CYIL Vol. 5, 2014

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 5

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2014

Editor-in-Chief: Professor PAVEL ŠTURMA Reviewers: Associate Professor VLADIMÍR BALAŠ Professor MAHULENA HOFMANN Professor DALIBOR JÍLEK Dr. KATARÍNA ŠMIGOVÁ Professor PAVEL ŠTURMA 341.1/.8 * 341.9 * (437.3) – public international law – public international law – Czechia – private international law – private international law – Czechia – collective monographs – yearbooks – mezinárodní právo veřejné – mezinárodní právo veřejné – Česko – mezinárodní právo soukromé – mezinárodní právo soukromé – Česko – kolektivní monografie – ročenky viii, 514 s. Vydáno v nakl. Eva Rozkotová ISBN 978-80-87488-17-1 (Eva Rozkotová)

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 5.– Praha : Česká společnost pro mezinárodní právo, 2014. –

341 – International law [16] 341 – Mezinárodní právo [16]

Tato Ročenka je vydávána s ϐinanční podporou Rady vědeckých společností Akademie věd ČR. This Yearbook is published with a ϐinancial support of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Weil, Gotshal & Manges LLP. © Česká společnost pro mezinárodní právo, 2014 © Czech Society of International Law, 2014 Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu ISSN 1805-0565 ISBN 978-80-87488-17-1 Passau-Berlin-Praha

BOARDS AND EDITORS

EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law

Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor VLADIMÍR KOPAL † West-Bohemian University, Faculty of Law Professor JIŘÍ MALENOVSKÝ

Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris Dr. PETER TOMKA President, International Court of Justice, The Hague EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, member of the ILC

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Professor MAHULENA HOFMANN SES Chair in Space Communications and Media Law, University of Luxembourg, Faculty of Law, Economics and Finance Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Dr. KATARÍNA ŠMIGOVÁ, Paneuropean University Bratislava, Faculty of Law

CONTENTS

PREFACE Pavel Šturma

VII

ABBREVIATIONS

IX

I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS

1

Non-Traditional Norms in International Law: Approaches in Legal Scholarship Sanderijn Duquet – Jan Wouters 1 ResponsibilityWhile Protecting – an Alternative to R2P, or a Return to its Original Ethos? Veronika Bílková 23 The Existance of the Right to Humanitarian Assistance in the Event of Natural Disasters Ana Polak Petrič 37 The Definition of Aggression and the Use of Force Josef Mrázek 67 What is the Legal Regime of the Arctic? Jan Ondřej 95 The Brussels Convention on the Liability of Operators of Nuclear Ships: Expectations, Basic Principles and the Reasons of Failure Jakub Handrlica 121 CITES at the Beginning of its Fifth Decade: Outdated, or at its Best? Karolina Žákovská 139 Rethinking the ILC Draft Articles on Diplomatic Protection: The Legal Nature of Diplomatic Protection Čestmír Čepelka Diplomatic Protection and other Mechanisms for the Protection of the Individual against Serious Human Rights Violations: Limiting the Discretion Pavel Caban The Position of the Individual in Post-Codification Diplomatic Protection Diana Cucos 157 167 181 II. DIPLOMATIC PROTECTION 155

III. INTERNATIONAL LAW AND EUROPEAN LAW

197

The Intergovernmental Avenues of the European Integration: A Way Ahead for the Economic and Monetary Union? Emil Ruffer Issue of Cooperation on Home Affairs Between the USA and the EU Pavel Biriukov

199

219

European Anti-discrimination Law and the Legal Status of Professional Athletes Harald Christian Scheu

227

IV. INTERNATIONAL HUMAN RIGHTS LAW

241

What is not right in Human Rights Protection? Few reflections on some European Court of Human Rights judgements Pavel Bureš 243 The UN Human Rights Treaty Body System – Reform, Strengthening or Postponement? Jan Lhotský 255 Are International Organisations Bound by International Human Rights Obligations? Martin Faix 267 Do Legal Persons Have the Right to Respect for Private and Family Life? Alla Tymofeyeva 291

V. INTERNATIONAL CRIMINAL LAW AND HUMANITARIAN LAW

307

The Role of International Law in the Rule of Law Efforts in Post-Dayton Bosnia and Herzegovina Kateřina Uhlířová

309

Human Rights before the International Criminal Court Ondřej Svaček 327 Private Military Contractors, Paramilitaries and Mercenaries in the Ukrainian Conflict: An Analysis of their Impact on International Law Carollann Braum 341

VI. CZECH VIEWS ON INVESTMENT AND TRADE LAW

359

And Never the Twain Shall Meet : Parallel Arbitral and Court Proceedings within the Sphere of International Investment Arbitration. Is Parallelism an Undesirable

Occurrence or a Welcome Lifeline? Zuzana Jahodníková – Miloš Olík

361 Umbrella Clause – Additional Protection of Investment by Clause or Non-Protection Even Through Addition of the Clause? Vojtěch Trapl 399 State Immunity in Jurisprudence of Czech Courts Klara Polackova Van der Ploeg 421

