This week on Opinio Juris, we hosted a book discussion on Informal International Lawmaking, a new volume edited by Joost Pauwelyn, Ramses Wessel and Jan Wouters, hot of the presses from OUP. In a post on the conceptual approaches adopted by the authors, Joost Pauwelyn explained what they mean by “informal” international lawmaking and what the book hopes to add to the debate on non-traditional forms of international law. David Zaring asked where the boundaries of “informal” law stop and discussed the legitimization technique used in the book, a move away from the traditional state consent.
Ramses Wessel discussed the legal nature and impact of informal international law. In his comment, Tai-Heng Cheng focused on the relationships between international social norms, legality and normativity. Ramses Wessel’s reply argued that the notion of ‘presumptive law’, developed by Jan Klabbers, could be useful to understand the important normative role that informal law can play, and that actual effects and the acceptance of norms in legal orders are important factors to determine normativity.
Jan Wouters summarized the findings on the accountability and domestic implementation under informal international lawmaking. Chris Brummer’s comment added to this from the perspective of international financial law, and also flagged how courts are often side-lined by the non-binding nature of informal law.
To conclude the symposium, Joost Pauwelyn argued why we are now seeing more informality than ever before, and pointed to the recent WTO Decision in US-Tuna II as an example of how informal international law can affect dispute settlement by courts, and Jan Wouters and Sanderijn Duquet closed off with some further thoughts on accountability.
In what can be seen as an example of informal international lawmaking, Peter Spiro and Duncan Hollis discussed the negotiations of the International Telecommunications Union’s regulations later this year in Dubai. Peter pondered different models for the participation of the large number of industry representatives on the US delegation to the negotiations on an international telecommunications treaty. Duncan reported on a set of White Papers on cyber norms, resulting from a series of interdisciplinary workshops in which he has been involved.
Also of interest in relation to our book symposium is Harold Koh’s recent speech on 21st century international lawmaking to which Duncan drew our attention. In his speech, the legal advisor to the US State Department also explored alternatives to formal treaties and the role of non-state actors.
Another event that attracted attention on the blog was the DC Circuit’s opinion in Hamdan v. United States, holding that material support for terrorism was not a war crime before 2001. Kevin Jon Heller welcomed the decision, and in a later analysis argued why the historical case against considering conspiracy as a war crime is even stronger than that against material support for terrorism. Deborah Pearlstein discussed what Congress should take from Hamdan.
In other posts, Kevin dealt with a lot of quotes this week. First, he gave the award of Orwellian Quote of the Day to a US government request for a protective order in the 9/11 trials at Guantanamo Bay to avoid the publication of details about torture of the defendants. In the aftermath of the second US Presidential Debate, Kevin reviewed the transcript of the debate and of Obama’s speech in the Rose Garden to check what was said and what wasn’t about the Benghazi attacks. He also posted about a claim by the head of the American Family Association that Hitler’s Stormtroopers were male homosexuals.
Julian Ku felt little sympathy for Argentina whose naval training ship, the ARA Libertad, is the subject of an attachment claim in Ghana, brought by investors trying to recoup money they lost when Argentina defaulted on its sovereign bonds in 2002.
As always, we provided you with daily news wraps and a list of upcoming events. Julian also reminded us about the upcoming International Law Weekend in New York City, organized by the American Branch of the ILA, from October 25-27.
Finally, we look forward to next week, when Kristen Boon will join us as a new regular contributor. Welcome Kristen!
Many thanks to our guest contributors and have a nice weekend!