International Law-making Process Research Articles

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.

Making the Legal World: Normativity and International Computational Law

The attention devoted to so-called “computational law” has grown exponentially over recent years. However, to date, there has comparatively been much less discussion about the use of data-driven methods, including artificial intelligence, in the processes and institutions of international law. This paper discusses this in terms of “international computational law” and examines what the implications could be if the normativity of technology encounters the normativity of law in the context of international law-making processes. Will it be a smooth and fortuitous alignment or a surreptitious undermining of accepted legal practices—or something in between? To critically engage with this question, a closer look is had at current and future data-driven practices in international treaty-making, the identification of international custom and international institutional lawmaking. Consequently, three types of normativity (i.e., international legal, legal and technological) are analyzed in this context, building on an analysis of the fundamental underlying structure of law. This analysis of normativity leads to the conclusion that we cannot simply assume that these types of normativity will align organically when it comes to our international legal system. I therefore conclude this article by suggesting that more research should be conducted into an adequate conception of “international legal protection by design” to thoughtfully consider how to safeguard legal protection in an increasingly computationalized international legal order. This will be crucial if we want to ensure that international law in the algorithmic age affords us legal protection and that we design our global order with thoughtfulness, rather than encodethoughtlessness.

The significance of the concept of a maritime community with a shared future in the international law-making process: Taking the BBNJ Agreement as an example

China formally proposed the concept of a maritime community with a shared future in 2019. The concept is a Chinese solution for global ocean governance. The law of the sea is an important component of international regulation, which is one of the elements of global ocean governance. Thus, the law-making process in the field of the law of the sea would be influenced by the concept. At present, the International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas beyond National Jurisdiction is the latest development of the law of the sea, in terms of the law-making process. The concept of a maritime community with a shared future plays an important role in the law-making process, such as gathering international consensuses, highlighting the values of the law of the sea, and providing relevant legal rules.

International law: A discipline of ambition

AbstractThe term ‘ambition’ appears to have infiltrated international legal discourses: it is used to, for instance, lament the lack of state action to tackle major global challenges, praise progress towards difficult goals, or evaluate the outcomes of international law-making processes. Often mobilized, the concept of ambition in international law remains, however, poorly understood. And yet, each narrative offers a specific analytical frame that influences our understanding of the world and sets distinct policy prescriptions. What argumentative functions do ambition narratives play and what implications do they carry for international law, in both its practice and study? To respond to this question, the article explores the occurrence of the term in a field where the rationale of ambition has recently taken centre stage – international climate law – and uses the crisis narrative as a means of comparison to highlight the specificity of ambition discourses. The argumentative implications of ambition are identified in terms of vision, means and temporality: this article suggests that an ambition discourse fulfils objectives that a crisis narrative is unable to accommodate by calling for structural transformations, motivating states to commit to far-reaching objectives and adopting a long-term perspective focused on incremental change. The shortcomings of an ambition narrative are also highlighted, in relation to its determination and evaluation. The study contributes to shedding light on a new international law discourse to offer a different analytical frame for the discipline.

Regulating Global Climate Change: From Common Concern to Planetary Concern

Since the recognition by the UN General Assembly resolution 43/53 (6 December 1988) that “climate change is a common concern of mankind” as well as adoption of the UN Framework Convention on Climate Change (UNFCCC) at the 1992 Rio Earth Summit, climate change has emerged as one of the most pressing global environmental challenges. The IPCC AR6 (April 2022) curated scientific evidence has explicitly observed that “Net anthropogenic GHG emissions have increased since 2010 across all major sectors globally.” The cumulative effect of GHG emissions appears to exacerbate the abnormal weather events, melting the polar ice caps and cause other cataclysmic climatic changes. The effects of climate change transcend territorial boundaries and continents. It has provided a normative basis for the concerted international law-making process underneath the existing UNFCCC led global regulatory regime. It designated climate change as a common concern of humankind. The resultant soft normativity has been shaped into the hard law through the trajectory of three international legal instruments that took the forms such as common but differentiated responsibilities and respective capabilities (1992 UNFCCC) to international legal commitments only for Annex I countries (1997 Kyoto Protocol) and the nationally determined commitments by the parties (2015 Paris Agreement). This study has sought to place under scanner the graded evolution of the climate change regime through the in-built law-making process premised upon a common concern of humankind. In the aftermath of the UN Secretary-General’s warning about climate emergency as part of “triple planetary crisis”, it is high time the international law scholars, the UN General Assembly and the UNFCCC regulatory process shift into the higher trajectory of climate change as a planetary concern.

