CYIL Vol. 5, 2014

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.