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SANDERIJN DUQUET – JAN WOUTERS
CYIL 5 ȍ2014Ȏ
A third body of research has challenged the formalism of public international law
altogether. Processual understandings of PIL originated from the New Haven and
New International Legal Process (ILP) Schools. Scholars affiliated with these schools
argue that public international law has transformed so that it should no longer be
understood as having only a limited number of categories and dispose of all ‘labels’.
The New Haven School defines law as a process of decision that is both authoritative
and controlling.
16
The ILP School advocates a legal system that develops in line with
international society’s rapidly expanding values. Therefore, international lawmakers
should follow dynamic procedures to develop new legal standards through reasoned
elaboration of their decisions.
17
Drawing on ‘processualist’ theories, a number of
scholars attempted to rethink the body of public international law and its sources.
18
Others, such as Tamanaha, have even gone further by developing a pragmatic concept
of law. In his opinion, law is ‘whatever people recognize and treat as law through their
social practices’.
19
The three aforementioned approaches to study non-traditional norms at the
international level can be conceptualised by placing them on a spectrum, allowing for
more or less deference to the doctrine of sources. As such, a common characteristic is
their indebtedness to the sources doctrine, which is used as a benchmark throughout.
The present contribution does not propose a final compromise in the debate between
those who argue in favour of a bright line between law and non-law, those arguing
for the existence of a grey zone, and those who value ‘processual’ understandings of
the law. It rather submits that, either way, legal scholarship has an important role to
play in analysing international processes that result in norms that are complied with
by both public and private actors and affect individuals.
2.3 Why should legal scholarship be concerned about non-traditional norms?
A legal approach focuses on constructing a legal understanding of, and on developing
a legal framework for, non-traditional norms. The justification is that, whether formally
accepted as a part of law, a special category of law or plainly as non-law, it cannot be
denied that a strong connection exists between public international law and other
forms of regulation in international society.
Three further considerations reinforce this point. First, the number of non-
traditional norms has grown exponentially compared to traditional international
law. Pauwelyn, Wessel and Wouters present evidence of the fact that the field of
traditional international lawmaking is in a process of stagnation, both quantitatively
(number of treaties) and qualitatively (state consent and approval by parliament more
often than not have become formalities in administrative processes) in favour of
16
Reisman, M., Wiessner, S., Willard, A.R., “The New Haven School: a Brief Introduction”,
Yale Journal
of International Law
, 2007, Vol. 32, No. 2, pp. 575-582.
17
O’Connell, M. E., “New International Legal Process”,
American Journal of International Law
, 1999,
Vol. 93, No. 2, pp. 334-351.
18
Van Hoof, op. cit. 14; Cohen, op. cit. 9.
19
Tamanaha, B.,
a General Jurisprudence of Law and Society
. Oxford: Oxford University Press, 2007, p. 67.