VII. CZECH PRACTICE OF INTERNATIONAL LAW

451

The International Law Commission at the Mid-point of its Quinquennium (Survey of its Work in 2014) Pavel Šturma List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2013 till 31st December 2013 Milan Beránek

453

463

VIII. SHORTER ARTICLES AND NOTES

471

In memoriam Professor Vladislav David Martin Faix Professor Vladimír Kopal Passed Away Mahulena Hofmann

473

475

Moot Courts on Issues of International Law 2013/2014 Milan Lipovský

479

IX. BOOK REVIEWS 481 Responsibility of International Organisations towards other International Organisations: Law and Practice of the United Nations, theWorld Bank, the European Union and the International Atomic Energy Agency Pavel Šturma 483 Principles of Public International Law Štefan Viedenský 487 Creation and Recognition of a State: Current View of International Law Jitka Hanko 493 Compensation in International Law Tomáš Lipták 495 Comparative Law Study and Analysis of National Legislation relating to Crimes Against Humanity and Extraterritorial Jurisdiction Milan Lipovský 501 Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions Veronika Vilímková 503 X. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY 505 Zuzana Trávníčková 505

PREFACE

Dear Readers, You now have in your hands the fifth volume of the Czech Yearbook of Public & Private International Law (CYIL), appearing, as usual, in October. This means that our Czech Yearbook celebrates its fifth anniversary. While in human life such an anniversary indicates that a child has almost reached school age, for the journal it means an indisputable tradition. This Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. The above institutions and the Editorial Board of the CYIL are proud that, despite its rather complicated start in life, the Yearbook has not only survived but is growing and maturing. This anniversary is a good occasion to announce some news. As you know, the CSIL publishes the Yearbook both in printed and electronic versions (www.cyil.eu). Beginning with the third volume (2012), we have offered the electronic version in a user-friendly format of an E-book, suitable for PCs, notebooks and tablets. Since 2014, the Czech Yearbook has been included in the Czech index of scholarly peer- reviewed journals (RVVI) and is currently being indexed for the SCOPUS database. We will inform you about the results on our web site. Next, beginning with this current volume, the Czech Yearbook is being published by the new international publishing project, RW&W Passau-Berlin-Praha, and will be distributed through the company Südost Service GmbH abroad, mostly in Germany. The newly established partnership of RW&W with partners in scientific publishing should ensure a place for the Czech Yearbook in catalogues and databases among other international legal journals and books. However, the content is and must be, in our opinion, just as important as form, if not even more important. From this point of view, Volume 5 (2014) keeps the standards set in previous volumes. The variety of studies and articles in this volume covers many issues of contemporary International and European law. They include, inter alia , non-traditional norms of international law, R2P, the definition of aggression, an issue of emerging legal regime of Arctic, nuclear liability and protection of natural species under CITES. This volume also offers a thematic section with three articles on Diplomatic protection. The editors would like to continue this model in the next years. The current developments seem to offer many issues, for example the lightness of international sanctions, which incite extensive public debate. It is interesting, however, that real international law analysis of such sanctions, from the point of view of legal rules on State responsibility and countermeasures, is absent so far. Let us debate!

For the second time the CYIL also presents a section on EU law. An important number of articles deals with international human rights law, in particular from the perspective of the European system. Some contributions concern various issues of international criminal law and criminal justice, as well as international humanitarian law, including private military contractors, paramilitaries and mercenaries in the Ukrainian conflict. In accord with its tradition, the CYIL Volume 5 also covers certain aspects of international economic law (investment law) and private international law, such as decisions on State immunity by Czech courts. Moreover, the publication presents, as usual, topical information on the work of the UN International Law Commission in 2014, the list of treaties ratified by the Czech Republic, short notes, book reviews and a survey of Czech international law bibliography. Also as usual, the authors of this publication come both from Czech and foreign institutions, from academia and legal practice. More so than in previous years this volume includes contributions of foreign professors and researchers, coming from or teaching in Belgium, Luxemburg, Moldova, Russia, Slovakia, Slovenia, Switzerland, Ukraine and the USA. As to the Czech institutions involved, these include Charles University in Prague, Masaryk University in Brno, Palacky University in Olomouc, West-Bohemian University in Plzeň, the Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs and its Institute of International Relations, as well as some private law firms. Keeping the Yearbook as open as possible, we try to establish and maintain the Prague-based platform for dialogue of scholars and practitioners of international law. This publication appears thanks to the financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for generous financial support from the Prague branch of the law firm Weil, Gotshal and Manges. We wish that this volume of the Czech Yearbook also find many readers, and we are looking forward to new authors and new contributions for the next volume.

