whether such a trend should be welcomed and encouraged because it allows
the stalling of complex negotiations to be overcome, or whether States should refrain
from adopting acts of an unclear legal nature that might only postpone the solution of
delicate matters or, even worse, only apparently manifest an agreement that might then
turn out not to be trusted.
Moreover, the vague wording of MEAs provisions and of certain CoP decisions,
while allowing to reach consensus, shift to the future and delegate the task of the
further specification of the content of the obligations to other subjects. Therefore,
responsibility to regulate a certain matter is mandated either to a future CoP, to its
27
T Treves, ‘International Law: Achievements and Challenges’ (2006) X Cursos Euro-
mediterráneos Bancaja de derecho internacional (CEBDI), 116.
28
Romanin Jacur (n 25), 202.
29
Report of the Seventeenth Meeting of the CoP (15 March 2012) Decision 1/CP.17, para 2.
subsidiary bodies or to judicial bodies that end up having a significant role as

‘law-makers’.
2.2 The Development and Strengthening of Environmental Principles
Principles of international environmental law, initially declared in soft law texts

adopted by diplomatic conferences and global summits,30 may later ‘harden’ into
custom when repeatedly endorsed in the treaties’ preambles and in their operative
provisions.31
A telling example of how MEAs contribute to strengthening these principles is
provided by the evolution of the principle of common but differentiated responsibilities
(CBDR principle). This principle, as recognized by Principle 7 of the Rio Declaration,
states that:
In view of the different contributions to global environmental degradation, States have

common but differentiated responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of sustainable development in view of
the pressures their societies place on the global environment and of the technologies and
financial resources they command.
The ozone and climate change regimes reaffirm and are greatly influenced by the
CBDR principle. They both translate it into their implementation apparatus by
differentiating the treatment and the obligations between developed and developing
Parties.32 In the ozone regime, by virtue of the CBDR principle, developing Parties are
required to reduce ozone-depleting substances later than the industrialized Parties.33
The climate regime goes even further, by placing the burden of quantified greenhouse
gases emission reductions only on industrialized States.34 In addition to the differenti-
ation of the core obligations, these treaties provide that developing Parties receive
financial and technological assistance to support the implementation of their commit-
ments. In some cases, far-reaching provisions expressly envisage that compliance of
developing countries is conditional to the transfer of adequate financial and technical
assistance by industrialized States.35
Under certain MEAs, differential treatment is further enhanced by its endorsement in
the management of compliance matters. Indeed, some compliance mechanisms take
30
The UN Conference on the Human Environment in Stockholm (1972), the UN Conference
on Environment and Development in Rio de Janeiro (1992), the World Summit on Sustainable
Development in Johannesburg (2002) and the UN Conference on Sustainable Development
(UNCSD), also known as Rio+20 in Rio de Janeiro (2012).
31
P Sands and J Peel, with A Fabra and R MacKenzie, Principles of International
Environmental Law, (3rd edn, CUP 2012), 34.
32
L Rajamani, Differential Treatment in International Environmental Law (OUP 2006).
33
Montreal Protocol (n 6), art 5, art 10A.
34
Kyoto Protocol (n 21), art 3.
35
Montreal Protocol (n 6), art 5.5; Convention on Biological Diversity (n 7), art 20.4;
UNFCCC (n 7), art 4.7; POP Convention (n 8), art 13.4; F Romanin Jacur, ‘Controlling and
Assisting Compliance: Financial Aspects’ in T Treves ao (eds), Non-Compliance Mechanisms
(n 12), 419.
tion: 10 / Date: 15/3
into account the special situations of developing countries in many procedural and
substantive ways. The Kyoto Protocol Facilitative Branch, for instance, handles
non-compliance of developing countries with a ‘softer’ approach, compared to the more
severe treatment accorded to industrialized countries by the Enforcement Branch.36 In
this vein, proposals for post-Kyoto arrangements envisage that monitoring, reporting
and verification of obligations will take place at the international level for industrialized
countries, while for developing ones controls will be at the national level.
Another noteworthy case is the relevance gained in the field of marine pollution by
the polluter-pays principle, early recognized by Principle 16 of the Rio Declaration,
which is at the basis of modern liability and compensation schemes for oil pollution at
sea. According to the relevant International Maritime Organization (IMO) conventions,
ship owners are strictly liable, independent of fault, for damages caused by accidents
involving their oil tankers.37
Far less precise are the contours of the precautionary principle, whose implications
are still controversial, although since the 1980s soft law and many MEAs make
reference to it.38 By virtue of this principle, action shall not be postponed in case of
scientific uncertainty, when there is an environmental risk.
3. JUDICIAL LAWMAKING IN THE SETTLEMENT OF

ENVIRONMENTAL DISPUTES
Although formally international judicial bodies do not have lawmaking competences,
by interpreting treaty provisions and applying relevant principles, they contribute to the
development of international environmental law.
Environmental disputes have been recently ‘blooming’ on the dockets of international
dispute settlement bodies, after decades where they were rare and the environmental
chambers established by the ICJ and the International Tribunal for the Law of the Sea
(ITLOS) were unused. Adjudicators decide whether a State is polluting a transboundary
36
R Lefeber, ‘The Practice of the Compliance Committee under the Kyoto Protocol to the
United Nations Framework Convention on Climate Change (2006–2007)’ in Treves ao (eds),
(n 12) 303.
37
See eg International Convention on Civil Liability for Oil Pollution Damage (adopted 29
November 1969, as replaced by 1992 Protocol on 27 November 1992, entered into force 30 May
1996) 1956 UNTS 255, art III(1). To ensure effective compensation for the victims, these treaties
require compulsory insurance for the ship owners. ibid, art VII(1).
38
Among many, see the Preambles of the Vienna Convention (n 21), of the Montreal
Protocol (n 6), of the Biodiversity Convention (n 7); UNFCCC (n 7), art 3.3. According to the
Cartagena Protocol on Biosafety (n 8) (art. 10(6) and 11(8)), Parties have the right to refuse to
import living modified organisms for precautionary reasons.
tion: 11 / Date: 15/3
river (as in the Pulp Mills case)39 or is unduly changing its course (as in the Indus
Arbitration)40 or is over-exploiting endangered or protected species, like whales or
tunas.41
Further, national regulatory measures to protect the environment may negatively
impact foreign investors or another State’s trade prerogatives and be challenged in front
of investment tribunals or of the WTO dispute settlement system.42
3.1 The Judicial Development of Environmental Law
An early jurisprudential contribution to legal developments in environmental matters

can be traced back to the recognition by the Trail Smelter Arbitral Tribunal of the
fundamental principle that States have the responsibility to make sure that their
territory is not used in ways that cause environmental harm to another State.43 This
principle, as later recognized by the ICJ, is now part of customary international law.44
Although approaching environmental concepts with considerable caution, the ICJ has
contributed, through advisory opinions, judgments and significantly through dissenting
opinions of its judges to develop environmental law.45
In the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the
Court recognized that ‘the environment is not an abstraction, but represents the living
space, the quality of life and very health of human beings, including generation
39
Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14.
40
Indus Waters Kishenganga Arbitration (Pakistan v India) 38 Order on Interim Measures)
2011 available at http://www.pca-cpa.org/showfile.asp?fil_id=1726.
41
Aerial herbicide spraying (Ecuador v Colombia) (removed from docket) ICJ Press
Release 2013/20 available at <http://www.icj-cij.org/docket/files/138/17526.pdf>, Whaling in the
Antarctic (Australia v Japan) (Judgment) 2014 available at <http://www.icj-cij.org/docket/files/
148/18136.pdf>, and Construction of a road in Costa Rica along the San Juan River (Nicaragua
v Costa Rica), Proceedings joined with Certain Activities carried out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua) on 17 April 2013 (Pending). Furthermore, a case
concerning the establishment of a marine-protected area has been brought to arbitration
according to UNCLOS Annex VII (Mauritius v The United Kingdom of Great Britain and
Northern Ireland).
42
See below, section 4.
43
Trail smelter case (United States v Canada) (16 April 1938 and 11 March 1941) 3 RIAA
1905.
44
226, para 29.
45
Fisheries jurisdiction (United Kingdom v Iceland) (Judgment) [1973] ICJ Rep 3 and
(Germany v Iceland) (Merits, Judgment) [1973] ICJ Rep 175; Nuclear Tests (New Zealand v
France) (Judgment) [1974] ICJ Rep 457, Certain Phosphate Lands in Nauru (Nauru v Australia)
(Preliminary Objections, Judgment) [1992] ICJ Rep 240; Legality of the Threat or Use of
Nuclear Weapons (n 42) (UNGA advisory opinion) and Legality of the Threat or Use of Nuclear
Weapons (Advisory Opinion) [1996] ICJ Rep 66 (WHO advisory opinion). Among many,
consider the Dissenting Opinions of Judge Weeramantry in the Gabcikovo-Nagymaros Case
(Hungaria v Slovakia) [1997] ICJ Rep 62 and the one of Judges Simma and Al-Khasawneh in
the Pulp Mills Case (n 40). See T Stephens, International Courts and Environmental Protection
(CUP 2009).
tion: 12 / Date: 15/3
unborn’.46 This definition links the environment to human beings and their health and
significantly refers to the intergenerational dimension of environmental protection. The
principle of intergenerational equity is today a constitutive element of sustainable
development. The Inter-American Court of Human Rights, for instance, has recognized
the interests of future generations in a case concerning the rights of indigenous
communities to their land.47
Recently, in the Pulp Mills case, the ICJ recognized that the obligation to carry out
an environmental impact assessment (EIA) is part of the duty to prevent environmental
damage and is a requirement of general international law, when there is a risk that an
activity may have a significant adverse impact in a transboundary context.48
The Pulp Mills environmental acquis is recalled and broadened by the Seabed
Dispute Chamber of ITLOS in its Advisory Opinion regarding the responsibilities of
States when they sponsor activities of private entities in the deep seabed beyond
national jurisdiction.49 This opinion takes important positions on the duty of due
diligence when carrying out activities with potential environmental impacts. In particu-
lar, it specifies the content of due diligence by linking it to the evolving state of
scientific knowledge and to the nature of the risks involved.50 The Chamber recognizes
due diligence as an obligation of conduct and identifies actions that are part of it. These
are: the adoption of a precautionary approach, the application of best environmental
practices, the arrangement of emergency measures to safeguard the marine environment
in case of necessity, the compensation of damages caused by pollution and the duty to
undertake an EIA.51
The Chamber also clarifies the content of the precautionary principle, first, by
recalling that States apply the precautionary principle according to their respective
capabilities, as stated in Principle 15 of the Rio Declaration.52 Moreover, by virtue of
the precautionary approach, the Chamber requires States to take all appropriate actions
to avoid damages, in situations where ‘scientific evidence concerning the scope and
potential negative impact of the activity in question is insufficient but where there are
plausible indications of potential risks’.53 The thresholds posed by the Chamber are
more ‘environmentally friendly’, compared to other versions, which refer to ‘serious or
46
Legality of the Threat or Use of Nuclear Weapons (n 45), para 29.
47
See the Mayagna (Sumo) Awas Tingni Community v Nicaragua case Inter-American Court
of Human Rights Series C No 79 (31 August 2001). The Court acknowledges that the land is
necessary to preserve the cultural legacy of indigenous peoples to their future generations
(especially para 149).
48
Pulp Mills case (n 40), para 204.
49
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area (Advisory Opinion) ITLOS (1 February 2011).
50
ibid, para 117.
51
52
53
ibid.
tion: 13 / Date: 15/3
irreversible damage’,54 or ‘significant’,55 or ‘grave and imminent peril’56 and to the

cost-effectiveness57 of measures that should not be postponed.
Environmental litigation at the domestic level also contributes to the development of
international environmental law. For example, the Indian Supreme Court has recog-
nized that the precautionary principle is linked to sustainable development and is part
of customary international law58 and the Philippine Supreme Court endorsed the
concept of intergenerational responsibility.59
3.2 Judicial Lessons in Dealing with Environmental Matters
Besides contributing to specifying the content of legal principles, judges influence the
way in which environmental matters should be handled, not only by courts but also in
general by decision-makers.
A special characteristic of environmental disputes is their scientific dimension. Even
though science is neither always objective nor infallible, if adequately taken into
account in the decision-making process that leads to the judgment, science will work as
a legitimating factor. Otherwise, if not handled effectively, it may weaken the perceived
authority of a judicial body.60 Acknowledging from the outset the limits of science
strengthens the need to rely on the process through which scientific elements enter the
dispute. To form his or her opinion on non-legal and in particular on scientific matters,
the judge can rely on various sources such as experts, amici curiae, on-site visits and,
recently, satellite information.61
Another distinguishing feature of environmental disputes is that they often require
preventive action to avoid damages to the environment, while other disputes may
adequately be solved by an ex post judgment. In this perspective, provisional measures
54
Rio Declaration, Report of the United Nations Conference on the Human Environment
(5–16 June 1972), Principle 15; UNFCCC (n 7), art 3(3).
55
Biodiversity Convention (n 7), preamble: ‘threat of significant reduction or loss of
biodiversity’.
56
Gabcikovo- Nagymaros case (n 46), para 54.
57
UNFCCC (n 7), art 3(3).
58
Vellore Citizens Welfare Forum v Union of India and Others, Supreme Court of India,
Judgment 28 August 1996, 5 SCC 647.
59
Oposa v Factoran case, Supreme Court of The Philippines, Judgment, 30 July 1993, 33
ILM (1994) (GR No 101083).
60
Judge Weeramantry wisely warned that: ‘International law must keep abreast of science,
or will watch helplessly from the sidelines while unrestrained technology transgresses all social
controls.’ CG Weeramantry, ‘Achieving Sustainable Justice Through International Law’ in MC
Cordonnier Segger, CG Weeramantry (eds), Sustainable Justice: Reconciling Economic, Social
and Environmental Law (Brill 2005) 15, 19.
61
F Romanin Jacur, ‘Remarks on the Role of Ex Curia Scientific Experts in International
Environmental Disputes’ in Boschiero, Scovazzi ao (eds), International Courts and the Devel-
opment of International Law (TMC Asser Press 2013) 437.
tion: 14 / Date: 15/3
are a precious procedural tool that can be used to implement preventive and precau-
tionary demands.62
While the ICJ has adopted a rather conservative and prudent approach in granting
provisional measures, other jurisdictions have shown a more forward-looking attitude
in this regard when environmental risks were at stake. In the Pulp Mills case, the ICJ,
considering that evidence did not show a foreseeable irreparable damage, refused to
grant provisional measures and postponed to the merits the reparation of potential
violations.63 This approach clearly does not take into account a preventive and
precautionary approach.
In a different perspective, ITLOS relying on its power to grant provisional measures
not only to safeguard the interests of the Parties but also of the environment,64 has
granted provisional measures to preserve the marine environment in several cases.65 In
these cases, the Tribunal faced with the scientific uncertainty, although not expressly
endorsing the precautionary principle, enjoined Parties to act ‘with prudence and
caution’.66
In the Indus Arbitration, the Tribunal assessed carefully the impact of the dam on the
flow of the river and considered whether its construction would have a significant
prejudice for the final solution of the dispute. The Tribunal adopted a preventive
attitude towards potential legal and factual risks deriving from the works,67 and in the
62
Judge Treves in his separate opinion in the Southern Bluefin Tuna case (No 2 & 3)(New
Zealand v Japan) (Provisional Measures, Order of 27 August 1999, Separate Opinion Treves)
considered that:
The precautionary approach can be seen as a logical consequence of the need to ensure that,
when the arbitral tribunal decides on the merits, the factual situation has not changed. In
other words, a precautionary approach seems to me inherent in the very notion of provisional
measures. (para 9)
63
Pulp Mills case (n 40) (Request for the indication of provisional measures: Order of 13
July 2006) [2006] ICJ Rep 113, para 87.
64
United Nations Convention on the Law of the Sea (adopted 10 December 1983, entered
into force 16 November 1994) 1833 UNTS 3 (UNCLOS), art 290.1: ‘[t]he court or tribunal may
prescribe any provisional measures which it considers appropriate under the circumstances to
preserve the respective rights of the parties to the dispute or to prevent serious harm to the
marine environment, pending the final decision’.
65
ITLOS: Southern Bluefin Tuna case (No 2 & 3) (New Zealand v Japan) (Provisional
Measures, Order of 27 August 1999), para 80; The MOX Plant case (No 10) (Ireland v United
Kingdom) (Provisional Measures, Order of 3 December 2001), para 84; Case Concerning Land
Reclamation by Singapore in and around the Straits of Johor (No 12) (Malaysia v Singapore)
(Provisional Measures, Order of 8 October 2003), para 99.
66
Judge Treves recognized that ITLOS was reluctant to take a position as to whether the
precautionary principle is part of customary international law, Southern Bluefin Tuna case (n 63),
Separate Opinion of Judge Treves, para 8.
67
Indus Waters Kishenganga Arbitration (Pakistan v India) 42 (Order on Interim Measures)
2011 available at <http://www.pca-cpa.org/showfile.asp?fil_id=1726>, para 142ff. See spec
para 148:
The entirely unconstrained construction of the KHEP (the dam) pendente lite thus presents a
risk of constricting the legal principles to which the Court may have recourse in its Award.
Continued construction may also have the effect of foreclosing, delaying the implementation
tion: 15 / Date: 15/3
interim measures it enjoins India the construction of permanent works on the riverbed
‘that may inhibit the restoration of the full flow of that river to its natural channel’.68
4. NORMATIVE DEVELOPMENTS IN ENVIRONMENTAL

