International Lawmaking Research Articles

International sports federations as de facto lawmakers: Queer-feminist explorations of the gendered power of sports law

Abstract This article analyses the law-making power of international sports federations, with a specific focus on their authority of shaping global norms on gender. It explores a variety of international sporting rules from feminist and queer perspectives. These include the ban of rainbow armbands at the 2022 FIFA (Men’s) World Cup, rules on the participation of transgender persons in rugby, gendered and racialized uniform regulations in sports, and the Semenya case concerning the sports participation of women with variations in sex characteristics The analysis asserts that despite being non-state actors, international sports federations are de facto international lawmakers that disseminate hegemonic gender norms reflecting cis-hetero-sexism and white body norms. However, analysing the Semenya case and the decision of the Chamber of the European Court of Human Rights in the case shows that the law-making power of international sports federations in shaping gender norms is not absolute but embedded in a transnational network of norms. The article concludes that subjecting international sports federations to a feminist, queer, and anti-racist legal analysis assists in understanding how hegemonic norms on gender circulate transnationally and enhances knowledge on how international law works in practice.

When and Why the Doctrine of a “Rules-Based International Order” Emerged

INTRODUCTION. It is no understatement to say that the “rules-based international order” doctrine, as opposed to the “international order based on law”, has emerged as one of the most debated concepts in global politics during in the late ХХ and early ХХI centuries. This concept presents a framework where general rules of conduct for states, though not norms of jus cogens under general international law, are considered legally binding for all states and other participants in international relations. Consequently, it challenges the traditionally recognized supremacy of international law in governing these relations, seeking to erode established practices of international law-making. This doctrine is actively utilized by leading Western powers to substantiate their political positions and accuse strategic competitors of failing to adhere to these “rules” deemed as legally binding. Understanding the essence and origin of this doctrine is crucial in unraveling its significance. MATERIALS AND METHODS. The set of used methodological approaches encompass a range of general scientific and specialized methods, including historical analysis, formal logic, synthesis, as well as systemic and comparative legal methods.RESEARCH RESULTS. The research indicates that the doctrine of a rules-based international order entered international diplomatic discourse in the early 1990s, arising as a consequence of the collapse of the Soviet Union and the emergence of a unipolar world.DISCUSSION AND CONCLUSIONS. The author reaches the conclusion that in the context of this emerging unipolarity, the United States deemed it appropriate to unilaterally (or at most in conjunction with its closest allies) dictate universally binding rules of conduct in international relations to the global community. The doctrine of a rules-based internation[1]al order provided the necessary scientific justification to validate such a policy. Initially, this doctrine garnered substantial support in international politics but subsequently faced a decline in its proponents, particularly with the shift towards a polycentric world order. While it continues to exist to some extent, the goals for which it was originally conceived have been largely nullified.

International Legal Governance of Space Resources and the Role of National Frameworks: The Case of China

Abstract Following decades long political and legal uncertainty, several space-faring States passed national laws asserting (or reaffirming) private rights on resources extracted in space. This “bottom-up” approach is now shaping the fundamentals of international norms and rules. While the so-called “Artemis Bloc” and the US legislative and policy-making efforts have been examined extensively, what is missing is an in-depth analysis of the stance and response of other major space-faring nations. This article contributes to the scholarship by studying China’s perspective. The article considers the ongoing proliferation of national laws and policy-making efforts and the increased pace of commercialisation in the space sector as the driving force of international law-making. It then notes the absence of a clear-cut national legislation in China governing space operations linked to resource extraction from celestial bodies. The paper argues that China, as a major space-faring and a developing country, is poised to have an assertive voice in international space law-making. It shows how a stronger national legal framework, coupled with international law and policy-making efforts, can elevate China’s contribution in international space law—in particular regarding space resource extraction and utilisation.

Doing legality as doing drag: the Yogyakarta Principles and the productive power of performing international law-making

Abstract Despite being elaborated by experts, the Yogyakarta Principles on sexual orientation and gender identity (YP) strongly resemble an international human rights treaty in their language and format. Building on drag performances, I argue that, instead of merely imitating law, the YP creatively disturb the borders of international law-making.

Quantum International Law Theories: Towards an Inclusive International Investment-Security Construct

Abstract In recent years, there have been significant changes in the foreign investment landscape that have affected investors and States around the world. These transitions can be broadly categorised into two hypotheses: international to domestic in the liberalisation continuum and legalisation to politicisation in the geoeconomic order. While these hypotheses seek to capture the changing investment-security dynamics, none satisfactorily comprehend classical irreconciliation. In response, this study proposes a novel trinity of quantum international law theories that extrapolates quantum entanglement, measurement, and holism theories through analogy, ontology, and post-critique approaches to inspire multidisciplinary insights. It outlines the justifications for using quantum theories in international law-making and policymaking, the extrapolated fundamentals, and the trinity application approaches by testing two variations of the trinity. The study results help move beyond unproductive debates on ‘economics versus security’ and offer international lawmakers and policymakers a new thinking model that can be applied to ‘everything’ multidisciplinary.

