Law-Making by Non-State Actors

by

Timothy Masiko, Mary E. Footer

• LAST REVIEWED: 25 September 2019
• LAST MODIFIED: 25 September 2019
• DOI: 10.1093/obo/9780199796953-0189

Introduction

International law is a set of norms that covers the general procedures and institutions for the conduct of international relations. Its general function is to safeguard international peace, security, and justice in relations between states. As its name suggests, it is concerned with relationships between states, and that makes states the main actors or subjects of international law. As international law continues to evolve, however, the subjects of international law have broadened and changed. This has inevitably led to an evolution in the law-making process. Classically international rules could only be made by states, mainly by treaty or through international custom. More recently, the sources of law have expanded, as have the makers of international law. The classical sources of international law, stated in Article 38(1) of the Statute establishing the International Court of Justice (international conventions, international custom, general principles of law, and judicial decisions and teachings of highly qualified publicists), remain relevant, and new sources, principally ‘soft law,’ are gaining ground. In addition, non-state actors (NSAs) are becoming increasingly relevant, not just as subjects of international law but as participants in the law-making process. NSAs include international organizations, international and domestic judicial and quasi-judicial bodies, hybrid bodies, Civil Society, the private sector, and others. While previously and indeed currently in many spheres of international law international rules were only enforceable by and against states, it is increasingly common for NSAs to enjoy rights of audience before courts and tribunals, and also to participate in the law-making progress in various capacities. This has been through the creation of new customary international law, laying down new rules through the determination of disputes, the operation of soft law, and even the conclusion of treaties that bind states. The readings below start from a more general coverage of law-making to specific works about law-making by NSAs. They have been selected, as far as possible, to blend classical writings with current and recent research on the subject of law-making. Wherever possible, they include writings by practitioners in their relevant areas, such as judges and academics or legal counsel in and before judicial bodies. A note on terminology: many publications use the term “lawmaking” rather than “law-making”. Where in the original title of the publication the word “lawmaking” is used or else the words “law” and “making” appear disjunctively, it has been retained; otherwise, the word “law-making” is used.

General Overview of the International Law-Making Process

The process of international law-making follows the nature of the source of international law concerned (i.e., treaties, customary international law, and general principles of law). While the common law doctrine of precedent does not apply in international law, judicial decisions and teachings of eminent scholars are considered to be evidence of the existence of an international law principle. They are the subsidiary sources of international law, which do not state the law but help explain the law as laid down by the three primary sources. Additionally, and not uncontroversially, soft law or nonbinding law, while not a recognized source of international law, can nevertheless play an important role in international law-making, especially where NSAs are involved. D’Aspremont 2016 and Patterson 2016 trace the evolution of law-making and the place of subjects of and participants in international law, while Berman 2015 discusses pluralism (of subjects) as an interpretive lens through which to examine law-making by NSAs. Boyle 2014 is a useful introduction to soft law, especially as made by international organizations, while Dhokalia 1992 gives a view from the bench on the development of international law. Shelton 2014 takes a philosophical approach to, among others, the fallacy of the hierarchy of sources. Venzke 2012 considers interpretation and the insufficiency of Article 38(1) as a summary of the sources of international law, while Werner 2016 approaches the validity of law from the concept of state consent.

• Berman, Paul Schiff. “Non-State Law Making through the Lens of Global Legal Pluralism.” In Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism. Edited by Michael A. Helfand, 15–40. Cambridge, UK: Cambridge University Press, 2015.

  DOI: 10.1017/CBO9781316018132.002

  This chapter argues that the very existence of pluralism as a concept in international law validates law made by NSAs. Berman suggests that using global legal pluralism as an interpretive lens does not invalidate the centrality of states in international law; indeed, it supports this centrality because states choose when to allow or to defer non-state norms.

• Boyle, Alan. “Soft Law in International Law-making.” In International Law. 4th ed. Edited by Malcom D. Evans, 118–136. Oxford: Oxford University Press, 2014.

  Soft law is an emerging concept. Boyle considers its role in the process of law-making with reference to the role of states and NSAs, especially international organizations. He discusses the nature of soft law and its place in the treaty-making process at a multilateral level, as well as its application to dispute resolution and its relationship to customary law.

• d’Aspremont, Jean. “Subjects and Actors in International Lawmaking: The Paradigmatic Divides in the Cognition of International Norm-Generating Processes.” In Research Handbook on the Theory and Practice of International Lawmaking. Edited by Catherine Brölmann and Yannick Radi, 32–55. Cheltenham, UK, and Northampton, MA: Edward Elgar Publishing, 2016.

  This chapter offers an empirical review of the changes in the law-making process, arguing that it is not as state-centric as previously understood; instead, it has evolved to include NSAs. It assesses the impact of this “pluralization of ratione personae” (p. 35) on the nature of the resultant rules, including who qualifies to be a subject of the rules made by a variety of participants.

• Dhokalia, R. P. “Reflections on International Law-making and Its Progressive Development in the Contemporary Era of Transition.” In International Law in Transition: Essays in Memory of Judge Nagendra Singh. Edited by R. S. Pathak and R. P. Dhokalia, 203–229. Dordrecht, The Netherlands: Martinus Nijhoff, 1992.

  This contribution to a festschrift for Judge Nagendra Singh, a former judge and President of the International Court of Justice (ICJ), evaluates the challenges of making international law without a centralized legislature, and the resultant uncertainty as to the rules. It discusses issues of legitimacy, authority to make law, the challenges posed by globalization, and prospects for law-making in a changing international landscape.

• Patterson, Dennis. “Transnational Lawmaking.” In Research Handbook on the Theory and Practice of International Lawmaking. Edited by Catherine Brölmann and Yannick Radi, 56–65. Cheltenham, UK, and Northampton, MA: Edward Elgar Publishing, 2016.

  International relations, and consequently, international law, have evolved beyond classical positivist approaches to law-making. This chapter provides a philosophical reflection on that evolution, considering how phenomena such as globalization and the role of private actors have affected the development of new international rules. It gives examples of rules that have developed through a process of transnational law-making.

• Shelton, Dinah. “International Law and ‘Relative Normativity’.” In International Law. 4th ed. Edited by Malcom D. Evans, 137–165. Oxford: Oxford University Press, 2014.

  This chapter provides a more philosophical study of the underpinnings of international law, further discussing the relationships between the sources of law. It considers the fictitious nature of the hierarchy of these sources, as well as an analysis of international and national jurisprudence in relation to peremptory norms.

• Venzke, Ingo. “The Practice of Interpretation: A Theoretical Perspective.” In How Interpretation Makes International Law: On Semantic Change and Normative Twists. Edited by Ingo Venzke, 17–71. Oxford: Oxford University Press, 2012.

  Venzke discusses the role of interpretation in international law-making, questioning the appropriateness of using Article 38(1) of the ICJ Statute as the sole authority for the sources of international law, and evaluating the role of the users of those sources in making law through the application of principles.

• Werner, Wouter G. “State Consent as Foundational Myth.” In Research Handbook on the Theory and Practice of International Lawmaking. Edited by Catherine Brölmann and Yannick Radi, 13–31. Cheltenham, UK, and Northampton, MA: Edward Elgar Publishing, 2016.

  Consent to be bound by international law is an important part of the law-making process. This is especially so for treaties and, to some extent, customary law. This chapter examines the relationship between consent and the validity of international rules as they develop.