Prof. Pavel Šturma Editor-in-Chief

ABBREVIATIONS

AIOC – Anglo-Iranian Oil Company ASEAN – Association of South East Asian Nations AU – African Union BiH – Bosnia and Herzegovina BITs – bilateral investment treaties CCPR – International Covenant on Civil and Political Rights CDCE – Convention on the Protection and Promotion of the Diversity of Cultural Expressions CISS – Inter-American Conference on Social Security CITES – Convention on International Trade in Endangered Species of Wild Fauna and Flora CJEU – Court of Justice of the EU CMI – International Maritime Committee COPUOS – Committee on the Peaceful Uses of Outer Space CRC – Convention on the Rights of the Child CRPD – Convention on the Rights of Persons with Disabilities COSPAR – Committee on Space Research DPA – Dayton Peace Agreement EC – European Commission ECB – European Central Bank ECJ – European Court of Justice ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms

ECOSOC – UN Economic and Social Council ECtHR – European Court of Human Rights ECOWAS – Economic Community of West African States EFSF – European Financial Stability Facility EFSM – European Financial Stabilization Mechanism

EMU – Monetary and Economic Union ESM – European Stability Mechanism EU – European Union

EU/EC – European Union/ European Commission FAO – Food and Agriculture Organization of the United Nations

FBiH – Federation of Bosnia and Herzegovina FCC – German Federal Constitutional Court FTA – Free Trade Agreement GAL – Global Administrative Law

GATT – General Agreement on Tariffs and Trade GFAP – General Framework Agreement for Peace GLOBALG.A.P. – Global Partnership for Good Agricultural Practice GLSI – Global Food Safety Initiative IAEA – International Atomic Energy Agency IBRD – International Bank for Reconstruction and Development ICC – International Criminal Court ICCAT – International Commission for the Conservation of Atlantic Tunas ICISS – International Commission on Intervention and State Sovereignty ICJ – International Court of Justice ICRC – International Committee of the Red Cross ICSID – International Centre for Settlement of Investment Disputes ICTY – International Criminal Tribunal for the former Yugoslavia IFRC – International Federation of Red Cross and Red Crescent Societies ILA – International Law Association ILC – UN International Law Commission ILP – International Legal Process IMF – International Monetary Fund IN-LAW- Informal International Lawmaking IRU – International Relief Union LN – League of Nations MAI – Multilateral Agreement on Investment MFA – Ministry of Foreign Affairs of the Czech Republic

NAFTA – North American Free Trade Agreement NATO – North Atlantic Treaty Organization NGOs – non-governmental organizations

OCHA – Office for the Coordination of Humanitarian Affairs OECD – Organisation for Economic Co-Operation and Development OJ – Official Journal of EU PCIJ – Permanent Court of International Justice PIC – Peace Implementation Council PIL – Public International Law PMSCs – private military/security contractors PISA – Program for International Student Assessment RS – Republika Srpska RwP – Responsibility while Protecting R2P – Responsibility to Protect SFRY – Socialist Federal Republic of Yugoslavia TEU – Treaty on European Union TFEU – Treaty on the Functioning of the European Union TFTP – US (Department of the Treasury’s) Terrorist Finance Tracking Program TLD – Transatlantic Legislators’ Dialogue TPR – Transnational Private Regulation TSCG – Treaty on Stability, Coordination and Governance in Economic and Monetary Union UNCTAD – United Nations Conference on Trade and Development UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea UNGA – UN General Assembly UNDRO – United Nations Disaster Relief Coordinator UNEP – UN Environmental Programme UNHCR – UN High Commissioner for Refugees UNSC – United Nations Security Council UNESCO – United Nations Educational Scientific and Cultural Organization UNICEF – United Nations Children’s Fund UK – United Kingdom UN – United Nations UNDP – United Nations Development Programme

UNSC – United Nations Security Council USA – United States of America USSR – Union of Soviet Socialist Republics WCC – War Crimes Chamber of the Court of BiH

WFP – UN World Food Programme WHO – World Health Organization WTO – World Trade Organization

I. STUDIES

IN INTERNATIONAL LAW AND ORGANIZATIONS

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW NON-TRADITIONAL NORMS IN INTERNATIONAL LAW: APPROACHES IN LEGAL SCHOLARSHIP

Sanderijn Duquet Jan Wouters

Abstract: States, sub-state entities and private actors increasingly interact across national borders. At the global level, alongside the more traditional ways to generate international law through the conclusion of treaties, there is an emerging tendency to engage in alternative processes of rule-making and standard-setting. The norms developed challenge dominant theories on sources of international law. Scholars disagree on the legal value of non-traditional norms, which are sometimes referred to as ‘soft law’, ‘global governance activities’ or ‘international public administration’ in an effort to emphasize their difference with traditional lawmaking processes. The present contribution builds on the work of those who have sought to analyse and categorize this phenomenon. It presents a critical overview of four recent legal approaches to non-traditional international lawmaking and discusses how these different conceptual frameworks may be applied by law- and policymakers. The authors contend that legal scholarship has an important role to play in ordering, explaining, and critically scrutinizing non-traditional international lawmaking and indicate how this role can be further advanced to fully serve this purpose. Resumé: Státy, substátní entity a soukromí aktéři stále více komunikují přes hrani- ce jednotlivých států. Na globální úrovni, vedle tradičních způsobů, jimiž se vytváří mezinárodní právo v podobě uzavírání smluv, vznikají nové tendence k zapojení se do alternativních procesů tvorby pravidel a standardů. Takto vytvořené normy představují výzvu pro dominantní teorie pramenů mezinárodního práva. Právní vědci se neshodují v otázce právní síly netradičních norem, které jsou někdy ozna- čovány jako “soft law”, „akty globálního řízení“ nebo „mezinárodní veřejná správa“, ve snaze zdůraznit jejich rozdíl oproti tradičnímu právotvornému procesu. Před- ložený příspěvek navazuje na práci těch, kteří se snažili analyzovat a kategorizovat tento jev. Představuje kritický přehled čtyř dosavadních právních přístupů k ne- tradiční mezinárodní tvorbě práva a popisuje, jak se mohou tyto různé koncepční rámce aplikovat těmi, kdo vytváří právo a politiku. Autoři tvrdí, že právní věda má hrát důležitou úlohu při určování, objasňování a kritickém zkoumání netradičních forem tvorby mezinárodního práva, a ukazují, jak tato role může být posílena, aby plně sloužila tomuto účelu. Key words: Public international law, sources of law, soft law, informality, global governance processes, accountability.