MATTERS THROUGH TRADE AND INVESTMENT LAW
This section selects and briefly describes relevant provisions within trade and invest-
ment treaties and legal developments brought by their dispute settlement systems that
have a relevant impact on environmental matters and that contribute to the development
of international environmental law.
4.1 Environmental Matters in Trade and Investment Agreements
If States adopt trade-restrictive measures to achieve environmental objectives, even

though these measures violate WTO rules on non-discrimination, they can still be
considered compatible with WTO law, upon meeting certain requirements. In particular,
they can be justified if they are ‘necessary to protect human, animal or plant life or
health’ or if they are related ‘to the conservation of exhaustible natural resources’, as
these values are recognized as legitimate purposes under WTO law.69 For instance,
notwithstanding the different objectives pursued by the trade and climate change
regimes, the chapeau of GATT article XX and article 3.5 of the Climate Convention
declare with the same wording that unilateral (climate) measures should not be ‘applied
in a manner which would constitute a means of arbitrary or unjustifiable discrimination
between countries or a disguised restriction on international trade’.
Similar dynamics are found under multilateral or bilateral investment treaties (BITs),
according to which State Parties reciprocally recognize certain standards of treatment,
such as compensation for expropriation and fair and equitable treatment, to investors of
the nationality of the counterparty. The way in which environmental measures are
designed and implemented plays a crucial role in assessing their compatibility with
investment law. If the requirements are positively met, the measures are considered as
a legitimate exercise of the state regulatory autonomy and will not give rise to the
obligation to compensate.
Moving beyond the consideration of environmental reasons as legitimate exceptions
to economic rules, the traditional opposition between economic and environmental
regimes is narrowing down. Reciprocal influences increasingly foster integration
between these regimes. Integration, for example, is found in the WTO preamble that
of, or rendering disproportionately large the cost of particular remedies that the Court may
choose to order.
68
ibid, para 151.
69
General Agreement on Tariffs and Trade (adopted 30 October 1947, entered into force 1
January 1948) 55 UNTS 187 (GATT), art XX, b and g; See also the corresponding General
Agreement on Trade in Services (adopted 15 April 1994, entered into force 1 January 1995)
1869 UNTS 183 (GATS), art XIV; E Vranes, Trade and the Environment (OUP 2009).
tion: 16 / Date: 10/2
recognizes the objective of sustainable development and in investment treaties pream-

bles recognizing their desire to achieve their economic objectives ‘in a manner
consistent with the protection of health, safety, and the environment’.70 Progressing in
this trend, recently negotiated free trade agreements, such as the EU-Canada Economic
and Trade Agreement (CETA) and the EU-USA Transatlantic Trade and Investment
Partnership (TTIP), include specific chapters devoted to environment and sustainable
development matters.71
A further development and a useful tool to combine economic and environmental
matters is the principle of mutual supportiveness. According to this principle, treaty
provisions should be drafted – in the first place – and then interpreted as reinforcing
each other in a complementary, as opposed to a conflicting perspective.72 An example
of this mutual reinforcing linkage is found in article 104 of the North American Free
Trade Agreement (NAFTA) that foresees the primacy of certain environmental regimes
in case of conflicts with its own provisions.73
Integration and mutual support approaches should develop on a two-fold track: first,
by appropriately introducing environmental concerns into treaty texts, and secondly
through mutually supportive judicial interpretation.
4.2 The Consideration of Environmental Matters in WTO Jurisprudence
Once integration and mutual support are envisaged in the treaties, the judiciary task of
combining environment and trade interests is easier as they can endorse environmental
principles as interpretative tools, and give due consideration – or even recognize the
priority – to relevant environmental treaties provisions, including their procedural and
institutional mechanisms.74
A mutually supportive attitude is shown by the decisions of the Appellate Body of
the WTO in various cases. In the US – Shrimp dispute, the Appellate Body interpreted
70
See, for instance, the US model BIT.
71
For the Consolidated CETA text, see http://trade.ec.europa.eu/doclib/docs/2014/september/
tradoc_152806.pdf; for the TTIP, see http://ec.europa.eu/trade/policy/in-focus/ttip.
72
R Pavoni, ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making: A
Watershed for the “WTO-and-Competing-Regimes” Debate?’(2010) 21 European Journal of
73
North American Free Trade Agreement (adopted 17 December 1992, entered into force 1
January 1994) (1993) 32 ILM 289 (NAFTA), art 104: Relation to Environmental and Conserva-
tion Agreements:
1. In the event of any inconsistency between this Agreement and the specific trade obligations
set out in (a) [CITES (n 6)]; (b) the Montreal Protocol (…); (c) the Basel Convention (…); or
(d) the agreements set out in Annex 104.1, such obligations shall prevail to the extent of the
inconsistency, provided that where a Party has a choice among equally effective and
reasonably available means of complying with such obligations, the Party chooses the
alternative that is the least inconsistent with the other provisions of this Agreement.
74
M Potestà, ‘From mutual supportiveness to mutual enforcement? The contribution of US
Preferential Trade and Investment Agreements to the effectiveness of environmental norms’ in R
Hofmann ao (eds), Preferential Trade and Investment Agreements: A New Ordering Paradigm
for International Investment Relations? (Nomos 2013).
tion: 17 / Date: 15/3
broadly the concept of ‘exhaustible natural resources’ in article XX,let.g, to include

also renewable resources.75 The Appellate Body reasoning takes into account con-
temporary concerns and largely refers to environmental agreements to support its
statements: mention is made to UNCLOS, the Convention on Migratory Species76 and
the Biodiversity Convention. Furthermore, reference is made to CITES as the appropri-
ate legal instrument that certifies when a certain species is in danger of extinction.77
Going even further, the Appellate Body states that ‘the record also does not show that
the appellant, the United States, attempted to have recourse to such international
mechanisms as exist to achieve cooperative efforts to protect and conserve sea turtles
before imposing the import ban’.78 In so doing, it recognizes a sort of prior recourse to
negotiations in the framework of relevant environmental fora, namely CITES, for the
sound management of environmental matters.
Mixed blessings arise with regard to a more recent ruling relating to an allegedly
discriminatory US technical regulation establishing a ‘dolphin safe’ labelling scheme
for tuna harvested in the East Tropical Pacific (ETP) area of the Pacific Ocean. Mexico
claimed that this scheme is discriminatory, because tuna catches outside the ETP are
eligible for the ‘dolphin safe’ certification even though carried out without protections
for dolphins. The Appellate Body noted that, while the US measure fully addressed the
adverse effects on dolphins in that area of the Pacific Ocean, it did not address
mortality arising from other fishing methods in other areas. Consequently, the measure
was found to be not ‘even-handed’: in order to comply with WTO requirements, the
regulatory scheme should have covered all the areas of the ocean.79
This decision has been criticized as favouring trade rather than environmental
considerations because it condemns ‘environmentally friendly’ regulations. However,
the Appellate Body recognized the legitimate environmental objective pursued and
condemned these measures mainly on the basis of their unilateral nature and non-
comprehensive scope. Seen in this perspective, such a decision, although penalizing for
environmental protection in the short term, shows in the long term a mutual support
approach between trade and environmental agreements, in that it encourages the
negotiation of multilateral solutions to environmental matters.
75
WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products – Report
of the Appellate Body (12 October 1998) WT/DS58/R, para 50 (US – Shrimps case). The
Appellate Body recognizes that: ‘The exhaustibility of sea turtles would in fact have been very
difficult to controvert since all of the seven recognized species of sea turtles are today listed in
Appendix 1 of (…) CITES.’
76
Convention on the Conservation of Migratory Species of Wild Animals (23 June 1979,
entered into force 1 June 1982) 19 ILM 15 (1980).
77
US – Shrimps case (n 72), para 132.
78
ibid, para 171.
79
WTO, United States: Measures concerning the importation, marketing and sale of tuna
and tuna products (16 May 2012) WT/DS381/AB/R), para 297 (US – Tuna II case).
tion: 18 / Date: 15/3
4.3 The Consideration of Environmental Matters by Arbitral Tribunals
Several arbitral decisions deal with the legitimacy of environmental measures chal-
lenged by the investor for allegedly constituting indirect expropriation or for violating
the fair and equitable treatment obligation.80
Investor-State arbitrations are indeed a venue where sensitive environmental matters
may end up being decided.81 In this regard, these arbitral decisions influence the future
behaviour of investors and States and may have a ‘regulatory chill’, because States may
lower their environmental standards for fear of losing their foreign investment
‘appeal’.82
In a legal perspective, although there is no stare decisis linking arbitral tribunals in
strict legal terms, awards may influence future normative developments in investment
law by strengthening the recognition of environmental matters, on one side, and future
environmental legal developments with regard to investment-related matters, on the
other.
The S.D. Myers v Canada case is an illustrative example of the interaction between
investment and environmental regimes and of the role that adjudicating bodies have in
combining their respective provisions. In this dispute, an American corporation S.D.
Myers operating in Canada in the treatment of hazardous waste, namely polychlorin-
ated biphenyl (PCB), claimed that the ban on PCB exports adopted by the government
of Canada was in breach of Canada’s obligations arising from the NAFTA treaty.
Canada heavily relied on environmental justifications and on its participation to the
Basel Convention to justify the adoption of the ban.83 While the Tribunal ultimately
found that the ban was illegitimate, because the environmental objective could have
been achieved by other less trade-restrictive means, consideration is given to the Basel
Convention’s provisions and the Tribunal recalls that MEAs, to which both disputing
States are Parties (which was not the case in the present dispute), should prevail on
NAFTA provisions in case of inconsistencies. The primacy of MEAs on the investment
treaty provisions, however, is not unconstrained, but by virtue of the mutual support
principle recalled by the Tribunal, the environmental objective shall be achieved
through the measure, which is least inconsistent with NAFTA.84
80
See SD Myers, Inc v Canada, NAFTA Arbitration (Partial Award) 13 November 2000;
Chemtura Corporation v Canada, NAFTA Arbitration (Award) 2 August 2010; Glamis Gold Ltd
v United States ICSID (Award) [2009] 48 ILM 1035; Vattenfall AB, Vattenfall Europe AG,
Vattenfall Europe Generation AG &Co KG v Federal Republic of Germany (Request for
Arbitration) [2009] ICSID Case ARB/09/6.
81
Disputes can be referred by the investor to a number of fora, such as the International
Centre for the Settlement of Investment Disputes (ICSID) or the PCA, according to the
arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL)
arbitration rules.
82
K Tienhaara, The expropriation of environmental governance: protecting foreign investors
at the expense of public policy (CUP 2009), 80.
83
NAFTA (n 74): SD Myers, Inc v Canada (n 81), para 182.
84
ibid, para 215.
tion: 19 / Date: 10/2
5. NON-STATE ACTORS’ PARTICIPATION IN INTERNATIONAL

ENVIRONMENTAL LAWMAKING: NGOS, PRIVATE PERSONS
AND STANDARD-SETTING ASSOCIATIONS
While lawmaking is still predominantly a State prerogative, non-State actors are key
players in bottom-up initiatives that complement and supplement the traditional
top-down State-derived lawmaking.85
Non-State actors cover a wide range of entities, from NGOs to multinational
corporations, to hybrid public-private partnerships, to private standard-setting insti-
tutions. Without entering the discussions on whether these actors can be considered as
subjects of the international legal order, this section briefly illustrates their contribution
to environmental legal developments.
NGOs may take part as amici curiae in dispute settlement proceedings and submit
briefs.86 Furthermore, NGOs and individuals may trigger non-compliance procedures
where they have locus standi 87 and may represent indigenous communities acting as
plaintiffs in front of human rights bodies.88
Beyond the judicial and quasi-judicial context, NGOs participate as observers in the
decision-making processes of MEAs. Moreover, recently MEAs are involving private
investors, such as industries, banks, insurance, financial and consulting companies, as
partners to achieve their environmental goals. These actors participate in public-private
partnerships linked to MEAs’ financial mechanisms and to the World Bank. In the
governance structures of these hybrid schemes there is a broad participation of civil
society, including NGOs, representatives of the private sector and of indigenous
peoples. These observers suggest agenda items, actively contribute to shape the
discussion and ultimately influence the decision-making process and its outcome.89
85
A Boyle and C Chinkin, The Making of International Law, (OUP 2007), vii: ‘Lawmaking
is no longer the exclusive preserve of states.’
86
Mayagna (Sumo) case (n 45); Aguas Argentinas, SA, Suez, Sociedad General de Aguas de
Barcelona, SA and Vivendi Universal, SA v Argentine Republic ICSID Case ARB/03/19; Biwater
Gauff (Tanzania) Ltd v United Republic of Tanzania ICSID Case ARB/05/22.
87
See the Compliance Mechanism established under the Aarhus Convention (n 9) (Decision
I/7 on Review of Compliance, (23 October 2002), ECE/MP.PP/2/Add.8, art 15) and the extensive
practice of individuals and NGOs bringing cases to the Committee. C Pitea, ‘The Non-
compliance Procedure of the Aarhus Convention: between Environmental and Human Rights
Control Mechanisms’ in D Shelton (ed), Human Rights and the Environment (Edward Elgar
2011) 532.
88
In the Inter-American Commission on Human Rights, Community of San Mateo De
Huanchor and Its Members v Peru, Admissibility, Petition 504/03 Report N 69/04 IACHR (15
October 2004); Friendly Settlement: Mercedes Julia Huenteao Beroiza et al v Chile, Petition
4617/02, Report N 30/04, IACHR (11 March 2004).
89
F Romanin Jacur, ‘Are Multilateral Environmental Agreements Promoting Private Invest-
ment in Sustainable Development?’ Chapter 11 in T Treves ao (eds), Foreign Investment,
International Law and Common Concerns, (Routledge 2014).
tion: 20 / Date: 15/3
Other normative tools that influence environmental law are the voluntary ‘codes of
conduct’ created by industry groups and multinational enterprises and applicable to
their own operations and, in certain cases, to their suppliers and borrowers.90
Another category of regulatory tools that is gaining a growing influence in
environmental matters is the one of international standards.91
A standard may be defined as a ‘document, established by consensus and approved
by a recognized body that provides […] rules, guidelines or characteristics for activities
or their results, aimed at the achievement of the optimum degree of order in a given
context’.92 Standards are regulatory tools generally with a technical or scientific basis.
Their science-based origin is a distinctive feature that differentiates them from other
legal rules and provides them with a special legitimacy.
Their success may be traced back to their flexibility, which allows them to be revised
easily to take into account changing circumstances, and to their voluntary nature, which
contributes to broadening their acceptability by private and public entities. While these
requirements are not strictu sensu legally binding, being issued by technical bodies,
they are broadly endorsed and have a de facto significant ‘persuasive power’ on the
various addressees.93
Standards cannot be considered among the traditional sources of international law
and neither do they easily fit in the differentiation between soft and hard law. In fact,
they may be produced by different bodies and may be voluntary or mandatory
depending on where they are incorporated.94
90
See for example the OECD Guidelines for Multinational Enterprises.
91
J Morrison and N Roht-Arriaza, ‘Private and Quasi-Private Standard Setting’ in
D Bodansky ao (eds), Oxford Handbook of International Environmental Law (OUP 2007) 498,
501:
Many of these private, market-driven systems that predominate the field today stem from a
general dissatisfaction with government-led ‘command and control’ regulatory approaches as
well as the failure of intergovernmental processes […] to result in meaningful action to
advance sustainable commercial practices.
92
International Standardization Organization (ISO)/IEC Guide 2:2004 – Standardization and
related activities – General Vocabulary.
93
International Law: Towards a Legal Framework for Global Governance Activities’ in A von
Bogdandy ao (eds), The Exercise of Public Authority by International Institutions, Beiträge zum
ausländischen öffentlichen Recht und Völkerrecht, (Springer 2010) 3, 12. Standards are
respected not necessarily because of a legal obligation towards other States but rather ‘because
the benefits of observing them outweighs the disadvantages of ignoring them […] or because
they are equipped with implementing mechanisms imposing positive and negative sanctions’.
94
Particularly relevant in environmental matters are the International Organization for
Standardization standards and certification programmes adopted by the Forest Stewardship
Council (FSC) and the Marine Stewardship Council (MSC).
tion: 21 / Date: 15/3
Furthermore, their success and effectiveness may be strengthened through their

endorsement by treaties and by international tribunals.95 In fact, through their incorpor-
ation into legally binding rules, standards may become mandatory.96 The WTO
Agreements on the Application of Sanitary and Phytosanitary Measures (SPS Agree-
ment) and on Technical Barriers to Trade (TBT Agreement) provide that technical
regulations meeting certain requirements are presumed in conformity with WTO law.97
A substantive requirement is, for example, the pursuit of a legitimate objective.
Moreover in order to satisfy the procedural requirements, standard setting bodies
should operate in a transparent and open manner, envisage the right to participate for
all WTO Member States and provide for reasoned decisions.98 Despite these express
conditions set by WTO law, there are concerns and criticisms regarding the lack of
adequate legitimacy of these standards due to the fact that they are allegedly elaborated
in fora where not all States and other relevant stakeholder participate effectively on an
equal standing. More specifically, major claims are that developing countries and
certain categories of private actors with weaker representative powers do not participate
adequately in the process. The advantages of enjoying the presumption of conformity
with WTO law represents a strong compliance pull for standard setting organizations
that eventually comply with them.
6. CONCLUDING REMARKS
Environmental problems are increasingly interdependent with economic and social
considerations and can be seen under the unifying notion of sustainable development.
MEAs, trade and investment regimes, and voluntary private actors’ rulemaking deal
with these common challenges according to a functional approach, each respectively
from their own perspective. Although following different paths, they are all steadily
moving towards the enhancement of sustainable development goals. While there are
95
US – Tuna II case (n 80), para 387. The issue was whether the tuna tracking and
dolphin-safe certification resolutions of the International Dolphin Conservation Program could
be considered as international standards.
96
This technique of legislation by reference has been defined as ‘soft incorporation’ because
States are not obliged to adopt the international standards however, if they do not, they have to
explain why these standards were inappropriate for the objectives pursued. See J Pauwelyn,
Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of
International Law (CUP 2003), 350.
97
Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force
1 January 1995) 1868 UNTS 120 (TBT) and Agreement on the Application of Sanitary and
Phytosanitary Measures (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS
493 (SPS), art 3.2:
Sanitary and phyto-sanitary measures which conform to international standards, guidelines or
recommendations shall be deemed to be necessary to protect human health, animal or plant
life or health, and presumed to be consistent with the relevant provisions of this Agreement
and of GATT 1994.
98
TBT Committee, Decision of the Committee on Principles for the Development of
International Standards (13 November 2000) G/TBT/9, 6.
tion: 22 / Date: 15/3
sensible influences across these regimes, a satisfactory integrated approach and an

adequate support among their normative developments and implementation mech-
anisms are still lacking.
The lack of adequate dialogue and coherence across these different fields of
international law leads to inconsistent assessments and creates dangerous normative
and institutional loopholes. Far from being a merely theoretical problem, in this legal
vacuum, disastrous environmental-related accidents occur that could have been pre-
vented – or at least better managed – if existing international law tools would have
been implemented more effectively.99
The complex dimensions of international environmental law therefore require a more
thorough, comprehensive and integrated approach, which on the substantive level takes
adequately into account all the relevant aspects involved.
Along with the substantive dimension, procedural tools should also be strengthened
to ensure that decision-makers are provided with appropriate support in forming their
beliefs and that relevant stakeholders’ interests are adequately represented and taken
into account. In a ‘virtuous circle’, a constructive and complementary dialogue between
the various regimes, and in particular between MEAs, compliance mechanisms and
other dispute settlement procedures should be encouraged.
Many of these elements are already present to a certain extent in today’s environ-
mental lawmaking, however, they need to be further developed to strengthen the
legitimacy and effectiveness of international environmental law.
99
One may think of the shipment and illegal dumping of toxic wastes in the Ivory Coast, in
violation of international law (namely, the Basel and Bamako Convention) and European
regulations. Another grave environmental disaster, with oil spills polluting lands and disrupting
the livelihoods of Ecuadorian indigenous people, is at the heart of the Chevron-Ecuador legal
‘saga’: a complex series of disputes involving States, multinational corporations, indigenous
peoples, and multiple legal orders – domestic laws, MEAs, investment and human rights treaties.
tion: 23 / Date: 15/3
20. The making of international natural resources law

