Beyond State Consent? International Legal Scholarship and the Challenge of Informal International Law-Making

The article explores scholarly attempts to come to terms with the phenomenon of informal international law-making in its multiple manifestations. It is shown that efforts to radically depart from the existing framework fail to convince to the extent that they create uncertainty about the distinction between law and non-law. By way of contrast, the article demonstrates that the international legal system contains an array of mechanisms for assimilating new developments, thereby attesting to the normative and explanatory force of theoretical approaches that insist on retaining this distinction. At the same time, it is acknowledged that the question of the normative value of output produced by non-State actors remains open. Attempts to grapple with the question of actor informality by evading State consent are examined and rejected on the basis that they either reproduce the problem of uncertainty, or that they simply rehash familiar patterns. The article draws a distinction between ‘direct’ and ‘indirect’ participation in law-making and exemplifies how non-State actors may indirectly influence norm creation. In doing so, the article confirms that traditional legal thinking may be reconciled with new developments while keeping the fundamental architecture of the international legal system unharmed.