International Lawmaking Research Articles

Attention to the Chinese Society’s Critical Study and Our Standing Invitation to Respond

1. In the June 2018 issue of this Journal, we published, as a special issue, the Chinese Society of International Law’s The South China Sea Arbitration Awards: A Critical Study (“Critical Study”, 17 Chinese JIL, 207-748). The Critical Study has received a great deal of attention online. We are most grateful. 2. Our Journal fully appreciates that readers of the Journal and authors of papers we publish may hold different views and that the papers we publish may receive a variety of critical responses. Our Journal considers it our mission to present such papers, as long as they meet our academic standards, as judged by peer reviewers. The Foreword to our very first issue stated: “China has been a major player in international affairs and international lawmaking. She has taken views on many issues that can be perceived as different from those of many States. In her management of international relations, She has travelled down the less-trodden path and exhibited an independent spirit. So it is only natural that the international community would need to have access to viewpoints and materials from and about China.” (1 Chinese JIL (2002), iii.) The various reactions to the Critical Study indeed prove that we have done our job in a reasonable way.

Application of Hegemony to Customary International Law: An African Perspective

The perpetual reliance on the traditional approach to customary international law based on state practice and opinio juris arguably serves the hegemonic purposes of the great powers in the Global North. Such a traditional approach is out of step with reality in that it fails to reflect the polarised nature of the international system, as well as the activities of diverse non-state actors that shape international law-making. These observations support a reassessment of the formation of custom to include the interests of diverse legal traditions and actors in customary international law-making. In view of the above, this paper explores hegemony through Gramsci’s ideology in relation to customary international law from an African perspective.

Some Reflections on the Theory of Sources of International Law: Re-examining Customary International Law

This review explores certain challenges related to the notion of customary international law. It seems that it was a long time ago when international law academics and practitioners ever thought that the nature of this source was a well-settled topic. Nowadays international lawmaking processes involve an extraordinary number of interactions, taking place both formally and informally. Such complex features are reflected by an exponential increase in the scholarly study of international legal sources. The legal nature, its applicability and principles regulating customary international law are addressed in the book under review (Brian D Lepard (ed), Reexamining Customary International Law (Cambridge University Press 2017)) through several topical essays. The chapters offer a comprehensive analysis of these lawmaking processes and the challenges they portray from various perspectives and in various fields, such as: What is customary international law and why is it law? Is it law because it reflects a ‘global legislative’ model? What is the current value of the persistent objector theory? Is the two-element definition of customary international law still applicable? By meticulously addressing these and other inquiries, the book presents novel arguments and represents a stimulating addition to the literature on sources of international law.

Basel revisited

The unprecedented growth and expansion of global trade and finance in the world today calls for a harmonized global rulemaking system more than ever to accommodate the increasingly intertwined economic ties among nations. However, critics often look at international lawmaking by “sub-national actors” and “regulatory networks of bureaucrats” with deep skepticism on the ground that it lacks accountability and legitimacy compared to lawmaking at the national level. The Basel Committee on Banking Supervision (BCBS) serves as a counterexample. BCBS has been the foremost runner in promoting a harmonized global standard for banking regulation to remove systemic risk and strengthen the banking system. Despite perceived “democratic deficit” in such an international lawmaking process, BCBS has successfully developed three banking regulatory frameworks since the 1980s, which have been widely adopted worldwide, ranging from the most developed economies to countries with less sophisticated financial systems.This article aims to assess the legitimacy and effectiveness of the Basel Framework through a systematic account of the dynamics between states at the international level and within each state domestically during different stages of its development. Section 1 introduces the background of the international financial system in the 1970s, which served as the stimulus of the subsequent creation of the Basel Accord. Section 2 discusses the motivation behind the creation of BCBS in the early 1980s and presents paradoxical views on the interest alignment among participating states. Section 3 examines the formulation of the Basel Accord at the transnational level and the efforts that were made to enhance the legitimacy and accountability of this piece of soft law. Section 4 reviews the implementation of the rules at the national level through comparisons between the initial members of the framework and new participants, along with a look at non-member states that have also been strongly influenced by the Basel Framework.

