Introduction
Since the middle of the twentieth century, international law-making has been characterized by the diversification of its authorship, the multiplication of its instruments, and, more generally, the increasing complexity and lengthening of its processes. Faced with this reality, international lawyers are equipped with and torn by two main conceptual frameworks to think of these phenomena.
The first relates to a positivist tradition that understands the making of international law in terms of formal sources. In a nutshell, all the proponents of this school of thought, beyond their differences, focus on instruments enshrining international norms.Footnote 1 This approach constitutes the basis of the traditional theory of the sources of international law. As for the second conceptual framework, it refers to schools of thought that, taking stock of the ‘processual’ dimension of the making of international law, emphasize its dynamism and set aside formalism – nowadays, the ‘New Haven’Footnote 2 and the ‘International Legal Process’Footnote 3 schools illustrate such a ‘processual’ understanding of international law-making. These positivists and ‘processual’ schools of thought embody two irreconcilable extremes inasmuch as the source-based approach of the former is formal and static while the process-based approach of the latter is informal and dynamic.Footnote 4
The aim of this paper is not to reconcile these schools, but rather to reconcile their underlying paradigms, namely formalism and dynamism. It argues that international lawyers do not necessarily have to choose between formalism and dynamism to conceptualize the contemporary making of international law.Footnote 5 Three lines of argumentation support this statement.
First, from a conceptual point of view, one has to realize that formal sources are not the only embodiments of formalism. Indeed, one can also have a procedural approach to formalism – a proceduralism that is in no way incompatible with dynamism. Procedures are not immobilizing strangleholds, but synchronic and diachronic vectors of dynamism. This brings one to the second series of arguments. From a descriptive point of view, it appears that, in international organizations (IOs) and conventional frameworks, an increasing number of procedures organize the interactive exercise of the normative function by law-creating and law-applying bodies. This interactivity embodies the dynamic nature of international law-making while the procedure that structures this interactivity guarantees its formalism. This leads to the third reason why dynamism and formalism are not antagonistic in the understanding of current international law-making. In the context of an international society characterized by increasing co-operation, this paper argues, from a normative point of view, that the dynamic and dialogic dimension of law-making calls for an improvement in existing dynamic procedures and, more generally, for a proceduralization of existing law-making processes. It is so precisely because, in this co-operative context on the international plane, procedure is the cornerstone of legal certainty more than norms characterized by relativity. In that sense, contrary to the above-mentioned schools of thought, which think the making of international law under the aegis of process, the author of this paper promotes the procedural paradigm.
Arguing and promoting this, it is important to make two epistemological remarks at this early stage, the first relating to academic deontology and the second to the train of academic thought. As for the former, the author of this paper believes that any attempt in legal theory necessarily involves (and requires) a normative bias. Legal theory is indeed, in essence, reflexive. In light of the legal reality that it can only simplify, legal theory realizes a self-analysis of law on its foundations and basis, so as to redefine them. As explained by Chaïm Perelman, this normativity can be criticized as being more ideological than scientific.Footnote 6 As a matter of fact, as scientifically rigorous and honest as legal theorists endeavour to be, they cannot completely dispose of ‘ideology’. This should not be criticized as deontological misconduct, but rather accepted as a component of scholarly thought so that this subjective element in scientific research can be better taken into account and controlled. For that reason, one can only concur with Niklas Luhmann that legal theory has to be viewed as a praxis.Footnote 7 Legal theorists have to explain law as such and also explain themselves in contact with their object of research. Embracing this conception of legal theory, the author of this paper explains at the outset that the analysis of its object of research, namely dynamic and procedural international law-making, is viewed through the lens of proceduralism that is believed to be best suited to the thinking of international law-making in contemporary international society. This stems from the conviction that procedure is the cornerstone of legal certainty in societies characterized by the equality between their members and the heterogeneity of their interests, which decide, however, to live in a co-operative environment rather than in a conflictual one.
This practical understanding of legal theory brings one to the second epistemological remark: the train of academic thought. Thinking can be described as a ‘hermeneutic circle’ made of three stages that are repeated. In the first stage, the subject envisages an object of research through her/his conceptual lens and this is precisely the lens that shapes the object at this stage. At the second stage of the circle, he/she tries to know and understand better this object of research. During the third stage, this effort results in a modification of the object and thereby of the subject.Footnote 8 Thought is a continuum whose train can only be progressive. With that understanding, it is impossible to anticipate the output of coming hermeneutic circles and any conceptualization has to follow the pace of thought. In that temporal context, there is no claim here to provide a definitive theory answering all the questions that it raises in particular regarding the concept of (international) law. These questions were raised only after hermeneutic circles had been completed regarding the object of research, which is (international) law-making. While our current research investigates the issues regarding (international) law as such, the present paper focuses on the dynamic and procedural feature of international law-making that the concept of standardization allows one to understand.
In order to introduce and analyse this concept of standardization in relation to international law-making, the paper answers three questions: Where? What? So?