SANDERIJN DUQUET – JAN WOUTERS CYIL 5 ȍ2014Ȏ On the Authors: Sanderijn Duquet is PhD Fellow at the Research Foundation – Flanders (FWO), the Leuven Centre for Global Governance Studies and the Institute for International Law, KU Leuven. JanWouters is Full Professor of International Law and JeanMonnet Chair ad personam, Director, Leuven Centre for Global Governance Studies – Institute for International Law, KU Leuven and Visiting Professor, College of Europe (Bruges), Sciences Po (Paris) and Luiss University (Rome). 1. Introduction Public and private actors increasingly interact in transnational settings, where they are bringing about a web of transnational rules, regulations and standards on issues as diverse as finance, investment, competition, health, food, social issues, human rights and information technology. 1 These processes all form part of global governance, the study of which draws on interactions across borders among states, citizens, societies and markets. 2 Global governance studies show that the analysis of transnational interactions is an arduous undertaking, partly because of the involvement of a high number of actors at various levels. These include, together with states and sub-state entities, intergovernmental organizations, government agencies, private actors, business enterprises and NGOs. 3 Furthermore, governance on an international level is constantly evolving: State and non-state actors opt in or out of global initiatives and flexibly endorse dynamic standards and declarations. 4 These processes are also relevant for present-day legal scholarship, as they challenge long-standing doctrines of international law. While in many areas international frameworks (multilateral treaties, intergovernmental organizations…) have been well- established for years, it is remarkable that regulators have resorted to less institutionalized forms of lawmaking and governance to engage in interaction across national borders. 1 Koppell, J., World Rule. Accountability, Legitimacy, and the Design of Global Governance , Chicago: University of Chicago Press, 2010, p. 15. 2 Global governance has been defined as ‘the complex of formal and informal institutions, mechanisms, relationships, and processes between and among states, markets, citizens and organizations (…) through which collective interests are articulated, rights and obligations are established, and differences are mediated’ in Thakur, R., Van Langenhove, L., “Enhancing Global Governance through Regional Integration” In: Cooper, A.F., Hughes, Ch., De Lombaerde, Ph. (eds), Regionalisation and Global Governance. The Taming of Globalisation?. London: Routledge, 2008, pp. 17-42, at 20; See also Weiss and Thakur’s definition of global governance: ‘Global governance is the sum of laws, norms, policies, and institutions that define, constitute, and mediate relations among citizens, society, markets, and the state in the international arena – the wielders and objects of international public power’, Weiss, T. G., Thakur, R., Global Governance and the UN: An Unfinished Journey . Bloomington: Indiana University Press, 2010, p. 6. 3 Wallach, L., “Accountable Governance in the Era of Globalization: TheWTO, NAFTA, and International Harmonization of Standards”, University of Kansas Law Review , 2001-2002, Vol. 50, No. 3, pp. 823-866, at 836-837. 4 Piilola, A., “AssessingTheories of Global Governance: a Case Study of International Antitrust Regulation”, Stanford Journal of International Law , 2003, Vol. 39, No. 2, pp. 207-252, at 207.

