Academic journal article The George Washington International Law Review

Law-Making through the Operational Activities of International Organizations

Academic journal article The George Washington International Law Review

Law-Making through the Operational Activities of International Organizations

Article excerpt

This Article considers the impact of the operational activities of international organizations on the development of international law. Four recent trends in the practices of international organizations illustrate the phenomenon. First, virtually every peace operation established or authorized by the U.N. Security Council since the year 2000 was mandated to protect civilians facing imminent threats of physical violence. Second, after countless election-monitoring missions, the right to political participation is widely thought to require party pluralism, although that is not specified in the relevant provisions of global and regional human rights treaties. Third, Organization for Security and Cooperation in Europe officials engaged in conflict prevention often refer to the rights of ethnic minorities as embodied in non-legally binding instruments. Finally, humanitarian organizations are increasingly pressing governments to provide access to internally displaced persons, not out of choice but as a matter of legal obligation. These four trends are connected to the traditional sources of law identified in Article 38 of the Statute of the International Court of Justice - treaties, custom, and general principles. But to the extent that international organizations act autonomously in engaging in these practices, the law-making process is one step removed from state consent.1

The pattern described above is one in which so-called "soft law" crystallizes into hard law. This evolution proceeds as follows: operational activities occur against the backdrop of widely acknowledged but not well-specified norms; in carrying out those activities, international organizations do not seek to enforce the norms per se but typically act in a manner that conforms to them; these activities generate friction, triggering bouts of legal argumentation; the reaction of affected governments - and the discourse that surrounds the action and reaction - can cause the law to harden. As a result, future operational activities meet less resistance, or at least those who would object feel more compelled to use legal language in defending their positions. Compliance with the norm is thus more likely because the demanding discourse associated with hard law increases the pressure on states to act in accordance with it.

This Article examines the development of international law as described above, first by defining the concept of "soft law" and then illustrating how it may "harden." Part II reviews four areas of law and practice: the protection of civilians by peacekeepers as a manifestation of an inchoate "responsibility to protect"; the role of election-monitoring and electoral assistance by the United Nations in giving content to political participation rights; the impact of the High Commissioner for National Minorities' conflict prevention strategies on ethnic minority rights; and the effect of humanitarian action and human rights advocacy on the hardening of the Guiding Principles on Internal Displacement. Part III, elaborates on the concept of "legalization" introduced in Part I, applying it to the four fields of practice in order to substantiate the claim that the law can harden in this way. Part IV highlights two theoretical implications of this process: first, that it indicates a more fluid and less state-centric form of law making in which international organizations play an autonomous role; and second, that argumentation among international-organization officials, governments, and nonstate actors is central to that process. This Article concludes that this is a promising new way to make law in areas where incremental practice driven by international organizations is ahead of broad consensus among states on principle.

I. SOFT LAW AND LEGAL ARGUMENTATION

The term soft law describes norms that are formally non-binding but habitually obeyed.2 It falls between recommendations and purely political statements on one hand, and the binding law typically found in treaties and well-established customary law on the other. …

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