The United Nations treaty bodies were established to monitor the implementation of human rights by states parties. Through ‘General Comments’ – legally non-binding clarifications of treaty obligations – they have also influenced the development of international human rights law – for example, on the right to life and climate impacts. We address this phenomenon by establishing a twofold argument. First, we argue that General Comments are used by the committees to informally shape international law. They deliberately act as human rights law-makers, knowing that international institutions, organizations and professionals in their network will subsequently refer to such instruments. Second, we argue that treaty bodies not only rely on their network once they have adopted their outcome, but the experts’ personal networks also shape the drafting process of General Comments. We develop and illustrate an analytical framework with two case studies of General Comments on the human right to water and the torture prohibition. The analysis demonstrates the need for external knowledge of both technical and legal aspects of the norms being interpreted. By addressing pressing human rights challenges, expert committees can shape the law in times of stagnation and resist contestation even from powerful states.

Trilogues represent a decisive stage in the European Union (EU) legislative process and often settle the substantive content of EU legislation. During trilogues, negotiations move fast and new solutions are actively identified by the negotiators. The (lack of) transparency of trilogues has been repeatedly criticised in recent years, yet the EU institutions have defended their “space to think”. Relying on a set of interviews with trilogue participants, this paper mirrors the institutional practices in the final stages of EU law-making against the requirements of openness in the EU Treaties, which aim to strengthen “democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act”. The paper argues that, despite noble proclamations, the EU’s legislative practices are characterised by institutional discretion and the lack enforcement of transparency requirements. The paper describes how trilogues are conducted and how questions involving risk management and technically complex issues are assessed in this process. Greater transparency would also help to ensure that risks and alternatives are properly assessed and would thus contribute to better-quality risk regulation in the EU.

This article tries to imagine how the development of international humanitarian law (IHL) could continue despite current difficulties, increasing the ownership and contribution of States and armed groups in this process. After suggesting that some traditional assumptions about IHL may need to be abandoned, it tries to suggest a new way in which IHL rules could be developed, through States adopting together core obligations and principles and each State and armed group then specifying the details internally, but publicly. Finally, it stresses the importance and difficulties of involving non-State armed groups in this process.

Over the last two decades, international humanitarian law (IHL) has seen a stalling with regard to States’ willingness to adopt treaties or to be formally involved in the development of IHL. This raises the question of whether holding on to the doctrine of sources as laid down in Article 38 of the Statute of the International Court of Justice is the only way to meaningfully further develop IHL. Indeed, in recent years IHL instruments have often dispensed with certain formalities that are traditionally linked to (the formal sources of) international law; this phenomenon is also called “informal international law-making” (IIL). The present contribution will analyze IIL as an alternative way forward in light of the current “deadlock” caused by States’ unwillingness to conclude new IHL treaties or to recognize customary IHL. In this article, we will investigate and assess the opportunities, shortcomings and pitfalls offered by informality by looking into examples of IIL within IHL. More concretely, we will look into State practice in relation to (1) the Safe Schools Declaration, (2) the Tallinn Manual and Tallinn Manual 2.0, and (3) the Montreux Document. Most importantly, our findings will assess whether IIL can overcome one of its alleged main disadvantages: its lack of effectiveness.

Military technology has developed rapidly in recent years, and this development challenges existing norms. It has produced countless debates about the application of international humanitarian law (IHL) to areas of war and technology including cyber military operations, military artificial intelligence (including autonomous weapons), the use of drones, and military human enhancement. Despite these rapid progressions, the prospect of creating new treaties to specifically regulate their use by militaries and in armed conflicts is very low. This is largely due to the unequal allocation of military technology among States and the differing interests that result from this inequality. The absence of formal regulation means that State and non-State actors are increasingly embracing informal means of law-making. This is similar to other areas of IHL, such as the regulation of asymmetric conflicts, where norms are contested. In such cases, State and non-State actors employ various informal law-making techniques to advance their normative positions through treaty interpretation and the identification of customary international law.