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW While this may have resulted in more desirable, detailed and effective regulation, a number of concerns have arisen from a legal point of view: scholars point to the risks of infringements of the principles of the rule of law and good governance and to the uneasy fit of such non-traditional norms within traditional systems of democratic accountability and checks and balances. 5 The present contribution argues that international legal concepts have insufficiently been adapted to fully grasp these exciting developments. Its aim is to provide an overview of the different approaches and methodologies that have been developed in legal scholarship to guide legal research related to non-traditional international lawmaking. Doing so, we build on the work of those who have sought to analyse and categorize the aforementioned non-traditional regulatory practices. We contend that legal scholarship has an important role to play in ordering, explaining, and critically scrutinizing non-traditional international lawmaking and indicate how this role can be further advanced to fully serve this purpose. First, we elaborate on how legal analyses can benefit the study of cross-border cooperation. Second, four approaches that have emerged to study non-traditional international norms will be presented and critically reviewed. a third section makes a cross analysis of the theoretical approaches and their usefulness to contemporary debates. We end with some recommendations for future legal scholarship. 2. Non-traditional norms and traditional international law 2.1 The doctrine of sources of international law The interest of legal scholarship in studying global policy processes, by itself, is odd. It is far from established that norms originating from transnational administrative practices can be regarded as (a form of ) law. 6 Moreover, the type of governance studied in this contribution has moved deliberately away from the rigid framework of sources of public international law (PIL). Indeed, the choice of a soft instrumentum indicates that transnational administrations did not intend for flexible norms, standards, and declarations to create legal obligations under international law. 7 However, while the lion’s share of the output of transnational administrative and policymaking practices is considered to be of a voluntary nature and legally non-binding, uncertainty may 5 Wallach, op. cit. 3. 6 On this debate, see Jennings, R.Y., “What is International Law and How Do We Tell it When We See it?’, Schweizerisches Jahrbuch für Internationales Recht , 1981, Vol. 37, pp. 59-88; Weil, P., “Towards Relative Normativity in International Law?”, American Journal of International Law, Vol. 77 , No. 3, 1983, pp. 413-442; Klabbers, J., “The Undesirability of Soft Law”, Nordic Journal of International Law, Vol. 67, No. 4, 1998, pp. 381-391; D’Aspremont, J., Formalism and the Sources of International Law. a Theory of the Ascertainment of Legal Rules , Oxford: Oxford University Press, 2011. 7 Aust defines an “informal international instrument” as “an instrument which is not a treaty because the parties to it do not intend it to be legally binding”; Aust, A., “The Theory and Practice of Informal International Instruments”, International and Comparative Law Quarterly , Vol. 35, No. 4, pp. 787-812, at 787.

SANDERIJN DUQUET – JAN WOUTERS CYIL 5 ȍ2014Ȏ still arise when the will of parties is unclear or when indirect legal consequences are produced. 8 An assessment of what counts as international law and what does not in light of the development of new, non-traditional, international norms requires insights on public international law and its sources. In traditional legal doctrine, Article 38(1) of the Statute of the International Court of Justice (ICJ) forms the basis of the discussion on sources of international law. This provision, in a way that is considered to be convenient for international lawmakers, names and orders the ‘traditional’ sources of international law: treaties, customary international law, general principles of law, judicial decisions, and juristic writings. It derives recognition and legitimacy from the collective will of states as primary actors in international law and serves as the foundation of a more general ‘doctrine of sources’ in international law. Notwithstanding, this list of sources also shows a number of drawbacks, which continue to give rise to considerable confusion. 9 First, the sources doctrine has been developed in a particular context and for a particular reason, namely to guide the ICJ in its determination of the law. Article 38 is primarily defined through case law. Therefore, it has been argued that sources doctrine confuses the role of a lex arbitri with that of a meta-source for all international law. 10 Second, sources doctrine does not recognize non-traditional norms. Non-legally binding norms currently do not form the object of PIL, as they cannot be invoked before courts in the same way as legally binding norms. An alternative theory seems to be lacking as well: no overall legal framework exists to order the norms and standards produced in global settings and adhered to by many national administrators. This leads to the question whether Article 38 ICJ is still an accurate reflection of the state of international law, which is fundamental in light of the necessity of the law to serve as an instrument for ordering its own normative processes and to keep up with the specific context of an ever-more complex society. Theoretically, Article 38 of the ICJ Statute can be adapted. The provision was never intended to be exhaustive and can be changed. 11 This would, however, require a change in the way PIL has been studied for many years. This is unlikely to happen. Rethinking dominant theories in international law is challenging, especially when it includes the re-assessment of constitutive elements of the body of PIL. In addition, States are the masters of lawmaking processes and the acceptance of new insights in the normative components thereof will depend on their agreement. Policymakers 8 D’Aspremont, J., “Softness in International Law: a Self-Serving Quest for New Legal Materials”, European Journal of International Law, Vol. 19, No. 5, pp. 1075-1093, at 1082. 9 Cohen, H. G., “Finding International Law: Rethinking the Doctrine of Sources”, Iowa Law Review , 2007-2008, Vol. 93, No. 1, pp. 65-130; Radi, Y., “Standardization: a Dynamic and Procedural Conceptualization of International Law-Making”, Leiden Journal of International Law , 2012, Vol. 25, No. 2, pp. 283-307. 10 Kammerhofer, J., “Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems”, European Journal of International Law , 2004, Vol. 15, No. 3, pp. 523-553. 11 Pauwelyn, J., “Is It International LawOr Not, and Does It EvenMatter?”. In: Pauwelyn, J., Wessel, R.A., Wouters, J., Informal International Lawmaking . Oxford: Oxford University Press, 2012, p. 132-133.