Owen McIntyre
1. INTRODUCTION
As is true of several rapidly developing areas of international legal discourse, notably
including the closely related field of international environmental law, international law
relating to the utilisation and protection of shared natural resources is not a clearly
defined, distinct or systematically constructed corpus of international rules. Instead, it
arises from the application of general rules and principles of ‘classical’ international
law and comprises a somewhat ad hoc collection of, inter alia, formal international
instruments, both binding and non-binding, established and evolving State practice,
various transnational governance frameworks, fora and institutions, and the decisions of
various international courts and tribunals in inter-State disputes over or concerning
natural resources. Also, as many different types of natural resources have become
increasingly scarce, and hence more economically and strategically valuable, several
distinct bodies of rules have emerged which more specifically address the harmonious
allocation of rights to exploit a particular transboundary natural resource, the conser-
vation of the resource itself, and the protection of the wider environment from the
impacts of its utilisation or exploitation. This field of international lawmaking clearly
warrants further attention. For example, citing ‘[e]xamples from water, biodiversity or
energy resources [which] show that global or regional management can offer better
protection’, leading commentators have nevertheless recently suggested, in the course
of a detailed examination of the particular challenges posed for natural resources
governance by the phenomenon of globalisation, that ‘[i]n the context of shared natural
resources, existing global, regional or bilateral arrangements do not always provide
adequate protection’.1 Thus, the scope of international lawmaking in respect of ‘natural
resources’ is both wide and uncertain, with fuzzy boundaries which constantly overlap
with those defining lawmaking for the protection of the natural environment and human
rights.
The concept of State sovereignty over natural resources is fundamental to the field
and provides the obvious starting point for any discussion of international lawmaking
in respect of any particular category of natural resources. State sovereignty has long
been understood to encompass a right of States to utilise and enjoy natural resources
occurring naturally within their territory, a position that was strengthened by the
international community’s post-war movement towards decolonisation.2 The United
1
E Blanco and J Razzaque, Globalisation and Natural Resources Law (Edward Elgar
2011), 4.
2
See eg ‘Right to exploit freely natural wealth and resources’ United Nations General
Assembly (UNGA) Res 626 (VII) (21 December 1952) UN Doc A/RES/626 (VII), which called
442
tion: 1 / Date: 9/2
The making of international natural resources law 443
Nations General Assembly’s recognition of States’ sovereign territorial rights over

natural resources culminated in its 1962 Resolution 1803 on Permanent sovereignty
over natural resources, which declared that such ‘permanent sovereignty over natural
resources […] [is a] […] basic constituent of the right to self-determination’ and,
further, that ‘[t]he free and beneficial exercise of the sovereignty of peoples and nations
over their natural resources must be furthered by the natural respect of States based on
sovereign equality’.3 However, resort to the notion of sovereignty is not exclusively
determinative of the rights of States regarding the exploitation of their natural
resources, and developments in international natural resources law, and in related areas
of international law, such as international environmental and human rights law,
continue to impose constraints upon their unilateral domestic management. As recently
noted, ‘[t]he formulation of sovereignty and ownership of natural resources needs to be
appraised if global approaches are to work […] there is an urgent need for a widely
shared agreement and understanding of sustainable resource use’.4 This reality was
formally recognised by the United Nations Environment Programme in 1978 with the
adoption of its draft Principles of Conduct in the Field of the Environment for the
Guidance of States in the Conservation and Harmonious Utilization of Natural
Resources Shared by Two or More States.5 Such constraints will very often relate to the
imperatives of environmental protection, but may in certain circumstances also be
intended to take account of key economic and social factors. Elaboration of the various
bodies of rules specific to different categories of natural resources alluded to above
must include such constraints, both substantive and procedural, on the freedom of
action of States in the utilisation of natural resources with a transboundary dimension.
As suggested above, the international community is developing different bodies of
specialist rules in international law to apply to different categories of national
resources, the utilisation or exploitation of each of which have differing transboundary
implications. Whereas some natural resources may be considered static, others are
transitory, moving over time through the territory of more than one State, either
contemporaneously or consecutively. Clearly, the latter category, which would include
the water resources of a transboundary river basin or certain living resources, such as
migratory fish stocks, give rise to more complex problems in balancing the utilisation
rights of several States. The former category, which would include certain hydrocarbon
resources which straddle a national boundary, can be more easily divided taking an
approach to territorial sovereignty which corresponds to private property rights over
land. However, there exist a number of ways of differentiating between categories of
natural resources, which will have significant implications for international lawmaking
intended to address and constrain the rights of States. For example, some natural
resources are finite and exhaustible, while others are renewable. Clearly, international
upon all Member States ‘to refrain from acts, direct or indirect, designed to impede the exercise
of the sovereignty of any State over its natural resources’.
3
‘Permanent sovereignty over natural resources’ UNGA Res 1803 (XVII) (8 December
1962) UN Doc A/RES/1803 (XVII).
4
Blanco and Razzaque (n 1), 3.
5
UN Environment Programme (UNEP) Governing Council Res UN Doc 1978/37 (21 July
1978); (1978) 17 ILM 1097.
tion: 2 / Date: 9/2
lawmaking for the latter category ought to reflect the need to ensure continuing
protection of the resource itself, while lawmaking for the former category ought to be
rather more straightforward. Once again, the former category would include a trans-
boundary hydrocarbon deposit, while the latter would include a transboundary river
basin or aquifer, the hydrological and ecological functioning of which would require
robust protection in order to ensure its optimal utilisation.
The concept of equity is central to reconciling the competing interests of States in
the utilisation of shared natural resources, though its substantive meaning, and thus the
means for determining an equitable allocation of rights over a shared natural resource,
will differ quite significantly depending on the nature of the resource in question and of
each State’s dependence upon it. In maritime delimitation cases, for example, which
have largely been concerned with the allocation of rights to exploit hydrocarbon
resources, international courts and tribunals have tended to take a rather limited and
relatively unsophisticated approach, regarding equity as requiring the apportionment of
territory in a manner proportionate to the length of each State’s adjacent coastline and
in a corrective role in order to ameliorate the distorting effects of geographical
anomalies and aberrations. However, in the case of the allocation of shared freshwater
resources, the overarching international law principle of ‘equitable and reasonable
utilisation’ requires a rather more distributive apportionment having regard to the extent
and urgency of each co-basin State’s social and economic dependence upon the water
resources in question. This approach, which has emerged from the consistent practice
of States over the last 100 years or so and has now been extensively codified in global
and regional conventional and declaratory instruments as well as in specific water-
course agreements, simply reflects the immediate and direct dependence of people
upon water and the impossibility of substituting another resource for water in many of
its uses, such as agricultural irrigation. In contrast, equity in the context of the genetic
resources of biodiversity relates to the fair and equitable sharing of the benefits arising
out of the utilization of genetic resources.6
As it is quite beyond the scope of this chapter to examine international lawmaking as
regards each category of natural resources, it will tend to focus to a certain extent on
the processes of lawmaking employed in the development of international water
resources law. Water resources provide an interesting case study for a number of
reasons. First, the development of international water resources law requires a relatively
sophisticated understanding of the principle of territorial sovereignty, as applied to the
allocation of natural resources. In addition, due to the environmental vulnerability and
ecological significance of water resources, such substantive rules of apportionment tend
to be overlaid with specific environmental protection requirements which are in turn
informed by the broader corpus of international environmental rules. Indeed the
inter-linkages between international environmental law and international water
resources law make these two bodies of rules difficult to separate. Clearly, in order to
6
See art 15(7) of the Convention on Biological Diversity (adopted 22 May 1992, entered
into force 29 December 1993) 1769 UNTS 79 available at <http://www.cbd.int/doc/legal/cbd-
en.pdf> and the Nagoya Protocol to the CBD on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from their Utilization (adopted 29 October 2010, not yet
in force) available at <http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf>.
tion: 3 / Date: 9/2
have any prospect of being effective, any process of distributive equitable balancing of
State interests and related requirements for environmental protection will require
elaborate procedural rules for inter-State communication and information exchange. As
suggested above, shared international water resources, whether surface waters or
ground waters, present additional challenges for international lawmakers by virtue of
the fact that they are transitory in nature, are normally renewable, requiring sustainable
exploitation, and usually represent critical strategic interests of States due to human,
social and economic dependence. These difficulties are compounded by the fact that no
two drainage basins are remotely alike – hydrologically, ecologically, economically,
socially or politically.
Therefore, while the sources of international natural resources law are formally the
same as those for all other fields of international law, international lawmaking in this
field involves a number of quite unique challenges for the international legal system,
requiring explanation of the means by which such rules have emerged, and of the
unique forces which have shaped the lawmaking processes involved. For example, in
this field the international community has tended to employ more flexible, yet often
more complex, instruments than in other fields, such as framework agreements, which
only specify general objectives and principles, but may also create specialist insti-
tutional mechanisms to facilitate the elaboration of more detailed rules. Similarly, the
need to develop novel, yet inclusive, legal frameworks comprised of coherent rules and
principles has required considerable reliance on so-called ‘soft-law’, where States
advance such rules and principles through the adoption of various kinds of non-binding
recommendations, declarations, codes of conduct, guidelines, and codifications. Such
instruments function to permit otherwise hesitant States to engage in the early iterations
of many international ‘legislative’ regimes without risking any unanticipated and
unintended loss of sovereign discretion, while incrementally building confidence in the
type of cooperative arrangements proposed. Of course, while broad adherence to such
soft-law codes generates the consistent State practice and evidence of opinio juris
necessary for the identification of emerging customary rules, generally accepted
soft-law standards will also often become formalised in global or regional treaty
arrangements. Such complex interaction between the classical and non-classical sources
of international law gives rise to a quite particular culture of lawmaking in this field,
which is dynamic yet ultimately convergent around a number of widely accepted
general principles.
Another means of ensuring inclusive international lawmaking for natural resource
utilisation, while retaining the capacity of adopted regimes to evolve normatively, has
been that of formulating and including broad principles which, though widely accepted
by States, particularly in the non-binding declaratory instruments adopted by global and
regional conferences, tend to be somewhat vague and ill-defined in terms of their
normative content and significance. References to equitable utilisation and sharing of
benefits, sustainable development, precaution, the polluter-/user-pays principle, and the
principles of inter- and intra-generational equity are ubiquitous in relevant international
agreements and declarations. The role of such principles cannot be overstated and one
commentator notes that ‘States can foster legitimate expectations by relying on these
tion: 4 / Date: 9/2
principles, even though, very often, their legal status cannot be clearly identified.’7
Each of these principles is designed to reconcile conflicting values and approaches
originating in a number of different technical systems and can be described as
‘open-textured norms’ with an ‘inter-normative nature’.8 Indeed, since universal adop-
tion of the Rio Declaration in 1992, the general, overarching objective of sustainable
development has been employed by the international community to guide lawmaking in
the field of natural resources law in a manner that is balanced with the environmental,
economic and social needs of States, and to ensure the balanced integration of
considerations of environmental and social protection into a range of related fields of
In identifying patterns of international lawmaking for natural resources, it is
necessary to examine the sources of international rules in this field in order to
understand the particular manner in which such sources, both traditional and non-
traditional, are employed by the international community. Although any examination of
‘lawmaking’ entails a great deal more than a survey of ‘sources’ of law, including, for
example, investigation of the myriad institutional, cultural and geopolitical factors
which impact upon the development and application of international rules, a discussion
of such sources provides a logical structure within which observations may be made
upon the singular features of international lawmaking in respect of natural resources.
Therefore, the main text of this chapter commences with a discussion of international
lawmaking for natural resources by means of the classical sources of international law,
before proceeding to examine international lawmaking processes more broadly through
a discussion of features of lawmaking in this field which arise beyond a narrow
understanding of the traditional sources of law enumerated under article 38 of the ICJ
Statute.
2. LAWMAKING IN INTERNATIONAL NATURAL RESOURCES

LAW THROUGH CLASSIC SOURCES
Despite the extraordinary proliferation of international bodies, both inter-governmental
and non-governmental, legislative, judicial and technical, which function to elaborate
rules on the exploitation of natural resources, and on related environmental rules and
standards, and the expansion of international rules to encompass rights and duties for
individuals and other non-State actors, article 38(1) of the Statute of the International
Court of Justice9 remains ‘the only generally accepted statement of the sources of
international law to be applied by the ICJ’, though ‘[i]t is open to question whether it
represents an exhaustive listing’ as regards the sources of international natural resources
7
L Boisson de Chazournes, ‘Features and Trends in International Environmental Law’ in Y
Kerbrat and S Maljean-Bubois (eds), The Transformation of International Environmental Law
(Pedone & Hart 2011) 9, 11.
8
ibid.
9
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24
October 1945) 961 UNTS 183.
tion: 5 / Date: 9/2
law.10 Article 38(1) lists only international conventions, international custom and
general principles of law as the primary sources of binding international law and, ‘as
subsidiary means for the determination of rules of law’, judicial decisions and the work
of the most highly qualified publicists. However, the recent frenetic pace of develop-
ment of this extensive corpus of rules, and their resulting fluidity, may give rise to
some confusion as to the source or provenance of any purported rule or principle. As
the Permanent Court of Arbitration noted recently in respect of international environ-
mental law, ‘[t]here is considerable debate as to what, within the field of environmental
law, constitutes “rules” or “principles”; what is “soft law”; and which environmental
treaty law or principles have contributed to the development of customary international
law’.11
2.1 International Conventions
As international natural resources lawmaking is a relatively new field, largely involving

the development and implementation of highly complex and technical regimes, it stands
to reason that conventions, and multilateral lawmaking conventions in particular,
provide the most important source of rules and principles in this area. A considerable
number of multilateral conventions have been agreed to date, at the global or regional
levels, though an even greater number of bilateral, trilateral, or otherwise ‘localized’
treaties exist, which serve to facilitate cooperation among neighbouring States over
various natural resources. Many of these treaties, and in particular those which are
widely ratified, capable of global application, and intended to create an enduring
regulatory regime, may be considered ‘“lawmaking treaties” in the sense that they have
been concluded for the purpose of laying down general rules of conduct among a large
number of states’.12 The 1997 United Nations Watercourses Convention (UNWC)
provides a prominent example of a global lawmaking instrument in the field of shared
water resources,13 while the obvious example in the field of biodiversity resources is
that of the 1992 Convention on Biological Diversity,14 as supplemented by the 2000
Cartagena Biosafety Protocol15 and the 2010 Nagoya Protocol on Access and Benefit-
Sharing.16 Of course, many more treaties create obligations regarding the utilisation
and protection of natural resources, though they are not intended primarily to address
10
P Birnie, A Boyle and C Redgwell, International Law and the Environment (3rd edn,
OUP 2009), 15.
11
Iron Rhine Arbitration (Belgium v Netherlands) PCA (2005) para 58 available at
<http://www.pca-cpa.org/showpage.asp?pag_id=1155>.
12
P Sands and J Peel, Principles of International Environmental Law (3rd edn, CUP 2012),
96–7. On lawmaking treaties generally, see C Brölmann, ‘Law-making Treaties: Form and
Function in International Law’ (2005) 74 Nordic Journal of International Law 383.
13
UN Convention on the Law of the Non-Navigational Uses of International Watercourses
(adopted 21 May 1997, in force 17 August 2014) 36 ILM 719 (UNWC) available at
<http://legal.un.org/avl/pdf/ha/clnuiw/clnuiw_ph_e.pdf>.
14
Convention on Biological Diversity (n 6).
15
Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29
January 2000, entered into force 11 September 2003) 2226 UNTS 208.
16
Nagoya Protocol (n 6).
tion: 6 / Date: 9/2
such matters. Prominent examples include regional trade agreements and the globally
applicable 1947 General Agreement on Tariffs and Trade (GATT), under which natural
resources and environmental concerns may provide an exception to the general
prohibition on non-tariff barriers to trade,17 and the 1982 UN Convention on the Law of
the Sea (UNCLOS).18
Many multilateral conventions in this field may be described as ‘framework’
conventions, which merely provide a broad outline of the key principles, substantive
objectives and institutional mechanisms of the intended regulatory regime, leaving the
detailed rules to be developed subsequently. Under the auspices of the relevant
‘framework’ convention, the States parties proceed to conclude more specific agree-
ments or protocols, or adopt detailed technical guidance, often facilitated or assisted by
specialist institutional mechanisms established under the framework convention. A
range of such ‘framework’ approaches has been employed. For example, the 1992
UNECE Convention on the Protection and Use of Transboundary Watercourses and
International Lakes19 creates the outline of an international regime, but is supplemented
by its 1999 Protocol on Water and Health20 and 2003 Protocol on Civil Liability,21
while the 1979 Bonn Convention on Migratory Species of Wild Animals22 requires the
conclusion of specific agreements between range States.23 Alternatively, framework
conventions may take the form of ‘umbrella’ agreements, linked to additional treaties
on specific issues. Examples include UNCLOS,24 parts of which are given effect
through implementation agreements such as the 1995 Fish Stocks Agreement,25 and the
17
1 January 1948) 55 UNTS 187 (GATT), art XX(b) and (g).
18
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered
into force 16 November 1994) 1833 UNTS 3 (UNCLOS). Though UNCLOS is primarily
concerned with such matters as maritime territorial delimitation and rights of maritime
navigation, it also addresses the conservation and management of the living resources of the high
seas (arts 116–20) and protection of the marine environment (art 145).
19
UNECE Convention on the Protection and Use of Transboundary Watercourses and
International Lakes (adopted 17 March 1992, entered into force 6 October 1996) 31 ILM 1312
(UNECE Water Convention).
20
Protocol on Water and Health to the 1992 Convention on the Protection and Use of
Transboundary Watercourses and International Lakes (adopted 17 June 1999, entered into force
4 August 2005) 38 ILM 1708 available at <http://www.unece.org/env/water/pwh_text/text_
protocol.html>.
21
Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary
Effects of Industrial Accidents on Transboundary Waters to the Convention on the Protection and
Use of Transboundary Watercourses and International Lakes (adopted 21 May 2003, not yet in
force) available at <http://www.unece.org/env/civil-liability/welcome.html>.
22
Convention on Migratory Species of Wild Animals (adopted 23 June 1979, entered into
force 1 November 1983) 19 ILM (1980) 15 (CMS).
23
To date, seven associated binding agreements including, for example, the 1995 Agree-
ment on the Conservation of African-Eurasian Migratory Waterbirds (AEWA),(2002) Second
Session of the MoP (25–27 September 2002) and 18 Memoranda of Understanding have been
adopted under the auspices of CMS (n 22).
24
UNCLOS (n 18).
25
Agreement for the Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 1982 relating to the Conservation and Management of Straddling Fish
1976 and 1995 Barcelona Conventions for the Protection of the Mediterranean, in
relation to which detailed commitments are set down in seven further Protocols.26
Maljean-Dubois lists a number of advantages of this framework approach to explain
why such conventions are ‘the most operative type of interstate cooperation’:
because they allow international cooperation to be based on a specific foundation […];

because they allow the institutionalization of cooperation, the development of collective
means of inciting compliance and reacting to non-compliance; and finally because they allow
the initial regime to evolve through treaty modification, adoption of protocols or, more
simply, secondary law.27
Sands and Peel point out that many framework agreements employ a ‘three-tiered
approach (framework agreement, protocol, annex/appendices) [which] introduced flex-
ibility by allowing legal amendments or other changes in accordance with political,
scientific or economic developments’.28 Birnie, Boyle and Redgwell stress the advan-
tages of arrangements ‘to separate such technical standards from the basic provisions of
the treaty in order to allow for ease of amendment in the light of technical or scientific
experience’, and describe the role of such standards as that of ‘amplifying’ the terms of
the principal treaties.29
Of course, natural resources conventions will generally share the same format and
characteristics as other international treaties and are subject to the general, and largely
customary, rules on treaties set out in the 1969 Vienna Convention on the Law of
Treaties. However, as regards the adaptability of conventional instruments of inter-
national natural resources law, the limited ‘evolutionary interpretation’ envisaged under
article 31(3)(c) of the Vienna Convention, whereby account shall be taken in the
interpretation of treaty provisions of any other ‘relevant rules of international law
applicable in the relations between the parties’, allows older instruments to be
interpreted in the light of current standards and practices.30 Such an approach has been
Stocks and Highly Migatory Fish Stocks (adopted 4 December 1995, entered into force 11
December 2001) 34 ILM (1995) 1542 (Fish Stocks Agreement).
26
Convention for the Protection of the Marine Environment and the Coastal Region of the
Mediterranean (adopted 16 February 1976, entered into force 12 February 1978) 15 ILM 290
(1976). Including the 1982 Protocol concerning Specially Protected Areas and Biological
Diversity in the Mediterranean (amended 1995); the 1994 Protocol for the Protection of the
Mediterranean Sea Against Pollution Resulting from Exploration and Exploitation of the
Continental Shelf and the Seabed and its Subsoil; and the 2008 Protocol on Integrated Coastal
Zone Management in the Mediterranean.
27
S Maljean-Dubois, ‘The Making of International Law Challenging Environmental
Protection’ in Kerbrat and Maljean-Bubois (eds) (n 7) 25, 43.
28
Sands and Peel (n 12), 98.
29
Birnie, Boyle and Redgwell (n 10), 18–19.
30
See eg, the Iron Rhine Arbitration (n 11), paras 58–59. See further D French, ‘Treaty
Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ 281; C
MacLachlan, ‘The Principle of Systemic Integration in Treaty Interpretation and Article 31(3)(c)
of the Vienna Convention’ (2005) 54 ICLQ 279.
employed by the WTO Appellate Body in the Shrimp-Turtle case in interpreting the
scope of ‘natural resources’ under article XX(g) of the 1947 GATT Agreement in the
light of a range of subsequent conventions, including the 1982 UNCLOS, the 1979
Bonn Convention on Conservation of Migratory Species, the 1992 Convention on
Biological Diversity, and Agenda 21.31 More generally, in the Gabčíkovo-Nagymaros
case the ICJ accepted the so-called ‘principle of contemporaneity’, whereby it could
take account of subsequently developed norms and standards in interpreting and
applying pre-existing treaty provisions.32 Thus, the frenetic activity of recent decades in
terms of the conclusion of multilateral natural resources and environmental agreements,
and the comprehensive sectoral coverage of such agreements, has permitted the
progressive evolution of applicable treaty provisions without requiring their formal
amendment. In addition, even though some key lawmaking treaties have failed to enter
into force due to their participation requirements,33 article 18 of the Vienna Convention
provides that signatory States must refrain from acts which would defeat the objects
and purposes of the treaty they have signed, unless they have indicated an intention not
to become a party.
Indeed, the idiosyncracies of the type of process which has emerged for the
negotiation and conclusion of international conventions in this field reflect the premium
that the international community places on encouraging the broadest possible partici-
pation of States in international natural resources regimes. For example, the widespread
use of consensus negotiating procedures and so-called ‘package deal’ diplomacy in
working towards the agreement of global framework agreements, has played a vital role
in securing almost universal participation in such key global lawmaking treaties as the
1992 Biodiversity Convention.34 In addition, many multilateral lawmaking conventions
concerning natural resources either do not permit the use of reservations to specific
provisions35 or severely restrict their use.36 Sands and Peel offer two reasons for this
trend towards limiting the permissibility of reservations: first, that many such treaties
‘are framework agreements providing general structures and guidelines, rather than
specific commitments with implications for a particular activity or practice’, with
respect to which any reservation might seem excessive or premature; and, secondly,
that in the case of a treaty dealing with:
particularly sensitive or controversial matters, especially where important economic interests