As for the question ‘Where?’, the paper first provides an institutional contextualization of the dynamic procedures in the international legal order. Based on the analysis of an archetypal co-operative society whose law-making is characterized by dialogism, it reveals the existence of the dynamic procedures that flourish in co-operative arenas, be they IOs or conventional frameworks (section 1). Then, the paper answers the question ‘What?’ by focusing on the concept of standardization as such. Thereby it provides a conceptual framework, based on Aristotelian dialectic logic, to understand the above-mentioned dynamic procedures (section 2). In relation to this, the paper finally turns to the question ‘So?’. It draws out the consequences of the dynamic and procedural conceptualization embodied by standardization regarding international law-making. For that purpose, it revisits both the theory of the sources of international law and the issue of the participants to international law-making. Furthermore, the paper draws attention to the predominance of normative coherence in the thinking of international law-making (section 3).
1. The context of standardization: international co-operative society
A society and its legal order are coexistent. The legal order provides the organization without which a society would not exist.Footnote 9 Under this societal understanding of the nature of the legal order, its structure, namely the secondary rulesFootnote 10 that organize its functioning, are marked by the features of society.Footnote 11 As for international society, one is faced with its contemporary ‘schizophrenia’ and thereby with the ambivalent plurality of its law-making methods.Footnote 12 This synchronic schizophrenia is the product of a diachronic evolution, of a progressive balancingFootnote 13 throughout the twentieth century between ‘coexistence’ and ‘co-operation’.Footnote 14 Even if it goes without saying that, from a synchronic point of view, the international legal order presents, at any given time and in variable proportions, coexistent and co-operative features,Footnote 15 it remains that the coexistent paradigm was predominant until 1945 while the co-operative paradigm has gained increasing importance since then. This postwar international legal order being therefore typical of the co-operative context in which the dynamic procedures here under scrutiny are at work, this section uses it to set up an archetype of the co-operative international society (hereafter, ‘the co-operative international society’) and thereby to contextualize these dynamic procedures.
To do so, it first studies the features of the co-operative international society that impact on its legal order (subsection 1.1). This section then highlights the dialogic nature of international law-making in this society (subsection 1.2). Finally, it analyses the dynamic procedures that contribute to the making of international law in co-operative arenas and thereby reveal a dialogic law-making that is not ‘processual’, but procedural (subsection 1.3).
1.1. An intersubjective collaborative society
The international co-operative society can be depicted, in a Pascalian way, as a society in which states are ‘embarked’. Admittedly, they are not embarked on the same boat, but they are on the same sea, whose same resources they share while facing the same storms. Their independence depends on their interdependence. In other words, it is because they realize that they are linked by a community of interests that is also individually in their best interests that states take to the sea of the international community, so often referred to in international documents.Footnote 16 These common interests are particularly related to the increasing protection of human rights,Footnote 17 of cultural and naturalFootnote 18 heritage, and of the environment, be it natural or economic.Footnote 19 It does not mean that this community of interests replaces the self-oriented interests of states, nor that it does not meet the reluctance of states. But this reluctance, even though it may be challenging, does not threaten the existence of the community and of the co-operative ‘behaviour’ of states.Footnote 20
In the international co-operative society, co-operation does not involve any integration. International society is horizontal. But, if one may say so, while states individually constitute the pillars of this society, they collectively form a collaborative pediment. Admittedly, this pediment remains horizontal, but it is higher than its pillars. Even though multilateral diplomacy is a general phenomenon, this inter-state collaboration mainly takes place in IOs.Footnote 21 These organizations, which involve private entities in their activities,Footnote 22 are the cornerstones of this intersubjective collaboration and they play an important role in meeting the needs of international life.Footnote 23
The multiplication of these needs explains that, in terms of negotium,Footnote 24 the scope of international law extends. As noted by Pierre-Marie Dupuy referring to an ‘international normative cover’:
States almost constantly define, plan or regulate their terms of cooperation in the most varied domains . . . . The time is gone when international law was just the instrument of a diplomacy limited to the negotiation of war alliances or peace conferences.Footnote 25
Given this variety, co-operative international law is characterized by the diversification of international normativity, from imperativenessFootnote 26 to softness.Footnote 27 It is not a symptom of weakness.Footnote 28 International law only provides the international co-operative society with the normative techniques necessary to its blossoming and durability. So does an international law-making characterized by dialogue.