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW may not be willing to change attitudes and may prefer continuing to treat many of the regulatory activities taking place in international fora merely as coordination exercises not contributing to law or lawmaking. 2.2 International law and the rise in informality As indicated above, the developments taking place in transnational law and policymaking challenge the traditional doctrine of sources in international law. Nevertheless, the discussion cannot be considered to be a new one: the position of non- traditional norms in the international legal order has always been precarious. Three dominant strands in legal literature have proposed a number of interesting solutions. First, a leading theory in international law, legal positivism, supports the view that none of the non-traditional norms is law. 12 The theory reflects the idea that there has to be a unity of sources of law. Positivists recognize as law only those norms which are generated by a pre-determined legal procedure and independent of the presence of any inherent value or its merits. 13 Quite often, these requirements clash with the ways in which informal rules and standards are created. Drawing on the rise in informality in international lawmaking, scholars increasingly challenge the black-and-white view of the law as presented by legal positivists. Positivism seems to ignore the realities of global governance and does not put forward solutions on how to explain transnational regulative and administrative processes. 14 A second strand expanded the interest area of legal scholarship to non-traditional norms. An in-between category was introduced to fill the gap between law and non- law at the international level. There is disagreement, however, among scholars with regard to how this third category should be conceptualized. Different notions have been introduced in literature: ‘non-traditional sources of international law’ (Crawford), the ‘grey area between law and non-law’ (Van Hoof ), ‘presumptive law’ (Klabbers), or, more generally, ‘soft law’. 15 Yet, the added value in attempting to include non- traditional norms in the sources doctrine also has been challenged. Sources doctrine in itself comes with none or very limited extra accountability mechanisms. Moreover, the very systematisation of lawmaking initiatives may change the nature of norms, since they will undoubtedly loose (part of ) their informality. The informality is a constitutive characteristic of the norms and a key reason why these were adopted in the first place. As a result, systematisation may even result in a decline in effectiveness. 12 Hart, H. L. A. The Concept of Law . Oxford: Oxford University Press, 1961; García-Salmones Rovira, M., The Project of Positivism in International Law . Oxford: Oxford University Press, 2013. 13 Gardner, J., “Legal Positivism: 5 ½ Myths”, American Journal of Jurisprudence , 2001, Vol. 46, No. 1, pp. 199-228. 14 See in this regard the works of those subscribing to the theory of ‘Legal Realism’. For a discussion on legal realism in modern international law, see: Shaffer, G., “A Call for a New Legal Realism in International Law: The Need for Method”, Minnesota Legal Studies Research Paper No. 2, 2009. 15 Crawford, J., Brownlie’s Principles of Public International Law , Oxford: Oxford University Press, 2012; Van Hoof, G. J. H., Rethinking the Sources of International Law , Leiden: Kluwer, 1983; Klabbers, J., “Law-making and Constitutionalism”. In: Klabbers, J., Peters A., Ulfstein, G. (eds), The Constitutionalization of International Law. Oxford: Oxford University Press, 2009, pp. 81-125.

SANDERIJN DUQUET – JAN WOUTERS CYIL 5 ȍ2014Ȏ A third body of research has challenged the formalism of public international law altogether. Processual understandings of PIL originated from the New Haven and New International Legal Process (ILP) Schools. Scholars affiliated with these schools argue that public international law has transformed so that it should no longer be understood as having only a limited number of categories and dispose of all ‘labels’. The New Haven School defines law as a process of decision that is both authoritative and controlling. 16 The ILP School advocates a legal system that develops in line with international society’s rapidly expanding values. Therefore, international lawmakers should follow dynamic procedures to develop new legal standards through reasoned elaboration of their decisions. 17 Drawing on ‘processualist’ theories, a number of scholars attempted to rethink the body of public international law and its sources. 18 Others, such as Tamanaha, have even gone further by developing a pragmatic concept of law. In his opinion, law is ‘whatever people recognize and treat as law through their social practices’. 19 The three aforementioned approaches to study non-traditional norms at the international level can be conceptualised by placing them on a spectrum, allowing for more or less deference to the doctrine of sources. As such, a common characteristic is their indebtedness to the sources doctrine, which is used as a benchmark throughout. The present contribution does not propose a final compromise in the debate between those who argue in favour of a bright line between law and non-law, those arguing for the existence of a grey zone, and those who value ‘processual’ understandings of the law. It rather submits that, either way, legal scholarship has an important role to play in analysing international processes that result in norms that are complied with by both public and private actors and affect individuals. 2.3 Why should legal scholarship be concerned about non-traditional norms? A legal approach focuses on constructing a legal understanding of, and on developing a legal framework for, non-traditional norms. The justification is that, whether formally accepted as a part of law, a special category of law or plainly as non-law, it cannot be denied that a strong connection exists between public international law and other forms of regulation in international society. Three further considerations reinforce this point. First, the number of non- traditional norms has grown exponentially compared to traditional international law. Pauwelyn, Wessel and Wouters present evidence of the fact that the field of traditional international lawmaking is in a process of stagnation, both quantitatively (number of treaties) and qualitatively (state consent and approval by parliament more often than not have become formalities in administrative processes) in favour of 16 Reisman, M., Wiessner, S., Willard, A.R., “The New Haven School: a Brief Introduction”, Yale Journal of International Law , 2007, Vol. 32, No. 2, pp. 575-582. 17 O’Connell, M. E., “New International Legal Process”, American Journal of International Law , 1999, Vol. 93, No. 2, pp. 334-351. 18 Van Hoof, op. cit. 14; Cohen, op. cit. 9. 19 Tamanaha, B., a General Jurisprudence of Law and Society . Oxford: Oxford University Press, 2007, p. 67.