Common Heritage of Mankind Principles Applied to Marine Genetic Resources in Areas beyond National Jurisdiction

The current political tension among developed states and developing nations regarding the exploration, exploitation, benefit-sharing, and conservation of marine genetic resources (MRGs) in ungoverned areas beyond national jurisdiction (ABNJ) requires a new marine, regulative regime, which is considered as the premise for the creation of the international consensus of promulgating the ‘Common Heritage of Mankind’ principle (CHM). This study employed desk research methods to synthesize, compare, and analyze UNCLOS (1982), Nagoya Protocol (2014), ongoing ILBI sessions, and other recent studies to figure out the regulatory gap within the Law of the Sea under UNCLOS. By carefully generalizing and scrutinizing the documentation, the study strongly emphasizes the necessity to implement the CHM principle in ABNJ instead of promoting the concept of ‘first come, first served’ basis for the sake of the equitable sharing of benefits, and the conservation of MGRs in ABNJ for the current and future generations. The study also provides the connotations of CHM principle, which serves theoretical basis for some marine management approaches. Consequently, these perspectives stem from a representative developing state with a long coastal line – Vietnam. The general, theoretical, and practical viewpoints would significantly contribute to current and future international law-making process with respect to the formulation of a new legal marine regime for regulating the exploitation, equitable access, and conservation of MGRs in ABNJ according to the ideal concept of CHM principle thereof.

Common Heritage of Mankind Principles Applied To Marine Genetic Resources In Areas Beyond National Jurisdiction: Some Legal Reflections

The current political tension among developed states and developing nations regarding the exploration, exploitation, benefit-sharing, and conservation of marine genetic resources (MRGs) in ungoverned areas beyond national jurisdiction (ABNJ) requires a new marine, regulative regime, which is considered as the premise for the creation of the international consensus of promulgating the ‘Common Heritage of Mankind’ principle (CHM). This study employed desk research methods to synthesize, compare, and analyze UNCLOS (1982), Nagoya Protocol (2014), ongoing ILBI sessions, and other recent studies to figure out the regulatory gap within the Law of the Sea under UNCLOS. By carefully generalizing and scrutinizing the documentation, the study strongly emphasizes the necessity to implement the CHM principle in ABNJ instead of promoting the concept of ‘first come, first served’ basis for the sake of the equitable sharing of benefits, and the conservation of MGRs in ABNJ for the current and future generations. The study also provides the connotations of CHM principle, which serves theoretical basis for some marine management approaches. Consequently, these perspectives stem from a representative developing state with a long coastal line –Vietnam. The general, theoretical, and practical viewpoints would significantly contribute to current and future international law-making process with respect to the formulation of a new legal marine regime for regulating the exploitation, equitable access, and conservation of MGRs in ABNJ according to the ideal concept of CHM principle thereof.

Mitigating effects of sea-level rise on maritime features through the international law-making process in the Law of the Sea