are involved, the negotiated text will often represent a series of delicate compromises which
31
See, Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate
Body (12 October 1998) WT/DS58/AB/R, 48–50 paras 130–31. See further, Birnie, Boyle and
Redgwell (n 10), 19–22.
32
Case Concerning the Gabčíkovo-Nagymaros Project (Hungaria v Slovakia) [1997] ICJ
Rep 7, 78, para 140.
33
Notably, the 1997 UNWC (n 13) has not yet managed to achieve the 35 ratifications
required and to enter into force until 17 August 2014.
34
Birnie, Boyle and Redgwell (n 10), 13; Maljean-Dubois (n 27), 36.
35
For example, Convention on Biological Diversity (n 6), art 37 and 2010 Nagoya Protocol
(n 6), art 34. See Sands and Peel (n 12), 103.
36
For example, UNCLOS (n 18), art 309. See Sands and Peel (n 12).
would be undermined by allowing one or more states to opt out of certain provisions.
Flexibility is intended to be built into the text itself.37
2.2 Customary International Law
Where there is no applicable convention in force, where the relevant treaty regime
enjoys incomplete coverage due to the non-participation of certain States or their use of
reservations, or where assistance is required in the interpretation of vague treaty
provisions, States may have regard to ‘the customary rules [which] were the first to
mark out the field’.38 Customary rules have the advantage of applying generally to all
States, except where a State has persistently objected to the rule in question,39 though
‘persistent objectors can at best maintain this position only while the status of a new
rule is in doubt; they will be bound once the rule is firmly established’.40 However, as
this is a relatively new field of law, with a limited history of State practice, firmly
established principles of customary international law are correspondingly few. The
formation of custom must, after all, follow the facts and circumstances.41 Consequently,
the very existence of several key principles as rules of customary international law
remains hotly debated.42 However, it is clear that a reasonably relaxed approach has
been taken to the recognition of customary rules and principles of international law in
this field, and it is probably more apt to say in the case of such rules than of any other
field of international law that ‘the old tests of customary law are increasingly irrelevant
since much new law is not custom in the orthodox sense: “it is recent, it is innovatory,
it involves typical policy decisions, and it is the focus of contention”’.43 Birnie, Boyle
and Redgwell cite the very powerful lawmaking effect of instruments such as the 1992
Rio Declaration to illustrate this point. Sands and Peel similarly suggest that the ICJ
‘will divine the existence of such [customary] rules by more flexible and pragmatic
means’.44 Ultimately, the existence and normative status of customary rules of
international natural resources law will be defined by ‘the progressive gathering of
recurrent treaty provisions, recommendations made by international organizations,
37
Sands and Peel (n 12), 103–04.
38
Maljean-Dubois (n 27), 41.
39
North Sea Continental Shelf Cases (Federal Republic of Germany v Netherlands) [1969]
ICJ Rep 3; Anglo-Norwegian Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 131.
40
D Charney, ‘The Persistent Objector Rule and the Development of Customary Inter-
national Law’ (1985) 56 British Yearbook of International Law 1, cited by Birnie, Boyle and
Redgwell (n 10), 25.
41
G Abi-Saab, ‘Cours général de droit international public’ (1987) Recueil des cours de
l’Académie de droit international, 128, cited by Maljean-Dubois (n 27), 42–43.
42
For a sceptical view of the customary status of the precautionary principle, see, for
example, D Bodansky, ‘Customary (And Not So Customary) International Environmental Law’
(1995) 3 Indiana Journal of Global Legal Studies 105. For a more optimistic view, see eg
O McIntyre and T Mosedale, ‘The Precautionary Principle as a Norm of Customary Inter-
national Law’ (1997) 9 Journal of Environmental Law 221.
43
Birnie, Boyle and Redgwell (n 10), quoting R Jennings, ‘What is International Law and
How Do We Tell it When We See It’ (1981) 37 Annuaire Suisse de Droit International 59, 67,
though they also cite Bodansky (n 42), for a more sceptical view.
44
resolutions adopted at the end of international conferences, and other texts that can be
said to have influenced State Practice’.45
One customary rule of international law, however, which is both of central relevance
to international natural resources law and universally accepted as established custom is
that of the duty of States to prevent significant transboundary harm.46 This ‘duty of
prevention’ or ‘no-harm principle’, has been linked to a number of legal maxims and
doctrines, prominent in both common law and civil law systems, including the maxim
sic utere tuo ut alienum non laedas (so use your own as not to harm that of another),
the theory of abuse of rights (abus de droit, Rechtsmissbrauch), and the theory of good
neighbourliness (droit international de voisinage, Nachbarrecht), which might go some
way towards explaining its broad acceptance.47 Maljean-Dubois convincingly suggests
that if this duty ‘manages to assert its customary nature without any problem, it is
because it is based on the respect of territorial sovereignty […] [being] […] a
fundamental principle for the co-existence and “good neighbor relations” of equal
sovereign relations’.48 Indeed, in the recent Pulp Mills case the ICJ appeared to
recognise this rule of international law as the wellspring of many other rules of
customary international natural resources law, such as that requiring that comprehen-
sive environmental (and social) impact assessment be undertaken of the transboundary
impacts of a proposed industrial facility or activity, which functions to discharge the
due diligence obligations inherent to the duty of prevention.49 One commentator has
even suggested that ‘[w]e could almost consider that the other customary rules [of
international natural resources and environmental law] simply derive from it’.50
In addition to the duty to prevent significant transboundary harm, substantive rules
likely to qualify as established custom include:
[the obligation to cooperate on environmental problems associated with shared natural

resources; the obligation to adopt general measures to protect the marine environment from
45
PM Dupuy, ‘Overview of the Existing Customary Legal Regime Regarding International
Pollution’, in DB Magraw (ed), International Law and Pollution (University of Pennsylvania
Press 1991) 61, 61.
46
See Trail Smelter Arbitration (United States v Canada), (1941) 3 RIAA 1965 and (1941)
35 American Journal of International Law 684; Corfu Channel Case [1949] ICJ Rep 1, 4 and
22; Principle 21 of the Declaration of the UN Conference on the Human Environment (adopted
16 June 1972) 11 ILM 1416 (1972) (1972 Stockholm Declaration); Principle 2 of the
Declaration of the UN Conference on the Human Environment (adopted 14 June 1992) 31 ILM
876 (1992) (1992 Rio Declaration); Legality or Threat of Nuclear Weapons (Advisory Opinion)
[1996] ICJ Rep 226 para 29; Gabčíkovo-Nagymaros Case (n 32), 77 para 140; Pulp Mills on the
River Uruguay (Argentina v. Uruguay) [2010] ICJ Rep 14, para 101.
47
See SC McCaffrey, The Law of International Watercourses: Non-Navigational Uses
(OUP 2001), 349–53.
48
49
See further, O McIntyre, ‘The Proceduralization and Growing Maturity of International
Water Law: Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay)’ (2010)
22 Journal of Environmental Law 475.
50
tion: 11 / Date: 15/3
significant damage; and the obligation to take measures to ensure the conservation of, and
prevention of harm to, endangered species of flora and fauna.51
Another obvious example is the obligation to use a shared international watercourse in

an ‘equitable and reasonable’ manner, the firmly established cardinal rule of inter-
national water resources law.52 Among the somewhat vaguer ‘guiding principles’ of
international law which might be candidates for customary status are the polluter-pays
principle, the precautionary principle and the principle of common but differentiated
responsibility.53 Many procedural rules of international law are unequivocally of a
norm-creating character54 and the closely linked obligations to notify and consult States
likely to be impacted by a proposed project or activity, and to carry out an
environmental (and social) impact assessment of its potential transboundary effects are
now well established as custom.55 As regional regimes have long played an important
role alongside global ones, it is significant for the development of international natural
resources law that customary rules may be regional in character, reflecting the specific
interests, needs and capacities of particular regions.
Of course, ‘customary and conventional rules do not work in isolation but, on the
contrary, enjoy a close relationship extending as far as fertilization and mutual
pollination’.56 This close relationship of ‘mutual interdependence’ is illustrated by the
fact that the conclusion and implementation of a treaty may reflect the existence of a
rule of customary law, that a treaty might codify or further develop a rule of customary
law, and that State practice in treaty-making and in accordance with obligations under
treaties can contribute to the ongoing development of customary law.57 In determining
whether a conventional rule may constitute a rule of custom, the ICJ has advised that,
‘[f]or this purpose it is necessary to examine the status of the principle as it stood when
the Convention was drawn up, as it resulted from the effect of the Convention, and in
the light of State practice subsequent to the Convention’.58 The duty of prevention, or
‘no-harm’ rule, which has been recognised as custom since at least 194159 and is
51
52
See further O McIntyre, Environmental Protection of International Watercourses under
International Law (Ashgate 2007), 53ff.
53
54
See further, P Okowa, ‘Procedural Obligations in International Environmental Agree-
ments’ (1996) 67 British Yearbook of International Law 275.
55
Pulp Mills on the River Uruguay (n 46), para 204. On the general linkages between these
procedural rules inter se, and between these procedural rules and key substantive rules, see
O McIntyre, ‘The Contribution of Procedural Rules to the Environmental Protection of
Transboundary Rivers’ in L Boisson de Chazournes ao (eds), Freshwater and International Law:
The Multiple Challenges (Edward Elgar 2012) 359.
56
Maljean-Dubois (n 27), 41. See gen BB Jia, ‘The Relations between Treaties and
Custom’ (2010) 9 Chinese Journal of International Law 81.
57
Sands and Peel (n 12), 113 and 115.
58
North Sea Continental Shelf Cases (n 39), 37 para 60. See also Case Concerning the
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of
America) (Judgement) [1986] ICJ Rep 14.
59
See Trail Smelter Arbitration (n 46).
regularly incorporated into binding treaties and declarative instruments,60 aptly illus-
trates this close yet complex relationship. Even a treaty that has not yet entered into
force may ‘contribute to the development of customary international law, or reflect in
clearer terms pre-existing customary international law’.61 Indeed, it is telling that a
jurist of the stature of Sir Robert Jennings should declare in a statement to the 1992
United Nations Convention on Environment and Development in Rio that it is ‘a
principal task of the ICJ to decide, applying well-established rules and criteria, whether
the provisions of multilateral treaties have or have not developed from merely
contractual rules into rules of general customary international law’.62
2.3 General Principles of Law
As regards the reference to ‘general principles of law recognised by civilized nations’

in article 38(1) of the ICJ Statute, uncertainty persists as to whether it is intended solely
to permit the Court to apply widely employed principles of national law where there
might otherwise be lacunae among the established rules of international law, or also to
include the various ‘principles’ of international law commonly included in natural
resources and environmental treaties and declarative instruments, most notably the
1972 Stockholm Declaration and the 1992 Rio Declaration. The former would include
general principles of ‘natural justice’ ‘accepted by all nations in foro domestico’, which
could operate ‘to avoid any possibility of a non liquet where there may be gaps in the
law’.63 The doctrines of abuse of rights and good faith are often cited as examples of
such ‘general principles’.64 However, Birnie, Boyle and Redgwell caution that, rather
than borrow mechanically from domestic law, tribunals have only ‘invoked elements of
legal reasoning and private law analogies’, so that ‘general principles derived by
analogy from domestic law are only marginally useful in an environmental context’.65
Agreeing that their role has been marginal in the development of international natural
resources and environmental law, Maljean-Dubois suggests that, ‘with the purpose of
filling the gaps in conventional or customary law, these principles [should] play, a
60
See Principle 21 of the 1972 Stockholm Declaration and Principle 2 of the 1992 Rio
Declaration (n 46). For an example of a multilateral natural resources convention incorporating
the ‘no-harm’ rule, see the 1997 UNWC (n 13), art 7.
61
Sands and Peel (n 12), 103, citing the example of the Gabčíkovo-Nagymaros case (n 32),
where the ICJ referred to the recently adopted 1997 UNWC (n 13) as evidence of the ‘modern
development of international law’, (1997) ICJ Reports 7, at 56 para 85.
62
The text of the statement is reproduced in R Jennings, ‘Need for Environmental Court?’
(1992) 22(5/6) Environmental Policy and Law 312, 313 and in (1992) 1 Review of European
Community and International Environmental Law 240, and quoted in M Fitzmaurice, ‘Environ-
mental Protection and the International Court of Justice’ in V Lowe and Fitzmaurice (eds), Fifty
Years of the International Court of Justice (CUP 1996) 293, 300.
63
Birnie, Boyle and Redgwell (n 10), 26–7.
64
See Case of the Free Zones of Upper Saxony and the District of Gex (Switzerland v
France) PCIJ Rep Series A/B No 46 , at 167.
65
Birnie, Boyle and Redgwell, (n 10), 27.
tion: 13 / Date: 15/3
priori, a more important role in new fields such as environmental protection than in
more traditional fields’.66
The latter category of general principles would include those guiding principles of
environmental law routinely endorsed by States in their conventional and declarative
practice, such as the precautionary principle, the polluter-pays principle, and the
principle of common but differentiated responsibility which, if accepted as falling
under this source of international law, could exert influence independently of their
customary or conventional status. The ICJ’s reliance upon the principle of sustainable
development in the Gabčíkovo-Nagymaros case provides ‘perhaps the best illustration
of the role of internationally endorsed principles in international environmental law’.67
However, most leading commentators express very real doubts about the autonomy of
these principles.68
Among the former principles, the concept of ‘equity’, which may be defined in this
context as ‘considerations of fairness, reasonableness, and policy often necessary for
the sensible application of the more settled rules of law’,69 plays a particularly
significant role in the establishment, operation and application of the rules of
international natural resources law.70 As the concept of equity and particular equitable
principles are to be found in many national legal systems, equity can play a role as a
component of the corpus of norms that constitute international law.71 That international
tribunals may be entitled to apply equitable principles without the express authorisation
of the parties to an inter-State dispute was confirmed by Judge Hudson in the River
Meuse case, where he stated that ‘[w]hat are widely known as principles of equity have
long been considered to constitute a part of international law, and as such they have
often been applied by international tribunals’.72 The language of equity has long been
central to international natural resources law. Consider, for example, the principles of
intra-generational equity73 and inter-generational equity,74 which have emerged in the
context of the law relating to sustainable development and which seek, respectively, to
ensure some measure of fairness in the utilization of natural resources as between
66
Maljean-Dubois, (n 27), 44.
67
Birnie, Boyle and Redgwell (n 10), 28.
68
For example, Maljean-Dubois (n 27), 44.
69
I Brownlie, Principles of Public International Law, (4th edn, OUP 1990), 26. See also,
Lowe, ‘The Role of Equity in International Law’ (1992) 12 Australian Yearbook of International
Law 54.
70
See further, O McIntyre, ‘Utilisation of Shared International Freshwaters – The Meaning
and Role of “Equity” in International Water Law’ (2013) 38 Water International 112. See also,
TM Franck, Fairness in International Law and Institutions (Clarendon 1995), 56.
71
Lowe (n 69), 55.
72
Diversion of Water from the River Meuse (Netherlands v Belgium) PCIJ Series A/B No
70, 76–77.
73
L Rajamani, Differential Treatment in International Environmental Law (OUP 2006); P
Cullet, Differential Treatment in International Environmental Law (Ashgate 2003); DB Magraw,
‘Legal Treatment of Developing Countries: Differential, Contextual and Absolute Norms’ (1990)
1 Colorado Journal of International Environmental Law and Policy 69.
74
E Brown Weiss, In Fairness to Future Generations: International Law, Common
Patrimony, and Intergenerational Equity (United Nations University 1989); C Redgwell,
Intergenerational Trusts and Environmental Protection (University of Manchester Press 1999).
developed and developing States and as between present and future generations.
Similarly, since 1978 the United Nations Environment Programme (UNEP) has
considered equity to be the key requirement in inter-State cooperation ‘with a view to
controlling, preventing, reducing or eliminating adverse environmental effects which
may result from the utilisation of […] [shared natural] resources’.75 Indeed, in 1974 the
ICJ sought an ‘equitable solution for the allocation of shared fisheries stocks’.76
International natural resources law increasingly relies on equity in declaratory and
conventional instruments, with high-profile examples including Principle 3 of the 1992
Rio Declaration and articles 1 and 15(7) of the 1992 Biodiversity Convention. Of
course, the concept of equity is absolutely central to the principle of sustainable
development, the overarching objective of modern natural resources law universally
accepted by States at UNCED in Rio, and this has prompted Sands and Peel to remark
that, ‘[i]n many respects, UNCED was about equity’, largely because, ‘[i]n the absence
of detailed rules, equity can provide a conveniently flexible means of leaving the extent
of rights and obligations to be decided at a subsequent date’.77 This trend continues
with articles 9 and 10 of the International Law Commission’s 2001 Draft Articles on
the Prevention of Transboundary Harm from Hazardous Activities, requiring States to
seek ‘acceptable solutions regarding measures to be adopted in order to prevent
significant transboundary harm … based on an equitable balance of interests’.78
2.4 Judicial and Arbitral Tribunals
Although described as a ‘subsidiary’ source of law under article 38(1), the judicial and
arbitral decision-maker ‘plays a particular role in the natural resources field both by
participating in the legal formulation of principles and rules and by implementing them,
and thus contributing to their effectiveness’.79 Consider, for example, the ICJ’s
recognition of the binding legal character of the principle of ‘sustainable development’
in Gabčíkovo-Nagymaros, which it understood as the ‘need to reconcile economic
development with protection of the environment’,80 and the Court’s finding in Pulp
Mills that application of the principle of sustainable development to large-scale
construction projects translates into:
75
UNEP Draft Principles on Conduct in the Field of the Environment for Guidance of
States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or
More States, UNEP Governing Council Decision 6/14, 17 ILM 1097 (19 May 1978).
76
Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 3; Fisheries Juris-
diction (United Kingdom v Federal Republic of Germany) [1974] ICJ Reports 174.
77
Sands and Peel (n 12), 213–14.
78
ILC, Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities,
‘Report of the International Law Commission on the Work of its 53th Session’ (2001) UN Doc
A/56/10.
79
Boisson de Chazournes (n 7), 17.
80
Gabčíkovo-Nagymaros Case (n 32).
tion: 15 / Date: 15/3
a requirement under general international law to undertake an environmental impact

assessment where there is a risk that the proposed industrial activity may have a significant
adverse impact in a transboundary context, in particular, on a shared resource.81
Although there is no formal doctrine of precedent in the ICJ or in other international

courts or arbitral tribunals, judicial and arbitral decision-makers provide an authorita-
tive determination of the current state of the law and of its correct practical application
to factual situations. Thus, such decisions provide ‘a source of identification and
interpretation rather than creation of law’, but contribute to the development of
international law through a process of ‘normative accretion’.82 Through the accumu-
lation of decisions and awards, judicial and arbitral decision-makers can provide the
clarity required to help practitioners to navigate the burgeoning and complex corpus of
interrelated international rules, which are intended to balance the multi-dimensional
conflicting interests of the parties in dispute. Indeed, international courts will often
simply set out and elaborate upon the legal principles applicable in a given dispute in
order that the parties may themselves cooperate in its effective resolution.83
International courts and tribunals have been pronouncing on natural resources
matters since the Fur Seals arbitration of 1893,84 and commentators agree that States
are increasingly likely to submit such disputes to adjudication and arbitration.85 Sands
and Peel point out86 that inter-State disputes submitted to such formal third-party
dispute resolution have concerned, inter alia, the diversion or damming of international
rivers,87 the conservation of fisheries resources,88 the protection of the marine environ-
ment,89 import restrictions on living resources conservation grounds,90 procedural
obligations to notify and consult in respect of potentially harmful activities,91 environ-
mental impact assessment,92 the rehabilitation of lands after mining activities,93
81
Pulp Mill on the River Uruguay (n 46), 83.
82
Maljean-Dubois (n 27), 45, quoting Abi-Saab (n 41), 129 and 131.
83
See, for example, the Judgment of the ICJ in Gabčíkovo-Nagymaros (n 32).
84
‘Fur seal arbitration; Proceedings of the Tribunal of arbitration, convened at Paris, under
the treaty between the United States […] and Great Britain, concluded at Washington, February
29, 1892, for the determination of questions between the two governments concerning the
jurisdictional rights of the United States in the waters of Bering Sea’ (Arbitral Award of 15
August 1893).
85
See eg Sands and Peel (n 12), 137 and Maljean-Dubois (n 27), 45.
86
Sands and Peel (n 12).
87
Lac Lanoux Arbitration (Spain v France) (1957) 24 ILR 101, Gut Dam Arbitration
(United States v Canada) (1969) 8 ILM 118, Gabčíkovo-Nagymaros Project (n 32).
88
Fisheries Jurisdiction Case (n 76), Southern Bluefin Tuna Cases (No 2 & 3) (New
Zealand v Japan) (Provisional Measures, Order of 27 August 1999).
89
MOX Plant Case (No 10) (Ireland v. United Kingdom) (Provisional Measures, Order of
3 December 2001).
90
United States – Measures on Yellow-Fin Tuna Imports, GATT Doc./ DS21/R (1991);
United States: Import Prohibition on Certain Shrimp and Shrimp Products, (1999) 38 ILM 118.
91
Pulp Mills on the River Uruguay (n 46).
92
Gabčíkovo-Nagymaros Case (n 32).
93
Certain Phosphate Lands in Nauru (Nauru v Australia), [1992] ICJ Rep 240.
environmental obligations in respect of seabed activities,94 and marine protected

areas.95 In addition to the decisions of the ICJ and arbitral tribunals in cases which are
directly concerned with natural resources issues, the decisions of other courts and
tribunals are relevant to the development of rules of international natural resources law,
including the International Tribunal of the Law of the Sea (ITLOS), international
investment arbitration tribunals established under the auspices of the International
Centre for the Settlement of Investment Disputes (ICSID) or NAFTA/UNCITRAL,
regional human rights courts, and the Dispute Settlement Body and Appellate Body of
the WTO.
2.5 Publicists
While the work of the ‘most highly qualified publicists’ referred to by article 38(1) of
the ICJ Statute will be cited by international courts and tribunals from time to time, and
relied upon by practitioners of international law to inform their understanding of the
rules and principles that they seek to obey, apply and develop on a daily basis, the
impact of such doctrine is ‘difficult to quantify’.96 However, certain of the codifications
prepared by the International Law Commission (ILC) and by learned associations, such
as the Institute of International Law (IIL/IDI) and the International Law Association
(ILA) can be extensively relied upon. For example, practically every modern agreement
on shared international watercourses has substantially followed or deferentially referred
to the ILA’s seminal 1966 Helsinki Rules on the Uses of the Waters of International
Rivers,97 while the ICJ has on numerous occasions relied heavily on draft articles and
related commentaries prepared by the ILC.98
3. LAWMAKING IN INTERNATIONAL NATURAL RESOURCES

