The 16th Annual Conference of the European Society of International Law will be held in Stockholm from Thursday 9 September until Saturday 11 September 2021, preceded by workshops of the ESIL Interest Groups on Wednesday 8 September.
In keeping with ESIL tradition, the Conference will feature keynote speakers, a closing round table, and eight fora, exploring the general and theoretical aspects of lawmaking, namely: the deformalisation of international law; lawmaking by non-state actors; the changing local implementation of international law; international lawmaking from below; legitimacy and rationality in international lawmaking; how to study how international law works; and technology and changes in lawmaking.
In addition, twelve agorae will examine particular facets of lawmaking. The themes of the ten pre-determined agorae are outlined below, followed by instructions for the submission of paper proposals and the submission of panel proposals by ESIL Interest Groups for the two open panels. Please note that panel proposals submitted by individual members of ESIL Interest Groups will not be considered.
Agora speakers will be selected on the basis of abstracts submitted in response to this call for papers. The purpose of the agorae is to share cutting-edge research in specific areas of international law and to stimulate debate. Papers presented may focus on any branch of international law and related fields discussed in the agora. Papers should present innovative ideas, be unpublished at the moment of presentation, and be at an advanced stage of completion.
The general conference theme and the themes of the agorae are described below. Please note that the bullet points with questions are only indicative. Please also note that the headings of the panels are drafted for the purpose of the call for papers and may be changed after the selection of papers.
The working languages of the conference are English and French. Since no translation will be provided, participants should have passive understanding of both languages and active understanding of at least one of them.
Keynotes and Fora
Keynote debate: The Politics of Global Lawmaking
This panel takes a birds-eye view of the theme of the conference, with a particular focus on political aspects.
- Which social, economic, ideological and political tendencies have impacted on the changes in lawmaking? Which actors lose power and which ones gain?
- When lawmaking is made by bodies other than governments, that is often the result of an explicit or implicit delegation by states. What sort of politics goes into such delegation?
- While the politics that goes into the drafting and application of the UN Charter or human rights law is clear to see, what about the interests, ambitions and powers that go into less high-profile instruments like model tax treaties, international health regulations or international accounting standards and their implementation? Are these different forms of politics, or just reflections of the usual geo-politics?
- Has the emergence of new forms of lawmaking weakened states or perhaps reinforced them — by making their joint governance more nimble, effective and seclusive?
Forum 1: The Deformalisation of International Law
Since the mid-20th century, the ideal arose that states involved in lawmaking are democratic states, thereby according democratic legitimacy to international law (‘Democratic Westphalia’). This has assumed that democratically accountable governments not only make international law but also submit it for the scrutiny of parliaments. However, the quantity of norms that by-pass the formal treaty-making process has increased significantly. The explanations for these developments vary: the intergovernmental process may be too slow or inefficient, there is a need for malleable rules that can be adapted to local conditions, the actors involved may not trust the political leaders to make the ‘right’ rules or the involvement of other ‘stakeholders’ is needed (see also the next forum). Many commentators now believe that the distinction between law and non-law is not only increasingly difficult to determine, but also less relevant. Social science scholars (and some lawyers) use concepts like governance, regimes, regulations or norms, which may – or may not – constitute law, while international lawyers have long used terms like ‘soft law’. Perhaps one can speak of a sliding scale of normativity, at the international as well as the national level.
- Are there not still important values in formal law? 1) epistemic (to know what is binding); 2) normative (to ensure that there is legitimate authority through state consent); 3) jurisprudential (to delimit our field of study). Or should one accept the fact that non-binding law may often be of at least equal importance, and adopt a sociological definition of law? Are ‘political norms’ sometimes more relevant than some ignored ‘hard’ norms?
- Can informal norms be understood in relation to Article 38 of the ICJ Statute, that is, can they be fitted into familiar categories like opinio juris, state practice, subsequent practice, etc? For example, what are non-binding declarations that are explicitly incorporated into treaty law or which develop vague treaty terms?
