Fabian Cardenas is an international law professor at Pontificia Universidad Javeriana in Bogotá, Colombia.
Latest by this author
From the sacred peaks of Aotearoa to the rivers of Colombia and the contested waters of Lake Erie, a global movement is emerging to grant the natural world legal personhood, driven by Indigenous worldviews and a growing call for environmental justice.
By Dana Zartner, Fabian Cardenas and Mohammad Golam Sarwar in Environment | Island Press and Earth Food Life Project | English
Fabian Cardenas, PhD, LLM, LLB, is a full-time international law professor at Pontificia Universidad Javeriana in Bogotá, Colombia. He is the university’s director of the Research Center on Law and Sustainability, the Research Group in Economic Law leader, and the head researcher on Sustainability and Law.
Cardenas’s work reflects on a series of international legal topics including legal theory, the theory of the sources, customary law, law of the sea, human rights, international criminal law, international investment law, international trade law, international humanitarian law, and international environmental law, among others.
His publications have developed environmental discussions in international legal studies from a Global South theoretical perspective. Cardenas is also an international legal consultant for public and private (national and international) organizations, a columnist for the national and international press, as well as an active member of different international law academic societies.External
Customary International Law as an Argumentative Framework
An Alternative Theoretical Approach in International Environmental Law
SSRN | June | 2016
This research considers the legal perception of Customary International Law (CIL). Cardenas argues that CIL is not the result of opinio juris and state practice, as the mainstream doctrine generally sustains, but is rather an argumentative framework established, developed, and continuously reviewed by the Community of International Lawyers that practice international law.
The linchpin of the argument is illustrated by International Environmental Law (IEL), the most dynamic and convoluted field of international law where the functioning of the sources can be more easily observed.
The Recipe of Contemporary Customary International Law
Co-authors: Óscar Casallas Mendez | Anuario Colombiano de Derecho Internacional | March | 2015
[Spanish-language text] The social international practice of contemporary international law does not correspond entirely to the one when the International Court of Justice was established. The world of 1945 is definitely not the same as the world in the 21st century. This reality has transformed international law and its components.
Accepting this, the present research aims to revisit the traditional concept of customary international law by deciphering its two ingredients, in particular that of opinio juris, which will be tested by using contemporary scholarship and jurisprudence. After explaining some of the major difficulties of the classic concept of opinio juris, we describe newer, contemporary, and updated concepts. The discussion will examine whether it is necessary to develop the classic definition of opinio juris, and whether it may be the only ingredient required in the recipe for contemporary customary international law.
Soft Law and the Other Side of the Coin
Mexican Yearbook of International Law | April | 2013
This article revisits the traditional conception on the study of the sources of international law by contrasting it with one of the notions that challenges classical law making: soft law. In doing so, the article presents an overall review of the concept of soft law, exploring its main features and actual legal implications.
Finally, the paper formulates a series of questions whose main aim is to make a call for rethinking the sources of international law. It is posited here that such sources should not remain static but rather develop at the speed of contemporary international relations.
Special reference is made to international environmental law being considered as a particular branch of international law.Publications by this author
Co-authors: Sufyan Droubi (ed.) and Jean DʼAspromont | Manchester University Press | December | 2020
In spite of the International Law Commission’s reluctance to recognize the direct incidence of non-State actors (NSAs) in the formation of customary international law (CIL), Cardenas’s chapter suggests that NSAs could matter in the formation of CIL.
After considering international law as an argumentative practice socially constructed, Cardenas claims that CIL is the product of successful argumentative campaigns carried out by international lawyers who usually work for States but who could also represent the interests of other actors different from States. Thereby he posits that although State lawyers’ views tend to be prioritized when identifying CIL, considerations of lawyers working for NSAs could be also take into account.
He initially argues that the two-element approach to CIL reproduced by the International Law Commission is just one possible perspective out of many. He advocates a social perspective of CIL with a view to defending the position that the community of international lawyers could give significant weight to NSAs’ positions in the formation of CIL.Media by this author
Feature | April | 2020
Hermeneutics is the theory and methodology of interpretation. Hermeneutics in law is the act of referencing a certain norm with a view to making it applicable in a particular situation. Regarding the law of treaties, the allocation of meaning is closely related to the written text describing a norm.
Cardenas argues that when interpreting customary international law, it is not feasible to separate the intellectual process of interpretation from that of determining content and ascertaining the law of the source. Therefore, when a customary norm is being interpreted, its content is also being determined, while it is still conceivable to consider particular law ascertainment criteria.
All of this is possible when interpretation concerns a malleable and still mysterious source like CIL. The foregoing processes, forerun by the act of interpretation, are intellectual in nature, argumentatively construed by the community of international lawyers. This means that the very existence of objective rules of interpretation for CIL is a matter to be disputed.