Coastal states’ influence on the polar code: An empirical study of Russia and Canada

Climate change presents valuable opportunities for the development and utilization of Arctic passages. It is important to address maritime safety and environmental protection issues faced by ships navigating polar waters through appropriate regulation. The Polar Code is crucial in navigation safety guarantee and marine environmental protection in polar waters. Russia and Canada play a significant role in the negotiations of the Polar Code due to their respective actual control of the Northern Sea Route and Northwest Passage. How does Canada and Russia influence on the IMO's law-making related to the Arctic navigation? The study examines the proposals submitted by Russia and Canada during the negotiations of the Polar Code, explores the development paths of their proposals and adoption to clarify their functions vis-à-vis this issue. The study concludes that five factors affect the roles played by states in international law-making, namely the “5C” factors (chiefship, compatibility, combination, contribution, and circulation). This study aims to provide a reference for similar national practices in other states by summarizing the factors that influence decisions on Arctic navigation rules.

Disarming the Women, Peace and Security agenda: the case for centring the United Nations General Assembly

Abstract After over two decades of the Women, Peace and Security (WPS) agenda at the UN Security Council, involving the adoption of 10 thematic resolutions, there is now increasing momentum towards the de-centring of the Council from feminist engagement and from broader institutional activity on WPS. Against this backdrop, this article lays out arguments for centring the WPS agenda instead in the UN General Assembly. Given its broader membership and mandate, its role in international law-making, and critically, its leadership on disarmament, the article argues that the General Assembly offers more propitious opportunities for the institutionalization of a feminist peace agenda.

Regulatory Convergence in International Law: Evaluating Models of Global Economic Governance

This essay explores the intersection of international law and economic governance, focusing on the Regulatory Convergence Model as outlined by Daniel K. Tarullo. It examines the processes and challenges in international law-making, emphasizing the role of transnational regulatory standards in global economic governance. The discussion delves into issues of legitimacy and regulatory capture, critiquing the effectiveness of current regulatory approaches. The essay concludes by assessing the impact of these regulatory models on the stability of global financial markets, offering insights into the complexities of international economic regulation in a globalized world.

Международное нормотворчество как детерминанта совершенствования правового регулирования государственных закупок для нужд системы МВД России

Introduction. International lawmaking is a source of a legal regulation of public procurement.
 Nevertheless, a defining of the system and the specifics of international agreements is required, regulating public procurement in the system of Russian legislative sources in this area, as well as the role of various international collaborations in determining the key aspects of the improvement of legislation on procurement for public needs (including the needs of the Russian Ministry of Internal Affairs system).
 Methods. Content analysis, descriptive and systemic methods of data analysis were used as research methods.
 Results. The characterization of international lawmaking and international organizations’ initiatives in the field of public procurement provides the following main conclusions.
 1. General provisions on procurement are contained in the universal and regional model (CIN), standard (UNCITRAL) and plurilateral (WTO) agreements, i.e. in the indicative and advisory instruments.
 The scientific discussion on the international regulation of public procurement is that the specifics of such relations do not provide for the creation of rigid norms at the cross-border level, as they affect national public order. At the same time, these acts reflect modern trends, for instance, the digitalization of state (municipal) procurement, etc. This fact proves that international lawmaking is an obvious determinant of improving the legal regulation of public procurement, including the needs of the Russian Ministry of Internal Affairs system.
 2. The private aspects of the public procurement process are fragmentarily regularized by special international agreements.
 3. There are also no separate international organizations in the field of public procurement, at the same time, all cross-border trade and economic organizations do not ignore the issues of ensuring public needs and form the norms of the «soft» law. Thus, international lawmaking determines the directions of improving the legal regulation of public procurement for the needs of the Russian Ministry of Internal Affairs system in the same way as any other public procurement, but with consideration of the specifics of ensuring the powers of the public body in question.

“What the Secretariat Makes It”: United Nations Civil Servants between Administrative Function and Contemporary International Lawmaking

Abstract As the only international organization that aspires to be unviersal both in terms of its membership as well as in terms of the policy fields in which it intervenes, the United Nations (UN) occupies a unique position in international lawmaking. Focusing on the UN’s political and judicial or quasi-judicial organs does not, however, fully capture the organization’s lawmaking activities. Instead, much of the UN’s impact on international law today can be traced back to its civil servants. In this paper, I argue that international lawmaking today is best understood as processual and fluid, and that in contemporary lawmaking thus understood, the UN Secretariat plays an important role. I then propose two ways in which international civil servants add to international lawmaking: they engage in executive interpretation of broad and elusive norms, and they act as an interface between various actors on different governance levels. This raises novel legitimacy challenges for the international legal order.