However, the discussion on military technology differs from other contemporary IHL debates. First, due to the rapid development of such technology and uncertainty about how it will be employed in practice, the interests of the various actors are less clear. Second, there are significant challenges in obtaining accurate information about new military technologies. This makes even the informal law-making path in the context of new technologies more challenging.

This paper explores the dynamics of contemporary international law-making as it relates to the regulation of new military technologies. It identifies the main techniques that are used by the relevant actors and explores the common themes among the various debates over military technology, as well as the potential specific challenges in relation to certain technologies.

Emotions play an important role in cognition and have a significant and all too often neglected influence on (international) law-making processes. Fear, in particular, can be a driver of reasoning and decision-making. Fear of terrorism / immigrants / health threats / food contamination / environmental hazards – to give a few notable examples – influences the perception of risks associated with these issues and consequently impacts international policy- and law-making. International law rules and doctrines are often adopted – if not overtly justified – on the basis of fear and other emotions. This article aims to explore how fear – as both an individual and collective emotion – may affect decision-making processes, be determinative of normative outcomes, and shape security policies at the domestic and international levels. This approach deviates from traditional rationalist understandings of law and emphasizes the role of emotions in apprehending the nature and functioning of legal processes. Hopefully, this exploration will open up interesting avenues for further research on the role of emotions in international legal processes.

In 2014, the Indonesian president signed a new Village Law (no. 6/2014). This statute started a new phase in the ongoing history of village governance policy, moving the village from a position as an administrative unit in a top-down system towards one of an autonomous community. The present article analyses how distinct “policy communities” in Indonesia started a process that helped shape the 2014 Village Law in order to promote their long-term political agendas, how their involvement was facilitated by the particular features of Indonesia’s law-making process, and how they managed to get a Bill passed that went against considerable vested interest from government bureaucracies. However, they have been less successful in securing implementation of the new law, as this process is still dominated by the government bureaucracies that were “defeated” in the law-making process.

This article considers the influence of teachings of publicists on the development of international law. The category of ‘teachings of publicists’ is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and ‘ordinary’ publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of ‘influence’. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined.

As international law is widening in regulatory scope and intensity, it arguably suffers from a legitimacy deficit. This article conceives of this deficit as a deficit in possibilities to politicize, criticize, and contest international law-making proposals in the way a loyal opposition does in a domestic constitutional context: through the representation of relevant societal interests, the voicing of critique, and the safeguarding of alternative proposals for the future. The author of this article tries to bring together the current debate in political theory on the value of legitimate disagreement and dissent in political institutions and the ongoing discussion on the legitimacy of international law. Therefore, a concept of an institutionalized opposition for international law-making processes is developed, referencing authors such as Hannah Arendt and Claude Lefort. Next, the author analyses whether one can already find instances of an institutionalized opposition in international law – in parliamentary assemblies and in international agreements which are designed to present a legal–political counterweight to specific legal concepts and institutions.

The paper analyses the dynamic procedures that work during the formation of international law in international organizations and conventional frameworks. These procedures organize and structure the interactive exercise of the normative function by law-creating bodies and law-applying bodies. The paper conceives of this ‘way’ of making international law as a law-making method that the concept of standardization helps to understand. Grounded in Aristotelian dialectic logic, standardization indeed conceptualizes the dialogic and procedural law-making that works for normative coherence in contexts characterized by co-operation and the heterogeneity of interests. Introducing this concept, the paper insists on the fact that it is the procedural nature of the dialogue that is crucial to reach normative coherence. Drawing on the consequences of standardization, and regarding dynamic procedures, it reappraises the status and the importance of both the different sources of international law and the different participants to international law-making. Also, the paper points out the predominance of normative coherence, as well as that of its ‘guarantor’, namely procedure that its author considers the cornerstone of legal certainty in the co-operative context of the international society.

History and background of the comitology system in the European Union – The continuing problem of the involvement of the European Parliament – The new comitology decision of the Council of Ministers: introduction of a comitology procedure concerning ‘quasi-legislative measures’ – Genesis of the 2006 reform: negotiations within the Council and with the Parliament – Accompanying political declarations – Evaluation: a substantial shift in the relations between the institutions in relation to law-making.