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NONǧTRADITIONAL NORMS IN INTERNATIONAL LAW
may not be willing to change attitudes and may prefer continuing to treat many of
the regulatory activities taking place in international fora merely as coordination
exercises not contributing to law or lawmaking.
2.2 International law and the rise in informality
As indicated above, the developments taking place in transnational law and
policymaking challenge the traditional doctrine of sources in international law.
Nevertheless, the discussion cannot be considered to be a new one: the position of non-
traditional norms in the international legal order has always been precarious. Three
dominant strands in legal literature have proposed a number of interesting solutions.
First, a leading theory in international law, legal positivism, supports the view
that none of the non-traditional norms is law.
12
The theory reflects the idea that
there has to be a unity of sources of law. Positivists recognize as law only those norms
which are generated by a pre-determined legal procedure and independent of the
presence of any inherent value or its merits.
13
Quite often, these requirements clash
with the ways in which informal rules and standards are created. Drawing on the
rise in informality in international lawmaking, scholars increasingly challenge the
black-and-white view of the law as presented by legal positivists. Positivism seems to
ignore the realities of global governance and does not put forward solutions on how
to explain transnational regulative and administrative processes.
14
A second strand expanded the interest area of legal scholarship to non-traditional
norms. An in-between category was introduced to fill the gap between law and non-
law at the international level. There is disagreement, however, among scholars with
regard to how this third category should be conceptualized. Different notions have
been introduced in literature: ‘non-traditional sources of international law’ (Crawford),
the ‘grey area between law and non-law’ (Van Hoof ), ‘presumptive law’ (Klabbers),
or, more generally, ‘soft law’.
15
Yet, the added value in attempting to include non-
traditional norms in the sources doctrine also has been challenged. Sources doctrine
in itself comes with none or very limited extra accountability mechanisms. Moreover,
the very systematisation of lawmaking initiatives may change the nature of norms,
since they will undoubtedly loose (part of ) their informality. The informality is
a constitutive characteristic of the norms and a key reason why these were adopted in
the first place. As a result, systematisation may even result in a decline in effectiveness.
12
Hart, H. L. A.
The Concept of Law
. Oxford: Oxford University Press, 1961; García-Salmones Rovira, M.,
The Project of Positivism in International Law
. Oxford: Oxford University Press, 2013.
13
Gardner, J., “Legal Positivism: 5 ½ Myths”,
American Journal of Jurisprudence
, 2001, Vol. 46, No. 1,
pp. 199-228.
14
See in this regard the works of those subscribing to the theory of ‘Legal Realism’. For a discussion
on legal realism in modern international law, see: Shaffer, G., “A Call for a New Legal Realism in
International Law: The Need for Method”,
Minnesota Legal Studies Research Paper
No. 2, 2009.
15
Crawford, J.,
Brownlie’s Principles of Public International Law
, Oxford: Oxford University Press,
2012; Van Hoof, G. J. H.,
Rethinking the Sources of International Law
, Leiden: Kluwer, 1983;
Klabbers, J., “Law-making and Constitutionalism”. In: Klabbers, J., Peters A., Ulfstein, G. (eds),
The
Constitutionalization of International Law.
Oxford: Oxford University Press, 2009, pp. 81-125.