Law-Science Nexus in International Law-Making

Abstract Integrating science in the making and implementation of international and regional treaties emerges as an essential component of modern and future international law-making amidst profound climatic, geophysical, and biological changes worldwide. The interplay between science and law or the law-science nexus within, inter alia, the international legal frameworks on climate change, biodiversity, and fisheries offers different levels of integration of science. In practice, subsidiary scientific bodies play a key role in enabling the dialogue between scientists and law/policymakers. However, persisting challenges remain, hampering the optimal implementation of the law-science nexus. Against this background and with comparative perspectives from the 2018 Central Arctic Ocean Fisheries Agreement, which entered into force in 2021, this article explores the evolution of the law-science nexus in international law-making. Furthermore, it highlights current challenges, namely the politicization of science and scientific uncertainty, and identifies opportunities to enhance this interplay. In shedding light on the importance of building an efficient law-science nexus, this article aims to inspire future international law-making to strengthen global and regional governance.

The seabed and the South: from stock stories to new histories of international lawmaking

Centring the career of Cameroonian diplomat Paul Bamela Engo during the negotiation of the UN Convention on the Law of the Sea, this article makes a methodological intervention in the historiography of multilateral treaty-making. It reads through and against the grain of dominant narratives of oceanic constitution-making, and offers counter-narratives that serve as conceptual and mobilizational resources in contemporary struggles. It examines how the ‘stock story’ of the emergence of the resource regime for seabed minerals as the common heritage of mankind erases the radical alternatives that were proposed by Third World actors and their efforts to write them into law, and sorts these actors into trope-laden categories of ‘extremist’ and ‘moderate’. Against this, and building on critical race theorist Richard Delgado’s exploration of counterstorytelling, this article traces histories that position Third World diplomats and lawyers as intellectual innovators and rival worldmakers. Extending the field of international intellectual history, and examining international lawmaking conferences as a political form, these histories link UNCLOS to wider anticolonial and worldmaking projects. Connecting analyses at multiple spatial and temporal scales, such histories also offer an empirically-grounded approach to the agency and structural constraints of Third World actors negotiating international legal orders, and illuminate international lawmaking as a promising site for global history.

Designing Competition Clauses in Preferential Trade Agreements

AbstractCompetition policy is one important aspect of trade liberalization. However, when examining preferential trade agreements (PTAs), a major type of policy tools to liberalize trade, competition provisions are revealed not to be uniformly distributed across these treaties. What explains the variation in the design of competition clauses in PTAs? Borrowing insights from the rational design of international institutions and combining them with those from treaty ratification and policy diffusion literatures, I identify five major causal mechanisms through which competition provisions are incorporated into PTAs. In evaluating them, I employ a range of operationalization techniques to capture the proposed mechanisms. A treaty-level analysis of 319 PTAs over the period 1960–2015 lends strong and robust support to most of the hypothesized relationships. By integrating theoretical frameworks across international political economy literatures with that from law and economics scholarship, this study demonstrates the utility of political science thinking to the real-world international law-making.

International legal standards for the protection of internally displaced persons: theoretical and practical aspects

The article analyzes the system of international legal standards for the protection of the rights and freedoms of internally displaced persons, their doctrinal sources, and mechanisms for ensuring them. The purpose of the article is to study the existing international legal standards on the protection of the rights and freedoms of internally displaced persons, their theoretical, contractual and institutional foundations, implementation problems and identification of improvement prospects.
 It is substantiated, that the system of standards for the protection of IDPs constitutes a kind of international mechanism for ensuring the status, first of all, the rights and freedoms of IDPs, the corresponding guarantees, which are regulated by the norms of universal, regional and special treaties, are implemented by authorized subjects at various levels and spheres of life. The standards of the universal, supranational, regional levels, ones of mandatory legal force and recommendatory, permanent and temporary, etc. are distinguished.
 Compared to refugees, who have a special mechanism of international protection, IDPs acquire protection indirectly, as they are under the legal protection of their country of citizenship and residence, its government, etc. Attention was drawn to the significance of the Guidelines of 1998, which are based on numerous acts of the Council of Europe, the EU, etc. However, the existing standards regarding IDPs do not have a unified character, as well as the corresponding institutional mechanism.
 Therefore, at the national level, the authorized bodies are assigned a significant amount of tasks, functions, and powers to ensure the rights and freedoms of IDPs, guarantee their implementation and protection, restore violated rights, and implement international standards and best foreign practices. Therefore, it is natural to improve the legislation of Ukraine, ensure effective and accessible procedures, and integrate IDPs into the life of the community, society and the state. It is expedient to activate our state in international law-making on the issue of IDPs for the solution of existing problems, first of all, their social protection, electoral rights, housing and land rights, provision of legal assistance, etc

Opening the World Court to the International Community: an Empirical Analysis of Non-party Participation in the International Court of Justice

Abstract Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.

