This is a study of the principal negotiating processes and law-making tools through which contemporary international law is made. It does not seek to give an account of the traditional - and untraditional - sources and theories of international law, but rather to identify the processes, participants and instruments employed in the making of international law. It accordingly examines some of the mechanisms and procedures whereby new rules of law are created or old rules are amended or abrogated. It concentrates on the UN, other international organisations, diplomatic conferences, codification bodies, NGOs, and courts. Every society perceives the need to differentiate between its legal norms and other norms controlling social, economic and political behaviour. But unlike domestic legal systems where this distinction is typically determined by constitutional provisions, the decentralised nature of the international legal system makes this a complex and contested issue. Moreover, contemporary international law is often the product of a subtle and evolving interplay of law-making instruments, both binding and non-binding, and of customary law and general principles.
Only in this broader context can the significance of so-called 'soft law' and multilateral treaties be fully appreciated. An important question posed by any examination of international law-making structures is the extent to which we can or should make judgments about their legitimacy and coherence, and if so in what terms. Put simply, a law-making process perceived to be illegitimate or incoherent is more likely to be an ineffective process. From this perspective, the assumption of law-making power by the UN Security Council offers unique advantages of speed and universality, but it also poses a particular challenge to the development of a more open and participatory process observable in other international law-making bodies.
Alan Boyle is Professor of Public International Law at the University of Edinburgh. He is co-author of International Law and the Environment and was General Editor of the ICLQ from 1998 until 2006. He is a barrister and also practises in international courts and tribunals.
Christine Chinkin is Professor of International Law, LSE, Overseas Affiliated Faculty Member, University of Michigan and an academic member of Matrix Chambers. She is Director of Studies of the International Law association. Her co-authored work with Hilary Charlesworth, The Boundaries of International Law: A Feminist Analysis (2000) was awarded the American Society of International Law's Certificate of Merit for an 'outstanding contribution to scholarship.'