Sea-level rise is not only causing physical damage to maritime features but also posing challenges to the law of the sea. The United Nations Convention on the Law of the Sea lends legal significance to the relative position of the land and the sea. However, the ecological situation of maritime features and rising sea levels are changing these factors and placing the legal status of these features at risk of reclassification. This implies that islands with full rights may lose their exclusive economic zones, continental shelves, and even territorial seas due to sea-level rise. In addition to the physical enhancement of maritime features, legal solutions, as a more sustainable and affordable approach, are expected to contribute to mitigating adverse impacts of sea-level rise. However, most discussions are limited to the issue of baselines and maritime boundaries, while the legal status of maritime features has not received sufficient attention. In this paper, we examine in detail the limitations of existing laws, particularly the Convention, and present substantive and procedural options for the establishment of new rules to mitigate the effects of sea-level rise. The legal impacts of sea-level rise on maritime features can be categorized into three different aspects: dynamics of the relative position of land and sea, ecological degradation, and human interventions. It was found that the current international rules are insufficiently flexible in addressing the challenges posed by sea-level rise; thus, international law-making is therefore considered necessary. As far as the proposed rule is concerned, either legally “sustaining” the status of maritime features or allowing reclassification elicits complex issues, particularly considering the close connection between land and maritime zones under the law of the sea. Moreover, attempts to achieve new rules by applying any procedural option for international law-making in isolation may be impractical. In light of this, we explore a viable approach to the progressive development of relevant legal regimes, following the international community’s optimal consensus and shared interests.

The Formal Sources of International Law, the Relationship between Treaties and Custom, and the International Law-Making Process

Abstract James Crawford in his Hague general course on public international law discussed the problem of making international law by treaties under the Baxter paradox—“the more agreement, the less law”. Crawford concluded that the Baxter paradox is not so much an insoluble paradox as a valid reflection on the distinct attributes of treaties and custom—something to be embraced and not avoided. The essay seeks to readdress the relationship between treaties and custom taking into account the Baxter paradox and its critical examination by Crawford. It is also discussed in light of the complex problem of exploitation of outer space natural resources. The author supports the idea of formal sources as the most workable method of analyzing rules and principles of international law in practice. The primary aim of the article is to consider whether treaties can be seen, as most scholars claim, the formal source of international law. The author argues that they are not of that nature, since they are not the self-sufficient source of general international law. The author is inspired by Gerald Fitzmaurice’s views of the 1950s denying treaties the status of formal sources of international law, instead seeing them merely as sources of international legal obligations. According to the author, these views, although controversial and even outmoded under the contemporary opinions on the sources of international law, still deserve attention and careful consideration. Treaties can promote legal certainty with regard to legal obligations within the international community. Yet, as the author claims, in a decentralized legal order such as international law, it is not treaties but custom that still remains its primary formal source.

International law-making process of combating plastic pollution: Status Quo, debates and prospects

In March 2022, the United Nations Environment Assembly (UNEA) adopted a historic resolution to start an intergovernmental negotiation with the purpose of developing an international legally binding instrument to end plastic pollution. While it is an inspiring and ambitious move made by the international community to combat the long-lasting plastic issue at a worldwide level, debates over this topic still exist. This paper aims to present the status quo of international law-making efforts on plastic pollution and UNEA’s current mandate. Divergent opinions exist regarding fundamental elements of this new instrument, such as the objectives, principles, harmonization with other regimes, the full lifecycle approach, the principle of extended producer responsibility, and the principle of common but differentiated responsibility. It is a long way to go before concluding this new instrument and this paper provides some insights to facilitate understanding of the issues.

Menschenrechtliche Unternehmensverantwortung in der Lieferkette im internationalen Rohstoffrecht: Prozesse der Versicherheitlichung als Motor innovativer und global konsensfähiger Rechtsentwicklungen?

Due diligence obligations of companies to respect human rights in their global supply chains have been more recently enshrined in domestic laws of an increasing number of countries. However, respective binding international regulations addressing corporate actors in the field of human rights are still largely absent. Against this background, it is argued in this contribution that in order to facilitate the international law-making processes on this issue, closer attention should be devoted to processes of so-called securitization. Outlining the importance of securitization moves for the emergence of due diligence expectations on and obligations of private commercial actors in the field of international commodity law, in particular as far as normatively addressing the issue of so-called conflict diamonds and minerals is concerned, the contribution attempts to identify notable spill-over effects resulting from these legal developments for the realm of international human rights law.

