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The Relativity Apocalypse is Nigh

  • José E. Alvarez (a1)
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1 Article 41 replaced the proposed Article 19 on international crimes. See James Crawford, The International Law Commission's Articles on State Responsibility 344 (2002).

2 Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL 413, 416 (1983).

3 Id. at 430.

4 Id. at 414. Apart from his critique of jus cogens/erga omnes, Weil's other examples of phenomena that will not “help strengthen the international normative system” include: (1) provisions in treaties that are overly vague in application (e.g., the 1963 Moscow Treaty or the WHO-Egypt Agreement as interpreted by the ICJ, id. at 414–15); (2) citations to non-binding sources (e.g., “quasi-legal” General Assembly resolutions, id. at 416–17, and “universal general law” that ignores actual state consent/dissent, id. at 433–40), and (3) reliance on norms that do not trigger state responsibility if breached and cannot “be relied on before a court or arbitrator,” id. at 417–18.

5 Id. at 415.

6 See Mathias Goldmann, Relative Normativity, in Concepts for International Law (Jean d'Aspremont & Sabib Singh eds., 2019).

7 Weil, supra note 2, at 438.

8 Compare League of Nations Covenant art. 15 (barring the organization from intervening in disputes that “under international law” intrude on states’ domestic jurisdiction), with UN Charter art. 2(7) (stating that the United Nations cannot intervene in matters that are “essentially” within a state's domestic jurisdiction (with no mention of international law)). See also UN Charter arts. 1(2), 55.

9 Weil, supra note 2, at 417.

10 See, e.g., Jean d'Aspremont, International Legal Positivism, in International Legal Theory: Foundations and Frontiers (Jeffrey L. Dunoff & Mark A. Pollack eds., forthcoming 2020) (surveying academic views on positivism, including many who believe that it is dead or empty).

11 See, e.g., José E. Alvarez,The Impact of International Organizations on International Law (2017) (discussing how IOs have affected the content of traditional sources of international law (treaties, custom and general principles), gone beyond those sources, and expanded the range of actors engaged in juris-generative activities).

12 See, e.g., Tomi Kohiyama, Role of International Organizations in Driving Rule-Making: The Example of the International Labour Organization, 112 ASIL Proc. 278 (2018); Claire L. Hovary, The ILO's Supervisory Bodies’ “Soft Law Jurisprudence”, in Research Handbook on Transnational Labour Law 316 (Adelle Blackett & Anne Trebilcock eds., 2015).

13 See, e.g., Anne Trebilcock, Conceptualizing Transnational Labour Law, in Blackett & Trebilcock, supra note 12, at 3.

14 See, e.g., Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance (John J. Kirton & Michael J. Trebilcock eds., 2004); Chris Brummer, Soft Law and the Global Financial System (2012).

15 See, e.g., Stephen Choi & Mitu Gulati, Customary International Law: How Do Courts Do It?, in Custom's Future: International Law in a Changing World (Curtis A. Bradley ed., 2016). Indeed, this realization appears to have motivated the ILC's recently concluded effort to remind adjudicators of the positivist elements of custom. Int'l Law Comm'n, Draft Conclusions on Identification of Customary International Law, UN Doc. A/73/10 (2018).

16 See, e.g., José E. Alvarez,The Boundaries of Investment Arbitration (2018) (describing how investor-state arbitrators use WTO and European human rights case-law).

17 See, e.g., Andrew T. Guzman & Timothy L. Meyer, International Common Law: The Soft Law of International Tribunals, 9 Chi. J. Int'l L. 515 (2009).

18 Informal International Lawmaking (Joost Pauwelyn, Ramses A. Wessel & Jan Wouters eds., 2012).

19 See, e.g., The Exercise of Public Authority by International Institutions (Armin von Bogdandy et al. eds., 2010).

20 For numerous other examples, see, for example, Gregory C. Shaffer & Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance, 94 Minn. L. Rev. 706 (2010).

21 Id.

22 Weil, supra note 2, at 419.

23 Id. at 420.

24 See Shaffer & Pollack, supra note 20, at 719.

25 For contrasting views of the merits of these initiatives, compare Michael P. Scharf,Customary International Law in Times of Fundamental Change (2013) (praising these as “Grotian moments”) to B.S. Chimni, Customary International Law: A Third World Perspective, 112 AJIL 1 (2018) (viewing both “traditional” and “modern” forms of custom as furthering the interests of global capitalism).

26 Eyal Benvenisti & George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595 (2007).

27 Shaffer & Pollack, supra note 20.

28 See, e.g., Philip Alston, Labour Rights as Human Rights: The Not So Happy State of the Art, in Labour Rights as Human Rights 1–24 (Philip Alston ed., 2005) (criticizing the 1998 Declaration).

29 See, e.g., Special Symposium Issue: International Organizations and the Rule of Law: Perils and Promise, 14 New Zealand J. Public Int'l L. 1 (2016).

30 See, e.g., Tom Bingham, The Rule of Law 37–47, 55–59 (2010).

31 See, e.g., Complaint Against the Government of China Presented by the International Confederation of Free Trade Unions, ILO Committee on Freedom of Association, Case No. 1500 (1990), 73 ILO Off. Bulletin, Series B, No. 1, at para. 325–33 (criticizing the treatment of labor activists in the immediate wake of Tiananmen).

The Relativity Apocalypse is Nigh

  • José E. Alvarez (a1)


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