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW new, alternative forms of cross-border cooperation. 20 In many policy fields, moreover, international institutions have taken up active roles in finding international agreement through policy processes, while states have been less active in developing traditional international law. 21 Second, case studies report that non-traditional norms regulate individual behaviour and influence national legal systems. 22 It is broadly accepted that ‘non-law’ stemming from international governance processes may create legal effects at the international and/or domestic level. Non-traditional norms are used to exercise regulatory functions that, previously, were considered to be inherently linked to the function of law in a strict sense of the word. Further research is required to scientifically measure the concrete impact of non-traditional international law in domestic courts and regulatory schemes. 23 Third, a rule of law element pops up. One of the crucial questions when studying global regulatory processes is how to control these. Research repeatedly has shown that informal regulatory processes may suffer from accountability deficits. The absence of judicial review and due process safeguards, even when it is clear that norms may have a deep impact upon individuals, is striking. 24 Consequently, a gap exists in legal research with regard to the conceptualisation and accountability of non-traditional norms. 3. The study of non-traditional international norms The approaches discussed above have offered insight into processes that underlie international lawmaking. Yet, they appear to fall short in grasping the totality of new regulatory developments at the international plane. The doctrine of sources of PIL and approaches derived thereof, at least at this point in time, are unable to assess the complexity of output of public policy processes at the international plane. As a result, alternative methods have been considered to study and order non-traditional norms. A vast body of scholarship has emerged to study the new layer added to normmaking at the global level. The following section critically discusses four recent methodologies that have attempted to fill the gap in legal research. All four draw attention to phenomena in global governance that are considered to be largely neglected by lawyers. Each of them, however, approaches the problem from a different angle. 20 Pauwelyn, J., Wessel, R.A., Wouters, J., “When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking”, European Journal of International Law 2014 (forthcoming). 21 Von Bogdandy, A., Dann Ph., Goldmann, M., “The Exercise of Public Authority by International Institutions”, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht , 2010, Vol. 21, No. 1, pp. 3-32. 22 Von Bogdandy, A., Dann, Ph., Goldmann, M., “Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities”, German Law Journal , 2008, Vol. 9, No. 11, pp. 1375-1400. 23 For example, as done in Benvenisti E., Downs, G., “National Courts, Domestic Democracy, and the Evolution of International Law”, European Journal of International Law , 2008, Vol. 20, No. 1, pp. 59-72. 24 Von Bogdandy, Dann, Goldmann, op. cit. 21 , at 9.

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3.1 Informal International Lawmaking The concept of ‘informal international lawmaking’ (or IN-LAW) has been introduced by a research project consisting of legal scholars affiliated with the Graduate Institute in Geneva, the Leuven Centre for Global Governance Studies, and the University of Twente and sponsored by The Hague Institute for the Internationalisation of Law (HiiL). In order to be able to describe the precise object of research as well as the notion of informal international lawmaking itself, the researchers adopted a flexible and problem-oriented approach and proposed the following definition: 25 Cross-border cooperation between public authorities, with or without the participation of private actors and/or international organizations, in a forum other than a traditional international organization ( process informality ), and/or as between actors other than traditional diplomatic actors (such as regulators or agencies) ( actor informality ), and/or which does not result in a formal treaty or traditional source of international law ( output informality ). The term ‘informal’ international lawmaking is used in contrast and opposition to ‘traditional’ international lawmaking. IN-LAW is ‘informal’ in the sense that it dispenses with certain formalities traditionally linked to international law. These formalities may have to do with output , process , or the actors involved. First, in terms of output , international cooperation may be ‘informal’ when it does not lead to a formal treaty or any other traditional source of international law, but rather to a guideline, standard, declaration, or even more informal policy coordination or exchange. The focus is on a lack of certain formalities, not lack of legal ‘bindingness’ as such. Second, in terms of process , international cooperation that occurs in a loosely organized network or forum rather than a traditional international organization is considered to be informal. Such process or forum informality does, however, not prevent the existence of detailed procedural rules, permanent staff, or physical headquarters. Nor does process informality exclude IN-LAW in the context, or under the auspices of, a formal organization (for example, the Guidelines for Multinational Enterprises or the PISA standards that are created under the auspices of the OECD). Third, in terms of actors involved, international cooperation is ‘informal’ when it engages ministries, domestic regulators, agencies, sub-federal entities, or the legislative or judicial branch. Private actors may participate in these processes too besides public actors and/or international organizations. Purely private cooperation with no public authority involvement, on the other hand, is not covered by IN-LAW. Research primarily has been occupied with the claim that the informal nature of this type of lawmaking, or, in other words, the ‘circumvention’ of formalities under international and/or domestic procedures results in IN-LAW not being sufficiently

25 Pauwelyn, J., Wessel, R. A., Wouters, J., “An Introduction to Informal International Lawmaking”. In: Informal International Lawmaking , op. cit. 19, p. 21-22.

NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW accountable. 26 At the same time, it was taken into account that escaping these same formalities is what makes IN-LAW more effective. To cope with this apparent contradiction, the concept of accountability was re-evaluated. For the purposes of the IN-LAW project, researchers distinguished between accountability mechanisms strictly defined, pre-conditions for such accountability, and other accountability- promoting measures. Research also clarified that a distinction between accountability examined at the international level (e.g. participatory decision-making, transparency, the existence of a complaints mechanism at the level of the IN-LAW body), as well as at the domestic level (e.g. domestic administrative or political control over the participants in the IN-LAW process, domestic review, and notice and comments procedures before international guidelines are implemented, etc.) was useful. 27 Notwithstanding significant efforts made by the IN-LAW scholars, many questions related to the accountability of IN-LAW remain unresolved. For example, if it is the very nature of IN-LAW to be informal, how can it include formal, institutionalized accountability mechanisms? 28 Moreover, the informality of international instruments raises the question what actors should be held accountable, to whom they must be held accountable, and who is responsible for holding relevant actors accountable. Given the informal nature of IN-LAW, especially at the international level, little authority (if any) is formally delegated. Therefore, internal or delegation accountability is less likely to play out internationally as opposed to domestically (e.g., domestic regulators participating in IN-LAW being held accountable by their supervising domestic ministries or parliaments). IN-LAW scholars have been looking for ways to reconnect international legal scholarship with the ‘real world’ and the many interesting informal normative processes that shape it and make it more interconnected and inclusive. This exercise is vital given the realities of international cooperation in the 21 st century, but far from obvious to operationalize. Accepting a role for informal processes in lawmaking and global governance is one thing; assessing the impact of fundamental constitutional principles (such as accountability) in relation to these processes and their output quite another. The core difficulty when operationalizing accountability of IN-LAW bodies is that it may be challenging for any actor to be fully accountable. Solutions proposed by IN-LAW scholars therefore promote both domestic and international control mechanisms. 26 Benvenisti, E., “Coalitions of the Willing and the Evolution of Informal International Law”. In: Calliess, Ch., Nolte G., Stoll, P. (eds.), Coalitions of the Willing – Avantgarde or Threat? , Cologne: Carl Heymanns Verlag, 2007, pp. 1-23; Kingsbury B., Stewart, R., “Legitimacy and Accountability in Global Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation of Administrative Tribunals of International Organizations”. In: Flogaitis, S. (ed.), International Administrative Tribunals in a Changing World , London: Esperia Publications, 2008, pp. 193-220. 27 Corthaut, T., Demeyere, B., Hachez, N., Wouters, J., “Operationalizing Accountability in Respect of International Informal Lawmaking Mechanisms”. In: Informal International Lawmaking , op. cit. 19, p. 21-22. 28 Duquet, S., Pauwelyn, J., Wessel, R.A., Wouters, J., “Upholding the Rule of Law in Informal International Lawmaking Processes”, The Hague Journal on the Rule of Law , 2014, Vol. 6, No. 1, pp. 75-95.

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3.2 Global Administrative Law Non-traditional international norms can be assessed through the lens of administrative law. Researchers affiliated with the Global Administrative Law (GAL) research project at the New York University School of Law, have prominently done so. The endorsement of administrative principles and administrative law-type mechanisms in global governance is the primary premise of the methodology. 29 This is clearly reflected in the work of Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, who define GAL as comprising: 30 [T]he mechanisms, principles, practices and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision and legality, and by providing effective review of the rules and decisions they make. Global administrative law, fundamentally, understands and analyses global governance as administrative action. In other words, administrative law is used to order international relations and its output. Similar to what other students of changing international rulemaking have observed, a distinction is made between treaty-making and the creation of customary international law on the one hand, and regulatory action that does not fit these labels, on the other. The former are considered to be the equivalent of legislative processes at the national level and formal sources of international law. The latter are intended to manage economic and social life through specific decisions and rulemaking. 31 The GAL framework does not challenge the fundamental basics of general public international law in contrast to the processual understandings of PIL as discussed above. Quite to the contrary, GAL complements PIL and offers insights in regulatory action that is not law in the narrow, positivist, sense. 32 One of GAL’s strongest features indeed is its legal approach. Consistently, the law is brought back in the study of norms that are formally non-binding, which has enhanced the development of a theoretical body for accountability. GAL scholars have convincingly argued that, because of its administrative characteristics, for a large part of global governance at the very minimum some form of judicial or administrative redress must be made available. 29 Kingsbury, B., “The Administrative Law Frontier in Global Governance”, American Society of International Law , Vol. 99, No. 1, pp. 143-153. 30 Krisch, N., Kingsbury, B., Stewart, R.B., “The Emergence of Global Administrative Law”, Law and Contemporary Problems , 2005, Vol. 68, No. 3, pp. 15-68, at 17. 31 Krisch, Kingsbury, Stewart, op. cit. 30, distinguish these forms of administrative action from adjudication. See also: Kingsbury, B., Casini, L., “Global Administrative LawDimensions of International Organizations Law”, International Organizations Law Review , 2009, Vol. 6, No. 2, pp. 319-358. 32 See, however, Kingsbury and Casini, who argue that many legal questions posed necessitate a broadening and probably even a rethinking of the field of international institutional law; Kingsbury, Casini, op. cit. 31, at 356.