1.2. A dialogic international law-making
As a principle, states are sovereign and autonomous in the international co-operative society. This implies that their consent is predominant in particular with respect to their commitment to co-operate. In the same vein, this voluntary co-operation does not result in a transfer of sovereignty except for integrated IOs. It remains that states are not totally autonomous in the co-operative society inasmuch as the expression of their interests is ‘channelled’ and rationalized by the co-operative arenas in the activities in which they participate voluntarily. Of course, states involved in co-operation can synchronically resist the realization of the collective interest pursued in a given arena for the sake of their own interests. But the essence and the secondary rules of the legal order leave them no choice but to keep on discussing to overcome their disagreements. Indeed, as highlighted by Georges Abi-Saab:
Within an international community encompassing the whole humanity – the latter being considered neither as a philosophical proposition nor a distant horizon . . . but as a near, more tangible reality . . . the world being closed in an ‘earthly city’ does not admit any escape. It leaves us on a planetary stage facing each other in camera, where hell and the enemy is not other people, but the other inside myself who rises against ourselves.Footnote 29
In that context, dialogue constitutes the ‘driving principle’ of the co-operative international society. States’ decision-making power is not an absolute authority that would end disputes. Admittedly, it can freeze co-operation, slow it down, but it is unable to annihilate it. Co-ordination is a diachronic continuum wherein all the wills, the best and the most reluctant, work together. It is made of a succession of dialogues leading or not to more or less satisfactory agreements, but constituting the basis of upcoming discussions. This co-operation takes place mainly within co-operative arenas, be they formal or informal, in which it constitutes, to paraphrase Churchill's take on democracy, the worst form of governance with the exception of all others.Footnote 30
As illustrated by the development of multilateral normative diplomacy, this dialogic and dynamic ethos animates the formation of international law in the co-operative international society. This formation is not driven by the conflict between the foreign policies of states, but by what has been termed a politique juridique (‘legal policy’).Footnote 31 This politique juridique, which aims at channelling the interests of states without annihilating them, operates in IOs and other co-operative arenas.Footnote 32 In relation to the latter, one witnesses their institutionalization and the subsequent proceduralization of their law-making processes. In that context, one can notice that, in a number of IOs and conventional frameworks, the making of international law does not consist of ordinary processes or single procedures leading to the adoption of treaties or resolutions, but of interactive procedures forming part of a law-making procedure. This brings the paper to the technical analysis of the dynamic procedures that standardization helps to conceptualize.
1.3. A dynamic and procedural international law-making
In IOs and conventional frameworks, procedures of law creation and procedures of law application play an interactive role in the formation of international law. This interactivity relies upon two ‘nexus’. The first is procedural in the sense that IO charters or conventional frameworks’ regulations organize the procedural interactive relations between these procedures (sub-subsection 1.3.1).Footnote 33 The second is substantive inasmuch as international-law rules formed in co-operative international frameworks are characterized by a ‘vagueness’ that requires a collaboration between procedures of law creation and procedures of law application (sub-subsection 1.3.2).
1.3.1. The ‘procedural nexus’ between law creation and law application
In international co-operative frameworks, law creation is characterized by its procedural nature. This is certainly true in IOs, but also in conventional frameworks that develop procedures similar to those at work in the former. These procedures aim at rationalizing as much as possibleFootnote 34 the expression of individual interests of member states so as to promote the collective interest (or interests) pursued by the framework.Footnote 35 In this respect, one should emphasize the fact that, beyond the question of the normativity of treaties and resolutions, as discussed subsequently,Footnote 36 the procedures of creation of treaties are analogous to the procedures of creation of non-binding resolutions.Footnote 37 The United Nations Educational, Scientific and Cultural Organization (UNESCO) provides an example of this. As for the preparation of conventions and recommendations,Footnote 38 it has four almost identical stages: the inclusion in the agenda of the General Conference of proposals, the procedure for the first discussion by the General Conference, the preparation of drafts to be submitted to the General Conference for consideration and adoption, and the procedure of consideration of drafts by the General Conference.Footnote 39 Concerning the voting, even though conventions are adopted by a vote of two-thirds and recommendations by simple majority,Footnote 40 the authentication of both is made by the president of the General AssemblyFootnote 41 and, for both, he/she has to remind member states, when communicating the certified copy, that they must submit conventions and recommendations to the competent national authorities.Footnote 42
Beyond this similarity, procedures of law creation are in many of these frameworks articulated with compulsory and/or systematic monitoring procedures.Footnote 43 It is important to highlight that it is this compulsory and systematic dimension that forms the procedural nexus. The notion of monitoring is here understood in a broad sense, covering dispute-settlement procedures (judicial procedures) and follow-up mechanisms (quasi-judicial procedures). One does not mean that these procedures are equal in nature, even though one witnesses ‘jurisdictionalization of the latter’,Footnote 44 or that they are equally efficient in terms of monitoring. But it appears that, while controlling the application of conventions or resolutions by states, they all contribute to the formation of international law. In a nutshell, by analysing states’ conduct in a contentious or non-contentious way,Footnote 45 they make clear which practices are normatively coherent and compatible with the generally vague rulesFootnote 46 at stake and, further, with the collective interest (or interests) of the co-operative framework. Thereby, they realize a concretization of rules, the product of which can become a form of jurisprudences constantes.Footnote 47 Thus, this interactivity is not linear, but retroactive. Another dimension of this retroactivity, procedurally organized, lies in the fact that the charters of IOs and the regulations of conventional frameworks organize the control of law-application bodies by the law-creation bodies. This is illustrated by the WTO Marrakech Agreements, which give the final interpretative ‘word’ to the Ministerial Conference and the General Council.Footnote 48 This assessment may lead to the validation of the normative developments realized by the law-applying bodyFootnote 49 or, on the contrary, to its setting aside. It is this procedural dialogue between the bodies of IOs and conventional frameworks that carries out the formation of international law in these co-operative frameworks. This procedural dialogue is here reinforced and required by the normativity that characterizes these frameworks.
