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The Individual and Customary International Law Formation

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The Individual and Customary International Law Formation Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2007 The Individual and Customary International Law Formation Christiana Ochoa Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the International Law Commons Recommended Citation Ochoa, Christiana, "The Individual and Customary International Law Formation" (2007). Articles by Maurer Faculty. 319. https://www.repository.law.indiana.edu/facpub/319 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. The Individual and Customary International Law Formation * CHRISTIANA OCHOA Introduction............................................................................... 121 I. Building Blocks: Terminology and Doctrine ............................ 125 A. Preliminary Terminology: Usage, Custom, Customary Law, International Custom.............................................. 125 B. Customary International Law.......................................... 129 1. A Brief History..................................................... 129 2. The Modern Doctrine........................................... 130 3. Critiques of CIL Formation Doctrine................... 132 II. Foundational Literature: Skepticism, Allusion, and Possibil- ity............................................................................................... 135 A. Skepticism....................................................................... 136 B. Allusion........................................................................... 136 C. Possibility ........................................................................ 140 1. Realism: Participation in International Legal Process.................................................................. 140 2. Individuals Front and Center................................ 142 3. CIL Has Long Recognized Non-State Actors ...... 145 * Associate Professor of Law, Indiana University School of Law – Bloomington. J.D., Har- vard Law School, B.A. University of Michigan. The author would like to thank Professors Henry Steiner, Jordan Paust, Anthony D’Amato and Ben Chigara for their insightful comments on ear- lier drafts for this Article. In addition, this Article has benefited from the generous suggestions of the Indiana University School of Law faculty and the participants in the Big Ten UnTENured Conference, who have heard and commented on the ideas contained herein. The keen research assistance provided by Till Muller and Sean Santen was also invaluable, as were the comments and support provided by Timothy Lynch. Please send correspondence to the author at [email protected]. The author’s work, including this Article, can be found at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=439960. 120 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 48:1 4. Challenging the Doctrine to Include NGOs ......... 146 5. Doctrine Change, Yes; NGOs, No ....................... 147 6. Private Actors in Other Areas of International Law....................................................................... 148 III. Doctrinal Bases for the Inclusion of Individuals in CIL ........... 151 A. International Law Doctrine ............................................. 152 1. Individuals as Subjects of International Law ....... 152 2. Individuals as Participants in International Law .. 154 3. Individuals and Prescription................................. 155 B. Human Rights Doctrine................................................... 158 1. Human Rights Doctrine is Oriented Toward the Individual.............................................................. 158 2. Human Rights Doctrine Requires Information from Individuals as the Doctrine Evolves ............ 162 C. CIL Doctrine.................................................................... 162 IV. Modern Social/Philosophical Bases for Including the Indi- vidual: Globalization, Cosmopolitanism, Transnationalism, and Participatory Democracy .................................................... 164 A. Globalization................................................................... 164 B. Cosmopolitanism and Cosmopolitan Citizenship ........... 166 C. Transnationalism, the Subaltern, and Globalization from Below...................................................................... 167 D. Participatory Democracy................................................. 168 V. Operationalizing the Inclusion of Individuals........................... 169 A. Including Individuals: Textual Change or Statutory Interpretation? ................................................................. 169 B. Elements of Custom Among Individuals ........................ 175 C. Determining Public Opinion ........................................... 176 1. General Assembly Resolutions .............................. 177 2. Non-Governmental Organizations and Civil Society as Proxies for Individuals.......................... 179 3. Empirical Data....................................................... 181 4. Other Potential Approaches ................................... 184 Conclusion................................................................................. 184 2007] THE INDIVIDUAL AND CUSTOMARY INTERNATIONAL LAW 121 “The essence of a customary rule lies in the fact that it arises from the conduct of those whom it binds.”1 “[O]bedience to a law which we prescribe to ourselves is lib- erty.”2 “The will of the people shall be the basis of the authority of gov- ernment.”3 INTRODUCTION The traditional narrative of international law is familiar: states are sovereign, enjoy a monopoly on legal personality under international law, and make international law. This traditional narrative, at one time accepted as true, is now inaccurate on every count. The traditional doctrine of customary international law (CIL) is also well known: it is made up of state practice and opinio juris. This state- centric account is also wrong, both factually and normatively. Until re- cently, the recognition that actors other than states participate in cus- tomary international law has been confined to the observation of legal realists. The role of non-state actors in the formation of CIL has not been adequately considered or explored despite vital questions that arise from the realists’ observations. These questions fall essentially into two categories. First, what effects would a doctrinal re-ordering that recog- nized a role for individuals in CIL formation have on international law generally, and on human rights and CIL in particular? Second, if it is conceded that general international law, human rights, and CIL call for and can accommodate breaking the monopoly power states hold on CIL 1. Michel Virally, The Sources of International Law, in MANUAL OF PUBLIC INTERNATIONAL LAW 116, 130 (Max Sørensen ed., 1968). 2. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSES 178 (G.D.H. Cole trans., J. M. Dent & Sons Ltd. 1973) (1762). 3. Universal Declaration of Human Rights art. 21, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948). 122 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 48:1 formation, how would individuals participate? This Article will seek to address these questions. Many discussions of CIL start, either conceptually or chronologi- cally, with the Statute of the International Court of Justice. Of course, custom was part of customary international law long before the Statute was adopted. Taking just one step back in time, for example, one can note that the Statute of the Permanent Court of International Justice (the predecessor to the International Court of Justice (ICJ)) included text identical to that of the Statute of the ICJ in respect to CIL.4 Going back further in time, one finds familiar, if somewhat dated, definitions of cus- tom in early international law treatises.5 In these earlier periods, theorizing about the relationship of custom to law was well underway in legal scholarship and other areas. This deeper theorization on customary law made clear that one of its legitimizing premises was that it was thought to originate in the actions and beliefs of those whom it later comes to bind – the subjects of the law.6 The be- lief that customary law originates from its subjects seems to have been translated directly into international legal doctrine. From the time cus- tom was first identified as a source of international law until the fairly recent re-conceptualization and expansion of the subjects of interna- tional law,7 states have been the only entities recognized as subjects of international law.8 Thus, it was consistent to define CIL as law that was made from the acts and beliefs of states alone. Currently, however, indi- viduals are widely recognized as subjects of international law.9 One question that arises logically from this recognition is its effect on the power of individuals to make international law, and specifically on their power to participate in the formation of CIL. 4. For a narrative discussion of the process by which Article 38 of the Statute of the Perma- nent Court of International Justice was adopted into the Statute of the ICJ, see THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY 689–690 (Andreas Zimmermann
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