The Constitutionalization of International Law and the Challenge of Non-State Actors

ICL Journal ◽  
2017 ◽  
Vol 11 (2) ◽  
Author(s):  
Eva Kassoti
Keyword(s):  
Decision Making ◽  
International Relations ◽  
International Law ◽  
Regulatory Mechanism ◽  
Added Value ◽  
Political Debate ◽  
State Actors ◽  
International Constitutionalism ◽  
Descriptive Level ◽  
Law Making

AbstractThe article examines how international constitutionalism has come to grips with the phenomenon of informal law-making by non-State actors. The article identifies two opposing trends within the constitutionalist camp in relation to the question of actor informality. The first strand argues that all normative utterances should be presumed to give rise to law, irrespective of authorship (‘presumptive law thesis’). The presumptive law thesis is discussed and rejected on the ground that it rests on a model of participation in decision-making that dramatically departs from the existing one. The article continues by exploring the second strand of constitutionalism, which advocates in favour of retaining the distinction between direct and indirect participation in international decision-making (’the formal/informal participation model’). It is argued that, while this strand of constitutionalism is convincing at the descriptive level, it does not really add much to our existing knowledge. The last part of the article addresses the meta-question of the added value of analysing the phenomenon of actor informality through the lens of constitutionalism. It is argued that, despite its shortcomings, the constitutionalist project bravely attempts to frame the inherently political debate on global governance in legal terms, thereby attesting to the continuing relevance of international law as a regulatory mechanism in modern international relations.

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

The Negotiation of Multilateral Treaties at the United Nations a negotiator’s view

2019 ◽  
pp. 614-632
Author(s):  
Sir Michael Wood
Keyword(s):  
Decision Making ◽  
International Law ◽  
Point Of View ◽  
Human Element ◽  
Rules Of Procedure ◽  
International Law Commission ◽  
Multilateral Treaty ◽  
Good Preparation ◽  
Law Making ◽  
Law Commission

This chapter reviews options for treaty-making at the UN from the point of view of negotiating parties. The focus is on the negotiation of treaties within the UN itself, with examples taken from a range of UN organs, rather than from codification conferences. A large number of treaties have been negotiated within or under the auspices of various UN organs, and a variety of processes and rules of procedure have been employed. The roles of the UN Secretariat and the UN International Law Commission (ILC) are highlighted. Each negotiation is different, and flexibility is of the essence. The importance of good preparation, choice of decision-making procedures, and the human element is emphasized. The UN remains at the heart of multilateral treaty-making, including as regards “law-making” treaties.

Non-state Actors, State-Centrism and Human Rights Obligations

2009 ◽  
Vol 22 (1) ◽  
pp. 191-209 ◽  
Author(s):  
ERIC DE BRABANDERE
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Private Sphere ◽  
Human Rights Law ◽  
Scholarly Research ◽  
The Public ◽  
Relevant Topic ◽  
State Actors

Despite its not being an entirely new debate in international law and international relations, the nexus between human rights and non-state actors has become a highly relevant topic of scholarly research, as witnessed by the three works under review, published in 2005 and 2006. When Andrew Clapham published in 1993 Human Rights in the Private Sphere, in which he already questioned the public/private divide of human rights law, the book was then categorized as both ‘adventuresome and timely’. Some fifteen years later, an analysis of this topic can no longer be called ‘adventuresome’, but the timeliness remains beyond doubt.

Normatividad Internacional en Colisión con la Norma Fundamental del Derecho Internacional

2018 ◽  
Author(s):  
Luis A. López Zamora
Keyword(s):  
International Relations ◽  
International Law ◽  
Rule Of Law ◽  
Legal Norms ◽  
International Constitutionalism ◽  
Speculative Behavior

It is undeniable that current international relations are exhibiting regressive trends that target International Law Rule of Law. These trends have limited the space for the construction of a coherent discourse coming from the constitutional school of International Law; however, this scenario is not only the result of speculative behavior of certain states. It lies—as well—in the lack of an articulate theory offered by international constitutionalism directed to explain the consequences of asserting the existence of a fundamental norm in the international realm. If the constitutional movement maintains that International Law has a constitution, then: Why is there no attempt to label current world events, not only as illegal but as breaches of its constitution? Why are legal norms being formed in the context of those breaches not labeled as constitutionally flawed? This chapter will attempt to analyze this in order to strengthen the constitutionalization argument in our discipline.

