Contemporary International Law-making Research Articles

Democratic Representation within International Organizations

Abstract International organizations (ios) have become key institutions in contemporary international law-making. Their increase in authority has, however, come together with a decrease in politicization. This has led, when the question of their control arose, to largely distracting discussions about ‘good governance’ and ‘accountability’. This article focuses on one of the central dimensions of what could amount instead to ‘good government’ by ios, including their democratic legitimacy, and explains how ios could be designed so as to ensure sufficient democratic representation. It argues that ios’ institutional specificities actually make them pivotal to the realization of multiple international representation. As public, universal and external international institutions, they could and should contribute to implementing a system of international representation that approaches multiple public and private institutions claiming to represent peoples as a part of an institutional continuum. This is true with respect to the organization of the correctives to the democratic shortcomings of each representative institution in the system, as much as to the mutual compensation of their respective deficits.

International humanitarian law-making and new military technologies

AbstractMilitary technology has developed rapidly in recent years, and this development challenges existing norms. It has produced countless debates about the application of international humanitarian law (IHL) to areas of war and technology including cyber military operations, military artificial intelligence (including autonomous weapons), the use of drones, and military human enhancement. Despite these rapid progressions, the prospect of creating new treaties to specifically regulate their use by militaries and in armed conflicts is very low. This is largely due to the unequal allocation of military technology among States and the differing interests that result from this inequality. The absence of formal regulation means that State and non-State actors are increasingly embracing informal means of law-making. This is similar to other areas of IHL, such as the regulation of asymmetric conflicts, where norms are contested. In such cases, State and non-State actors employ various informal law-making techniques to advance their normative positions through treaty interpretation and the identification of customary international law.However, the discussion on military technology differs from other contemporary IHL debates. First, due to the rapid development of such technology and uncertainty about how it will be employed in practice, the interests of the various actors are less clear. Second, there are significant challenges in obtaining accurate information about new military technologies. This makes even the informal law-making path in the context of new technologies more challenging.This paper explores the dynamics of contemporary international law-making as it relates to the regulation of new military technologies. It identifies the main techniques that are used by the relevant actors and explores the common themes among the various debates over military technology, as well as the potential specific challenges in relation to certain technologies.

Lessons learnt from two decades of international environmental agreements: law

As Patricia Birnie cautiously and prophetically put it in the inaugural issue of this journal (INEA 1, January 2001, p. 74), “we do not know whether States and the tentative regimes they have so far established can withstand the pressures of globalization of trade and degradation and over-exploitation generated by advances in technologies for locating, fertilizing, harvesting, processing and modifying natural resources and biodiversity. This is truly terra incognita in which such seeds of destruction may already be implanted.” Among the 600 or so papers and reviews published in INEA from 2001 to 2020, more than 70 deal wholly or partly with legal aspects of environmental problems and the international dimensions of environmental justice. While the main focus of INEA has been on issues of public international (inter-state) law, there have also been important inputs drawn from comparative legal analysis (of national legislation and judicial decisions) and from “transnational administrative law” that influence the effectiveness of multilateral treaties and their associated international institutions. Novel concepts and practices emerging from the environmental field (such as recourse to a range of “soft law” principles; flexible delegated standard-setting in the face of global change; and equitable differentiation of compliance duties) have inspired developments in related areas of contemporary international law-making and law-applying. At the same time, the very proliferation of multilateral and bilateral environmental instruments raised new questions and expressions of alarm over “treaty congestion” and “fragmentation” within the international law system. It is not the intention of this paper to explore the general interaction of international environmental law with neighboring disciplines such as international economic law or human rights law, but simply to record the “seismographic” impact of INEA on legal-intellectual discourse over these past two decades. To some extent, the role of the Journal in identifying both new prospects and new risks in this field could indeed be likened to that of a “canary in the coal-mine.” The lessons so learnt may thus offer new insights to help in averting the destruction which Birnie visualized, and to advance inter-generationally and intra- generationally shared values of environmental justice.