LAW BEYOND ARTICLE 38
In seeking to explain the peculiarities of international natural resources law it is useful
to focus on some of the characteristics of the technical processes of international
lawmaking in this field, as well as on the sources of this body of rules. Among such
peculiarities is that of the key role played by non-binding ‘soft-law’ instruments in the
94
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area (No 17) (Advisory Opinion of 1 February 2011).
95
ITLOS Press Release, ‘Three arbitrators appointed by the president of the tribunal in the
arbitral proceedings instituted by Mauritius against the United Kingdom in respect of the dispute
concerning the “Marine Protected Area” related to the Chagos’, ITLOS/Press 164 available at
<http://www.itlos.org/fileadmin/itlos/documents/press_releases_english/press_164_eng.pdf>
96
97
Adopted by the International Law Association at the 52nd conference, held at Helsinki in
August 1966; Report of the Committee on the Uses of the Waters of International Rivers
(London, International Law Association 1967).
98
For example, Maljean-Dubois (n 27), 45, that the Court relied to a significant degree on
the work of the Commission in its decision in the Gabčíkovo-Nagymaros Case (n 32),
‘particularly on the notion of the state of necessity’.
development of relevant rules of international law.99 Maljean-Dubois highlights the

complexity of the issues falling within the scope of modern international law relating to
natural resources pointing out, for example, that the boundaries of the closely related
concept of ‘environment’ remain fluid, sometimes including cultural heritage and
landscape and encompassing understandings that oscillate between anthropocentric and
ecocentric values.100 Further peculiarities include the shifting of the traditional bound-
aries between international, transnational and municipal law in the field of natural
resources and the resulting involvement of new actors, as well as the integration of
natural resources and environmental norms into other fields of normativity.
3.1 Reliance on ‘Soft Law’
As many leading commentators have noted, ‘[i]t is a feature of environmental law [and
by implication natural resources law] that it is characterized by the production by States
of numerous forms of non-binding declarations and guidelines and non-binding sets of
rules and standards’.101 Although first employed in the field of international economic
law, the role of so-called ‘soft-law’ instruments in the formation of rules of inter-
national natural resources law cannot be over-stated.102 While casting doubt on the
customary status of a range of purported norms of customary international law and
characterising them instead as ‘declarative’, Bodansky concedes that such norms have
an important role in voluntary compliance and in terms of bilateral and multilateral
negotiations, concluding that they:
can play a significant role by setting the terms of the debate, providing evaluative standards,
serving as a basis to criticize other states’ actions, and establishing a framework of principles
within which negotiations may take place to develop more specific norms, usually in
treaties.103
Dupuy suggests the key role of soft-law in influencing State practice and thus in the
generation of custom, stating that such guidelines:
have penetrated gradually into contemporary State practice. In certain cases, these guidelines
bring an important contribution to the definition of international standards on the basis of
which the due diligence to be expected from “well-governed” modern States can be
established.104
99
See gen D Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms
in the International Legal System (OUP 2000), 121–242.
100
Maljean-Dubois (n 27), 27ff. See eg the ICJ’s rather anthropocentric conception of the
‘environment’ in its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of
Nuclear Weapons (n 46), 242 para 29, quoted in the Gabčíkovo-Nagymaros case (n 32), 3
para 53.
101
MA Fitzmaurice, ‘International Environmental Law as a Special Field’ (1994) 25
Netherlands Yearbook of International Law 181, 199.
102
On the origins of ‘soft-law’, see Fitzmaurice, ibid, 200–201.
103
Bodansky (n 42), 118–19.
104
Dupuy (n 45), 61.
He also highlights the role of such soft-law norms in the interpretation of binding
‘hard-law’ norms of international law.105 Hohmann, on the other hand, regards the
primary role of soft-law instruments in the identification of customary rules in this area
as that of ‘the solidifying of indicators for a documentation of the opinion juris’ of
States.106
3.2 Technical Complexity and the Role of International Institutions
As international lawmaking regarding natural resources comprises, almost by defin-

ition, the adoption of technically complex rules capable of impacting significantly upon
the economic policies and developmental aspirations of States, a wide range of
international institutions play an essential role in facilitating inter-State agreement. The
UN and its various specialised and regional agencies and programmes ‘have played a
leading role in setting lawmaking agendas and providing negotiating forums and
expertise’.107 Of course, consistent with the objective of sustainable development, many
international institutions, which are primarily concerned with fields other than those of
natural resources use and environmental protection, can play key roles in the elabor-
ation of relevant rules and standards. For example, institutions charged with the
regulation of international trade or the settlement of international investment disputes
have the potential to influence the outcomes, as they relate to natural resources, of the
activities with which they are concerned.
It is also quite clear that the technical complexity of the issues underlying this area of
international law, dictates that scientific expertise plays an absolutely central role in
lawmaking and requires intense interaction between scientists and lawyers at every
stage in its development and application, as ideally occurs within international
institutions for the cooperative management of shared international water resources.
This ‘permanent dialogue between science and law becomes a source of difficulty
when there is disagreement between scientists’ making clear the need for sophisticated
international institutions to inform the decision-making process, as has happened in the
past in relation to the international climate regime, thus highlighting the significance of
the work of the Intergovernmental Panel on Climate Change (IPPC).108 However, the
majority of conventional natural resources regimes utilise scientific institutions to
address technical and scientific questions and thereby assist the regimes’ progressive
evolution. Based on the experience of the IPCC, in April 2012 the international
community established a similar institution in the field of biodiversity, the Inter-
governmental Platform on Biodiversity and Ecosystem Services (IPBES), which is
designed to address the fact that ‘decision-makers need scientifically credible and
independent information that takes into account the complex relationships between
biodiversity, ecosystems services and people.’109
105
ibid, 62.
106
H Hohmann, Precautionary Legal Duties and Principles of Modern International
Environmental Law (Graham & Trotman 1994), 336.
107
Birnie, Boyle and Redgwell (n 10), 13.
108
Maljean-Dubois (n 27), 29–30.
109
See <http://www.ipbes.net/about-ipbes.html>.
3.3 Multi-level Governance
As with international environmental law, international natural resources lawmaking is

characterised by multi-level governance, where rules may be adopted, and may apply
simultaneously, at the bilateral, regional and global levels. Over time, as our under-
standing of the interconnected nature of many resources and of the environmental
impacts of their use has deepened, the focus of States in lawmaking has shifted from
bilateral arrangements intended to ensure the minimum cooperation necessary among
neighbours to multilateral arrangements intended to protect the regional or, increas-
ingly, global common interest of States. Whereas normatively inconsistent regimes at
different levels may give rise to confusion, and a lack of shared values at the global
level may cause concern over a Western bias, the principle of common but differenti-
ated responsibility can play a key role in reconciling such differences. While regional
cooperation remains important, and often more effective, especially as regards discrete
localised resource and ecological units, such as regional seas or shared river basins, the
shift to global arrangements involves a fundamental change in the underlying objective
of international natural resources law, so that ‘the most convincing characterization is
no longer that of neighbourly relations, but of environmental trusteeship … [and] a
concern for community interests at a global level, not merely those of states inter se.’110
It is quite clear that ‘[i]nternational actors and institutions bring their own values and
priorities into resource management’.111 Of course, this shift inevitably involves
profound change in the practice of this field of international law which ‘constitutes a
real revolution in terms of technique, procedures and legal concepts’.112 Indeed,
Maljean-Dubois goes so far as to suggest that this tendency in international natural
resources and environmental law leads the way in the ‘communitarization’ of States on
a global scale, going beyond traditional ‘liberal’ international law, with limited
functions of regulation and coexistence and based on reciprocal obligations, ‘“to a
multifunctional providential law, regulating the life of States and individuals and
considered the ultimate guardian of collective well-being” […] the implementation of
which does not depend on a corresponding implementation by the other parties’.113
Noting the new, non-traditional roles played by the various rules, standards and
procedures which are continually emerging from the numerous actors involved in the
lawmaking process, one leading commentator observes that this field of international
law ‘incites, accompanies and guides expected behavioral changes; it legitimizes new
situations, and contributes to the elaboration of a politically accepted language’ and that
‘[a]ll normative means are useful to this end’.114 Boisson de Chazournes cites the
example of ‘the ISO 26000 norms, the normative effects of which could be important,
[but which] cannot find their place in the classical structure of the sources of
110
Birnie, Boyle and Redgwell (n 10), 39. See Maljean-Dubois (n 27), 33.
111
Blanco and Razzaque (n 1), 4.
112
Maljean-Dubois, (n 27), 33.
113
ibid, 34, quoting from various writings by E Jouannet.
114
Boisson de Chazournes (n 7), 10. See also, Maljean-Dubois, (n 27), 33, who notes, at 27,
that this field is ‘[s]ometimes presented as the most vigorous and innovative field of international
law – as a “laboratory” for tomorrow’s international law’.
international law’.115 Of course, standards adopted by the International Organization for

Standardization (ISO) provide a prime example of informal rules which may be
explained by the phenomenon of ‘global administrative law’, employed to address the
rapidly changing realities of transnational regulation, which increasingly involves, inter
alia, various forms of industry self-regulation, hybrid forms of private-private and
public-private regulation, network governance by State officials, and governance by
inter-governmental organizations with direct or indirect regulatory powers. Proponents
of such an analysis of many of the modern forms of international natural resources and
environmental rules suggest that these disparate regulatory regimes, some voluntary
and some mandatory, and operating at various levels (sector-specific, national, regional
and global),
together form a variegated “global administrative space” that includes international insti-
tutions and transnational networks involving both governmental and non-governmental actors,
as well as domestic administrative bodies that operate within international regimes or cause
transboundary regulatory effects.116
Kingsbury elsewhere explains that the identification of such a ‘global administrative

space’ ‘marks a departure from those orthodox understandings of international law in
which the international is largely inter-governmental, and there is a reasonably sharp
separation of the domestic and the international’, and that it reflects the practice of
global governance, whereby ‘transnational networks of rule-generators, interpreters and
appliers cause such strict barriers to break down’.117 In the specific context of
international lawmaking for natural resources, Blanco and Razzaque note that ‘trans-
national social and economic actors (eg multinational corporations, non-governmental
organisations) have become forceful in the global context and play a crucial role in
natural resource management’, before concluding that ‘[w]eak regulation or exclusion
from relevant governance institutions of non-state actors needs to be superseded by an
inclusive system of participation and responsibility’.118
3.4 Sophisticated Participatory Processes
It is quite clear that practically all relevant instruments of international law would now
be interpreted and applied so as to require that States generally facilitate a participative
approach in respect of natural resources projects or policies, by ensuring the adoption
of procedures by which interested or affected groups, individuals or communities can
115
Boisson de Chazournes (n 7). The standards set out under ISO 26000 provide guidance
on how businesses and organisations can operate in a socially responsible way, assisting them to
act in an ethical and transparent manner that contributes to the health and welfare of society. See
<http://www.iso.org/iso/home/standards/iso26000.htm>.
116
B Kingsbury, N Krisch, RB Steward and JB Wiener, ‘Global governance as adminis-
tration: national and transnational approaches to global administrative law’ (2004–2005) 68 (3 &
4) Law and Contemporary Problems 1, 3. See also, C Harlow, ‘Global administrative law: the
quest for principles and values’ (2006) 17 European Journal of International Law 187.
117
B Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 European
Journal of International Law 23, 25.
118
Blanco and Razzaque (n 1), 3–4.
tion: 21 / Date: 15/3
receive and access relevant information, meaningfully participate in decision-making

and, if necessary, have access to some appropriate means of legal recourse.119 For
example, in the Ogoni case the African Commission on Human Rights gave a broad
participative reading to article 24 of the African Charter on Human and Peoples’
Rights, which acknowledges all peoples’ right to a generally satisfactory environment,
to include specific procedural guarantees concerning the carrying out of environmental
and social impact assessment.
Similarly, the Inter-American Commission on Human Rights has, in the context of
article 11 of the 1988 Additional Protocol, repeatedly recommended the adoption of
domestic legislation providing for meaningful and effective participatory mechanisms
for indigenous peoples in the adoption of political, economic and social decisions that
affect their interests.120 In the Awas Tingni Mayagna (Sumo) Indigenous Community
case,121 the Inter-American Court of Human Rights recognised, in the context of article
21 of the American Convention on Human Rights guaranteeing the right to property,
related participatory rights for indigenous peoples in the case of activities relating to
the exploitation of natural resources.
Quite apart from the inference of procedural rights and duties in the natural resources
and environmental sphere into human rights instruments, in recent years multilateral
development banks and other development agencies have played a major role in
implementing the procedural aspects of sustainable development through the appli-
cation of their environmental and social safeguard policies.122 Such policies routinely
employ procedures for environmental and social impact assessment of development
proposals and for meaningful and inclusive consultation with persons likely to be
affected as well as other stakeholders.123 Of course, such environmental and social
safeguard policies and participative procedures fall squarely within the rubric of the
‘global administrative law’ phenomenon outlined above.
119
See gen, P Cullet and A Gowlland-Gaultieri, ‘Local Communities and Water Investments’
in E Brown Weiss ao (eds), Fresh Water and International Economic Law (OUP 2005) 303.
120
See, Inter-American Commission on Human Rights, chapter X to the Second Report on
the Situation of Human Rights in Peru; chapter IX to the Report on the Situation of Human
Rights in Ecuador, Inter-American Commission on Human Rights, OEA/Ser.L/V/II.96, doc 10
rev. 1 (Recommendations) (24 April 1997); Case 7615 (Brazil), Inter-American Commission on
Human Rights, 1984–1985 Annual Report 24, OEA/Ser.L/V/II.66, doc. 10, rev. 1 (1985), the
Yanomami case. See Cullet and Gowlland-Gaultieri, ibid, 314–15.
121
Awas Tingni Mayagna (Sumo) Indigenous Community v Nicaragua [2001] Inter-
American Court of Human Rights Series C No 79 (31 August 2001). See also, Guerra and
Others v Italy (1998) 26 EHRR 357.
122
See eg, G Handl, Multilateral Development Banking: Environmental Principles and
Concepts Reflecting General International Law and Public Policy (Kluwer Law International
2001).
123
See eg the ‘Environmental and Social Policy 2014’ of the European Bank for
Reconstruction and Development (EBRD) available at http://www.ebrd.com/what-we-do/
strategies-and-policies/approval-of-new-governance-policies.html#a1
tion: 22 / Date: 15/3
3.5 Fragmentation vs Integration
Despite concerns over the general ‘fragmentation‘ of international law, recognizing the
emergence of specialized and relatively autonomous spheres of legal rules and
institutions,124 international natural resources and environmental norms have tended to
be ‘pervasive’ and have proved capable of finding ‘many ways of penetrating other
bodies of norms, whether by inserting specific norms […] into other bodies of norms,
or through techniques of interpretation or, even by resorting to rules defining the
relationships between the different bodies of norms.’125 Natural resources and environ-
mental considerations are included among the few exceptions permitted to the free
trade rules contained under GATT and redress for breach of natural resources and
environmental norms and standards is routinely sought under international human
rights law. Indeed, the WTO Dispute Settlement Procedures and the administrative and
judicial enforcement bodies established under regional human rights conventions
provide a very important avenue for the enforcement of relevant international standards
and the settlement of related disputes. For example, the 1997 report on Ecuador of the
Inter-American Commission on Human Rights found that the ‘considerable risk posed
to human life and health by oil exploration activities […] through, inter alia,
contamination of water supplies’126 could impact upon the right to life and the duty to
protect the physical integrity of the individual under the 1969 American Convention on
Human Rights.127
In addition, it is increasingly likely that recently established natural resources and
environmental rules may even be integrated into pre-existing treaty arrangements
through techniques of interpretation based on article 31(3)(c) of the Vienna Convention
on the Law of Treaties.128 Applying this interpretive requirement, the Arbitral Tribunal
in the Iron Rhine case:
124
See ILC, ‘Fragmentation of International Law: Difficulties arising from the Diversifica-
tion and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/L.682; M Kosken-
niemi, The Politics of International Law (Hart Publishing 2011), 67 and 337; P Webb,
International Judicial Integration and Fragmentation (OUP 2013).
125
126
Inter-American Commission on Human Rights, ‘Report on the Situation of Human
Rights in Ecuador’, OEA/Ser.L/V/II.96, Doc 10 rev. 1 (24 April 1997).
127
American Convention on Human Rights (adopted 22 November 1969, entered into force
18 July 1978) 1144 UNTS 123, (1969) 9 ILM 673, (1971) 65 American Journal of International
Law 679.
128
January 1980) 1155 UNTS 331(VCLT).
art 31(3)(c) provides that, in interpreting a treaty,
‘There shall be taken into account, together with the context:
(c) any relevant rules of international law applicable in the relations between the parties.’
applied concepts of customary international environmental law to treaties dating back to the
mid-nineteenth century, when principles of environmental protection were rarely if ever
considered in international agreements and did not form any part of customary international
law.129
Boisson de Chazournes suggests that this approach ‘provides an opportunity to take a

