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W821 TMA1 - 2000 words. Critically analyse the role of International…

- - - - Strengths (in terms of intl orgs)
        
        Odermatt. IOs can contribute to the creation of customary intl law in their own right, both as representations of the collective will of States, but also as actors in their own right. Use example of EU given in this source.
        
        North Sea Continental Shelf case of ICJ
        
        Customary intl law is seen as hard law, it is binding, so whereas IOs direct law-making tends to take the form of soft law through resolutions, they can also have a direct effect on hard law creation in certain circumstances.
      - Weaknesses
        
        Odermatt - some IOs will be more important than others in the creation of cust int law. E.g. CJEU is limited to a regional focus therefore its ability to influence international law is more constrained than the ICJ's might be, through it's power to interpret and clarify law.
        
        IOs are not the only actors that affect customary international law. Indeed, national courts also help to form cust intl law when dealing with cases that have an international dimension, so international or supranational courts are not unique in this regard.
        
        IOs are bound by some aspects of customary international law (excluding those relating to states such as those governing territorial issues, citizens etc). As such, they ought to have a hand in its' creation. As Blokker reflects, "Why should they fully comply with rules of customary international law without being able to fully participate in its development?" p10
        
        The role of IOs in customary international law, with regard to its creation as well as the extent to which they are subject to it, is still poorly defined. Blokker.
        
        "The circumstances in which international organizations can contribute directly are fairly discrete and limited" Daugirdas p.2
        
        IOs play a role in the creation of customary international law when it comes to law governing the relations between states, between states and IOs, and between IOs. But beyond the narrow confines of this portion of the law, IOs are less able to contribute and this wider body of customary international law is dominated by states (Daugirdas, p.15).
    - - Strengths
        
        Lawrence & Wong - the soft law aspects of the Paris Agreement should be considered a strength, as without them no consensus would have been reached. (p.285) However, other soft law aspects of the treaty, e.g. around mitigation, represent weaknesses. Lack of stringency and specificity. (p.286)
        
        Alvares - "UN-sponsored treaty conferences provide a relatively stable negotiation forum that permit negotiators to continue their interaction beyond a single round of negotiations."(p339). IOs provide a well-established set of protocols and best practices, providing a level playing field for states to negotiate without having to first reach agreement on procedural issues such as rights of delegates, diplomatic immunity, costs, administrative support etc. IOs act as enablers to inter-state treaty making. (p.340) IOs' secretariats are repositories of a wealth of institutional learning around negotiation techniques and formats, uniquely able to advise states on how to conduct and conclude successful treaties and thus add to the body of international hard law. IOs secretariats provide not just administrative support, but real leadership. They act as honest brokers, tracking points of agreement and disagreement, providing background research, and advising on solutions or acceptable language for treaty clauses. Alvares cites the examples of the UNCLOS and ICC treaties where these valuable services played a vital role (p340-342). All these benefits point to the unique contribution that IOs such as the UN and others have and continue to make to the development of public international law.
        
        Alvares - "IOs possess “knowledge assets” which give them a competitive advantage to produce knowledge-based goods and services that enhance states’ ability to cooperate." p341
      - Weaknesses
        
        Alvares - IOs can be criticised for increasing the "democratic deficit". Whilst they enable a wide range of countries to participate in negotiations and sign treaties, many of these governments are not themselves democratic, and the nature of international negotiation could be said to skew legal power into the hands of national executive branches than may otherwise be the case, with less oversight by representative parliaments. Also the increasing involvement of NGOs in treaty making, whilst on the face of it a broadening of accountability and representation, may be nothing of the sort, as NGOs are not elected and do not directly represent anyone but their donors, in most cases (p. 396). The democratic link between treaties enacted at an international level under the aegis of an IO, and the will of the global populace, is most tenuous. (DV point)
        
        From a Realist standpoint, IOs do not have their own legal personality and merely reflect the agendas of their most powerful members. They have no scope within which to act altruistically or set their own agendas. Alvares p 585: strict realists regard the notion of quasi-independent non-state actors such as IOs as naive myth". DV - this sort of hardline standpoint holds little water. It is clear that over the last several decades, IOs have matured and evolved and do, to some extent and depending on the institution, appear to be "greater than the sum of their parts", not merely a mechanism for states to dominate each other. For example, the European Union, an international, supranational organisation stands in stark contrast to the Realist narrative. Within the EU, member states have ceded sovereignty (to a greater or lesser extent, as not all states have adopted the Euro), and the EU does have its own legal personality, represented in various other international bodies, as well as its own court that contributes to international jurisprudence.
        
        IOs are not usually parties to treaties in their own right. E.g. the EU tried to join the ECHR for many years but has been unable to do so, as negotiations trundle on. (Council of Europe reference)
  - - - See Sivakumaran quotes opposite
  - - - Through most of the Post-War 20th Century, anti-terrorism legislation was created through treaties, through the collective will of states. Post-9/11, the UNSC has used Resolutions to create international law against terrorism.
      - UNSC resolutions sometimes impose binding obligations on member states. The UNSC has pro-actively created much new international law through its post-9/11 resolutions and those aimed at countering the spread of ISIL in recent years. McKeever says this is in marked contrast to the UNSC's usual modus operandi in the other international security issues with which it deals. (MCKeever p15.
      - McKeever believes the over-zealous use of UNSC resolutions in promulgating terrorism law should be reduced and that the Council should be more circumspect on imposing ever-growing burdens on states. Rather, the traditional route of international treaty hard law should be the preferred method in most cases of legislating at the international level. (p15)
      - Odermatt para on role of courts eg CJEU in general principles of law
- - - - Talk about COP26? Is the Paris Agreement Rulebook soft law?
  - - - Lawrence & Wong: NDCs should be converted from soft law to hard law as part of follow-on negotiations to the Paris Agreement
      - DV - on the other hand, the soft/hard law distinction can be seen to be less useful due to the increasingly hybrid nature of international instruments. The Paris Agreement is a treaty, therefore "hard" law. But the detail within it, namely the Intended Nationally Determined Contributions, are soft law. This occurred as it was unlikely that the USA would have ratified the treaty had the provisions within it all been legally binding, which in turn may have led China not to ratify either (Lawrence & Wong p277)
      - "The Paris Agreement represents the latest phase in a decisive shift in global climate governance away from binding (hard) obligations and a notion of redis-tributive justice, towards a governance model that emphasizes voluntary commitments and ‘self- differentiation’ of obligations" Lawrence & Wong p. 277
        
        Here we can see that IOs such as the various UN bodies can and do resort to soft law in order to ensure wider participation in the international agreements they facilitate, but nevertheless, this pragmatism reflects the will of certain powerful states and can often be interpreted as a compromise on the part of the IO within the negotiating process of these frameworks.
      - A special type of "treaty soft law' - quote in onenote L & W