- Does the term ‘soft law’ have any descriptive value beyond the fact that such instruments are legally non-binding? Should they be recategorized in different compartments? Can we put the Universal Declaration on Human Rights into the same box as, say, rankings and indices, like Transparency International’s Corruption Perceptions Index or the World Bank’s ‘Doing Business’ report, which have exhortative (or even disciplining) effects, but in very different ways?
- How can domestic legitimacy be secured for international normative developments that are not treaties but that may nevertheless have important domestic repercussions? Can state consent justify soft law? Who ensures the rationality of soft law and what about constitutional checks and balances? (Cf for a 3 and 5.)
Forum 2: Lawmaking by Non-State Actors
‘Democratic Westphalia’ accords democratic legitimacy to international law. Yet, law is affecting us increasingly by way of transnational decision-making processes that involve actors other than states. While the ideal of democracy is threatened by the policies of autocratic governments, the very structural conditions for ‘Democratic Westphalia‘ may be under pressure from the increasing involvement of a host of actors other than states. The involvement of non-state actors as advocates and lobbyists vis-à-vis governments is not new (see Forum 4), but increasingly often they are also active as norm-producers, albeit without formal authority.
- Who are these actors? What are their roles and status in lawmaking?
- Where does their legitimacy come from – representation, interest, expertise or the nature of the decision-making process?
- To what extent are they under the control of, or perhaps even encouraged by states – singularly or jointly?
- What are the risks of institutional capture by corporate or other interests? For example, which interests are pursued by the national members of the International Federation of Accountants, who act in 135 national jurisdictions with different laws, and who develop the International Standards on Auditing (ISA), wich are implemented in many domestic legal orders?
- How should we understand legal regimes that come out of multiple relations between quite different types of bodies such as ICANN, the US Department of Commerce, the UN and ITU and others in internet governance? How should one think of the complex interaction between various national, international and transnational codes and actors in fields like business and human rights or the protection of natural resources (Forest Stewardship Council, Marine Stewardship Council) and of how such codes get legalised, for instance in private supply contracts?
- What is the role of expert ‘codifications ’, for instance by the International Committee of the Red Cross in international humanitarian law (IHL)? What is the relevance of the participation of governmental experts alongside academics and non-state experts (from the ICRC and other organizations)?
- How should we think of user agreements set up by companies which have acquired a monopoly or a dominating position in essential global services, like Google, Facebook, Paypal or SWIFT? Are they just private contracts or international (pseudo-)public regulations? And what is the distinction between public and private regulations and regulators – the legal status of the regulators, their missions or the content of their norms?
- Should states have a duty to oversee the creation of norms by non-state actors, and, if so, are they doing that? And what about the state itself, can it control the norm production by its agencies in transgovernmental networks?
In ‘Democratic Westphalia’, the assumption is that legitimate governments make international law and then implement it in a democratic manner. However, that has never been a straight-forward process. International rules have to fit into established domestic legal systems, and domestic actors, with their different interests, will try to influence the process, including by using – or enlarging – any policy space left by international standards. After all, international law needs to be ‘glocal’, not only global but also local as in implemented and – perhaps – adjusted to the local conditions. Nevertheless, much contemporary international law is not implemented by way of parliamentary procedures or even governments (executives) but by other actors, including government agencies or private actors as well as sub-state actors, and the norms that they implement come from sources as varied as formal decisions by international bodies and informal norms made by non-state actors.
- Do differences in domestic impact depend on the norm-production-making mechanism at the international level, the formal status (formal law or not), the pedigree of the norms and/or the issue area?
- How have intergovernmental non-binding agreements and political commitments, such as those undertaken within the framework of the OSCE (like minority protection) or the G20 (on financial stability), influenced the formation of national norms and their implementation?
- What role do international handbooks for parliamentarians play, like the UN parliamentary handbook on the SDGs etc or NGO handbooks on the implementation of the Rome Statute?
- How are non-binding standards by regulatory networks like the Basel Committee’s corporate governance principles for banks implemented in domestic law and in the corporate governance of banks? What influence is there from guiding principles and standards from IGOs, like the the UN Counter-Terrorism Committee’s Guiding Principles on Foreign Terrorist Fighters, the WHO’s Interim Guidance on Pandemic Influenza Risk Management, or the Guidebook on CEDAW general recommendation no. 30?