major step forward, offering a sort of modernization of treaties through an interpret-
ation, which takes contemporary environmental requirements into account’.130 The ICJ
has given qualified support to this approach, recognising that treaty terms are, in some
situations, capable of evolving so as to make allowance for developments in inter-
national law.131 However, the Permanent Court of Arbitration in the recent Indus Waters
Kishenganga Arbitration has found unequivocally that ‘[i]t is established that principles
of international environmental law must be taken into account even when (unlike the
present case) interpreting treaties concluded before the development of that body of
law’.132
129
Iron Rhine Arbitration (n 11), para 58.
130
131
Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judg-
ment) [2009] ICJ 213, para 64. See also Case Concerning the Gabčíkovo-Nagymaros Project (n
32); Pulp Mills on the River Uruguay (n 46), para 204.
132
Indus Waters Kishenganga Arbitration (Pakistan v India), Partial Award, 18 February
2013, para 452 (available at < http://www.pca-cpa.org/showpage.asp?pag_id=1392>)
Index
Aarhus Convention 102, 131, 421, 438 analytical legal positivism 15, 29–30, 53, 56,
Aarhus Compliance Committee 243–4, 57, 64–5
251–2, 254, 258–9, 300 Antarctic Treaty 20–21, 121, 122
abuse of rights 452, 454 anti-personnel mines 37, 293
academics see scholars, lawmaking by Anti-Slavery International (ASI) 294
accountability 22, 40, 198, 356, 394 apartheid 294
financial regulation 262, 263, 265, 269, application, distinguishing lawmaking from
270–271, 272, 282, 284, 285–6 law 5, 69–70, 182, 223, 238, 240
FSB 283 arbitrage, regulatory 267, 281, 282
G20 273, 279, 281 arbitral tribunals 218, 261, 300, 457, 458
global administrative law (GAL) 83–4 environment 430, 433–4, 437
IAMs 186 general principles 168–9
international investment 308–9
international financial institutions (IFIs) 420
Argentina 214, 275
MEAs: conferences of the parties (COPs)
armed attack 207
427 Arms Trade Treaty (ATT) 109
NGOs 301–2, 303, 304 Article 38 of Statute of ICJ 68, 70, 74
policy-oriented approach 47 applicable law 50
quasi-judicial bodies 242, 245, 250, 251, custom 135, 139, 146, 148–50, 153, 158,
260 346
accounting standards 59, 82 domestic courts (Art 38(1)(d)) 231
acquiescence 232, 239, 240 ex aequo et bono 309
activism general principles 160, 161, 165, 167, 169,
civil society 293, 351 454
judicial 128, 367, 391, 394 international criminal law 363–5, 381–2
political 144, 317 judicial decisions 202–3
scholars 313, 317–19, 324 move away from 53
ad hoc international criminal tribunals natural resources 446–7, 454, 456, 458
212–13, 215–16 quasi-judicial bodies 242
ICTR see International Criminal Tribunal scholarship (Art 38(1)(d)) 306–10, 324, 458
for Rwanda two-element approach 139, 146, 148–50,
ICTY see International Criminal Tribunal 153, 158
for the former Yugoslavia Austin, J 71–2, 81
adoption of treaty text 87–8, 105–10, 113 Australia 275
Aegean Sea Continental Shelf 116 Austria 233
African, Caribbean and Pacific Group of autonomous institutional arrangements (AIAs)
States (ACP) 37, 417 121, 290, 297, 299–300
African Commission on Human Rights 463 autopoiesis 77–9, 355–6, 380, 387–91, 394
African Development Bank (AfDB) 245, aviation industry 183, 196
247–8
Agenda 21 105, 450 banks 197, 267
AIDS/HIV 186, 192, 298–9 Bank for International Settlements (BIS)
American Convention on Human Rights 153, 192, 274
214, 463, 464 Basel Committee on Banking Supervision
amicus curiae 260, 300, 432, 438 (BCBS) 187, 195, 196–7, 263–4, 268,
Amnesty International (AI) 59, 295 269–71
467
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/ Date: 15/3
central 195, 268, 269, 270, 271, 272, 273, accountability 301–2, 303, 304
275, 279, 280 definitions
development 301, 420, 463 civil society 287–9
regional 245–6, 247–8, 251 international lawmaking 289–90
Basel Convention on the Transboundary financial regulation 280, 283–4
Movement of Hazardous Wastes 437 legitimacy 292, 301–3, 304
conference of the parties (COP) 119, mapping and analysis of CS lawmaking
126–7, 425–6 290–301, 304
Belgium 233 see also non-governmental organizations
Bentham, J 42 climate change 3, 102, 120, 190, 428
Berne Convention on the Conservation of competitiveness 419
European Wildlife and Natural Habitats Intergovernmental Panel on (IPPC) 192,
Standing Committee 123, 124–5 460
best practices 59, 187, 188, 271 UN Framework Convention on (UNFCCC)
bilateral agreements 4, 421, 422, 427, 429
adoption of treaty text 106 conferences of the parties 108, 109–10,
conclusion of 115, 116–17 122–3, 187, 299, 427
international criminal law 359 Kyoto Protocol see separate entry
investment treaties (BITs) 434–5 NGOs 293, 299
natural resources 447, 461 trade law 434
negotiations 93, 97, 105, 106 cluster munitions 37, 293
biodiversity 444 codes of conduct 5, 90, 439, 445
Convention 293, 421, 436, 447, 450, 456 Codex Alimentarius 67, 186, 192, 193, 194,
IPBES 460 298
Bolivia 109 coercion, prohibition of
Bonn Convention on Migratory Species of treaty making 95–6
Wild Animals (1979) 436, 448, 450 Cold War 97
conference of the parties (COP) 123, 125 colonialism 294
boundary delimitations 207–8 neo- 337
Bourdieu, P 80 common but differentiated responsibilities
Brazil 272 428, 453, 455, 461
Bretton Woods system 264–7, 273, 278 common heritage of mankind 20–21
see also International Monetary Fund; common law systems 172, 227, 362, 364, 385,
World Bank 452
Briand-Kellogg Pact (1928) 368 communicative practices 66–9, 72–4, 81, 83,
84
Cambodia distinguishing lawmaking from law
Extraordinary Chambers in the Courts of application 69–70
(ECCC) 152–3, 358, 359, 361 linguistic turn: lawmaking in 68, 70–72, 79
Canada 63–4, 67 community interests 68, 221, 330, 461
EU-Canada Economic and Trade competition, regulatory 281
Agreement (CETA) 435 complexity 422, 460
capture, regulatory 270, 280 institutional lawmaking 184, 199
Čelebići prison camp case 19 international criminal law 356–62
child soldiers 371 negotiations: managing 100–101, 105
children’s rights 38, 294, 333 compliance mechanisms 119–21, 127,
Chile 214 299–300, 423, 428–9, 438, 441
China 73–4, 270–271, 272, 275, 401–2 conciliation 300
CITES (Convention on International Trade in conclusion of treaties 2, 13, 30, 111–12, 131
Endangered Species) 119, 123–4, 424, coercion 95–6
436 consent to be bound 112–17
civil law systems 172, 308, 361, 452 conferences of the parties (COPs) 4, 5–6, 111,
civil society 187, 194, 255, 286–304, 438 112, 296, 299, 300
/ Date: 11/3
Index 469
Basel Convention 119, 126–7, 425–6 Convention on Long-range Transboundary Air

evolution of treaty regimes 117, 128 Pollution 424
basis of powers 118–21 Executive Body 123, 125
instances of lawmaking 123–7 Convention on the Rights of the Child (1990)
types of powers 121–3 38, 294, 333
MEAs 187, 422–8 Convention on the Rights of Persons with
UNFCCC 108, 109–10, 122–3, 187, 299, Disabilities (2006) 103, 300
427 cooperate, duty to 93–4, 452
UNFCCC 187, 299, 427 Corfu Channel case 163, 171
consensus 108, 109–10 corporate social responsibility (CSR) 59,
principles, modalities, rules and 82–3, 297, 301
corruption 295, 296
guidelines 122–3
Council of Europe 129, 332
consensualism 14–15, 17, 21–2, 23–5, 30–31,
crimes against peace 368
212, 367 criminal law see international criminal law
general principles 164, 176 (ICL)
consensus 389, 410, 423, 424 critical legal scholars 15
adoption of treaty text 107–8 cultural imperialism 337
bypassing 109–10 cultural or natural heritage 21, 193
evolving treaty regime 119, 122, 129 customary international law 53, 76, 180, 289,
Financial Stability Board 275, 277 362
institutional lawmaking consensus: adoption of treaty text 108
new forms of 187 consent 13, 14, 18, 24
international human rights law 340, 351, cooperation 94
352 domestic courts 135, 148, 218, 227,
consensus as basis for custom 345–7 230–231, 432
consensus vs principles 347–9 emergence of 133–4, 157–9, 207, 208, 211,
ESCR Committee 255 453–4
ethically sensitive questions 343–5 bringing practice and theory closer 154–7
consent 7, 131 custom as principal source 134–7
state 13–31, 49, 182, 204, 332, 333, 346 practice 145–54
general principles 161, 163–5, 166, 173, theory 137–45
176 English law 227
international criminal law 383, 388, 390, general principles and 165–8, 174–5
392, 393 Greece 227
MEAs 424–5, 427–8 international criminal law 359, 360–361,
norm evolution, purposes of law and 362, 365, 370–1, 381, 387, 392, 393–4
15–21 ad hoc tribunals 152, 215–16, 360, 366,
sovereign equality and 15, 21–6 369, 370–371, 373, 376, 381, 382–3
territoriality 15, 26–30 child soldiers 371
to be bound by treaty 16, 105–7, 109, ICC 366, 367, 384
112–17, 120, 121 interpretation as spectrum 375
constitutionalism/constitutionalization 6, 7, precedent 385
42–3, 65, 198 terrorism 371–2, 385
construction, transnational (lex constructionis) international environmental law 143, 299,
29 430, 432, 447, 465
contemporaneity principle 450 international human rights law 141, 143,
Continental Shelf (Tunisia/Libyan Arab 330, 331, 334–8, 349–50, 362
Jamahiriya) (1982) 150 consensus as basis for custom 345–7
Convention against Torture (1984) 38, 295, enforced disappearance 339
359, 371 scholarly activism 318–19
Convention on the Law of the Sea (1982) 20, international organizations 144, 180
114, 117, 135, 180, 184, 436, 448–9, 450 natural resources 445, 447, 451–4, 465
/ Date: 11/3
NGOs 38, 144, 289, 299 joint criminal enterprise 370

scholars, lawmaking by 318–19, 321, 323 NAFTA 60–61
United States 227 domestic financial regulation 262, 266–7, 268,
269, 277, 279, 280, 281–2, 284
De Visscher, C 165 US 267, 270, 279, 281–2, 283, 284, 285
deformalization 4, 383, 385, 388, 390–391, domestic legal orders 188, 195, 197–8,
392, 393 213–14, 311
delegated lawmaking criminal law 365, 370, 372–3, 377, 384,
institutional 191–4 386
in WTO 413, 414–16 domestic courts see separate entry
democracy 44–5, 279, 288, 302 domestic financial regulation see separate
democratic deficit 141, 145 entry
majoritarianism and judicial review 351–2 general principles 161, 162–5, 166–7,
denationalization 57 169–70
derivatives 268, 273, 278, 281–2, 285 comparative analysis 174, 176
developing countries 402, 426, 428–9 international criminal law 164, 171–2,
common but differentiated responsibilities 174, 364, 365, 383
428, 453, 455, 461 natural resources 454–5
development banks 420 nullum crimen nulla poena sine lege 364
financial regulation 265–6, 267, 269, 272 NGOs 302
Financial Stability Board 277 dualism 198, 226–7, 230
HIV/AIDS medicines 186 due diligence and environment 431
intra-generational equity 445–6, 455–6 dynamic output-based approaches 51–2
Montreal Protocol 122, 424 dynamic participation-based approaches 45–8
WTO law 403–4, 440 dynamic pedigree-based approaches 52–3
development agencies 463 dynamic/evolutionary/evolutive interpretation
development banks 301, 420, 463 111, 112, 128–30, 131, 213, 345, 350,
regional 245–6, 247–8, 251 382, 449–50, 464–5
diplomatic conferences, multiplayer dynamism and staticism 6, 7, 33–4, 41, 54
negotiations at 97–105
Disabilities Convention (2006) 103, 300 economic relations and NGOs 301
Disappearances Convention (2006) 295, 339 effectiveness 84, 303, 304, 378, 389, 415,
Dispute Regarding Navigational and Related 420, 421, 426, 440, 441
Rights (Costa Rica v Nicaragua) 130 broad membership 269
Doha Round 97, 400–401, 413, 415, 418 cost- 432
domestic courts 66, 204, 300, 322, 384 quasi-judicial bodies 249
assessing lawmaking potential of decisions validity of rule and 335
of 241 efficiency-based approach 127
consubstantial norms 228, 229, 231, 232, enabling clauses 119, 120, 122, 398, 403–4,
235, 236, 238, 241 425–6
customary international law 135, 148, 218, enforced disappearance 295, 339
227, 230–231, 432 environment 3, 197, 415, 459
ECHR 129, 238 climate change see separate entry
environmental law 225, 233–4, 432 international environmental law see
EU law 61–2 separate entry
general principles 160, 218, 231 environmental (and social) impact assessments
international law 222–4 249, 254, 258, 259, 431, 452, 453, 457,
‘agents’: development of 239–40 463
decisions as facts 218, 230–231 epistemic biases 315–16
decisions as triggers 231–7, 239 epistemic pluralism 53–4
domestic judicial impact on 229–39 epistemological self-interests 54–5
engagement with 224–9 equality 348, 351
‘natural judges’ of 237–9 sex 294
/ Date: 15/3
Index 471
equitable and reasonable utilisation 444, 453 bases of powers of COPs and MOPs
equity 431, 445–6, 455–6 118–21
European Central Bank (ECB) 280 instances of lawmaking by COPs and
European Convention on Human Rights MOPs 123–7
(ECHR) 17, 112, 115, 128–30 judicial interpretative activity 128–30
domestic courts 129, 238 tacit acceptance 118
international criminal law 362 types of powers 121–3
liberty and security, right to 342 evolutionary/evolutive/dynamic interpretation
life, right to 342, 344 111, 112, 128–30, 131, 213, 345, 350,
living instrument 18, 128, 129 382, 449–50, 464–5
marriage 348 exchange of notes 116
nullum crimen sine lege 364
exchange rates 267
private and family life 343, 344
experts 191, 255, 257
sui generis 128–9
torture or inhuman or degrading treatment expertization 27, 29
340, 343, 349 Extraordinary Chambers in the Courts of
European Court of Human Rights (ECtHR) Cambodia (ECCC) 152–3, 358, 359, 361
111, 112, 207, 212–14, 218 extraordinary rendition 343
abortion 344 extraterritoriality 255–6, 264, 281–2, 285
consensus emerging 345–6, 348–9
criminal law 373 financial crises
customary international law 153 1930s 265
established practice amending Convention 1990s: Asian 271, 273
130 2007 onwards 190, 262, 269–70, 272, 279
evolutionary interpretation 128–30 financial regulation: hybrid bodies 195,
evolving HR as long as consensus in 196–7, 262–85
society 344 phase I: Bretton Woods 264–7
juvenile offenders, privacy of 340 phase II: rise of networks 267–72
know, right to 342, 343 post-crisis reforms 264, 272
life sentence, irreducible 349 Financial Stability Board 196, 264, 272,
same-sex couples 344, 347–8 273–80, 282–4
soft law 340, 343, 349 formality 276–7
state consent 15, 18 G20 190, 264, 272, 273–4, 276, 277–8,
unborn foetuses 344 279–80, 282
European Union 58, 183, 184, 196, 197 hierarchy 277–9
ACP countries 37 peer review 280
Court of Justice 185, 207 political involvement 279–80
general principles 166 procedural reforms 276–84
customary international law 147 Financial Stability Board (FSB) 196, 264,
EU-Canada Economic and Trade 272, 273–80, 282–4
Agreement (CETA) 435 Swiss association 276
EU-USA Transatlantic Trade and Financial Stability Forum (FSF) 271–2, 273
Investment Partnership (TTIP) 435 financial-reporting standards 268, 273
financial regulation 279, 280, 281–2, 284, fisheries 29, 63–4, 162, 204–5, 443–4, 449,
285 456, 457
financial-reporting standards 268 Fitzmaurice, Sir G 70, 90, 396
IAIS 269 Food and Agriculture Organization (FAO) 67,
primary and secondary law 61–2 93, 183, 192, 193
treaty negotiations 93, 103 food safety 59, 197, 415
WTO 406 see also Codex Alimentarius
euthanasia 348, 352 formalism 6, 45, 53, 75, 220, 331, 332, 346
evolution of treaty regimes 111–12, 117–32, international criminal law 355, 356–7, 361,
290 380, 381–7, 393
/ Date: 15/3
fragmentation of international law 4, 352, Germany 236

357, 464–5 Ghana 235–6
framework agreements 4, 94, 104, 249, 445, global administrative law (GAL) 34, 40, 51,
448–9, 450 65, 83–4, 188, 262–3, 269, 284, 462, 463
MEAs 422–8 quasi-judicial bodies 243
three-tiered approach 449 Global Environmental Facility (GEF) 193
free trade agreements 435 global systemically important financial
Friedmann, W 173 institutions (G-SIFIs) 278, 283
functionality 15, 26–30 globalization 3, 24–5, 26, 29, 31, 57, 287, 442
Furundzija 164, 171–2, 173, 209, 215, 370, gold standard 267
371, 376, 381, 382, 383 good faith 96, 206, 373, 454
governance 27–8
G7 271–2 distributed or shared 58
G10 269 global 58, 83, 84, 182–3, 191, 199, 462
G20 187, 189–91, 264, 272, 273–4, 276, theory 68–9, 81–3
277–8, 279–80, 282 Greece 148, 227, 233–4, 235
G22 272 Grotius, H 89, 137
Gabčíkovo-Nagymaros 450, 454, 455, 456, groupthink 279
458 Grundnorm 56–7
GATS (General Agreement on Trade in
Services) 267, 414–15 Hart, HLA 15, 16, 29–30, 56–7, 58, 80, 200,
GATT (General Agreement on Tariffs and 312, 331, 350–351
Trade) 73, 216, 265, 397–8, 399, hazardous chemicals
400–402, 448, 464 prior informed consent 298
Art XX 73, 217, 401–2, 436, 450 hazardous wastes 119, 126–7, 425–6, 437
chapeau of 434 health, right to 340, 341
waiver from treaty obligation 403–4 hermeneutics 306, 308
general principles 160–176, 193, 289 Higgins, R 46
as autonomous source of general rules HIV/AIDS 186, 192, 298–9
165–8 human dignity 74, 209, 348, 349, 351, 352,
domestic courts 160, 218, 231 375, 382
general assessment 175–6 human genome 21
identification of 162–5 human rights 44–5, 225, 228, 235, 438, 443
international criminal law 360–361, 365, customary international law 141, 143, 330,
373, 383, 384 331, 334–8, 349–50, 362
ad hoc criminal tribunals 171–2, 173, consensus as basis for custom 345–7
209, 377, 381, 382 enforced disappearance 339
national law 164, 171–2, 174, 384 scholarly activism 318–19
nullum crimen nulla poena sine lege 364, environment and 419, 420
369 European Union 166
definition of international crimes 173 international criminal law 362, 363, 369,
natural resources 454–6 371, 375, 377, 379
role of international courts and tribunals in making of international human rights law
development of 168–74, 208–9 186, 191, 212–14, 228, 329–53
role of states in promoting use of 174–5 consensus as basis for custom 345–7
genetic resources 444 consensus vs principles 347–9
Geneva Conventions 17, 19, 30, 36, 291, 359 ethically sensitive questions 343–5
combatants and civilians 66 judicial recognition 331, 338–49,
right to truth 339 350–353
Genocide (Bosnia and Herzegovina v Serbia legal positivism 330–338, 347, 350, 351,
and Montenegro) 170 352
Genocide Convention (1948) 295, 333, 359 NGOs 252, 292, 294–5, 300–301, 302,
Gény, F 137 333, 343
/ Date: 11/3
Index 473
quasi-judicial bodies 244–5, 248, 251, in practice 183–6

