Is it International Law or Not and Does it Even Matter?
INFORMAL INTERNATIONAL LAWMAKING, J. Pauwelyn, R. Wessel & J. Wouters, eds., Oxford University Press, 2012
47 Pages Posted: 27 Oct 2011 Last revised: 27 Feb 2012
Date Written: February 26, 2012
Novel, hybrid and informal ways of international and transnational cooperation have emerged. Can the output of this informal cooperation, outside international organizations, involving state and non-state actors and leading to instruments other than formal treaties nonetheless amount to 'international law'? This paper examines whether 'informal international lawmaking' can still lead to international law. Is there a line or grey zone distinguishing law from non-law? What criterion does international law use to distinguish law from non-law? Who has the capacity to make international law? What is the difference between being law, having legal effects and being subject to law? And, perhaps most importantly, does it still matter whether an instrument is classified as inside or outside international law?
Keywords: international law, soft law, informal law, normativity, social norms, rules of recognition, legal facts, legitimacy
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