1.3.2. The ‘substantive nexus’ between law creation and law application
The rules used in the co-operative frameworks here analysed are characterized by a vaguenessFootnote 50 that seals the procedural nexus between law-creation and law-application procedures. To better understand this vagueness and the normative collaboration it requires, one can refer to the distinction made by Roberto Ago between ‘norms of conduct’ and ‘norms of result’.Footnote 51 Under the Ago dichotomy, the former provide a given conduct to be complied with,Footnote 52 while the latter provide for a result to be achieved, its addressee being free to choose the relevant conduct.Footnote 53 But, as noted by Jean Combacau, this distinction is too radical:
[T]he distinction between obligations whether they consist of a conduct or a result matters less than the extent to which a state's conduct is conditioned by rule. Sometimes the latter determines the former unequivocally . . . . Sometimes it remains equivocal . . . either because the norm offers several paths . . . or because it only defines the objective for which the state must display its domestic techniques.Footnote 54
As it appears, the dichotomy (norms of conduct/norms of result) is better conceived of in terms of a sliding scale. To reach the objective, the addressee enjoys a freedom that varies from one extreme of the spectrum to the other.
The norms produced by law-creation bodies in co-operative frameworks are characterized by the vagueness of the conduct expected from states to reach a co-operative objective. In that context, this vagueness of the negotium requires from law-application bodies, be they judicial or quasi-judicial, that they give ‘substance’ to norms so that they can monitor whether the states’ conduct is in breach of them. These norms and the need to develop them further result in a de facto normative delegation realized by law-creation bodies to law-application bodies.Footnote 55 This delegation coupled with the recourse to precedents erects the latter as law-makers. In light of the above,Footnote 56 this delegation appears to be retroactively controlled by law-creation bodies.
‘In the course’ of the interactive procedure, the notion of relative normativityFootnote 57 has to be procedurally approached inasmuch as the normativity of IO resolutions and of treaties is not as different as it is when assessed out of this procedure. This is mainly due not to the fact that the negotium of norms is generally vague – be they provided in a binding treatyFootnote 58 or in a non-binding resolution – but to the fact that both are developed by law-application bodies.Footnote 59 In that procedural context, normative ‘compulsiveness’ (obligatoriété) is not the cornerstone of international legal normativity as it used to be and still is in some international-law areas. International legal normativity is here rather based on procedure that replaces normative ‘compulsiveness’ as the guarantor of legal certainty and therefore as the pillar of legality.Footnote 60
Besides requiring a reappraisal of the ‘parameters’ of international legal normativity, the current phenomena in the making of international law here analysed call for a dynamic and procedural conceptualization that the schools of thought focusing on processes cannot provideFootnote 61 and which is the aim of standardization.
2. The concept of standardization: understanding dynamic procedures
Dynamic procedures are characteristic of the international frameworks that embody the ‘co-operative behaviour’Footnote 62 of the international society. This dynamic and procedural law-making method is peculiar to all the societies, domestic and international, characterized, first, by a certain degree of co-operation between their members and, second, by a heterogeneity of interests and values. In such a context, this method aims at rationalizing the expression of interests and striking a balance between them so as to make legal rules coherent with the normative body made of them. Such an objective is pursued, both synchronically and diachronically, by dynamic procedures better understood through the prism of Aristotelian dialectic logic. This dialectic constitutes the core of standardization that conceptualizes the dynamic and procedural law-making method. In order to highlight the analysis of this dialectical ethos of standardization (subsection 2.2), one first needs to introduce Aristotelian dialectic logic (subsection 2.1).
2.1. An introduction to Aristotelian dialectic
Even though the concept of dialectic has been used and abused over the centuries and even though Aristotle is better known for his conceptualization of analytic logic, dialectic logic is an important contribution made by Aristotle in Topics Footnote 63 to the understanding of society. His contribution is all the more significant as Aristotle did not invent this logic in abstracto, but on the basis of the intellectual life he observed. While doing so, he came to the realization that, in the ‘practical sphere’ where certainties are lacking, human beings reason and interact in a certain way to reach plausible and coherent conclusions. It is this ‘way’ that dialectic theorizes and that this section aims at introducing so as to highlight the dialectic foundation of standardization.
To introduce Aristotelian dialectic, it is necessary first to delineate its scope of relevance in order to contextualize its objective (sub-subsection 2.1.1). In light of this, it will then be possible to analyse how dialectic works and allows one to reach plausible and coherent conclusions (sub-subsection 2.1.2).
2.1.1. The finding of coherent and plausible conclusions in the ‘practical sphere’
Among lawyers, Aristotle is usually viewed as the ‘founding father’ of jus naturalism. If this opinion is the product of a mistaken understandingFootnote 64 of the Aristotelian philosophy of law,Footnote 65 then it is more fundamentally the result of the misunderstanding of Aristotelian metaphysics. This misunderstanding is due to the oversight of the implacable distinction Aristotle makes between the ‘sublunar world’ and the ‘supralunar world’. Contrary to Plato, Aristotle considers that the ‘supralunar world’ is unattainable for human beings and that human discourse is condemned to ‘procéder comme si [Footnote 66] le monde était un tout bien ordonné’.Footnote 67 The ‘supralunar world’ is admittedly a model for Aristotle, but in no way is it accessible to humanity.