“Courts Have Twisted Themselves into Knots”: U.S. Copyright Protection for Applied Art

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international lawmakers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art “only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” While the policy goal to separate the aesthetic from the functional is clear, courts’ application of the statutory “separability” standard has become so complex and incoherent that the U.S. Supreme Court has agreed to hear an appeal from a case in which the appellate court, echoing sister Circuits, expressed the lament quoted in the title of this Article. The Article will review the genesis and application of the statutory standard, with illustrations from several of the cases, and will offer two conclusions and a legislative proposal. First, the controversy before the Court does not concern the “design of a useful article,” and therefore does not require the Court to resolve the meaning of “separability.” The Varsity Brands case nonetheless reveals the importance of ascertaining whether the contested design is in fact the design of a “useful article.” A pre-existing pictorial, graphic or sculptural work applied to a useful article is not itself a useful article, and courts need not “twist themselves into knots” endeavoring to parse the meaning of the statutory separability standard. Were the Supreme Court to decline to reach separability on the ground that resolution of the Varsity Brands dispute does not in fact require it, some might be disappointed that the Court would fail to tidy the disarray in the lower courts over separability. But the predicate issue—what is the design of a “useful article”—also warrants more attention than lower courts have given it. Thus, were the Court to leave separability to a case that in fact poses that issue, the Court would still contribute to clarifying this area of copyright law. Second, the statutory requirements of separate identifiability and independent existence apply to “features” of the design, not to the entire shape of a useful article; attempts (including those ventured by this Article) to extend separability analysis to the useful article’s form as a whole prove unworkable. Accordingly, rather than continuing to struggle with an intractable statutory copyrightability standard, this Article proposes the enlargement of Title 17’s sui generis design protection regime to cover original designs of most useful articles.

Enhancing ICJ Procedures in Order to Promote Global Public Goods: Overcoming the Prevailing Tension between Bilateralism and Community Interests

By developing international law, international courts - ‘intermediate Global Public Goods (GPG)’- can also contribute to the protection and promotion of final GPG. In international legal discourse, the term is often linked but not limited to the idea of erga omnes norms. The ICJ, in particular, is capable of promoting GPG by adjudicating inter-State claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. Whereas the rules of substantive law that protect community interests are considered as GPG, those guiding international adjudication are of a procedural nature. Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. This article argues that using its power to ‘frame rules for carrying out its functions’, independently from States’ consent, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever GPG are at issue. Most procedural rules can be adjusted and tailored for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy. It is up to the Court to find the balance between States’ rights and commonly aspired goals, acknowledging the relation between the emergence of soft international law-making (procedure) and its role of addressing the provision of GPG (substance).

Legitimate actors of international law-making: towards a theory of international democratic representation

ABSTRACTThis article addresses the identity of the legitimate actors of international law-making from the perspective of democratic theory. It argues that both states or state-based international organisations, and civil society actors should be considered complementary legitimate actors of international law-making. Unlike previous accounts, our proposed model of representation, the Multiple Representation Model, is based on an expanded, democratic understanding of the principle of state participation: it is specifically designed to palliate the democratic deficits of more common versions of the Principle of State Consent. Second, it endorses a qualified version of the Principle of Civil Society Participation, one that is much more restrictive and more critical of the democratic defects of civil society actors than most of its current supporters. Finally, it reveals how the democratic strengths and deficits of both models are best approached as mirroring one another and need to be combined in a complex account of representation.

Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction

International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument1 are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the “high seas”2). States have agreed that they will not “undermine” these existing frameworks.3 We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes.4 We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance.

The Evolution of Local Involvement in International Conservation Law

The presence of civil society at international conferences dealing with the environment is staggering. The long list of non-government participants at the Conferences of the Parties (COP) of the International Whaling Commission (IWC), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),1 or the Convention on Biological Diversity (CBD)2 demonstrates that there is a vested interest in non-governmental fora to participate in gatherings of international organizations in which decisions are being taken that affect the well-being of this planet. To use environmental parlance, the habitat of these organizations is consequently not one that is solely inhabited by nation-states, but it is one that also has attracted other species that derive from other administrative origins. Civil society organizations usually attend the meetings as observers, often with the right to participate but not with a right to have a vote.3 After all, nation-states are the main stakeholders in international environmental law. The Westphalian principle de jure remains, having prompted United Nations (UN) Secretary General António Guterres to conclude that ‘there exists a significant gap in international environmental law regarding effective participation by non-State actors in international law-making and implementation.’4