A typology of local governments’ engagement with human rights: Legal pluralist contributions to international law and human rights

Local governments around the world have been engaging with international law and policy at an exponential intensity, with prominent engagement in climate change, migration and more recently human rights. This engagement cannot be adequately understood within the terms and framework of positive international law alone. This contribution aims to map and create a grounded typology of local government engagement with human rights, encompassing both activities within their localities and outside - at national, international or transnational scales. The article introduces local governments’ engagement in the Formation of Human Rights, Implementation of Human Rights, Defence of Human Rights, Coordination of Human Rights, Dissemination of Human Rights and the Contestation of Human Rights as empirical ideal types that have emerged from data through grounded theory. Analysing this engagement from the perspectives of both positive international law as well as legal pluralism, with specific focus on the New Haven School of Law, the article argues that local governments are now at the core of a newly formed norm-generating community. Local governments engage with local and international actors and processes both within the rules of inclusion of contemporary international law-making - seeking to expand these norms to include local governments themselves - but they also contest and challenge the very rules of the game in the first place, and resort to creating “human rights in the city” as a body of norms parallel to international human rights law. Whether we accept a pluralist understanding of international law to include local governments and their human rights engagement, or whether we consider these developments to be outside international law, forming a parallel normative order in the legal pluralist sense, local government engagement with human rights has already succeeded in reaching and influencing many established international actors and has already infiltrated recent instruments of positive international law.

Codification and Progressive Development in Contemporary International Law-Making: Locating the Draft Articles on the Protection of Persons in the Event of Disasters

Codification and Progressive Development in Contemporary International Law-Making: Locating the Draft Articles on the Protection of Persons in the Event of Disasters

Swinging between finding and justification: judicial citation and international law-making

Based on the ever-increasing interpretation and application of international law by domestic courts, this paper offers an insight into the practices of judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a prima facie distinction between judicial citation as a finding device and as a justification exercise. It is argued that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualisation of contemporary international law-making.

Swinging between Finding and Justification: Judicial Citation and International Law-Making

Based on the ever-increasing interpretation and application of international law by domestic courts, this paper offers an insight into the practices of judicial citation of international and domestic jurisdictions while adjudicating international criminal law related matters. The paper considers selected instances of judicial citation and operates a prima facie distinction between judicial citation as a finding device and as a justification exercise. It is argued that domestic courts rely on international judicial decisions primarily as a finding device whilst international case law deals with domestic judicial decisions in the realm of justification. The analysis of this material triggers reflections on the relevance of judicial citation for the doctrine of sources of international law, inasmuch as it adds to the formation of normative expectations on subjects of international law, as well as for a scholarly conceptualisation of contemporary international law-making.

Some Remarks on the Persistent Objector Rule in Customary International Law

Some Remarks on the Persistent Objector Rule in Customary International Law

China, Resources, and International Law

This article explores China’s attitudes towards the regulation of key natural resources by international law, whether domestically or at the trans-boundary and transnational levels. It considers both the impact of international law on China’s own practices, as well as the contribution of China towards shaping international law. The article suggests that popular conceptions of a relatively isolated, sovereign absolutist China do not accord with contemporary legal realities in a number of areas, including its dealings with natural resources. While China’s construction of strong sovereignty inevitably shapes its attitudes towards legal regulation in a range of important areas, practice also suggests that China adopts a nuanced approach which includes legal compromise, and a commitment to multilateral regulation or bilateral diplomatic settlement of key issues previously within the competence of national governments. China is often an active and constructive participant in contemporary international law-making, even if – like all countries – it also seeks to use international law instrumentally to its own advantage.本文探讨中国在国内，跨国，和国际级别对于国际法内重要自然资源规管的态度。本文并研讨国际法对中国本国作法的影响和中国对发展国际法所做出的贡献。本文更指出认为中国是相对孤立和信奉主权绝对主义的普遍概念，包括其对自然资源的开采和取得手段, 并不符合当代法律实际。中国主权至上的表现影响她对法律规管的态度，但现实也表明中国会采取谨慎和灵活的手段，包括通过法律妥协和承诺使用多边条例或者双边外交调和来处理早前是国内政府领域内的问题。中国对建立当代国际习惯法经常是活跃和有建议性的，就象和其他国家一样，为自己的利益利用国际法。

The World Court and the Contemporary International Law-Making Process

Journal Article The World Court and the Contemporary International Law-Making Process Get access The World Court and the Contemporary International Law-Making Process. By Edward McWhinney. Alphen aan den Rijn: Sijthoff and Noordhoff. 1979. 219 pp. Fl.70.00. $35.00. Colin Warbrick Colin Warbrick 1University of Durham Search for other works by this author on: Oxford Academic Google Scholar International Affairs, Volume 56, Issue 1, January 1980, Pages 138–139, https://doi.org/10.2307/2615751 Published: 01 January 1980