- What effect do reports from monitoring bodies, like the committee on the rights of the child, have on decisions by national and local actors, such as a child welfare board or a local parliament? How are domestic courts and other actors influenced by rulings in international courts like the ICC or by rulings in other foreign domestic courts?
- What about constitutional checks and balances on informal norms, including in multi-level systems?
- Can intergovernmental organisations or non-state actors help implement state-made law, for instance international rules of humanitarian law (Geneva Call) or norms for the protection of human rights (various CSR standards) or natural resources (the Marine Stewardship Council and Forest Stewardship Council)?
‘Democratic Westphalia’ assumes that governments represent national general interests and that the resulting global norms represent global general interests. However, law is glocal in two senses: just as global norms must be implemented (and adjusted) locally, global norms are born somewhere, out of some particular concerns, before they reach New York, Geneva or The Hague. What is universal is always a universalised particular.
Local groups lobby governments to make their case, individuals, business networks or groups file complaints before national and international bodies (sometimes for strategic reasons), coordinated local actions by NGOs influence state practice and global civil society networks pressure governments to adopt their proposals. And regardless of at what level norms are conceived, local interlocutors will often be consulted or even be drivers in the lawmaking process. Further, regardless of whether we think that the state is ‘disaggregated’ or not, it is a fact that many domestic agencies and various other national and subnational organs now engage in activities that can be thought of as state practice.
- How do local or national interests (corporate, civil society) engage in the lawmaking process and influence international negotiations or the development of practice? How do, for instance, the global NGO coalitions in ICL and disarmament connect between the local membership and the global level?
- How do transnational networks of NGOs and advocates influence lawmaking in established international law fora, for instance in the negotiations on an International Agreement on Marine Biodiversity in Areas beyond National Jurisdiction, or the human right to safe drinking water and sanitation (recognized by the UN General Assembly in 2010)? What is the influence of national or international business lobbies in economic or environmental lawmaking?
- How does the incidence of individual complaints to international or national bodies from the domestic scene, ‘strategic’ or not, influence the practice (‘jurisprudence’) of such bodies? What is the impact of Guantanamo related judgments from the UK, South Africa, Canada and the US on possible changes in the concepts of ‘act of state’ or diplomatic protection? How does climate change litigation ongoing in various states impact the international climate change regime?
In ‘Democratic Westphalia’, democratically legitimized executive branches make international law which is then implemented by legislation or direct application. This should ensure legitimacy and also provide a chance for rationality, since the government is in control of both lawmaking and implementation. Of course, in reality, the situation has not always been so neat. International lawmaking in all its various forms poses a challenge to how legitimate government is conceptualized, namely as democratic and rule of law based with separation of powers (see forum 1).
Contemporary international lawmaking is adding new challenges. If the national legislator loses control, and norms from many quarters affect the legal situation in a state, who can ensure that there is rationality in the legal system at large and that different regulations do not contradict or counteract one another? How is rationality affected by the ‘take-it-or-leave-it’ phenomenon when national legislators are asked to approve a complex set of norms at extremely high costs of saying no and little room to modify the norms at the domestic level? Can local MPs assess the effects of international rules and standards? Further, the influx of informal norms may challenge the integrity of the domestic legal system, or at least change it in unpredictable ways.
- If many rules that affect the daily lives of people have not been passed by a democratically accountable legislature or executive government, can the rule of law be legitimate (and can we even call it ‘rule of law’)? How does this influx effect the constitutional balance?
- In liberal democratic states there is a presumption that the branches of government are independent of each other. During the recent climate change litigation in the Netherlands (Urgenda cases), the government has appealed to the Supreme Court not because of the substances of the judgements in the lower instances, but because it questions whether courts are overstepping their roles.
- Is legitimacy a practical or a principled matter? In other words, is legitimacy only a factor to the extent that (lack of) legitimacy has an impact on the effective implementation and functioning of the rules, or is legitimacy – in a normative sense – an important good in itself?
- Is it desirable or even possible to (re-)constitutionalize these processes, and at what level? Or should we not bother about rationality at the macro-level and instead trust national and international judges and other decision-makers to ‘create’ rationality ad hoc, by balancing and integrating different rules in a reasonable manner? And is it even realistic to expect a legal to be rational?