Techniques in International Law-Making: Extrapolation, Analogy, Form and the Emergence of an International Law of Disaster Relief

This article traces the emergence of an international law of disaster relief from a patchwork of norms through to a holistic body of international law. It argues that, for many years, the international law of disaster relief existed in piecemeal fashion. As there is no overarching treaty on the subject at the global level, a hodgepodge of instruments have been concluded, namely subject-specific and disaster-specific treaties at the global level, regional and sub-regional agreements, bilateral agreements, as well as soft law. Since the 2000s, however, through the work of the International Law Commission and the International Federation of the Red Cross and Red Crescent, a holistic body of international law relating to disaster relief is in the process of emerging. The Article argues that this holistic body is in the process of emerging primarily as a result of three techniques which, while unconventional, are used relatively frequently in the making of international law. The three techniques are: (1) extrapolation from a series of piecemeal instruments to form a generalized standard; (2) the use of analogy; and (3) the conclusion of instruments that are soft in form but contain a mixture of hard law and soft law. The way in which the techniques have been used to develop a body of international law relating to disaster relief is analysed, their use in other fields of international law discussed, and limitations on their use in the disaster law context identified.

Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions

While international law has typically waxed and waned in feminist favours, contemporary feminist engagements reveal a strongly critical, reflective thrust about the costs of engaging international law and the quality of ostensible gains. To inform this reflection, the article draws on feminist scholarship in international law – and a specific feminist campaign for the implementation of United Nations Security Council Resolution 1325 (2000) on Women, Peace and Security in Northern Ireland – to distill three distinct feminist understandings of international law that underpin both theory and advocacy. Firstly, international law is understood as a system of rules to which states are bound; secondly, as an avenue for the articulation of shared feminist values; and thirdly, as a political tool to advance feminist demands. The study finds that feminist doctrinalists, and those working within the institutions of international law, share concerns about the resolution’s legal deficiencies and the broader place of the Security Council within international lawmaking. These concerns are, however, largely remote for local feminist activists, who recognized in the resolution important political resources to support their mobilization, their alliances with others and ultimately, it is hoped, their engagement with state actors. The article concludes that critical reflection on feminist strategy in international law is usefully informed by more deliberate consideration of its legal, political and normative dimensions, as well as an awareness that these dimensions will be differently weighted by differently situated feminist actors.

From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers

AbstractSeveral indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals for binding international treaties by leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyberopinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term ‘norms’. This article argues that the reluctance of states to engage in international law-making has left a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft's cyber norms proposals and theTallinn Manualproject. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similar to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of inter-state cyberspace governance or a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve strategic and political goals.

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.

The Exercise of Public Authority Through Informal International Lawmaking: an Accountability Issue?

An increasing number of fora and networks have been recognised to play a role in international or transnational normative processes. While lawmaking by formal, intergovernmental international organizations received abundant attention over the past years, we know less about a phenomenon that this paper refers to as ‘informal international lawmaking’ (IN-LAW). Lawyers struggle with the new and extensive normative output in global governance. We nevertheless use the term ‘law’ to connote the exercise of public authority, as opposed to what is often referred to more broadly as ‘regulation’ (covering both public and private regulation). IN-LAW, as we define it, can include private actor participation, but excludes cooperation that only involves private actors. The present paper thus purports to introduce the concept of ‘informal international lawmaking’ and it will present some findings based on case studies in the IN-LAW project related to the reasons for actors to opt for informal lawmaking. We also analyse whether − and to what extent ‒ IN-LAW bodies are subject to some form of accountability and, if so, in what form and at what level. Finally, we will look at some consequences of informal international lawmaking, in particular in relation to the changing role of law in global governance

What are the Functions of the General Principles? Good Faith and International Legal Pragmatics

To assist current efforts of the academic community to develop a fuller understanding of the function of general principles of international law, this article inquires into the operation of the principle of good faith. As argued, first, good faith serves as a principle of international legal pragmatics. It helps to explain the understanding of conduct in much the same way as, say, the requirement that in a verbal utterance, the first singular pronoun “I” be used to refer to the utterer, and a temporal expression such as “now” to the point in time of the utterance. Second, the principle of good faith does not itself presuppose the good of any particular state of affairs. It helps to ensure the comprehension of communicative behaviour on the part of international law-makers, irrespective of the moral or political agenda that they themselves happen to be pursuing. Third, in international law, there are other norms that share the traits of the principle of good faith. They, too, can be characterised as principle of international legal pragmatics.