252, 255–7, 258 other international bodies 180–181
right to know 339, 341–3 delegation 191–4
treaties 332–4, 336–7, 350 informal 189–91
natural resources 458, 463, 464 networking 194–8
scholarly activism 317–19 new forms 187–9
see also individual conventions/covenants see also individual institutions
and courts intellectual property 186, 402
hybrid bodies: financial regulation 195, TRIPS Agreement 186, 402–3, 404–5, 406,
196–7, 262–85 413, 418
phase I: Bretton Woods 264–7 Inter-American Commission on Human Rights
phase II: rise of networks 267–72 463, 464
post-crisis reforms 264, 272 Inter-American Court of Human Rights 153,
Financial Stability Board 264, 272, 212–14, 257, 431, 463
273–80, 282–4 right to know 342–3
formality 276–7 sexual orientation 349
G20 264, 272, 273–4, 276, 277–8, inter-generational equity 431, 432, 445–6,
279–80, 282 455–6
hierarchy 277–9 interdisciplinarity 320
peer review 280 intergovernmental organizations (IGOs) 3,
political involvement 279–80 58–9, 77, 103, 193, 289, 290, 296,
procedural reforms 276–84 297–300, 301
hybrid forms and natural resources 462 natural resources 462
International Accounting Standards Board
IAEA (International Atomic Energy Agency) (IASB) 268
183 International Association of Insurance
ICANN (Internet Corporation for Assigned Supervisors (IAIS) 268, 269
Names and Numbers) 59, 187, 194 International Centre for the Settlement of
ICAO (International Civil Aviation Investment Disputes (ICSID) 216, 261,
Organization) 183 458
immunities 225–6, 231, 233, 235, 236, 240 International Commission on Intervention and
WTO: diplomatic privileges and 412 State Sovereignty 38
implied powers 120, 121, 123, 127, 413, 415, International Committee of the Red Cross
416, 418, 426 (ICRC) 38, 66, 147, 291
in dubio pro reo 364, 376, 377, 387 International Convention on the Prevention of
India 109, 270–271, 272, 301, 432, 433–4 Pollution from Ships (MARPOL) (1973)
indicators, global 67, 73–4 118
indigenous peoples 247, 256, 257, 431, 438, International Convention for the Safety of
463 Life at Sea (SOLAS Convention) (1974)
individuals 7, 19, 77, 188, 194, 197, 212 118
customary law creation 144 International Court of Justice (ICJ) 69, 218,
environmental law 244, 251–2, 427 222–3, 240, 295
international criminal law 392, 393 conclusion of agreements 116
crimes against peace 368 contemporaneity principle 450
quasi-judicial bodies 244, 250–252, 260 customary law 207, 208, 211
sanctions 185, 192 state practice and opinio juris 148–52,
WTO dispute settlement 186 167, 168
informal international lawmaking (INLAW) 4, treaties and 453–4, 465
6, 188–91 customs, regional or bilateral 165, 166
institutional lawmaking 179–99, 297–300 environmental law 429, 430–431, 433
global normative web 181, 198–9 formal role in lawmaking 202–3
international organizations 179–80, 181 general principles 162, 163, 165–6, 169–71,
definition 181–3 173, 208–9
/ Date: 15/3
equity 456 applicable law 160, 367, 377, 383–4, 386,

lawmaking authority 205–8 387
advisory opinions 209–11 Assembly of States Parties 121–2
unwritten law 208–9 Elements of Crimes 121–2, 358, 366, 367,
Legality of the Threat or Use of Nuclear 377, 384, 391
Weapons 25–6, 96, 150, 170, 180, 205, negotiations 38, 101, 102–3, 104
209–10, 430–431, 459 voting 108
limitations 204–5 precedent 386
natural resources 446–7, 450, 451, 452, Rules of Procedure and Evidence (RPE)
454, 455, 456–7 361, 384
NGOs 289 Statute 23, 121–2, 171, 360, 361, 365–6,
377, 384, 390, 393
quasi-judicial bodies 255–6, 259
applicable law 160, 367, 377, 383–4,
Reparation for Injuries Advisory Opinion
386, 387
17–18, 42–3 child soldiers 371
scholars, lawmaking by 306–10, 324, 458 subsidiarity 239
citation frequency analysis 322, 323 international criminal law (ICL) 225, 239,
state consent 15, 204 354–94
Statute: Art 38 68, 70, 74 CIL see under customary international law
applicable law 50 complexities 356–62
custom 135, 139, 146, 148–50, 153, 158, general principles 360–361, 365, 373, 383,
346 384
domestic courts (Art 38(1)(d)) 231 ad hoc criminal tribunals 171–2, 173,
ex aequo et bono 309 209, 377, 381, 382
general principles 160, 161, 165, 167, national law 164, 171–2, 174, 384
169, 454 nullum crimen nulla poena sine lege 364,
international criminal law 363–5, 381–2 369
judicial decisions 202–3 definition of international crimes 173
move away from 53 legality and substantive 362, 363–80, 389
natural resources 446–7, 454, 456, 458 interpretation as spectrum 373–8
quasi-judicial bodies 242 reclaiming legality 378–80
scholarship (Art 38(1)(d)) 306–10, 324, sources of ICL 363–73
458 NGOs 293, 295–6
two-element approach 139, 146, 148–50, precedent 384–5, 386, 388, 393
153, 158 Rules of Procedure and Evidence (RPE)
Statute: Art 59 208, 240 358, 361, 384
subsequent practice 130 source orthodoxy and dynamics of law
sustainable development 455 (re)production 380–391
International Covenant on Civil and Political International Criminal Tribunal for the former
Rights (ICCPR) 17, 218, 238, 294, 295, Yugoslavia (ICTY) 15, 19, 185, 218–19,
333, 334, 362 358, 359, 361, 388, 390–391, 393
Human Rights Committee 251, 255–6 command responsibility 372
marriage 348 compulsory jurisdiction 212
right to truth 341–2 consent, norm evolution and purposes of
International Covenant on Economic, Social law 19
and Cultural Rights (ICESCR) 294 creation vs determination of law 381–3, 385
ESCR Committee 244–5, 248, 251, 252, academic writings 386
255–6 precedent 384–5
General Comment No 15 256–7, 340–341 customary international law 152, 215–16,
International Criminal Court (ICC) 180, 358, 360, 366, 369, 370–371, 373, 376, 381,
359, 365–7, 372, 377–8, 380, 390, 391, 382–3
394 general principles 171–2, 173, 209, 381,
academics 386–7 382
/ Date: 11/3
Index 475
interpretation as spectrum 373–7 ad hoc tribunals 360, 369, 370, 375, 376,
joint criminal enterprise (JCE) 370, 376, 382, 390
385 combatants and civilians 66
teleological interpretation 209, 374, 375, customary international law 143, 146, 147,
376 360, 369, 370
war crimes 370 enforced disappearance 339
International Criminal Tribunal for Rwanda scholarly activism 318–19
(ICTR) 185, 219, 295, 358, 359, 361, general principles 163
390–391 NGOs 66, 291, 302
compulsory jurisdiction 212 scholarly activism 317–19
creation vs determination of law 381–2 International Labour Organization (ILO) 36,
67, 183, 194, 297
academic writings 386
International Law Commission (ILC) 38, 206,
customary international law 152, 215, 373,
290, 338
381 adoption of treaty text 106
interpretation as spectrum 373–6, 377 customary international law 148, 154–7
teleological interpretation 209, 374, 375 equity 456
international economic law 172, 238–9, 297, negotiations 89–90
459 watercourses 458
international environmental law (IEL) 4, 104, International Maritime Organization (IMO)
186, 225, 419–41, 443 118, 183, 193, 297–8, 429
Aarhus Convention 102, 131, 421, 438 International Monetary Fund (IMF) 183, 262,
Aarhus Compliance Committee 243–4, 264–6, 267, 271, 275, 284, 396
251–2, 254, 258–9, 300 Financial Sector Assessment Program
codes of conduct 439 (FSAP) 278, 280
customary international law 143, 299, 430, Financial Stability Board 278–9
432, 447, 465 Financial Stability Forum 271
environmental (and social) impact G20 and 190
assessments 249, 254, 258, 259, 431, international natural resources law see natural
452, 453, 457, 463 resources law, international
judicial lawmaking 225, 233–4, 429–34 International Organization of Securities
legitimacy 120, 427–8 Commissions (IOSCO) 195, 196, 264,
multilateral environmental agreements 268, 269, 275
(MEAs) see separate entry International Organization for Standardization
non-state actors 427, 438–40 (ISO) 62, 187, 194, 461–2
NGOs 253, 292–3, 297, 298, 299–300 international organizations 3, 27–8, 29, 39,
quasi-judicial bodies 246, 247, 253 42–3, 47, 58–9, 225, 260, 263, 269
Aarhus Compliance Committee see above customary law creation 144, 180
science 429, 432, 433, 439 definition 181–2
standards 439–40 evolution of treaty regimes 120
trade and investment law 434–7, 440–441 G20 and 190
UN Conference on Environment and implied powers 120, 121, 123, 127, 413,
Development (UNCED) 105, 293, 456 415, 416, 418, 426
water resources law and 444 institutional lawmaking 179–81, 189, 198
see also climate change; natural resources defining 181–3
law, international delegation 191–4, 192
International Finance Corporation (IFC) 186, in practice 183–6
245, 253 international criminal law 357, 358–60,
international financial architecture see hybrid 381, 387, 388, 389, 390
bodies: financial regulation negotiation of treaties 88, 102
international financial institutions (IFIs) 420 equality of negotiating parties, formal
international humanitarian law 26, 38, 104, 92–3
291, 317–19, 359, 382 participation 94
/ Date: 11/3
secondary lawmaking 411 Japan 108, 196, 406

VCLT-IO 92, 93 Jessup, P 58
see also individual organizations; joint communiqués 116
intergovernmental organizations; judicial activism 128, 367, 391, 394
non-governmental organizations judicial lawmaking, international 4–5,
international relations 42, 47, 82, 190, 324 200–221, 233, 236, 290, 428
international security law 293, 296–7 ad hoc international criminal tribunals see
International Swaps and Derivatives separate entry
Association (ISDA) 268 ECtHR see European Court of Human
international trade law see World Trade Rights
Organization evolutionary interpretation of treaty regime
International Tribunal for the Law of the Sea 128–30, 131
(ITLOS) 235, 429, 431–2, 433, 458 ICJ see International Court of Justice
internet (lex digitalis) 29, 59, 187, 194–5 Inter-American Court of Human Rights see
interpretation 69–70, 72, 73, 80–81, 117, 201, separate entry
345 interaction between courts and tribunals
contemporaneity principle 450 218–19, 220
customary international law 135, 360 international criminal law 356–7, 360–361,
domestic courts 223, 228, 231 379, 380, 392–4
domestic law and consistent 227 child soldiers 371
evolutionary/evolutive/dynamic 111, 112, interpretation as spectrum 373–8
128–30, 131, 213, 345, 350, 382, legality 365, 366, 367, 369–72
449–50, 464–5 legitimacy 387–91
general principles 173 source orthodoxy and dynamics of law
international criminal law 373–8, 380, (re)production 380–391
392–3 terrorism 371–2
ICC 367, 377–8, 386–7 international environmental law 225, 233–4,
international human rights law 213, 331, 429–34
350, 351, 352 international human rights law 331, 338–49,
judicial organ and treaty regime: 350–353
evolutionary 128–30 broadening existing rights 339–43
mutual supportiveness principle 435, 437 consensus as basis for custom 345–7
strict construction 364, 373, 374, 375, 376, consensus vs principles 347–9
377 ethically sensitive questions 343–5
subsequent agreement 111, 234, 406–9, maritime delimitation 208, 444
410, 418 natural resources 446–7, 450, 451, 452,
subsequent practice 111, 127, 130–131, 454, 455, 456–7
211, 231, 406–7, 409–10, 418 NGOs 300
teleological/purposive 17–18, 209, 373, WTO Appellate Body 193, 216–18, 401–2,
374, 375, 376–7, 392–3 406–10, 417, 418, 435–6, 450, 458
treaty bodies 119, 121–2, 125–6, 127 judicial lawmaking, national see domestic
WTO: authoritative 405–6 courts
interstitial (norms) 206 judicialization 5, 242–3, 249, 251, 358, 359,
intra-generational equity 445–6, 455–6 387, 392
investment law 168–9, 216, 225, 308–9, 430, Jurisdictional Immunities of the State
434–5, 437, 440–441 (Germany v Italy) 146, 149–50, 218
domestic courts 238 jurisgenesis 75–7
Isidor of Seville 137 jus cogens (peremptory norm) 23, 58, 95, 214,
ISSBs (international standard-setting bodies) 235, 236, 286, 294, 295, 372
263–4, 268, 274, 277, 278, 280, 284 juvenile offenders, privacy of 340
see also individual bodies
Italy 233, 236 Kant, I 71, 315
/ Date: 11/3
Index 477
Kelsen, H 56–7, 70, 311, 314–15, 316, 378, lex mercatoria 29

379 lex non scripta (unwritten law) 136, 201,
Keynes, JM 265 208–9, 335, 346, 351, 364, 365
Koh, H 1, 75, 82 see also customary international law;
Kosovo 185 general principles
Kupreskic 171, 209, 215–16, 347, 366, life, right to 340, 342, 348
370–371, 381, 382, 384, 385 linguistic turn 68, 70–72, 79
Kyoto Protocol (1997) 103, 187, 428 living instrument 18, 128, 129, 345, 396
evolving treaty regime 120 loan conditionality 187, 420
compliance mechanisms 119–20, 127, Lotus case 13–14, 25, 49, 240, 347
429
principles, modalities, rules and MacCormick, N 62–3
guidelines 122–3 McDougal, MC 45–6, 74
margin of appreciation 239, 344, 349
Lauterpacht, H 69, 133, 200, 201, 239–40 marine environment 431, 433, 452–3, 457
lawmaking treaty 88, 111–12, 128, 396, 447 maritime delimitation 208, 444
League of Nations 36, 106, 135, 210, 294 Maritime Delimitation and Territorial
legal certainty 250, 332, 335, 337, 362, 364, Questions between Qatar and Bahrain
383–4 116–17
legal personality 3, 5, 42–4, 45, 188, 360 Martens clause 134, 216, 370, 382
treaty bodies 121 medical devices industry 196
United Nations 17–18, 210 meetings of the parties (MOPs) 4, 5–6, 111,
legal pluralism 64–5, 77, 78 112, 243, 244, 299
legal positivism see positivism evolution of treaty regimes: COPs and 117,
Legal Realism 323 128
legality 29, 58, 62–5, 78, 347 basis of powers 118–21
general principle 164 instances of lawmaking 123–7
international criminal law 164, 360, 362, types of powers 121–3
363–80, 383, 387, 389, 392, 393 Merleau-Ponty, M 79–80
interpretation as spectrum 373–8 Mexico 275
sources of 363–73 Military and Paramilitary Activities in and
Rule of Recognition 57 against Nicaragua (1986) 149, 150, 170
Legality of the Threat or Use of Nuclear minutes of meeting 116–17
Weapons 25–6, 96, 150, 170, 180, 205, money laundering 186, 187
209–10, 430–431, 459 monism 198, 226–7
legitimacy 31, 59, 83, 130, 158, 198, 219 Montreal Protocol on Substances that Deplete
ECtHR 348 the Ozone Layer 119, 120, 122, 125–6,
financial regulation 262, 263, 265–6, 268, 424, 428
269, 270–271, 272, 282, 284, 285 morality 49, 60, 78, 79, 363, 371, 372, 392
Financial Stability Board 278, 282, 284 human rights 330, 336
G20 273, 279–80 NGOs 302–3, 304
general principles 161, 175 sovereign equality: political 22
international criminal law 355–6, 383, most-favoured-nation (MFN) standard 397,
387–91, 394 404
international human rights law 347, 348, multilateral environmental agreements
351, 352 (MEAs) 102, 111, 112, 290, 419,
MEAs 120, 427–8 420–429, 440–441
NGOs 292, 301–3, 304 evolution of treaty regime 120, 121, 122,
quasi-judicial bodies 260 125–7
standards 440 compliance mechanisms 119–20, 127,
legitimate expectations 67, 84, 217, 227, 421, 428–9
445–6 framework model 422–3
lex digitalis 29, 59, 187, 194–5 decision-making procedures 423–5
/ Date: 11/3
legal nature of COPs’ decisions 425–6 New Haven school 7, 33, 45–7, 52, 68, 74–5,
legitimacy concerns 120, 427–8 76, 82, 357
implied powers 426 New Public Management 288
investment treaties 437 New Zealand 148
non-state actors 438 no-harm principle 430, 452, 453–4
NGOs 297, 299–300 non liquet 210, 365, 384, 454
principles 428–9 non-bis-in-idem 172
Multilateral Investment Guarantee Agency non-discrimination 256, 348
(MIGA) 245 negotiation principle 92, 94
Multilateral Trade Agreements 121, 395, 405, trade 225, 397
413, 414, 418 non-governmental organizations (NGOs) 3,
multinational corporations 3, 5, 77, 82, 297, 29, 36, 77, 287–9, 290, 304, 438
302 accountability 301–2, 303, 304
environmental law 438, 439 criminal law 356–7, 390
natural resources 462 customary law creation 38, 144, 289, 299
multiplayer negotiations at diplomatic definition 288–9
conferences 97–105 human rights 292, 294–5, 300–301, 302,
333
NAFTA (North American Free Trade ESCR Committee 252
Agreement) 60–61, 435, 437, 458 right to know 343
Free Trade Commission 121 humanitarian law 66, 291, 302
national legal orders see domestic legal orders IMF 266
national treatment standard 266, 397 legitimacy 292, 301–3, 304
NATO (North Atlantic Treaty Organization) mapping and analysis of lawmaking
183 290–301, 304
natural law 21, 24, 48–9, 64, 69, 135 natural resources 462
general principles 161, 162, 164, 176 public and private authorities 59
international criminal law 354, 363–73, 378 quasi-judicial bodies 252, 253, 260
natural resources law, international 249, Aarhus Compliance Committee 251
442–65 treaty making 37–8, 98, 102–3, 105, 289,
complexity, technical 460 291–3, 294
customary international law 445, 447, World Bank 266, 301
451–4, 465 World Heritage Convention 193
equity 445–6, 455–6 non-state actors 32, 35–8, 39, 44, 45, 47, 58,
fragmentation vs integration 464–5 194, 260, 300
general principles of law 454–6 customary law creation 144
international conventions 447–51, 453–4 evolving treaty regime 131
international institutions 460 ILO 297
judicial and arbitral tribunals 456–8 international courts and tribunals 212
multi-level governance 461–2 international criminal law 388, 389
participatory processes 462–3 international environmental law 427,
publicists 458 438–40
soft law 445, 447, 458–60 NGOs 253, 292–3, 297, 298, 299–300
see also international environmental law legal personality 5, 43
negotiation see under treaty making natural resources 462
neo-colonialism 337 persisting state dominance and 39, 40
neo-liberalism 288, 297 systems theory 78
networking, lawmaking by 6, 27–8, 68–9, 82, treaty negotiations 37–8, 98, 102–3, 105,
188, 189, 194–9 291–3, 294, 389
financial regulation 195, 277, 281 UN Security Council 39
rise of networks 263–4, 267–72, 284 WTO 412
international criminal law 357, 362, 392 see also individuals; international
natural resources 462 organizations; multinational
/ Date: 11/3
Index 479
corporations; non-governmental quasi-judicial bodies 251–2

organizations pedigree 33–4, 41, 45, 53–5
normative accretion 205, 457 dynamic pedigree-based approaches 52–3
normative authority 2, 35 static pedigree-based approaches 48–51
normative hierarchy 236 peer reviews 275, 276, 277, 278, 280
normative pluralism 25, 363 peremptory norms (jus cogens) 23, 58, 95,
North Sea Continental Shelf cases (1969) 149 214, 235, 236, 286, 294, 295, 372
Norwegian Fisheries (United Kingdom v performativity 72
Norway) 162 Permanent Court of Arbitration (PCA) 36, 135
notes verbales, exchange of 116 international environmental law 300, 447,
notice-and-comment process 263, 270, 280, 464–5
Permanent Court of International Justice
283, 284
(PCIJ) 36, 50, 135, 148, 200, 230, 240
nullum crimen sine lege 364, 366, 368, 369,
general principles 167–8, 169
372, 374, 378 equity 455
Nuremberg International Military Tribunal Lotus case 13–14, 25, 49, 240, 347
(IMT) 354, 359, 368–9 state consent 13
state responsibility 207
OAS (Organization of American States) 183 persuasive authority 5–6, 219, 416
OECD (Organisation for Economic beyond 205–6
Co-operation and Development) 183, Peru 214
186, 192 pharmaceutical products 186, 196, 197, 404
Export Credit Arrangements 67 Philippines 432
Office of the Compliance pilot judgments 214
Advisor/Ombudsman (CAO) 245–6, 253 pluralization 6, 7, 32–4, 38, 44, 53–5, 261,
ombudsperson 235 392
Compliance Advisor Ombudsman (CAO) persisting state dominance 39–40
245–6, 253 ratione personae 35–8
onus probandi 173 Poland 148
Operational Policies and Procedures (OP&Ps) policy-oriented approach 46–7, 74
186 polluter-/user-pays principle 429, 445–6, 453,
opinio juris 137–8, 139–45, 146–54, 156, 455
157–8, 167, 208, 337, 370, 382, 393 positivism 56–62, 69, 74, 75, 310–312, 313
domestic courts 230 analytical legal 15, 29–30, 53, 56, 57, 64–5
European Court of Human Rights 346 beyond 62–5
international organizations 180 general principles 162
lawmaking by scholars 319 international criminal law 354, 356,
mystery 335 363–73, 378, 379, 380, 393, 394
natural resources 445 international human rights law 330–338,
opting out system/tacit acceptance 28, 117, 347, 350, 351, 352
118, 423 scholars and lawmaking 305, 314, 315–16,
Outer Space Treaty 20 319
output-based approaches, dynamic 51–2 positivismusstreit 314, 315
Oxfam 59 postnational rulemaking 2, 189
practice theory 79–81
pacta sunt servanda 16, 134 pragmatism 68, 80–81
Panama 67 precautionary principle 429, 431–4, 445–6,
participation 33, 34, 41, 53–5, 84 451, 453, 455
dynamic participation-based approaches precedent 290, 300, 364, 437, 457
45–8 ICJ 204, 206–7, 457
environment 243–4, 251–2, 258–9, 421 international criminal law 386, 388, 393
international agencies 194 ICTY 384–5
natural resources 462–3 NAFTA 61
/ Date: 11/3
WTO Appellate Body 217 rape 372, 382

