Wednesday, October 24, 2007

Who Counts in Making Custom?

Last Thursday, my most recent article, The Individual and Customary International Law Formation, was featured on Opinio Juris as part of a mini-series in which Opinio Juris invited the authors in the Virginia Journal of International Law’s most recent issue to present their articles. I'll provide a short summary here.
In the article, I propose opening a space for non-state actors, specifically individuals, in the process by which customary international law (CIL) is formed.
In essence, my argument rests on what I see as two doctrinal premises. The first is a general shift in thinking about individuals as mere objects of international law – akin to rivers, cattle or real property – to a generally accepted recognition of individuals as subjects of international law. This shift, I argue, has created a deep doctrinal inconsistency due to the fact that customary law, international or otherwise, has typically been conceived of as the law that arises from its subjects. The recognition of individuals as subjects of international law has thus rightly drawn the validity and legitimacy of customary international law (CIL) into question – CIL doctrine no longer permits it to arise from all of its subjects. Rather, CIL continues to look only to states.
The second doctrinal premise is that the treaty formation process accepts and recognizes the participation of individuals in the making of treaty law – particularly in those areas in which individuals are most interested, such as human rights. Although human rights treaties may address many of the same norms as compose the CIL of human rights, there is no recognized avenue for individuals to participate in CIL formation. There is no avenue for individual participation even in the area of human rights, which is oriented toward the individual and recognizes and anticipates that states will be rights violators. And this is true despite evidence that states do not always represent the human rights aspirations and desires or beliefs of their populations (see, e.g., the recent events in Burma).
This article will be followed by my current project, in which I am making underexplored inquiries regarding the history of custom formation. Customary international law -- or rather customary law regulating trans-boundary relations -- was being formed long before our modern conception of the state, and I aim to examine this process in my next piece. My aim is to demonstrate that customary law has been and can again be formed separate from states. In the process of developing my future article, this historical issue and others will be explored in an upcoming conference that Indiana University School of Law will host on my behalf, entitled, “The Individual and Customary International Law Formation,” in April 2008. The insights provided by this historical inquiry may help us see a path forward that will maintain the vitality and legitimacy of CIL, even in a time of the de-centered state. This should have relevance even for those who maintain that such a time has not yet arrived.
For those who might be interested in the Opinio Juris post, it is still available and it is accompanied by an exchange with Jordan Paust, who provided a response to my article. (illustration courtesy of Human Rights Education Associates, an NGO with offices in Massachusetts and Amsterdam)

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