In light of this scission, Aristotle considers that human beings are deprived of any certainties in the ‘sublunar world’ and that they are forced to live in contingency. In such an understanding of human condition, truth and unity are replaced by plausibility and coherence. In that context, as for ‘practical issues’, analytic logic, namely the logic that is used for demonstrations in physics and mathematics, is inoperative. Indeed, human beings cannot base their reasoning on unchangeable certainties and therefore pretend to reach sure conclusions. On the contrary, Aristotle argues that, to tackle practical issues, they can only rely on opinions to try to reach plausible conclusions,Footnote 68 the plausibility of which is assessed in light of its coherence with the body of existing opinions. This conclusion does not have such features because of weak foundations or prejudices. What Aristotle calls opinions are indeed based on reason and thereby have to be taken seriously. In this sense, ‘l'usage des opinions offre un moyen, indirect mais réel, de se rapprocher du vrai, de tenir le vraisemblable’.Footnote 69 The conclusion is plausible and coherent because, from a synchronic point of view, numerous opinions are relevant to discuss a particular issue and because, from a diachronic point of view, opinions keep changing all the time. In that context, it is one of the virtues of dialectic to select the most relevant opinions, which brings this paper to the analysis of dialectic logic.
2.1.2. The dialectical activity of reason and dialogue
Dialectic logic animates the activity of both reason and dialogue. Their dialectic activities are made up of repeated dialectic operations based on dialectic acts. The dialectic act allows an opinion to be transformed into an argument. Before analysing this transformation, one needs to introduce the tools that are used to realize this transformation: the Aristotelian topoi.
In a nutshell, these topoi take stock of and conceptualize the way human beings get a representation of things. Despite the fact that we are not always aware of this, we use relations of inference to represent those things, such as these: ‘the universal attributes of the type apply to the species’ or ‘the contrary of the attribute applies to the contrary of the subject’. These universal relations, which are the foundation of inference and which provide formal certainty to dialectic syllogism in the absence of a substantive certainty,Footnote 70 are called ‘common topoi’.Footnote 71 From them, Aristotle distinguishes ‘special topoi’. They are not different in nature but they are a concretization of the former in a particular field. For example, in relation to law, the above-mentioned common topos – ‘the contrary of the attribute applies to the contrary of the subject’ – gives the ‘special topos’ – ‘the opposite of what is illegal is legal’.
Keeping in mind these topoi, one can return to the transformation realized by the dialectic act and illustrate its functioning with a very basic example. Thus, let us take the issue of the legality of smoking in the open air when we know that it is illegal to smoke inside buildings. The opinion one might hold that ‘it is legal to smoke in the open air’ is transformed through application of the following special topos – ‘the opposite of what is illegal is legal’ – into the argument that ‘the opposite (smoking in open air) of what (smoking inside buildings) is illegal is legal’. In other words, it can be argued that, since it is illegal to smoke inside buildings, a contrario, it is legal to smoke in the open air.Footnote 72 This dialectic act, which reminds lawyers of argumentative techniques,Footnote 73 constitutes the core of dialectic operations realized by reason and dialogue.
As mentioned above, Aristotle opines that human beings reason in such a way even though they are not conscious of it.Footnote 74 However, he considers that the command of this reasoning is unequal between them inasmuch as it is a human faculty that requires training. Besides this necessity to exercise reason, Aristotle thinks that human reason is faced with three main obstacles: first, the endlessness and complexity of practical issues; second, the endlessness of opinions that can be used to solve these issues; and, last but not least, the difficulty for a single person to reason on her/his own.
For all these reasons, Aristotle argues that dialogue is the most suitable ‘space’ for the development of dialectic activity. This dialogue between two or more persons aims, through the exchange of arguments, at reaching a conclusion that is plausible, namely coherent with the body of existing opinions. On the basis of this dialectic ethos, Aristotle distinguishes dialectic from sophistic and niggling, which pursue, respectively, the appearance of wisdom and victory. Beyond these teleological differences, Aristotle is aware of the fact that pure dialectic dialogues are rare and that the intention of the participants to the dialogic activity may not be the plausibility and the coherence of the conclusion, but rather the appearance of wisdom and victory.
So as to ‘domesticate’ behaviours incompatible with the dialectic ethos and also to favour the accomplishment of the dialectic telos of dialogue, Aristotle developed a set of rulesFootnote 75 that regulate and structure the dialogue. In the same vein, Thomas Aquinas made dialectic more procedural during the thirteenth century, his theory being used to organize the quaestio disputata. In relation to this, one can notice that, given the difficulty in concluding the dialogue, he entrusted a third party with the function of concluding it – a conclusion remaining, by definition, temporary.Footnote 76 As it appears here, the regulation of the dialogue, namely the procedure, constitutes both the embodiment of dialectic and the guarantor that a coherent conclusion can be reached. In light of the above, one realizes that, as for the making of law in societies characterized by co-operation, the procedure is the embodiment of dialectic and the guarantor of normative coherence. In that sense, standardization that conceptualizes dynamic procedure is animated by a dialectic ethos.
2.2. The dialectic ethos of standardization
In societies characterized by co-operation where interests and values are heterogeneous, law faces uncertainties, not only societal, but also normative. Indeed, law is confronted with the uncertainty arising from the divergent interests existing in society. In that context, its telos and ethos require that it brings certainty through balances struck between these interests. Even though legal rules crystallize such normative composition of interests, crystallizations appear to be more or less instable and the law itself more or less uncertain. This is so because cases may reveal the ‘vagueness’ of legal rules, but also of the ‘normative body’ whose different rules may be potentially applicable. Besides, this uncertainty has also an evolutive dimension inasmuch as legal rules and the normative body they form have to be adjusted to societal evolutions.
