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This is a study of the principal negotiating processes and law-making tools through which contemporary international law is made. It does not seek to give an account of the traditional - and untraditional - sources and theories of international law, but rather to identify the processes, participants and instruments employed in the making of international law. It accordingly examines some of the mechanisms and procedures whereby new rules of law are created or old rules are amended or abrogated. It concentrates on the UN, other international organisations, diplomatic conferences, codification bodies, NGOs, and courts. Every society perceives the need to differentiate between its legal norms and other norms controlling social, economic and political behaviour. But unlike domestic legal systems where this distinction is typically determined by constitutional provisions, the decentralised nature of the international legal system makes this a complex and contested issue. Moreover, contemporary international law is often the product of a subtle and evolving interplay of law-making instruments, both binding and non-binding, and of customary law and general principles. Only in this broader context can the significance of so-called 'soft law' and multilateral treaties be fully appreciated. An important question posed by any examination of international law-making structures is the extent to which we can or should make judgments about their legitimacy and coherence, and if so in what terms. Put simply, a law-making process perceived to be illegitimate or incoherent is more likely to be an ineffective process. From this perspective, the assumption of law-making power by the UN Security Council offers unique advantages of speed and universality, but it also poses a particular challenge to the development of a more open and participatory process observable in other international law-making bodies.
About the Author
Alan Boyle is Professor of Public International Law at the University of Edinburgh. He is co-author of International Law and the Environment and was General Editor of the ICLQ from 1998 until 2006. He is a barrister and also practises in international courts and tribunals. Christine Chinkin is Professor of International Law, LSE, Overseas Affiliated Faculty Member, University of Michigan and an academic member of Matrix Chambers. She is Director of Studies of the International Law association. Her co-authored work with Hilary Charlesworth, The Boundaries of International Law: A Feminist Analysis (2000) was awarded the American Society of International Law's Certificate of Merit for an 'outstanding contribution to scholarship'
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contemporary methods of making international law
25 Feb 2011
Format:Paperback
From its title, one may be tempted to think that this is a text about conventional sources of international law. Chinkin & Alan Boyle rather discuss the parallel; that is, the contemporary methods of making international law (processes, instruments and actors).
States traditionally are the most important actors in international law, other actors are also influential (courts, NGOs, international organizations, individuals and pressure groups), all of which are contributing in the advancement of contemporary international law.
Their various roles are very crucial for contemporary international law making because new global threats and challenges (terrorism, Viruses, climate change, drugs...) also call for new solutions. NATO for instance is aimed at providing a collective umbrella for its members against security threats. The authors concur that for any solution to gain roots, legitimacy will have to be a factor in compliance pull.
The incorporation of natural law theories into international law making (Jus cogens, erga omnes obligations for example) have been useful in uplifting fundamental human values, translated as universal principles.
Law-making, the authors concede must not be the end of the story but rather the beginning, because however sound the law maybe at point in time, there would always be some unforeseeable shortcomings. The collapsing of territorial boundaries with the advent of the internet for example, is one indication why instruments of international law regulations must be strengthened and kept on the alert.
States traditionally are the most important actors in international law, other actors are also influential (courts, NGOs, international organizations, individuals and pressure groups), all of which are contributing in the advancement of contemporary international law.
Their various roles are very crucial for contemporary international law making because new global threats and challenges (terrorism, Viruses, climate change, drugs...) also call for new solutions. NATO for instance is aimed at providing a collective umbrella for its members against security threats. The authors concur that for any solution to gain roots, legitimacy will have to be a factor in compliance pull.
The incorporation of natural law theories into international law making (Jus cogens, erga omnes obligations for example) have been useful in uplifting fundamental human values, translated as universal principles.
Law-making, the authors concede must not be the end of the story but rather the beginning, because however sound the law maybe at point in time, there would always be some unforeseeable shortcomings. The collapsing of territorial boundaries with the advent of the internet for example, is one indication why instruments of international law regulations must be strengthened and kept on the alert.
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