prior informed consent 298 ratification 4, 87, 106, 114, 115, 116, 290,
privacy 299, 382
juvenile offenders 340 MEAs 423
private regulation 58–9, 60, 64, 187, 267–8, WTO 403
438, 440, 462 Raz, J 58, 62, 63
private sector 36, 58–9, 82, 194, 196, 263, realism 356–7
280, 283, 287, 438, 440 recognition of states 44–5
procedural law 213, 217, 453, 457 refugees 72–3, 81, 154, 186, 302
general principles of 173, 193 regime-building 104–5
international agencies 193–4 Reisman, M 74–5
international criminal law 361–2 reparation 173
Rules of Procedure and Evidence (RPE) Reparation for Injuries Advisory Opinion
358, 361, 384 17–18, 42–3
quasi-judicial bodies 242, 246–8 res judicata 163, 173
common procedural fairness principles Rio Declaration (1992) 258, 428, 429, 431,
249–52 446, 451, 454, 456
procedural rules on treaty negotiations 90–94 Roman law 19, 89
diplomatic conferences 99 Rule of Recognition 56, 57, 331, 350
voting 99, 106–10 rule-based approach 47, 48
process-based approach 46–7, 52, 75 Rwanda 147
proliferation of courts 4–5, 212–13, 357, 358, ICTR see International Criminal Tribunal
446 for Rwanda
proportionality 84, 415
Prosecutor v Furundzija 164, 171–2, 173, same-sex couples 343–4, 347–8, 349
209, 215, 370, 371, 376, 381, 382, 383 sanctions 185, 192
Prosecutor v Kupreskic 171, 209, 215–16, domestic courts and 234–5, 236
347, 366, 370–371, 381, 382, 384, 385 Saudi Arabia 108, 119
protectionism 265 Saussure, F de 71
public authority, exercise of international 34, Save the Children 294
41, 51, 52, 53–5, 84, 189, 198 Scelle, G 237–8
public regulation 60, 462 scholars, lawmaking by 66, 144, 290, 305–25
public-private partnerships 438 Article 38(1)(d) (ICJ Statute) 306–10, 324,
publicists see scholars, lawmaking by 458
Pulp Mills 259, 430, 431, 433, 456–7 criminal law 356–7, 380, 384, 385, 386,
Pure Theory of Law 306, 310 390
purposive/teleological interpretation 17–18, juridical view and its limitations 310–320
209, 373, 374, 375, 376–7, 392–3 activism 313, 317–19, 324
theory of legal science 313–17
quantitative or descriptive analysis 322–4 natural resources 458
quasi-judicial bodies 242–61 socio-empirical view and its limitations
Aarhus Compliance Committee 243–4, 320–325
251–2, 254, 258–9, 300 citation frequency analysis 322–3
common procedural fairness principles seabed 20, 431, 458
249–52 secondary law 225, 389, 449
development of substantive international European Union 61
law and 253–9 MEA-based 120, 423
Economic, Social and Cultural Rights WTO 396, 398, 409, 411–17, 418
Committee 244–5, 251, 252, 255–6 self-determination 349, 352
institutional reform 246–8 peoples 44–5, 170, 207
international financial organizations sovereignty over natural resources 443
investigative mechanisms 245–8, 251, self-regulation 5, 195, 301, 358, 462
252, 253, 259, 301 sex equality 294
/ Date: 11/3
Index 481
Shrimp-Turtle case 217, 450 state consent 13–31, 49, 182, 204, 332, 333,
Sierra Leone 346
Special Court for (SCSL) 153, 358, 359, general principles 161, 163–5, 166, 173,
361, 371 176
Singapore 148 international criminal law 383, 388, 390,
Slaughter, A-M 27, 82, 195 392, 393
slavery 294 MEAs 424–5, 427–8
sociology, legal 321–2 norm evolution, purposes of law and 15–21
soft law 5–6, 7, 184, 249 sovereign equality and 15, 21–6
civil society 286, 290, 292, 293, 294, territoriality 15, 26–30
295–6, 299 state practice see customary international law
environmental law 423, 428, 429, 439, 447 state responsibility 27, 95, 171, 173, 207, 228,
evolving treaty regime 232, 295
powers of COPs and MOPs 118, 119 states
financial regulation 262, 268, 276, 277 creation of 44–5
hard law and 73, 184, 297 static pedigree-based approaches 48–51
institutional lawmaking 184, 187, 194 static subject-based approaches 42–5
interaction with traditional sources of law staticism and dynamism 6, 7, 33–4, 41, 54
67, 445 Stockholm Convention on Persistent Organic
international criminal law 383 Pollutants (2001) 109, 114
international human rights law 300, 338, Stockholm Declaration (1972) 292, 454
339–40, 343, 349, 351 Suárez, F 137
natural resources 445, 447, 458–60 subjecthood 33–4, 41, 45, 53–5, 188
new paths of action 82 static subject-based approaches 42–5
own normative effects 73–4 subsequent agreement 111, 234, 406–9, 410,
UN specialized agencies 297 418
sources doctrine 2, 66, 68, 69, 73, 81, 82, 83, subsequent practice 111, 127, 130–131, 211,
159, 393 231, 406–7, 409–10, 418
South Africa 272 subsidiarity 239
South West Africa cases 169, 170, 240 sustainable development 419, 428, 431, 432,
sovereign equality 15, 30–31, 443 445–6, 455, 456–7, 460
consent as instrument to protect 21–3 WTO 435
indeterminacy of 23–6 Switzerland 269, 281
negotiating parties 91–2, 96 systemically important financial institutions
newly independent states 24 (SIFIs) 274
sovereignty 21, 57, 68, 83, 353 global 278, 283
international organizations 183 systems theory 77–9
natural resources 442–3, 444, 452
Special Court for Sierra Leone (SCSL) 153, tacit acceptance/opt-out system 28, 117, 118,
358, 359, 361, 371 423
Special Tribunal for Lebanon (STL) 358, 359, Tadić case 19, 370, 376, 385, 390
361, 371–2, 385 teleological/purposive interpretation 17–18,
specialization and regulation 27, 29 209, 373, 374, 375, 376–7, 392–3
standards, international 183–4, 196, 280, Temple of Preah Vihear (Judgment) 170
439–40 Temple of Preah Vihear (Preliminary
Codex Alimentarius 67, 186, 192, 193, 194, Objections) 116
298 territoriality 15, 26–30
financial-reporting standards 268, 273 terrorism 77, 192, 288, 371–2, 385
ISO 62, 187, 194, 461–2 Timor Leste 185
ISSBs (international standard-setting Tokyo International Military Tribunal
bodies) 263–4, 268, 274, 277, 278, (IMTFE) 354, 359, 369
280, 284 Tokyo Round 397
see also individual standard-setting bodies Torture Convention (1984) 38, 295, 359, 371
/ Date: 11/3
trade law see World Trade Organization multiplayer negotiations at diplomatic

Trail Smelter arbitration 430 conferences 97–105
traités-lois 112 complexity, managing 100–101, 105
trans-governmental regulatory networks 195–6 Final Act 104, 105
trans-governmental regulatory organizations governmental IOs 103
(TROs) 196 group and coalition building 101–2, 103
Transatlantic Trade and Investment international regimes 104–5
Partnership (TTIP) 435 non-state actors 37–8, 102–3
transboundary harm, duty to prevent 452 observer states 103–4
transformative iterations 81 pre-conference phase 98
rules of procedure (RoP) 99, 106–8
transnational legal process (TLP) 75–7
mutual supportiveness principle 435, 437
transnational ‘private’ regulation (TPR) 58–9
natural resources 445, 447–51, 453–4
transnational regulatory frameworks (TRNs) negotiation 87–105, 110, 113, 427, 450
39–40 attempts to codify rules 89–90
transparency 84, 263, 269, 270, 283, 284, 415 bilateral 93, 97, 105, 106
international agencies 194 cooperate, duty to 93–4
quasi-judicial bodies 250, 251 definition 88–9
Transparency International (TI) 296 formal equality 91–3
treaty making 3, 4, 39, 47, 50, 179, 323 fragmentation of topic 101
adoption of treaty text 87–8, 105–10, 113 good faith 96
bilateral 106 multilateral 93, 97–105
consensus 107–10 participate, right to 94
multilateral 106–10 procedural rules 90–94
voting procedures 106–10 substantive rules 94–6
amendment 117, 131 unlawful means, use or threat of 95–6
WTO 402–3 unlawful objects and purposes 94–5
authentication 105–6, 113 WTO 97, 397, 399–401, 413, 415, 418
bilateral 93, 97, 105, 106 NGOs 37–8, 98, 102–3, 105, 289, 291–3,
conclusion of agreements 115, 116–17 294
conclusion of treaties 2, 13, 30, 111–17, ratification 4, 87, 106, 114, 115, 116, 290,
131 299, 382
coercion 95–6 MEAs 423
consent to be bound 112–17 WTO 403
consent to be bound 16, 105–7, 109, reservations 207, 450–451
112–17, 120, 121 subsequent agreement 111, 406–9, 410
customary law and treaties 336–7, 383, subsequent practice 111, 127, 130–131,
453–4, 465 406–7, 409–10
domestic courts 233–4 WTO 398–402, 417–18
evolution of treaty regimes 111–12, 117–32, modifications 402–10
290 Treaty on the Non-Proliferation of Nuclear
bases of powers of COPs and MOPs Weapons (NPT) 96, 114
118–21 TRIPS (Trade-Related Aspects of Intellectual
instances of lawmaking by COPs and Property Rights) Agreement 186, 402–3,
MOPs 123–7 404–5, 406, 413, 418
judicial interpretative activity 128–30
tacit acceptance 118 UNCLOS (UN Conference on the Law of the
types of powers 121–3 Sea) III 99, 101–2, 180, 204–5, 292–3
international criminal law 359, 360, 365 consensus 107
international human rights law 332–4, UNCLOS (UN Convention on the Law of the
336–7, 350 Sea) (1982) 20, 114, 117, 135, 180, 184,
modification 117, 131 436, 448–9, 450
WTO 402–10 United Kingdom 147, 227, 265, 279
/ Date: 11/3
Index 483
United Nations 103, 148, 180, 183, 288, 332, Office of UN High Commissioner for
460 Human Rights (OHCHR) 301
advisory opinions of ICJ 210–211 private sector 287
Charter 17–18, 23, 30, 94, 134, 184–5, 203, quasi-autonomous bodies (QABs) 192
210, 312 reports, overdue 248
Art 1(3): cooperation 93 Security Council 37, 39, 70, 182, 184–5,
Art 2(1): sovereign equality 92 207, 211, 290, 312, 323
Art 14: General Assembly 122 domestic courts 234–5, 236
Art 25 184, 296, 311 international criminal law 215, 358–9,
Art 33 87 369, 374, 381
Art 41 311 NGOs 289, 296–7
Art 42 70 sanctions 185, 192, 234–5, 236
Art 51: armed attack 207 WTO 186
Art 71: NGOs 292, 302 UNAIDS 192, 298–9
Art 92: ICJ 206 United States 104, 147, 196, 235, 287, 288,
Art 94(1) 311 366, 406
Art 96: ICJ 210 customary international law 227
Art 102: register agreements 116, 403 effects doctrine 236
Art 103: conflict between obligations 95, EU-USA Transatlantic Trade and
235 Investment Partnership (TTIP) 435
Commission on Human Rights 294 financial regulation 265, 267, 270, 272,
Commission on International Trade Law 275, 279, 280, 281–2, 283, 284, 285
(UNCITRAL) 458 financial-reporting standards 268
Conference on Environment and Universal Declaration of Human Rights
Development (UNCED) 105, 293, 456 (UDHR) 294, 337, 352
customary international law 153–4 Universal Periodic Reviews (UPRs) 294, 300
Development Programme (UNDP) 192, 193 unwritten law 136, 201, 208–9, 335, 346, 351,
diplomatic conferences: Draft Standard RoP 364, 365
(1981) 107–8 see also customary international law;
Economic Commission for Europe general principles
(UNECE) 421 UPU (Universal Postal Union) 183
Economic and Social Council (ECOSOC) Uruguay 147, 214
37, 109, 245, 265, 339 Uruguay Round 397, 399, 414
NGOs 288, 292, 293, 298 utilitarianism 352
Environment Programme (UNEP) 183, 192,
193, 258, 298, 443, 456 validity 15, 16, 21, 24, 28, 29, 30, 56–7, 60,
European Union 93 220, 311, 312–13, 314, 321, 347
General Assembly 109, 122, 180, 203, 206, see also legitimacy
210, 211, 245, 290 Vattel, E de 23–4, 31
juvenile justice 340 Vienna Convention on the Law of Treaties 89,
natural resources 443 111, 258
Negotiation Principles 90, 91, 92, 93–4, adoption of text 105
95, 96 amendment of treaties 117, 131
NGOs 289 armed force 95
Nuremberg Tribunal 369 authentication 105
right to drinking water 339–40 authority to negotiate 90–91
right to know 339 coercion 95–6
Global Compact 37, 297, 301, 339 consent to be bound 16, 105–7, 112–16,
High Commissioner for Refugees 117
(UNHCR) 72, 154, 186 customary law 134
Human Rights Council 37, 154, 300, 301, evolution of treaty regimes 117, 121, 127
340, 343, 420 interpretation 117
Universal Periodic Review 294, 300 customary law 135
/ Date: 11/3
evolutionary 449–50, 464–5 G20 and 190

international criminal law 373, 374 IAIS 269
subsequent agreement 111, 234, 406–9 Inspection Panel (WBIP) 245, 246–8, 251,
subsequent practice 111, 127, 130–131, 252, 259, 301
406–7, 409–10 NGOs 266, 301
multilateral treaties: inter-se modifications World Health Organization (WHO) 67, 183,
95 186, 192, 298
obligation before entry into force 450 World Heritage Convention (WHC) 21, 193
obligations for parties only 332 World Meteorological Organization (WMO)
Vienna Convention on the Law of Treaties 183, 192, 193
between States and International world order treaties 17–18, 20, 30
Organizations or between International World Population Conference (1974) 109
Organizations (VCLT-IO) 92, 93, 412 World Trade Organization (WTO) 37, 184,
Vienna School of Jurisprudence 313 194, 262, 265, 284, 290, 395–418
voluntarism 14, 334, 336, 337, 347 Basel capital standards 271
voting delegated institutional lawmaking 192
adoption of treaty text 106–10 dispute settlement 62, 66–7, 73, 185–6,
MEAs: COPs 423 219, 406
Montreal Protocol: modifications 122, 424 Appellate Body 193, 216–18, 401–2,
new forms of institutional lawmaking 187 406–10, 417, 418, 435–6, 450, 458
WTO 403, 405, 410 environment 430, 435–6
natural resources 450, 458, 464
Walmart 82 Doha Round 97, 400–401, 413, 415, 418
water resources 429–30, 433–4, 443–5, 457, environmental goods and services 419
458 environmental law 430, 434–6, 440–441
equitable and reasonable utilisation 444, European Union 93
453 General Council 121
framework approach 448 Ministerial Conference 121
regional cooperation 461 negotiations 101
technical complexity 460 primary lawmaking in 398–410, 417–18
UN Watercourses Convention (1997) 447 accession protocols 401–2
water, right to 256–7, 339–41 authoritative interpretation 405–6
Weber, M 79 modification by waiver 403–5
WEU (Western European Union) 183 MTN process 397, 399–401
Wittgenstein, L 71, 79 subsequent agreement and subsequent
World Anti-Doping Agency 194 practice 406–10, 418
World Bank 183, 186, 262, 265–6, 267, 284, treaty amendment 402–3
396, 438 secondary lawmaking in 398, 409, 411–17,
Basel capital standards 271 418
CAO audit 253 delegation 413, 414–16
delegated institutional lawmaking 192, 193 waiver decisions 413, 416–17
Doing Business Report 73–4 SPS Agreement 193, 298, 415–16, 440
Financial Sector Assessment Program Technical Barriers to Trade
(FSAP) 278, 280 Agreement 407–9, 440
Financial Stability Board 278 Committee on 67, 408, 409
Financial Stability Forum 271 WTO-Plus obligations 402
/ Date: 11/3

(Research Handbooks in International Law) Brolmann, Catherine - Radi, Yannick - Research Handbook On The Theory and Practice of International Lawmaking-Edward Elgar Publishing (2016)

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JOBNAME: Brolmnan PAGE: 1 SESS: 2 OUTPUT: Tue Mar 22 12:08:43 2016

RESEARCH HANDBOOK ON THE THEORY AND

RESEARCH HANDBOOKS IN INTERNATIONAL LAW

Research Handbook on International Energy Law

Research Handbook on International Law and Terrorism

Research Handbook on the Law Treaties

Handbook of Space Law

Research Handbook on International Law and Cyberspace

Research Handbook on Transnational Labour Law

Research Handbook on Jurisdiction and Immunities in International Law

Research Handbook on the Theory and Practice of International Lawmaking

Research Handbook on the Theory

RESEARCH HANDBOOKS IN INTERNATIONAL LAW

Cheltenham, UK + Northampton, MA, USA

© The Editors and Contributors Severally 2016

Edward Elgar Publishing, Inc.

A catalogue record for this book

Library of Congress Control Number: 2015954316

This book is available electronically in the

ISBN 978 1 78195 321 1 (cased)

Typeset by Columns Design XML Ltd, Reading

Introduction: International lawmaking in a global world 1

PART I THEORETICAL VIEWS OF INTERNATIONAL LAWMAKING

1. State consent as foundational myth 13

PART II INTERNATIONAL LAWMAKING IN AN INTER-STATE SETTING

5. Lawmaking by treaty: Negotiation of agreements and adoption of treaty

PART III INTERNATIONAL LAWMAKING BEYOND THE STATE

9. Institutional lawmaking: The emergence of a global normative web 179

vi Research handbook on international lawmaking

12. Quasi-judicial bodies 242

PART IV INTERNATIONAL LAWMAKING IN SELECTED ISSUE AREAS

16. The making of international human rights law 329

Extended table of contents

Introduction: International lawmaking in a global world 1

PART I THEORETICAL VIEWS OF INTERNATIONAL LAWMAKING

1. State consent as foundational myth 13

2. Subjects and actors in international lawmaking: The paradigmatic divides

viii Research handbook on international lawmaking

4. Concluding remarks: Epistemic pluralism and epistemological

4. Contemporary theories and international lawmaking 66

PART II INTERNATIONAL LAWMAKING IN AN INTER-STATE SETTING

5. Lawmaking by treaty: Negotiation of agreements and adoption of treaty

Extended table of contents ix

4.2.4Managing complexity 100

6. Lawmaking by treaty: Conclusion of treaties and evolution of treaty

x Research handbook on international lawmaking

8. Relying on general principles in international law 160

PART III INTERNATIONAL LAWMAKING BEYOND THE STATE

9. Institutional lawmaking: The emergence of a global normative web 179

10. International judicial lawmaking 200

Extended table of contents xi

11. Domestic judicial lawmaking 222

12. Quasi-judicial bodies 242

xii Research handbook on international lawmaking

14. International lawmaking and civil society 286

15. Lawmaking by scholars 305

Extended table of contents xiii

PART IV INTERNATIONAL LAWMAKING IN SELECTED ISSUE AREAS

16. The making of international human rights law 329

17. The making of international criminal law 354

18. The making of international trade law 395

xiv Research handbook on international lawmaking

3.1 Framework for analysis of secondary lawmaking 411