The Development of International Law of the Sea by International Courts and Tribunals

Abstract The development of international law of the sea by international courts and tribunals is generally acknowledged among international lawyers. In retrospect, the creative jurisprudence of international judicial bodies was incorporated into the mainstream of international law-making process in many cases, while the experience of failure cannot be ignored. In the past decade, the strengthening of marine environmental protection has become a tendency in international adjudication. Accordingly, the content and scope of due diligence obligation has been discovered, consolidated and extended. In light of the evolution of due diligence obligation, the methodology of law-making by international judicial bodies includes: inter alia, interpretation, cross-reference of precedents, analogy, and assertion. However, from the perspective of legitimacy, law-making should not become the normal function of international judicial bodies. Bearing in mind international rule of law and good administration of justice, the lawmaking activities of international courts and tribunals should be curtailed in certain degree.

International Environmental Law-Making

The article seeks to make a modest effort in making sense of the international environmental law-making process. It comprises the subtle normative process currently at work, including ‘global conferencing’ technique resorted to by the UN General Assembly, how it draws upon the basic legal underpinnings of international law, the unique treaty-making enterprise at work, and what this enormous legal churning process portends for the protection of the global environment at this critical time of perplexity in the Anthropocene epoch. It calls for taking serious cognizance of mass destruction of plant and animal species, heavy pollution of fresh water resources, choking of the oceans with plastic and other litter, and alteration of the atmosphere, among other lasting impacts that imperil our only abode Earth. International environmental law-making process is ad hoc and piecemeal and is generally understood to be the product of a lack of a single, central specialized institution having expertise on the subject, scientific uncertainty on many environmental issues, and the hard-headed economic interests of sovereign states. Still, the international environmental law-making process with its inherent resilience could possibly be able to adapt to the vagaries of scientific assessments and the political realities of in the future.

Правотворча діяльність міжнародних організацій

The purpose and objectives of the article are to: analyze the provisions of soviet and post-soviet international legal doctrine in terms of participation of international organizations in the process of international lawmaking; study of approaches to lawmaking of international organizations, developed in Western jurisprudence. Methodology. On the basis of comparative law, system, epistemological, phenomenological and other methods revealed the features of the legal personality of international organizations, primarily as participants in the international law-making process, the main approaches to their definition, differences in the dimensions of (post) Soviet and Western legal science. Scientific novelty. The ability of an international intergovernmental organization to create domestic law has not always been considered in Soviet and domestic science as evidence of the organization’s participation in the process of international lawmaking. At the same time, in Western doctrine, the law-making of international intergovernmental organizations is mostly interpreted in the light of the theory of the principal-agent and the functional approach. International non-governmental organizations are equally not recognized as direct participants in international lawmaking in both Western and (post) Soviet jurisprudence. Conclusions. The legal personality of modern international intergovernmental organizations demonstrates a number of problematic aspects that require proper study, comprehensive research. Foreign legal scholars pay less attention to the activities of international intergovernmental organizations in the framework of the founding acts and are more positive about leaving them, and in the post-Soviet space the attitude to exceeding the amount of rule-making competence is more critical. Keywords: international organizations; intergovernmental organizations; non-governmental organizations international law-making; law of international organizations.

Biosafety and Bioethics Are the Ground of Modern Biotechnologies Development

This article summarizes different points of view in the context of scientific discussion on biosafety and the legal regulation of biotechnology use by states. The legal regulation of biotechnology, as a rapidly developing branch of science, concerns, first and foremost, activities related to the development, use and transfer of technologies for the use of living organisms. The main purpose of this study is to verificate the need to develop a mechanism that, according to the authors, will be able to implement the state biosafety policy based on the development of certain standards by international organizations and that will serve as a platform for the formation of international biomedical law, through integration principles of bioethics into biomedical relations. Object. The object of research is the norms of international law in the sphere of international legal regulation of the use of modern biotechnology through the lens of bioethics. Material and methods. The methodological basis of the research is comparative legal, dialectical, historical legal, comparative, and other research methods. Results. As a result of the analysis of scientific sources and approaches to solving this problem, evidence of the need for a comprehensive study of the existing scientific array to highlight bioethics has been obtained, and therefore biosafety, as an independent scientific direction in the context of modern legal biotechnology research and as part of the national security of the state. Scientific novelty. The scientific novelty of this study consists in conducting comprehensive comparative analysis of the process of formation of legal norms for the protection of human rights. These norms are contained in existing international agreements on the development of biotechnology, from the point of bioethics as a component of state biosafety. Thus, the practical sphere of implementation of the results of this study is a modern international lawmaking process that must adequately reflect the most important aspects of the application of modern biotechnology by the states of the international community. These important aspects must form the basis of the international biomedical law and the Code of Bioethics. Moreover, the authors make no claims a comprehensive analysis of the problem posed in their work, since many important aspects need further study.