Forum 6: How to Study How International Law Works?
International law matters because it affects people’s lives. The traditional way to study the impact of international law has been to examine how international regulations is beeing implemented domestically. But one could, perhaps, also start from the ground, and go upwards, and then find that various regulations affect the same situation, in ways which may not always be accessible to doctrinal analysis. Is it relevant for us, as international law scholars, to study this impact? If so, how?
- Can we understand the interaction between regimes without knowing something about how they work on the ground? For instance, as is well-known, in the fight against AIDS, a number of international regulations of various international legal areas have been relevant including the WHO’s regime for the control of pandemics, the human rights to the best attainable health and to physical integrity, international patent law regarding drugs (WIPO conventions and trade rules (TRIPS). How have they been invoked in various international and domestic fora?
- What sort of studies are useful to capture such phenomena? Legal analyses of regime collisions, narratives of ‘lived law’, or both? Do we need to work with scholars from other disciplines – domestic legal disciplines, sociologists, IR theorists, anthropologists, economists, political scientists, etc? How does one incorporate methods and paradigms from other academic fields into legal studies. And how would that change the way we organize – and finance – our work?
- And if we think that impact is relevant, does that affect how we teach international law? Do we need to incorporate elements from IR and other social sciences? Do we need to collaborate more with our colleagues in domestic international law subjects? (Is it meaningful to teach human rights without knowing, and telling, something about the effects on the ground?)
This panel examines how technological changes have influenced the evolution and development of international law in a historical perspective. Specifically, it is concerned with how technological developments including the digital revolution pose challenges for traditional, territorially circumscribed spheres of jurisdiction and governance in public international law.
- What has been the historical relationship between technology and international law and how does international law respond today? To what extent has the digital revolution and the resulting connectivity influenced the form and content of law making?
- How does international law respond to the need to expedite information exchange and financial transactions across different jurisdictions?
- How does international law deal with the seemingly borderless digital society? How is jurisdiction apportioned? What does sovereignty mean in “cyberspace”?
- Does international law regulate the activities of transnational corporations in a digital age? Could they be regulated, and how?
- How have international organizations have been able to employ emerging technology to develop and implement their mandates including through the dissemination of rules, values and norms? To what extent has the digital revolution democratized processes of law making in international law by facilitating public participation in decision making?
Forum 8: Current Events: Lawmaking in the Post-pandemic World: is Covid a Gamechanger?
International law responds to crises, but in different ways.
The September 11 attacks elevated the threats from non-state actors. The crisis did not result in any new global treaties, but it brought about changes in several international law regimes, mainly through changed practices and new interpretations which entailed an expansion of the war paradigm and a tilt in the balance between security concerns and individual rights. Further, there were institutional changes, not least increased executive lawmaking by the UN Security Council and its suborgans, as well as the broadening of the mandates of existing bodies, from NATO to the Financial Action Task Force. While these changes were real, the basic architecture of the international legal system remained.
After the 2008 financial crises, the ‘Basel III’ standards of the Basel Committee on Banking Supervision put a (partial) halt to the regulatory race to the bottom in financing. The informal financial and economic governance of the G20 and the revamped Financial Stability Board were strengthened. These developments of increased but informal coordination were by and large kept out of the UN and kept inside bodies with unequal voting rights or invitation only-participation. On the whole, despite the reforms, fragmentation of both norms and authority remains a defining feature of international economic law.
Will international law and international lawmaking change after the covid-19 crisis? Not only the virus itself but also the shortages in essential goods from face masks to nanoparticles (for mRNA vaccines) as well as the various knock-on effects on the global economy demonstrated the vulnerabilities of our interconnected world, and the effects on global inequality and poverty were stark. But the interconnectedness, not least in the scientific community, also enabled the development of vaccines at record speed.
The pandemic has showed the necessity of an effective international legal order, but at the same time ideas of supranational organization and post-national sovereignty are being increasingly resisted, and the global polity is more fragmented and divided than ever. Rival powers tried to use the pandemic to their advantage, from vaccine diplomacy to viral misinformation, heightening the pre-existing systemic competition for resources, power as well as hearts and minds.
