Techniques in international law-making: extrapolation, analogy, form and the emergence of an international law of disaster relief

Sivakumaran, Sandesh

Abstract

This article traces the emergence of an international law of disaster relief from a patchwork of norms through to a holistic body of international law. It argues that, for many years, the international law of disaster relief existed in piecemeal fashion. As there is no overarching treaty on the subject at the global level, a hodgepodge of instruments have been concluded, namely subject-specific and disaster-specific treaties at the global level, regional and sub-regional agreements, bilateral agreements, as well as soft law. Since the 2000s, however, through the work of the International Law Commission and the International Federation of the Red Cross and Red Crescent, a holistic body of international law relating to disaster relief is in the process of emerging. The Article argues that this holistic body is in the process of emerging primarily as a result of three techniques which, while unconventional, are used relatively frequently in the making of international law. The three techniques are: (1) extrapolation from a series of piecemeal instruments to form a generalized standard; (2) the use of analogy; and (3) the conclusion of instruments that are soft in form but contain a mixture of hard law and soft law. The way in which the techniques have been used to develop a body of international law relating to disaster relief is analysed, their use in other fields of international law discussed, and limitations on their use in the disaster law context identified.

Citation

Sivakumaran, S. (2017). Techniques in international law-making: extrapolation, analogy, form and the emergence of an international law of disaster relief. European Journal of International Law, 28(4), 1097-1132. https://doi.org/10.1093/ejil/chx066

• Journal Article Type: Article
• Acceptance Date: Jun 30, 2017
• Online Publication Date: Feb 16, 2018
• Publication Date: Dec 31, 2017
• Deposit Date: Aug 23, 2017
• Publicly Available Date: Jan 1, 2019
• Journal: European Journal of International Law
• Print ISSN: 0938-5428
• Electronic ISSN: 1464-3596
• Publisher: Oxford University Press
• Peer Reviewed: Peer Reviewed
• Volume: 28
• Issue: 4
• Pages: 1097-1132
• DOI: https://doi.org/10.1093/ejil/chx066
• Public URL: https://nottingham-repository.worktribe.com/output/902680
• Publisher URL: https://academic.oup.com/ejil/article/28/4/1097/4866308
• Additional Information: This is a pre-copyedited, author-produced PDF of an article accepted for publication in European Journal of International Law following peer review. The version of record Sandesh Sivakumaran; Techniques in International Law-Making: Extrapolation, Analogy, Form and the Emergence of an International Law of Disaster Relief, European Journal of International Law, Volume 28, Issue 4, 31 December 2017, Pages 1097–1132, https://doi.org/10.1093/ejil/chx066 is available online at: https://academic.oup.com/ejil/article/28/4/1097/4866308
• Contract Date: Aug 23, 2017