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Lawmaking in international law: Quo Vadis? Notes on the sidelines of the meeting of the European Society of International Law (Stockholm, 2021)

This article provides an overview of the meeting of the European Society of International Law, which took place in Stockholm in September 2021 and was devoted to the problems of lawmaking in international law.

The most famous piece of music by the American composer and philosopher John Cage is “4:33”, in which the musician sits silently and motionless in front of the instrument for 4 minutes and 33 seconds, without extracting a single sound from it. Perhaps back in 1952, John Cage intuitively foresaw isolation and pandemic. Cage’s approach to this piece is philosophical, it pushes the limits of the usual understanding of music, makes us listen and hear music there and then when the music we are used to — performed by musical instruments — falls silent. It is very gratifying that this melody, “4:33”, which we listened to due to the limitations of COVID-19, ended and we were finally able to attend the ESIL conference in Stockholm, listen to reports and ask questions. I feel joy also because «Ode to Joy» (final movement of Beethoven’s 9th Symphony) is «Anthem of Europe». Let me remind, that it is the anthem used by two organisations, the Council of Europe and the European Union.

This year during ESIL 2021 the participants discussed the general and theoretical aspects of lawmaking. During the three days of the conference, the following issues were discussed: the deformalisation of international law; lawmaking by non-state actors; the changing local implementation of international law; international lawmaking from below; legitimacy and rationality in international lawmaking; how to study how international law works; and technology and changes in lawmaking. Of course, all the questions raised at the conference cannot be covered in one small review, so it seems possible to single out several intuitively important problems.

Listening to many speeches, it is hard to stray from the classic concept of lawmaking, when the main and only participants in the process were exclusively states. And even if we have already realized and long ago reflected on the participation of international organisations in lawmaking (as was mentioned by Margherita Melillo, at the dawn of the 21st century, even the World Health Organization (WHO) turned to lawmaking and created the WHO Framework Convention on Tobacco Control), we still find it difficult to perceive and discuss the question: «can an international intergovernmental organisation participate in the creation of international customs?» (This is the question, that, in particular, Negar Mansouri drew attention to in her report “Global Daedalus: International Bureaucracies, Supra-functional Authority and Worldmaking Practices”). In this context, attention should be paid to the provisions of the draft conclusions on identification of customary international law, adopted by International law commission (ILC) in 2018. This document rather carefully states “In certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law” (Conclusion 4.2). Furthermore, a resolution adopted by an international organization cannot, of itself, create a rule of customary international law, but may provide evidence for determining the existence and content of a rule of customary international law, or contribute to its development (Conclusion 12.1-2). It should be noted that in the comments to this document the ILC clarifies many issues related to the participation of international organisations in this process (UN Doc A/73/10). Thus, it can be argued that the role of international organisations is very different from the role of states in the process of creating international customs.

Continuing the topic of the ILC, it is worth noting the speech of Conception Escobar Hernandez (member of the International Law Commission), who drew attention to the activities of the ILC. In principle, it seems to me that it is important to start the review of the ESIL-2021 conference with this very topic. After all, the reformatting of the ILC activities, a certain stagnation in the development of draft legally binding documents, the transition to the development of various guidelines, declarations, etc., which are unlikely to ever become international treaties, served in many respects to the transformation of lawmaking in the international arena. The ILC was largely a victim of its early success. For a long time, following the results of the work of the ILC, there have been no international conferences that adopt international treaties on the basis of draft articles, and more often the UN General Assembly takes these texts into account. It seems that it was the decrease in the role of the ILC in lawmaking that catalyzed the process of diversification of lawmaking and brought numerous forums up to date.

The presence of a large number of platforms for lawmaking, on the one hand, democratizes the process, but, on the other hand, leads to a violation of the jurisdiction of international organisations and bodies, and potentially entails fragmentation. Previously, the issue of climate change was dealt with within the framework of the Conference of the Parties of the UNFCCC. Today it is also dealt with within the framework of the UN Security Council, and the UN Human Rights Council appoints a Special Rapporteur on the protection of human rights in the context of climate change etc. Here we see both an unconventional issue for security and the erosion of human rights issues, which, instead of fighting poverty, covers more and more issues.

A serious question raised by the ESIL-2021 conference is the appearance over the past few decades of a large number of lawmaking participants in the international arena. Reports and discussions provided numerous examples that showed what role these actors (parliaments, cities, indigenous peoples, etc.) play in lawmaking. Concerning the role of cities, the Barcelona’s and Paris’s call for asylum should be mentioned At the same time, it is important to note such tendency that, for example, the special role of indigenous peoples is indicated not only in specialized acts aimed solely at protecting their interests, but also in other international treaties (for example, the preamble and article 7 (5) of the Paris Agreement 2015). It is interesting to note that lawmaking is developing so intensively not in all branches of international law. International environmental law can be a positive example in this regard. Thus, the concept embodied in the SDGs and in the Paris Agreement redefines the role of non-state actors in lawmaking. Such thoughts come after listening to the reports of Eva van der Zee (report “How to Achieve a Smart-Mix of Public and Private Due Diligence Requirements Under the SDGs? Insights from Motivational Crowding Theory’”) and Maša Kovič Dine “Can Cities Contribute to International Climate Change Lawmaking?”

