Ochoa Reply to Paust
First, I’d like to thank Professor Paust for his thoughtful response to my Article. He is one of only a handful of scholars who have written on this topic and I am grateful for his taking the time to respond.
Our work surrounding the question of customary international law (CIL) in relation to the individual has taken us to very similar places in the existing literature and sources and, on the main question I ask – whether individuals should participate in the CIL-formation process, we agree that they should. On the question of whether individuals already do participate in the CIL-formation process, again, we both answer in the affirmative (though I am far more tentative about this answer than is Professor Paust). Our disagreement lies in the question of whether CIL doctrine currently recognizes this participation and opens formal routes for the inclusion of individuals in the CIL-formation process. Professor Paust maintains that it does. After mulling over this question, and digesting significant primary and secondary source material, my answer is “no.”
But, for me, this is where the hard and joyful work begins. My article aims to create a recognized opening for including individuals in the CIL-formation process. In my initial post this morning, I summarized the ways in which I approach this project – (e.g., exposing inconsistencies between current conceptions of CIL-formation and the standard thought regarding the formation of customary law, generally; discussing the inconsistency of recognizing the vital role of individuals in treaty-formation but not in CIL-formation; providing social/philosophical bases for a change in our approach to CIL-formation; and providing a framework for assessing custom among individuals).
I would imagine that my article will leave some committed positivists and volunteerists unconvinced. And, again, this is where the fun and joyful work of my next article on this subject will begin. Professor Paust has anticipated some of the historical questions I am currently asking regarding the history of custom formation. Indeed, our understanding of this process in the 17th, 18th and 19th centuries is incomplete – and my next article aims to remedy this, at least in part. 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 in order to demonstrate that the customary law has been and can 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 if you believe that time has not yet arrived.
Again, if you are interested in the conference, please contact me. It would be wonderful to see you in Bloomington.