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Towards a Proceduralisation of International Law?


Heike Krieger

Anne Peters

Über das Projekt:

The Max Planck Fellowship Group on the Proceduralisation of International Law conducted three interrelated research projects:

  • The book project “Due Diligence in International Law” (OUP 2020), edited by Heike Krieger, Anne Peters and Leonhard Kreuzer.
  • The Habilitation project “Law and Truth” by Björnstjern Baade.
  • The doctoral dissertation by Leonhard Kreuzer.
  • The doctoral dissertation by Jonas Püschmann.

The joint project started from the hypothesis that we currently observe a trend towards a proceduralisation of international law. By proceduralisation, we mean the emergence and increasing importance of procedural obligations (duties). Procedural obligations relate to proceedings (courses of action) and prescribe measures which constitute, shape, and channel these proceedings. Examples in the field of international law are obligations to lay down something in writing, to give information to specific actors or the public, to respect a deadline, to enter into negotiations or dialogue, to receive and take into account another actor’s statement, and the like. Such obligations may arise in non-adversarial interactions and in court proceedings. They may be incumbent on states, on other international legal persons, and on a panoply of other actors whose status under international law might be unclear, such as transnational corporations and NGOs. In legal terminology, the opposite of “procedural” is normally “substantive” or “material”. However, the distinction between procedure and substance, and their relationship, may not be clear cut. For example, a state’s obligation to furnish information about disarmament to other states under certain conditions or to allow for complaints by individuals under a specific human rights conventions seems to satisfy the beneficiaries’ substantive claims to information or to justice, and thus seems instrumental or ancillary to promote and realise material values or principles.

As a general matter, procedural duties might not only serve but even substitute substantive principles (such as the centrality of the human person; the importance of free trade; the appropriateness of democratic governance of states, and so on) whose universal acceptance (on a global scale) is unclear.

The problem of a lacking or only thin or vague global consensus on certain material principles was at the core of the work on global constitutionalism and on the rise or decline of the international rule of law. It may well be that the emergence of a more “formal” or “thin” constitutionalism, and a more “formal” or “thin” version of the international rule of law is a predominant trend in the evolution of international law of our times.