China's early contribution to international lawmaking with particular focus on the role of Dr. Liang Yuen-Li

ABSTRACT Dr. Liang Yuen-Li (1903–1979) was a diplomat and lawyer from China, who was one of the founders of the UN International Law Commission (ILC) in 1947, serving as its first Secretary from 1949 to 1964. Having participated in the Hague Codification Conference of 1930, he had great authority in the ILC, and by his leadership led to the success in producing a number of important codification conventions in 1950s and 60s. After he had left the ILC, however, its productivity substantially declined. It is hoped today that his legacy be revived in the efforts for progressive development and codification of international law and the ultimate revitalization of the ILC.

Legality and legitimacy of domestic court decision as a source of International Law-making

Legality and legitimacy of domestic court decision as a source of International Law-making

The Future in the Past? The Replication of Existing Treaty Language in the Making of the ILC’s Draft Articles on Crimes against Humanity

Abstract Treaty-making often occurs through the reuse of existing legal solutions. Instead of creating new language, drafters often replicate past treaty wording in the instrument under negotiation. The Draft Articles on Prevention and Punishment of Crimes against Humanity (DACaH), formulated by the International Law Commission (ILC or the Commission), were an example. This article evaluates the ILC’s reliance on past treaty language to produce the DACaH. In addition to assessing some contextual reasons why, and the manner in which, the Commission used such a drafting approach, this article notes that, given its mandate as an expert body subsidiary to the United Nations General Assembly, the ILC may face specific challenges while using this technique. Taking the DACaH as a case study, the article also explores some pragmatic and normative considerations that may motivate or impact the replication of past treaty language in international law-making. In conclusion, the ILC’s reliance on existing treaty wording to craft the DACaH was deeply consequential as it was part of the Commission’s broader goal of placating states via the adoption of an effective, but minimalist and conformist, set of draft articles with greater chances of becoming a widely adhered to treaty.

Small Powers, International Organizations and the Role of Law: Jorge Castañeda’s Views from Mexico

Abstract This article examines the work of Mexican diplomat and jurist Jorge Castañeda as an insight into the trajectory of international legal thought in the semi-periphery on international organizations. It argues that Castañeda adopted a distinct approach to international organizations law that foregrounds power asymmetries. The article considers three interventions made by Castañeda that express this semi-peripheral approach and have lasting relevance. First, it shows how, by focusing on the interests of small powers, Castañeda’s work in the 1950s departed from functionalist optimism and stressed the tension between rule by international organizations and domestic rule, emphasizing the centrality of the reserved domain and drawing lessons for strategic legal engagement for small powers. Second, this article studies how Castañeda’s concern for the cause of small powers shaped his views on regionalism, grounding his critique of Pan-Americanism and his vindication of the United Nations (UN) to attenuate the perils of regionalism. Third, this article retrieves Castañeda’s defence of the UN General Assembly as a platform for international law-making, contextualizes it within the rise of decolonization and explores the implications for his earlier sceptical views about the expansion of UN powers. The article concludes by highlighting the significance of the thought of semi-peripheral jurists for any efforts aimed at re-theorizing international organizations.

The New Haven School Matters: An Inquiry into Insights of the Policy-oriented Jurisprudence for the Pedagogy of International Law in Iran

While the scope of the theories of international law has expanded over the past decades, the formalist rule-oriented approaches are still dominant scholarly traditions in Iranian legal studies. Describing the internal structure of the New Haven School of international law, the author suggests that the Iranian community of international law may embrace the methodological frame of policy-oriented jurisprudence in doctrinal legal research. It is an irrefutable fact that the rule-oriented schools (including positivism and natural law) could provide compelling insights into some features of international law; however, a profound understanding of the dynamic and changing process of international lawmaking requires moving beyond a set of supposedly fair and neutral legal rules. The policy-oriented perspective has provided a variety of intellectual tools and concepts (including the elements of the world constitutive process: participants, perspectives, arenas of decisions, bases of power, strategies and outcomes) to identify and influence the comprehensive process of authoritative decisions.