Back in The Game: International Humanitarian Law-Making by States
Berkeley Journal of International Law (BJIL), Forthcoming
Hebrew University of Jerusalem Legal Research Paper No. 19-03
64 Pages Posted: 14 Dec 2018 Last revised: 17 Mar 2020
Date Written: December 6, 2018
This article is the first to identify and analyze the recent tendency of states to use unilateral, non-binding, lawmaking initiatives in the context of international humanitarian law (IHL), also known as the Law of Armed Conflict (LOAC). While there was minimal direct state involvement in IHL-making initiatives in the first decade of the 21st century, in recent years states have taken an active part in IHL making. This article analyzes the policies of two states that stand in the middle of this debate – the U.S. and Israel – to provide a detailed account of contemporary state-led IHL-making. It argues that these new initiatives are an attempt by states to regain their influence over IHL from non-state actors. This suggests three broad implications for international lawmaking. First, unilateral lawmaking documents might be adopted more often as an alternative to traditional lawmaking and soft law initiatives when contracting costs are high. Second, the new lawmaking initiatives tend to adopt non-state actors' strategies to influence the debate, as an expression of states’ internalization of the horizontal nature of contemporary international lawmaking. Third, states often cooperate with non-state actors that share their interpretive positions in the international lawmaking process.
Keywords: international lawmaking, IHL, LOAC, non-state actors, cyber
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