What does this mean for international lawmaking? The President of the European Council’s call for a “pandemic treaty” in December 2020, has been endorsed by 26 heads of state and governments and by the director-general of WHO, but there are also sceptical voices who call for more flexible and low-key changes.
Concluding Panel: Global Law as the End of International Law?
The traditional inter-state paradigm has always been under more strain than the Westphalian model suggests, but the changes dealt with in the for and the agorae may have brought this paradigm closer to the breaking-point. There are cutting-edge discussions not only in ‘law-like’ fields such as global administrative law or international/global constitutional law but also regarding phenomena like legal pluralism, informal lawmaking and functionality.
- How should we think of our object of study: global governance, a constitutionalized international legal system, pluralism and fragmentation, ‘assemblage’, plain ‘global law’ or perhaps a more modest ‘international law plus’? Is it even meaningful to try to find an all-encompassing theory?
- For some scholars, the quality of being ‘international’ and of being ‘law’ is still of value, while others are agnostic or even enthusiastic about the changes.
- To go further: what would any answers that we might find to such questions mean for the identity of our discipline and for the ways we teach? Should we stick to what is uniquely ours – and perhaps defend the legal and political world of sovereign states that goes with it? Or should we study what we find, regardless of whether it is ‘law’ or ‘international’, and offer our comparative advantages to other scholars: domestic lawyers may benefit from our global perspectives and cosmopolitan sensibilities, while social scientist should find our knowledge of what goes on inside the black box of legal (or ‘normative’) discourse interesting. Perhaps the legalization of international relations and the globalisation of law has meant that our insights are needed more than ever, if we just let go of the received models and mindsets.
Agora 1: The Order of the Oceans and Changes in Lawmaking
The UN Convention on the Law of the Sea (UNCLOS) has been characterized as a ‘constitution’, addressing all issues relating to the governance of the oceans. Now after more than a quarter of a century in force, and given current challenges in the law of the sea, the question arises as to whether it can still serve its purpose as a useful framework, or whether it has become an obstacle to progress.
• Is there a need for new or different approaches to lawmaking in ocean affairs? What could such an approach be; and how would it relate to the oft-acclaimed ‘unified’ character of the UNCLOS and the vital importance of preserving its integrity’? What are the risks associated with ‘unpacking’ parts of the ‘package deal’ of UNCLOS?
• What are the prospects for innovative interpretations of UNCLOS? Are there any limits to further developments of the law through the adoption of new ‘implementing agreements’?
• What role does jurisprudence (ITLOS, ICJ, arbitral tribunals) play in the development of the law of the sea?
Agora 2: Sustainable Development and Changes in Lawmaking
The concept of sustainable development has been central to the development of international law on environment-related matters since the early 1990s. This concept has now become even broader, essentially covering most social aspects of human life, the natural environment and the use of natural resources. Such an expansion is evident from Agenda 2030 and the United Nations Sustainable Development Goals (SDGs). Nevertheless, although sustainable development also includes economic and social matters (including human rights), the environmental dimension has always been key, and the scientific research upon which policies and laws are based is increasingly concerned with issues to do with climate change and biodiversity.
• How do the concept of sustainable development and the adoption of the SDGs affect international lawmaking? What is the current normative force of the concept of sustainable development?
• Does Agenda 2030 indicate not only a political ambition but also a possible shift in international law and international lawmaking? Can it be seen as a step towards greater integration of diverse areas of international law and politics?
• Is the concept of sustainable development changing, so as to give greater emphasis to environmental aspects vis-à-vis the social and economic dimensions? Will climate change, in light of the impending climate disaster, be an increasingly dominating concern in lawmaking?
• Should the regulation of numerous aspects of daily life addressed by Agenda 2030 and the concept of sustainable development be addressed with in one or a limited number of fora, or should it be mainstreamed into all fora of international law and relations?
• To what extent can the legal developments in relation to sustainable development be driven by private initiatives or public-private partnership, including eco-auditing, eco-labelling and eco-certification schemes?