The Paris Agreement: Reflections on an International Law Odyssey

This paper discusses how international law has responded to climate change, focussing on the challenges that have faced the implementation of existing climate treaties, and on the suitability of the Paris Agreement to address these. It specifically reflects on international law-making and on the approach to climate change governance embedded in the Paris Agreement, drawing inferences from the past, to make predictions on what the future may hold for international climate change law.

Opinio Juris as (the Ultimate) International Secondary Rule of Recognition: Reconciling State Consent and Public Conscience

International secondary rules of recognition regarding international law-making are subject to the criticism that legal officials accepting them were confined to a limited number of public actors. Concerning customary international law, opinio juris can reflect not only the will of sovereign States but also the juridical conscience of various international social actors taking action on behalf of the public. Assuming such a coexistence of State consent and public conscience, this paper explores the uncharted aspect of opinio juris ‘systemique’, which has the potential to integrate the principles of pacta sunt servanda, on the one hand, and of voluntas civitatis maximae est servanda, on the other hand. The first part of the paper shows opinio juris exists in every formal source of international law, as acceptance of international custom, consensus of treaty interpretation and recognition of general principles of law. This analysis simultaneously unlocks the possibility of juxtaposing public conscience with State consent. The second part adapts the rule of recognition theory to opinio juris which is equipped with public conscience as well as State consent. By additionally incorporating the aspect of public conscience beyond State consent into opinio juris, this paper aims at moralising this rule of recognition to include both social facts and substantive values as the decisive factors of the validity of international law; at relativizing it to modify the absolute position which dichotomises the normativity of international law; and finally, at democratising it to reduce the prominence of the voluntarist legitimacy of international law.

The International Right of Rights? Article 25(a) of the ICCPR as a Human Right to Take Part in International Law-Making

The International Right of Rights? Article 25(a) of the ICCPR as a Human Right to Take Part in International Law-Making

The Evolving Mandate of the World Bank: How Constitutional Hermeneutics Shaped the Concept and Practice of Rule of Law Reform

AbstractInternational organizations (IOs) today contribute to international and transnational law-making in ways that were not anticipated by their constituent charters. The paper analyses this phenomenon of competence creep with regards to the expansion of the World Bank’s (the Bank) mandate to the field of Rule of Law (RoL) and governance reform. Two innovative and intertwined conclusions are formulated. First of all, on a general level, the paper argues that the constitutionalization of RoL reform in the Bank exemplifies the path-dependency generated by the constituent charter with regards to the substantive expansion of operational practices in IOs. The legal memorandum by which General Counsel (GC) Ibrahim Shihata introduced and legitimized the expansion of the Bank’s mandate to the field of RoL reform, the paper shows, employs a specific constitutional hermeneutic, grounded in the balancing of institutional teleology with charter constraints. Secondly, and most importantly, the paper exposes how Shihata’s reliance on the constituent charter shaped his RoL concept, thereby delineating the substantive expansion of the Bank’s mandate and operational practice. In light of the inclusion of the RoL as a distinct Sustainable Development Goal, this substantive inquiry into the nature of the Bank’s RoL concept is most needed. The paper develops the innovative argument that Shihata’s constitutional hermeneutic resulted in a sui generis Bank-specific RoL concept, which cannot – despite persistent attempts in literature – be tied to any legal doctrinal position. The analysis highlights two important features of Shihata’s RoL concept: (1) its substantive roots in statistical regression analysis and (2) its dual functionality across the public-private divide. Combined, the two conclusions ameliorate the understanding of constitutional change in IOs and the substantive orientation of RoL reform in the Bank.

The Role of State Consent in International Lawmaking: The Decay of Consent?

The Role of State Consent in International Lawmaking: The Decay of Consent?