In that context, the making of law is animated by dialectic logic in these societies, particularly in the co-operative frameworks of international society. This law-making method conceptualized here as standardization is first of all characterized by its dynamism, in the sense that it is made of dialogues between normative authorities whose aim is the formation of normative composition of interests (sub-subsection 2.2.1). This formation that standardization conceptualizes is not informal and processual, but it is procedural. The procedure regulates and rationalizes the dialogue, its aim being to guarantee the coherent formation of law (sub-subsection 2.2.2).
2.2.1. A dynamic conceptualization of law formation
In order to think about the relations between the organs of legal systems or subsystems, the Kelsenian pyramid constitutes the main conceptual framework that lawyers make use of. Kelsen recognized the ‘coexistence’ between law application and law creation.Footnote 77 In the frame of the superior rule and of the normative context, it is indeed incumbent upon all the levels of the pyramid to make a choice that is in fact a normative creation. But, besides this coexistence, one should realize that, when law-applying bodies apply legal rules, they do not only ‘concretize’ them at their level of the pyramid, but they also participate, through a retroactive effect, in the development of those superior rules.Footnote 78 As analysed above in international co-operative frameworks,Footnote 79 their individual concretizations can constitute the basis of jurisprudences constantes applied in all similar cases and, beyond that, they can trigger a reaction of the law-creating bodies confirming and enshrining these jurisprudences or, conversely, setting them aside. In that context, the relations between the levels of the pyramid are of course hierarchical, but not linear as theorized by Kelsen. In other words, the hierarchy between the bodies of legal systems or subsystems is tangled.Footnote 80
All of them take part in the exercise of a normative function that is better referred to in terms of a (dynamic) formation than a (static) creation. The exercise of the normative function in co-operative societies in general and in international co-operative frameworks in particular cannot be thought statically through the organic paradigm, but it has to be conceived of dynamically through the systemic paradigm. As pointed out by Michel van de Kerchove and François Ost with the concept of the ‘strange loop’,Footnote 81 the collaboration and the opposition between the normative authorities constitute the matrix of their dialogue.Footnote 82 But, beyond this, the author of the paper argues that procedure more than dialogue is the main characteristic of the formation of law. Indeed, procedure organizes and rationalizes the normative dialogue for the sake of the coherence of the law. As it appears here, procedure is the conceptual cornerstone of standardization.
2.3. A procedural conceptualization of law formation
Law formation in international co-operative frameworks and more generally in societies characterized by co-operation is not abandoned to a ‘processual’ dialogue that would let the expression of interests unconstrained or would not allow one to select among normative arguments. In the same vein as the Aristotelian dialogue is structured by rules,Footnote 83 dialogic law-making is structured and rationalized by an interactive procedure that is, depending on societies, at work in the legal system as a whole or in subsystems. This ‘systemic’ and dynamic procedure is made of a network of ‘organic procedures’ (at work within organs), procedurally linked and articulated. This ‘spatial’ aspect of the concept of standardization overlaps with its temporal dimension. Indeed, through each of the above-mentioned ‘organic procedures’, this systemic procedure works diachronically for the formation of law.
Whichever way one approaches standardization, it is important to understand that the dialectic rationality that animates it aims both ‘organically/synchronically’ and ‘systemically/diachronically’ at composing and recomposing rules that are as much as possible coherent with each otherFootnote 84 and, in any case, alien to truth and unity.Footnote 85 Even though the charters of IOs or domestic constitutions are without any doubt the benchmark of these coherent (re)compositions, they do not provide any truth. Their various rules or objectives are normative compositions of interests leaving room and calling for normative choices in their interactive application. The normative body in force in the legal (sub)system is also a point of reference. But it suffers from the same symptom, as it is both a ‘complex body’ that provides (more or less) open-normative compositions and a ‘living body’ that changes along with the evolutions of society.
In this normative landscape, the systemic procedure is at work in an ‘impressionist’ manner in the sense that ‘by slight strokes’ it makes and adjusts legal rules one into the other. Moreover, it corrects the normative compositions that appear to be incompatible with the body made of these rules. Procedural rationality lies at the core of this law formation. In a context of uncertainty within law itself, the systemic procedure works so as to reach normative compositions that suit both the situations they aim at regulating and the normative body. By doing so, it does not pursue any normative truth, but a normative coherence that is the unattainable horizon of societies characterized by co-operation and the cornerstone of their durability. Standardization allows one to understand this procedural rationality that is at the core of the dynamic procedures at work in IOs and conventional frameworks. By doing so, it leads to a reappraisal of the making of international law.
3. The consequences of standardization: reappraising international law-making
Standardization has consequences regarding the way international law-making is thought about in relation to dynamic procedures. First, it leads one to revisit the status and importance of, on the one hand, the different sources of international law (subsection 3.1) and, on the other hand, the different participants in international law-making (subsection 3.2). Second, it draws attention to the prominence of normative coherence that requires further making international law-making procedural (subsection 3.3).