Agora 3: International Security and Changes in Lawmaking
Under the law of the UN Charter, security is to be collective, the unilateral use of force is prohibited and if it nevertheless occurs, international humanitarian law (IHL) alleviates suffering. This traditional regime persists (though under challenge), but the concepts of armed attack, armed conflict and threat against international security have been reinterpreted to create more room for states to act against threats such as terrorism. Further, a range of issues have been ‘securitised’ to enable extraordinary measures – military or not – to be used in the name of security. This has created an interwoven set of norms by states and other actors in fields such as migration, electronic surveillance and space exploration. But there have also been processes (led by the ICRC and others) to humanizs IHL, and there are long-term trends to import human rights and also environmental concerns into the law of armed conflict.
• What are the normative effects of the UN Security Council’s engagement in various non-traditional security issues, like climate change?
• What is the role of various non-state actors (IGOs, the ICRC, NGOs, academics) in the making and development of IHL? Are states trying to take back control, for instance through law of war manuals?
• What role do security concerns play in lawmaking outside the military field? Are dichotomies like military/civilian and war/peace upheld?
• Has human security become a law-generating concept, or are such concerns still phrased in terms like human rights?
Agora 4: The Rights of Individuals and Changes in Lawmaking
Human rights (HR) law has the potential to impact virtually all other legal regimes, and that could affect lawmaking far beyond the human rights field. But there has also been push-back, grounded in a sense that the expansion of human rights law into new fields has gone too far, and criticism of the failure of the human rights regime to effectively address inequality and poverty.
• Is the human rights ‘acquis’ asking too much? Are prescriptions by the ECtHR and other human rights bodies leaving too little room for national legislatures?
• What are the limits of the HR concept? Will soft law projects to create (or develop) human rights to peace or to a clean environment ever become hard law?
• Are HR still marching forward to the tune of soft law? What is the role of non-binding declarations of the UNGA or the UN Human Rights Council (HRC)? What about the plethora of non-binding expert statements by HR treaty bodies or by HRC experts and working groups?
• How are human rights affected by featuring prominently in broad processes on other issue areas, like the SDGs or the Global Compact for Safe, Orderly and Regular Migration?
• Are human rights still global? Do courts reward ‘well-governed’ states with a wider margin of appreciation? Are regional organisations, from the Council of Europe to the Shanghai Cooperation Organisation, making law under the assumption that they are codifying global or regional conceptions of rights?
• Are states prepared to regulate business and human rights, or will this remain a subject of non-state regulation? And if a Business and Human Rights Treaty is adopted, how would that affect non-state norm-making?
The regulation of the global economy is a very heterogenous affair. In relation to trade, the WTO provides a well-developed but stymied framework; international investments are regulated in more than 3000 bilateral investment treaties; and the multilateral regulation of private financial streams is made through soft law (albeit under some supervision of the G20’s Financial Stability Board) whereas public financing is managed in various forms, including through the international financial institutions (IFIs; the World Bank and the IMF).
• Bilateral, regional and ‘mega-regional’ trade agreements tend to cover issue-areas beyond trade, like investments, labour, intellectual property and the environment. Will this serve to provide coherence to international economic law and/or will it geographically fragment the global economic order?
• Is lawmaking in international economic law trending towards multilateralisation or bilateralisation? Is lawmaking the result of the balance of power or of common goals and values? What about the ability of poor countries to affect international economic law?
• Will economic lawmaking, judicial as well as legislative, take increasing account of human rights, the environment and other non-economic concerns; and how will that be achieved?
• Will political considerations play an increasing role in the regulation of the economy, such as in relation to the US secondary sanctions regarding Iran or in its relations with Chinese tech companies, or has economic law always been political?
Agora 6: Trans-/international Crimes and Changes in Lawmaking
At least since the 1990s, there has been a clear distinction between core international crimes and other treaty crimes (‘transnational crimes’, including terrorist crimes and transnational organised crime). International crimes are subjected to universal jurisdiction and global courts, while transnational crimes are still only subjected to national prosecution, under an ‘indirect’ international regime, in which the international community has introduced treaty obligations for states to adopt certain legislation and measures at the domestic level, as well as in their interaction with other states. At the same time, it is clear that on the ground, transnational and international crimes often occur in the same context and are perpetrated not infrequently by the same actors.
