Improving International law: between the Dynamism of Stakeholders and the Limitations of the Law-making System
Dr. Farah Yassine
Ass.Prof. – KILAW
Abstract:
The absence of an international legislator raises questions with regards to alternative law-making processes. Public International Law relies basically on consensualism and thus leaves to States a wide range of appreciation and discretion. Nevertheless, it develops and evolves at a fast pace and through various multilateral processes. The latter do not have the same relevance nor the same power, and corresponding mechanisms are put in place by different bodies.
The International Law Commission (ILC) has actively participated in the codification and improvement of international law. Its impact is reflected in customary law but also in treaty-law through the adoption of conventions based on the ILC reports. This is for example the case of the Vienna Convention on the Law of Treaties that has also become customary international law.
Other bodies participated to the development of international law such as the International Court of Justice and other United Nations organs and specialized agencies. Pressure groups like Non-Governmental Organizations contribute as well to the emergence of new rules of international law and the development or amendment of the existing ones. The roles of all these actors is not the same; it ranges mainly from legislating to observing and implementing international norms.
This paper analyzes the relevance of certain bodies in terms of international law-making and the difficulties that hinder the improvement of the international legal system. Current procedures are often long, complicated and not systematized. The thematic codification of international law led to the development of scattered sources that cannot be integrated into one system of laws. Hence the latter can hardly be described as an international legal order.
The paper discusses the aforementioned challenges while tracking the ongoing path that is usually followed by international rules before becoming part of the corpus of international law. As a result, such rules amount to the level of binding sources as others remain soft laws. In any event, they have to be incorporated in domestic law in order to be enforced. This is another level of difficulty where the complementarities between national law and international law become an additional challenge to the improvement of international law.