International Law and Foreign Policy

2017 ◽  
Author(s):  
Joel H. Westra
Keyword(s):  
Decision Making ◽  
Foreign Policy ◽  
World War Ii ◽  
International Relations ◽  
International Law ◽  
Policy Decision ◽  
Legal Compliance ◽  
State Behavior ◽  
Transnational Actors ◽  
Policy Decision Making

Policymakers regularly face decisions pertaining to the making of international law and compliance with international law. International relations scholars have attempted to explain the broad patterns of state behavior that emerge from such decisions by approaching international lawmaking and international legal compliance from the perspectives of state power, interests, and identity. These explanations reflect the growing interdisciplinary connections between the study of international law and the study of international relations. Although there have been fewer interdisciplinary connections between the study of international law and models of foreign policy decision-making, closer examination of each of the main international relations approaches to international lawmaking and international legal compliance suggests corresponding models of foreign policy decision-making. Further work remains to develop these connections and to incorporate transnational actors and processes into the analysis of foreign policy decision-making. Such work has both scholarly and practical relevance, insofar as foreign policy decision-making takes place in an increasingly legalized international environment even as the existing, post–World War II international order faces increasing challenges from nonliberal states.

The Judicialization of International Law

2018 ◽  
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
International Relations ◽  
International Law ◽  
The Other ◽  
International Courts ◽  
General Frame ◽  
Future Potential ◽  
The One ◽  
Law Making

International relations are increasingly judicialized by the increasing number of international courts and tribunals. On the one hand this judicialization of international law is hailed as a glimmer of more effective and legitimate world governance promoting human rights, justice, and peace. On the other hand critics highlight how sovereignty is increasingly constrained by international courts, and question the effectiveness, legitimacy, and future potential of these courts and tribunals. This book maps and assesses this development and the mixed reactions thereto, presenting the aspirations which international courts and tribunals (ICs) are living up to, and where they fall short. The first Part provides a general frame for these legitimacy concerns. It discusses the general functions of ICs; how they are governed; and possible alternatives to ICs. The second Part considers how the ICs appear to present their judgments in ways that legitimize them vis-à-vis states and other stakeholders; their inner workings; as well as their law-making role. The following Parts consider the various forms of backlash several of the ICs experience, and how the ICs, states, and civil society seek to respond to these challenges. The last Part deals with the fragmentary character of the international judiciary. An epilogue looks to the future of international judicialization.

scholarly journals Regime pluralism and the global regulation of oil pollution liability and compensation

2009 ◽  
Vol 5 (4) ◽  
pp. 379-391 ◽  
Author(s):  
James Harrison
Keyword(s):  
International Law ◽  
Oil Pollution ◽  
Global Regulation ◽  
Business Interest ◽  
State Actors ◽  
Law Making ◽  
The Way

Whilst international law has traditionally been dominated by states, non-state actors today have an increasing influence on many spheres of international life. This paper argues that non-state actors, in particular business interest non-governmental organisations (BINGOs), not only participate actively within those inter-governmental regimes which have been created by states, but they are also able to establish their own private regimes on particular issues in which they have an interest. The global regulation of oil pollution liability and compensation is used as an example to show how inter-governmental and private regimes can overlap and interact with one another. Such interplay poses several challenges for the way in which we understand traditional state-centred international law-making. At the same time, private regimes themselves raise their own questions of legitimacy and effectiveness.

scholarly journals Fear and international law-making: An exploratory inquiry

2019 ◽  
Vol 32 (3) ◽  
pp. 351-365 ◽  
Author(s):  
Andrea Bianchi ◽  
Anne Saab
Keyword(s):  
Decision Making ◽  
International Law ◽  
Food Contamination ◽  
Security Policies ◽  
International Policy ◽  
Decision Making Processes ◽  
Exploratory Inquiry ◽  
Law Making ◽  
Legal Processes

AbstractEmotions play an important role in cognition and have a significant and all too often neglected influence on (international) law-making processes. Fear, in particular, can be a driver of reasoning and decision-making. Fear of terrorism / immigrants / health threats / food contamination / environmental hazards – to give a few notable examples – influences the perception of risks associated with these issues and consequently impacts international policy- and law-making. International law rules and doctrines are often adopted – if not overtly justified – on the basis of fear and other emotions. This article aims to explore how fear – as both an individual and collective emotion – may affect decision-making processes, be determinative of normative outcomes, and shape security policies at the domestic and international levels. This approach deviates from traditional rationalist understandings of law and emphasizes the role of emotions in apprehending the nature and functioning of legal processes. Hopefully, this exploration will open up interesting avenues for further research on the role of emotions in international legal processes.

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