• Are there differences between the ways in which these crimes are domestically incorporated by statutory law? Are states more willing to domestically implement general principles of international criminal law (modes of participation, defences, etc) than those that may pertain to transnational crimes?
• Are there differences in how case law from international and foreign domestic jurisdictions, decisions by international organisations, as well as other international norms, influence domestic law?
• Are there any signs that the two fields may be converging? The Special Court for Sierra Leone and the Special Court in Kosovo have jurisdiction over some common crimes, and lately there have been calls to find an international jurisdiction for ISIS terrorists. Would such convergence be created, by integration regarding the substance and/or by expansion of the jurisdiction of international and hybrid courts?
Agora 7: Cyberspace and Changes in Lawmaking
Activities in cyberspace concern issues of national and human security, personal integrity, economic power etc. While the internet is a true public interest, the internet and other features of cyberspace are regulated largely by private actors (owners of infrastructure, internet service providers as well as platforms like Facebook). For a little over a decade, states have been to a certain extent taking back control, in particular as far as security issues are concerned, although apart from the Budapest Convention on Cybercrime, there is little global lawmaking. Instead, norm-making is done by single states or by groups of states, from the ‘Five Eyes’ to the Shanghai Cooperation Organisation or the EU. However, security is also a shared concern between governments and private actors, and Microsoft has even proposed a ‘Digital Geneva Convention’ to govern cyberspace.
• Is it possible, or desirable, for global organisations like the UN and the International Telecommunication Union to multilateralise cyber governance?
• Is securitisation a driver or an impediment to global lawmaking in cyberspace?
• How should we think of norm-making by monopolistic or oligarchic private actors in cyberspace (like the Tech ‘Big Five’ – Apple, Facebook, Google, Microsoft, Amazon)? And what about the technical regulation by non-state or hybrid actors like ICANN for domain names or SWIFT for money transfer?
• In lieu of international conventions focused on cyber space, what are the effects of informal international or quasi-international codifications and normative enterprises like the Tallinn Manual, the UN Groups of Governmental Experts and the Global Commission on the Stability of Cyberspace?
Agora 8: International Institutions and Changes in Lawmaking
Many intergovernmental organisations (IGOs) have considerable secondary, delegated lawmaking capacity, and the same applies to meetings/conferences of parties. It is also now widely recognised that acts by IGOs can constitute subsequent practice in the terms of the law of treaties, as well as elements of the formation of customary international law. It is further well-known that IGOs create norms through soft-law declarations and other informal arrangements, and that such norms are sometimes incorporated into binding legal instruments. IGOs may also interact with non-state actors in such activities. Further, judicial and quasi-judicial bodies attached to international organisations play a large role in the clarification, development and perhaps also the creation of law. At the same time, the division of competences between international institutions may be said to contribute to the fragmentation of international law.
• What role do IGOs and their secretariats play in ‘defragmentation’ or ‘regime contestation’? Is the Codex Alimentarius, a joint WHO/FAO instrument, incorporated into the WTO’s SPS agreement, an exemplary case?
• Can one expect each institution to consider issues and interests beyond its core mission/jurisdiction, or should one strive for unification beyond the issue-specific international organisations, tribunals and oversight bodies? Does the UN, with the UN Charter as a global constitution, have a primary responsibility to ensure consistency and proper balancing?
• Are international courts and tribunals integrating their jurisprudence, and if so, on which terms: those of the stronger party or as deliberation among equals?
• Are international institutions as influential now in lawmaking as ten years ago, or has global multilateral lawmaking given way to other forms of norm-creation, against the backdrop of increasing north-south tensions and the growing unilateralist assertiveness of super powers.
• Can delegated lawmaking (or law-clarification) be perceived as a shortcut to avoid parliamentary scrutiny?
Agora 9: National Parliaments and Changes in Lawmaking
The role of parliaments has both decreased and increased. Since more norms are made at the international level, executives are today involved in lawmaking that was previously the prerogative of parliaments. However, the role of parliaments may have also increased: their loyal involvement is needed to domestically implement the results of international cooperation, and this may also require their participation at the negotiation stage. International law research has started to pay more attention to the role of domestic parliaments in international normative developments, with a focus on domestic constitutional rules on legislative approval.