3.1. A reappraisal of the sources of international law
The law-making method that standardization conceptualizes calls for a procedural approach to the sources of international law. This is true in relation both to the sources that interact in the course of dynamic procedures (subsection 3.1) and to customary law. As for the latter, standardization implies a proceduralization of the formation of general rules of international law, which leaves hardly any room for describing it as customary law (subsection 3.2).
3.1.1. A dynamic and procedural conceptualization of the formal sources of international law
The understanding of international law-making in the literature has traditionally been thought of statically/organically in terms of sources. One cannot deny here the existence and the relevance of sources in the understanding of this law-making. But it is argued that they should be thought of in light of their dynamism and, more specifically, through the concept of standardization of their procedural dynamism.
When taking stock of the dynamic and procedural interactions between the formal sources of international law in co-operative frameworks, it appears that standardization conceptualizes a multi-source procedure. This multi-source procedure implies the recognition, as formal sources, of instruments so far deprived of this status by the traditional theory of the sources of international law.Footnote 86 As a matter of fact, even though treaties constitute the cornerstone of this procedure, this source does not have a normative monopolistic status ‘in the course’ of dynamic procedures and it does not evolve on its own in a ‘legal vacuum’. First of all, as explained above,Footnote 87 resolutions of IOs, irrespective of their non-binding nature, play a creative role similar to that of treaties.Footnote 88 Furthermore, the charters of IOs provide procedural links between them, the elaboration of a treaty leading at times to the adoption of a resolution.Footnote 89 Conversely, the adoption of a resolution can lead to the elaboration and the adoption of a treaty, particularly on the basis of the output of monitoring procedures.Footnote 90 Given their above-mentioned normative task,Footnote 91 decisions of tribunals, awards of arbitration tribunals, and decisions of follow-up bodies are sources that interact with treaties. Besides calling for such a dynamic and procedural understanding of formal sources, standardization requires one to rethink the formation of general rules of international law.
3.1.2. A dynamic and procedural conceptualization of the formation of general rules of international law
The literature has so far identified two kinds of customary process.Footnote 92 The first one leading to the formation of ‘ancient custom’ is characterized by its informality and its spontaneity.Footnote 93 As for issues regarding which co-operative frameworks are competent, one cannot help but notice that such informal and spontaneous processes cannot exist. Indeed, in a context in which a dynamic law-making procedure is at work, there is no room for it. This is true in relation to customary norms originating both from a multilateral treaty and from IO resolutions, in the sense that the dynamic procedure shapes, ‘stage by stage’, state practice and opinio juris.Footnote 94 But this statement applies also to the customary norms that would emerge as a reaction to the norms adopted in co-operative frameworks. In such circumstances, the dynamic procedure would constitute a ‘focus point’ leading to the identification of the resisting states and a planification of their reaction, far away from any spontaneity and informality. In light of the above, it appears that, for issues regarding which dynamic procedures are at work, one witnesses the proceduralization of the formation of general rules of international law. As for this phenomenon, one may deny that one is still faced with a custom. Admittedly, the normative product is a general norm, but its formation does not present the customary features. In that context, one has to be aware of the fundamental difference between the dynamic procedure leading to the formation of general norms and the customary process leading to the formation of customary norms.
The same reticence applies regarding ‘new customs’. Admittedly, the production of general norms through dynamic procedures may be linked at first glance to the formation of these ‘new customs’, namely those that are deemed to arise instantaneously in international deliberative bodies, most notably the United Nations General Assembly.Footnote 95 As a matter of fact, both are characterized by clear procedures aiming at the elaboration of general norms. But, when the former can succeed, the latter can only fail. Indeed, as noted by Georges Abi-Saab in relation to ‘new customs’, despite the apparently legislative procedures set up in certain bodies, the legislative effect, although hoped for, cannot in fact be reached for lack of an actual legislative power. This is the reason why one resorts to custom as a way to bring the procedure to completion.Footnote 96 But, when a dynamic procedure exists, there is no need for custom for that purpose; the dynamic procedure at the different stages brings this generalization to fruition. In that sense, dynamic procedure finishes the procedural formation of the ‘new custom’. But, as with ‘ancient custom’, one has to realize that this law-formation procedure has nothing in common with customary law. To avoid any confusion and to take stock of the procedural formation of the general norms, as for issues regarding which interactive procedures are at work, it is necessary to drop out any reference to custom and it is better to refer to the concept of standardization. Besides calling for a reappraisal of the theory of the sources of international law, standardization requires one to rethink the status and importance of international lawmakers.
3.2. A reappraisal of the participants in international law-making
Many participants,Footnote 97 such as IOs, non-governmental organizations (NGOs), and experts, nowadays take part, at one level or another, in the making of international law. These ‘new’ participants are often not considered ‘equal’ to states, mainly for the reason that they are thought to be deprived of any legitimacy.Footnote 98 Of course, given the features of international society, these entities cannot be endorsed with any democratic legitimacy. But such a requirement appears to be mistaken in this society. The assessment of their legitimacy should not be ontologically based, but rather practically based. In other words, this paper argues that the legitimacy of these participants does not depend on their ‘self’, but on the way in which they exercise their role in normative function.Footnote 99 They are expected to work dialectically towards the making of rules, promoting the collective interest, and not to pursue dogmatically their own interest. In relation to this, one can argue that dynamic procedures at work in IOs and conventional frameworks realize on their own a legitimization of these new participants.Footnote 100 Whatever their intentions, the procedure channels their interests in the same way as it does regarding the interests of states. In that procedural context, they appear to be as legitimate as states and thereby to be equal to them. Being equal, the interests the new participants promote are no less, yet no more, valuable than those of states.