International law-making in the field of sustainable development and an emerging droit commun among international financial institutions

More than being funders of development projects, international financial institutions (IFIs) should also be viewed as international law-makers, or more specifically as participants in the international law-making process relating to sustainable development. Achievement of the Sustainable Development Goals (SDGs), as endorsed by the UN General Assembly, relies not only on the IFIs’ continued performance of their economic functions, but also on their collective efforts to set and apply standards for integrating economic, environmental and social considerations in development projects. In presenting IFIs as law-makers in the field of sustainable development, this article focuses on the ‘safeguard systems’ that IFIs have individually created in order to ensure the sustainability of the development projects they finance. Through the safeguard system and its components’ respective functions, IFIs clarify, elaborate and operationalise the concept of sustainable development, and thereby participate in the international law-making process relating to this concept. Additionally, the IFIs’ participation involves enabling other non-state actors to also participate in development decision-making at the international level. The law-making functions of IFIs and the emergence of a droit commun among them bear valuable insights and implications on the current discussion surrounding the new institutions, whose entry into the multilateral development banking system has elicited anxiety about a race to the bottom in sustainability standards. This article shows why this speculated outcome is not a foregone conclusion. It suggests that preventing a race to the bottom in sustainability standards entails strengthening one component of the safeguard system, the independent accountability mechanism, which interprets the system's other component, ie the IFIs’ environmental and social policies. The ongoing efforts to harmonise the IFIs’ safeguard policies should likewise be encouraged. As specialised international organisations and members of the international community, the IFIs (and their member states) should react to adverse competitive pressures with the overarching consideration of responding to the demands and expectations of the international community. This approach means continuing to implement the global commitment to the sustainable development principles of integration and public participation, as well as maintaining the protection of the rights and interests of people affected by development projects.

The rise of new rights for peasants. From reliance on NGO intermediaries to direct representation

ABSTRACTThe UN Declaration on the Rights of Peasants and other people working in rural areas, adopted by the UN General Assembly in December 2018, recognises new human rights to peasants and other people working in rural areas. The recognition of these rights (such as the right to land, seeds or biodiversity) in international law responds to a normative gap identified by the affected themselves and contributes to the project of ‘decolonising’ human rights. This international law-making process constitutes an important innovation in that it was requested by and developed with the active involvement of La Via Campesina activists—and other transnational movements representing other categories of rural food producers—who have positioned themselves as ‘law makers’. In this paper, I argue that a commitment to ‘human rights from below’ must account for and support the direct engagement, in international law-making, of transnational social movements representing the affected and speaking on their own behalf.

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.

Artificial reproductive technologies and international law: the role of human rights

The paper considers the role of international human rights law in regulating artificial reproductive technologies (ART), both from the perspective of the law-making process and of the law interpretation by international human rights courts. In addressing these two profiles, the author explores a double dimension: on the one hand, the limits to ART in order to respect human dignity and/or to protect the embryo; on the other, the need to balance conflicting interests arising from the application of ART. The study reveals that the international law-making process on ART is at a very early stage, while human rights courts play a prominent role in ruling on these technologies. As its case law demonstrates, the European Court of Human Rights elaborates argumentative ploys to back its conclusions. In doing so, it expresses ethical stances capable of influencing the moral debate on divisive topics.