• Will legislators play a more active and direct role in international lawmaking (e.g. the recent coordinated initiative of MPs in several states to ask for an UN Parliamentary Assembly, efforts by the Council of Europe or the Commonwealth Small States Office or UN human rights organs to increase the interaction with domestic MPs)?
• Is it reasonable to argue that we should strive to enhance the ability of domestic parliaments to influence international norms, or would that make international cooperation more difficult?
• Do parliaments have the capacity to oversee the creation and implementation of informal norms, including norms created by transgovernmental networks?
Agora 10: Subnational International Lawmaking
Global issues, such as migration and climate change, require local action, and sometimes local governments are not satisfied with the efforts of their central governments. Cities, municipalities, regions and other local actors increasingly consider themselves as having to apply international law, irrespective of whether the state is committed or not to do so (e.g., California’s pledges to comply with the Paris Agreement, Barcelona’s and Paris’s call for asylum, the decision of Swedish municipalities to follow human rights conventions). In addition, the UN Human Rights Committee has stated that compliance with human rights should permeate the entire state apparatus, and the UN’s climate work places increasing emphasis on the local and regional levels. Subnational entities also want to play a role in the making of law or have international relations, independent of those of states. The Global Parliament of Mayors, formed in 2015, ‘promotes collective city decision-making across national borders’. Provinces and cities engage in ‘paradiplomacy’ sometimes to fulfil functional needs, sometimes to mark a degree of autonomy, such as in relation to Quebec or Catalonia.
• To what extent is international lawmaking directly relevant to local actors? On what legal basis are international rules localised (implemented locally)?
• Can subnational actors enter into international agreements?
• Can subnational actors contribute to the development of international customary law through expressions of state practice and/or of opinio juris? If so, under what conditions?
• Is there a potential conflict between the interest of governments in avoiding undesirable legal entanglements by local actors and in local self-determination?
Agorae 11 and 12 to be selected from proposals by ESIL Interest Groups
Information for Agora Speakers
All selected agora speakers must register for the conference and, if ESIL members, will be eligible for a reduced conference registration fee. ESIL does not cover expenses for travel and accommodation. ESIL awards travel grants and carers’ grants to ESIL members to encourage and facilitate attendance at ESIL events. Application details can be found on the ESIL website.
After the conference, ESIL provides the opportunity to publish papers in the ESIL SSRN Series and also plans to publish selected high-quality papers in a volume of the ESIL Book Series (published by OUP). Further details about how to submit papers for publication will be provided to all speakers immediately after the conference.
ESIL Young Scholar Prize
ESIL will award the Young Scholar Prize (YSP) again in Stockholm. Further details about the Prize can be found on the ESIL website. The YSP will be awarded for the best paper submitted to the conference or to a pre-conference Interest Group workshop by a scholar at an early stage in her or his career.
Early-career scholars are (i) candidates for a postgraduate degree in law; (ii) PhD candidates or those who have had their oral defence no longer than 3 years prior to the submission of an abstract; or (iii) those who are within the first 5 years of their career following the award of their last academic degree and who can provide evidence of their contribution to legal scholarship through academic publication.
Candidates for the Prize have to be ESIL members at the time of submitting their abstract. Co-authored articles will only be considered for the prize if all authors fulfil the eligibility criteria. To be considered, please provide the following information when submitting the abstract: an expression of interest in competing for the ESIL Young Scholar Prize; details of academic background, which indicate how the eligibility criteria are met e.g. date of PhD defence, etc.; date of joining ESIL.
Upon acceptance of the abstract for presentation at the conference or in a pre-conference IG workshop and notification that they are eligible for the YSP, authors must submit a paper of between 8,000 and 12,000 words (including footnotes) to the ESIL Secretariat by 1 July 2020 for consideration by the YSP jury.
For further information, please write to
1) the organising committee at firstname.lastname@example.org for questions about the academic programme or
2) conference service at email@example.com for questions about registration and other practical matters.