By David Hughes and Yahli Shereshevsky
What role does legal scholarship play in the development of international law? How do states advance a preferred international legal position when the formal methods of creating or amending the law are unavailable? As global stagnation and great power competition increasingly preclude access to the formal methods of international lawmaking, those states that seek to drive international agendas to gain or maintain influence are pursuing novel methods to shape international law. This article identifies one such method, what we term “state-academic lawmaking.” State-academic lawmaking describes an observable, generative method by which purportedly independent academic articles, authored by an esteemed legal expert(s), and published in a leading law journal, are advanced as an informal means of international lawmaking.
By producing purportedly independent academic articles, state-academic lawmaking couples the state’s formal lawmaking authority with the value of scholarly neutrality and expertise that is assumed of work that is independently published in a legal journal, but which also makes an explicit lawmaking claim. In this article, we present a series of case studies that document a form of informal lawmaking that has increasingly been used by the United States, China, and other influential states. The case studies that document this burgeoning lawmaking phenomenon describe how these powerful, but diverse, states use legal scholarship to pursue legal agendas in the most contested fields of international law – the use of force, international humanitarian law, and the law of the sea.
Through the lens of state-academic lawmaking, we offer a critical and socio-legal account of the microprocesses that drive informal lawmaking. These observations provide important insights into broader questions about international law that challenge existing understandings of how the law develops. They evidence a shift from vertical to horizontal lawmaking that presents a novel conception of the relationship between international law and power, that bears implications for how states from the Global South can amplify their voices within the lawmaking processes from which they have traditionally been excluded, and that complicates understandings about how states on either side of the so-called authoritarian-democratic divide engage with international law.