News from Aug 24, 2016
Historic Cambridge, about an hour north of London, is home to the renowned Lauterpacht Centre for International Law. Founded in 1983 by Sir Elihu Lauterpacht to honor his father, Sir Hersch Lauterpacht, the institute aims to create an academic setting that both shapes and absorbs the practice of international law. Our research project C8 “Legitimacy and Law-Making in International Humanitarian Law” at the SFB 700 studies legitimacy and law-making in international humanitarian law and examines international law-making processes on an empirical and theoretically normative level. My research stay in Cambridge from January to March 2016 provided an opportunity to speak with other researchers working in the same field.
International humanitarian law was developed based on the premises of inter-state law and inter-state war. Both of its two fundamental assumptions are no longer a given: non-state violent actors shape the armed conflicts of our time, and a plurality of non-state actors – whether the armed groups themselves or non-governmental organizations – informally participate in the development of the legal order. Can the international law in place provide appropriate answers? After having thoroughly examined the role of non-state violent actors and ways to directly engage them in law-making processes, for example through voluntary deeds of commitment, our project is now studying how legal methodology can address relevant practice, and to what extent it is already being used.
During my ten-week stay in Cambridge, the Lauterpacht Centre offered exactly the kind of forum that it is committed to providing: an international place where researchers from all over the world can get to know each other and discuss their approaches. The daily coffee breaks are practically legendary among international law scholars, a moment when visitors and members of the institute can meet and exchange ideas. The first weeks of 2016 were exciting not only for me but also for the entire institute, as the new director, Eyal Benvenisti, took up his position. It remains to be seen whether his progressive approach to global governance will leave a lasting mark on the Centre.
The Lauterpacht Centre is known for its close connection to legal practice. This comes through in many respects, not least in one of the Centre’s two buildings: the Bahrain House was once donated to the institute by Bahrain, reportedly in thanks for successful legal representation by the former director in a case against Qatar before the International Court of Justice. For our project, the Centre’s close contact to the Red Cross was of particular interest. A former International Committee of the Red Cross (ICRC) employee was visiting the institute during my stay and recounted a great deal of instructive experience from three years of work with conflictive parties in Afghanistan, Rwanda, and the Democratic Republic of Congo. In addition, the institute is home to the project “Customary International Humanitarian Law,” a cooperation between the Lauterpacht Centre, the British Red Cross, and the ICRC. The project gathers practice worldwide in order to update the Red Cross’s Study on Customary International Humanitarian Law. In this much-lauded study, the Red Cross published the customary law applicable to armed conflict. Central to the publication is the question of which – and more importantly, whose – practice is most significant to the formation and identification of customary international humanitarian law. According to prevailing international legal theory, only the practice and legal convictions (opinio iuris) of states are relevant. However, there are increasing calls to consider non-state armed actors as well, since these assume a central role today – unlike when state-centered international legal theory was developed. States, meanwhile, are fending against any kind of opening, fearing that non-state groups could thus be legitimized and undermine sovereign states’ monopoly on law-making. The ICRC takes a classic, state-centered approach and cooperates with the national Red Cross and Red Crescent organizations. At the same time, the ICRC has extensive experience and can gain direct insight into the activities of various armed actors – which, however, play no immediate role in the Study on Customary Law. Looking over the shoulders of my colleagues in Cambridge and watching them navigate the field between practice, pragmatism, research, and humanitarian ideals offered our project new perspectives on the legitimacy of law-making in international humanitarian law.
Delegating non-state actors a formal role in law-making processes does not seem opportune right now if international law is to retain its relevance at this difficult juncture for states in general. The international legal system has always faced the challenge of juggling vision and stability – but for both, state structures retain their crucial importance. The trick will be to creatively use established channels and methods to steer the lumbering steamship of international law through the present and into the future.
About the author:
Anton Petrov is a research associate in the C8 project “Legitimacy and Law-Making in International Humanitarian Law” at the SFB 700. He studies the role and legitimacy of expert committees in the development of international humanitarian law.