In relation to this question of the status of the non-states entities inside IOs and conventional frameworks, standardization leads one, more prospectively, to raise the issue of the status of those entities that play an autonomous normative role outside public arenas. This is so because it is believed that this concept helps us to understand the increasing interaction between, on the one hand, public normative bodies and, on the other hand, private and hybrid bodies, such as the Basel Committee on banking supervision.Footnote 101 Indeed, from a descriptive point of view, the ‘normative path’ followed by the rules made by the interactions between these bodies can be conceived of as a normative dialogue. In light of this, one could argue that the autonomous private/hybrid bodies play a (normative) role inside the international legal order and are participants in international law-making when they take part, together with public bodies, in the making of rules relevant on the international plane. This is precisely the reason why, from a normative point of view, standardization highlights the need to make these normative processes procedural in particular through a formalization of the nexus between the above-mentioned bodies. This appears to be the conditio sine qua non of the coherence of a body of rules that increasingly regulates international society. This leads me to point out the prominence of normative coherence and thereby to call for the proceduralization of international law-making.
3.3. A plea for the proceduralization of international law-making
As mentioned above,Footnote 102 coherence is the only horizon of societies characterized by contingency. This contingency is a challenge for a discipline such as law, which is also faced with an internal contingency, but whose very ethos and telos consist of bringing certainty in societies. In that context, legal certainty is based not on a static truth, but on a dynamic coherence. Given this, procedure that works for coherence is a more reliable guarantor of legal certainty than legal rules themselves.
As for the international legal order, this importance of coherence calls, from a normative point of view, for the proceduralization of international law-making. This is not a plea for a vertical integration of this order, which is impossible in light of the features of contemporary international society, but a call for an improvement and generalization of existing procedural mechanisms. These evolutions appear to be needed in particular regarding the relations between the co-operative frameworks analysed in this paper, what is at stake being the normative coherence of international law as a whole.
Even though this issue is generally addressed through the lens of fragmentation,Footnote 103 the concept of coherence seems in fact better suited when thinking of international law-making. Indeed, fragmentation is a static concept that does not reflect how the international legal order actually works and does not point to the real issue. It may well be fragmented from an institutional point of view, but, for the making of international law, it is characterized by dialogue – be it efficient or not – between the different arenas and the interaction between their normative corpora.
For the sake of the normative coherence of international law and its subsequent certainty, the author of this paper argues that this dialogue should be improvedFootnote 104 and made procedural. It could be done by building procedural bridges at two stages: ‘upstream’ and ‘downstream’, if one may say so. ‘Upstream’, as illustrated by the example of the collaboration between UNESCO and the International Labour Organization (ILO),Footnote 105 procedures could organize the participation of all the co-operative frameworks that have an interest in a given subject matter. ‘Downstream’, as illustrated here as well by the co-operation between UNESCO and the ILO,Footnote 106 procedures could co-ordinate the participation of co-operative frameworks at the stage of law application. The Economic and Social Council could play a key role in the organization of this procedural co-ordination, by making use of its prerogatives, which should be strengthenedFootnote 107 and could be extended to a non-specialized agency.Footnote 108 This is the meshing of such a ‘procedural network’ that would work and favour the coherence of international law as a whole.Footnote 109
4. Conclusion
As demonstrated in this paper, the concept of standardization allows for a better understanding of the dynamic procedures that work at the formation of international law. Given their increasing number, the law-making method conceptualized by standardization is a phenomenon to be taken seriously by international scholars.
First of all, it should lead them to have a more dynamic and procedural understanding of international law-making. In relation to the sources approach to this law-making, it should first invite international lawyers to understand the procedural interaction of the formal sources of international law. Second of all, it should lead international lawyers to question the very existence of customary law for issues regarding which dynamic procedures are at work. There appears to be no reason to refer to customary law and one should avoid covering this phenomenon with the veil of custom that is too often used strategically both by the participants to law-making and by scholars. Finally, in the context of an academic discourse dominated by the paradigms of unity and fragmentation, it draws their attention to the importance of coherence and of its cornerstone, namely procedure.
Beyond the procedural evolutions suggested in this paper, one cannot help but notice that, in a context in which no Supreme Court can emerge,Footnote 110 international judges nowadays play a key role in the coherence of international law. Admittedly, they are constrained by their jurisdiction, which may appear to threaten the normative coherence of international law. But, by making use of the tools they are equipped with, particularly applicable law and methods of balancing and interpretation, it is believed that they have room to compose norms that strike a balance between all the interests promoted by international law.Footnote 111
In that context, international judges and arbitrators should be guided by the ethos of their profession: jurisprudentia. Indeed, the ‘prudence’ of ‘law’ consists first and foremost in its coherence. Beyond this, in the spirit of Aristotle, it is the reasonableness of the ‘prudent’ that is the prime guarantor of coherence.