In this respect, the decision of the district court of The Hague in the Netherlands in the case of “Milieudefensie et al v Royal Dutch Shell” sounds quite revolutionary. In May 2021, the court ordered Royal Dutch Shell to reduce its global carbon emissions from its 2019 levels by 45% by 2030. It is considered to be the first major climate change litigation ruling against a corporation. We see how the court applies to the activities of TNCs several international treaties (including the Paris Agreement), which apply only to the main subjects of international law — states. Hague court in Shell case rely upon soft law (including United Nations Guiding Principles on Business and Human Rights, UN Global Compact, SDGs). While if a Business and Human Rights Treaty will be adopted, it would affect non-state norm-making a lot. In any case, it is necessary to wait for the decision of the court of appeal on this case in order to draw substantive conclusions.

Of course, the relevant question still arises: has the emergence of new forms of lawmaking weakened states or perhaps reinforced them — by making their joint governance more nimble, effective and seclusive? And the answer here may be different depending on the context. In international environmental law, we see a situation where states stubbornly block codification issues. For instance, how many years has the idea of the Global Pact for the environment been discussed both among academia and NGOs? On 10 May 2018, the UN General Assembly adopted resolution 72/277 entitled “Towards a Global Pact for the Environment”. As a result, after the meeting of the three working groups, the states, for the most part, said no. On 30 August 2019 the General Assembly adopted resolution 73/333 «Follow-up to the report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277». In resolution 73/333 the General Assembly welcomed the work of the ad hoc open-ended working group as well as its report. Thus, even in the next 2022 «anniversary year» (50 years of the establishment of UNEP and the Stockholm conference), a resolution will be adopted, not a single codifying international treaty.

New processes of lawmaking are reflected in the quality of the process of creating norms of international law and sharply raise the issue of maintaining consensus in the international community, when documents are adopted bypassing classical international intergovernmental forums. Accordingly, the question arises: will such norms be followed by states? For example, the term soft law is very broad. It is very difficult to separate and classify soft law norms, and who has the right to do it? Based on the discussions at the conference, I exclusively support the idea of classifying soft law norms from the point of view of their legitimization, primarily by states. Soft law could be very effective, when norms from non-binding declarations are incorporated into treaty law or become international custom. Soft law requires a hierarchical approach and classification. Therefore, it is necessary to develop a document on the application of soft law and classification of soft law either at the official level (UN International Law Commission), or at the level of professional organisations (International Law Association or Institute of International Law).

The fact should be emphasized that many speakers at ESIL-2021 spoke about — the adoption of soft law can be quite effective when it is adopted quickly, unlike an international treaty. This is largely a truthful thesis. Let me remind you that the fight against mercury pollution took 61 years from the detection of the problem to the creation of the convention and its entry into force. Minamata disease was first discovered in the city of Minamata, Kumamoto Prefecture, Japan, in 1956, hence its name.  Minamata Convention on Mercury was adopted 2013 and enter into force on 16 August 2017.

Concluding my reflections on the conference, I nevertheless come to the conclusion that there can be infinitely many participants in the lawmaking process, hidden and obvious. Even if some academics speak about a sliding scale of normativity, even if states do not actively participate in the process of creating norms, they still can or cannot give life to these norms, it is the states that should legitimize the norms after the lawmaking process. The legitimacy provided by groups of states and regional unions undoubtedly undermines the universality of international law.

The most emotional experience of ESIL-2021 was the memorial section dedicated to the recently deceased Professor James Crawford. I think it is important for both established scientists and young scientists to see and understand what to strive for, how hard it is to work in the field of international law.

Philosopher Walter Benjamin in his famous essay “The Work of Art in the Age of Mechanical Reproduction” proposes and explains that mechanical reproduction devalues the aura of an objet d’art. That in the age of mechanical reproduction and the absence of traditional and ritualistic value, the production of art would be inherently based upon the praxis of politics. Therefore, at the end of reflections on ESIL-2021, I would like to believe that in the next 2022 we will be able to fully experience the aura of ESIL by communicating and discussing in the corridors and cafes after the speeches. Yet most of the attendees attended the conference online and were unable to fully enjoy the aura of an objet d’art named ESIL annual conference.

Information about the author:

Alexander Solntsev, Deputy Head of the Department of International Law, People’s Friendship University of Russia (RUDN University, Moscow), Associate Professor

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