The Individual and Customary International Law Formation

by Christiana Ochoa

First, I would like to thank Roger Alford and VJIL Editor-in-Chief Chris Ripple for the groundwork they’ve done to create this blogging opportunity. I’ve followed VJIL/Opinio Juris posts all week and have found them very informative.

In my most recent article, The Individual and Customary International Law Formation, I propose opening a space for non-state actors, specifically individuals, in the process by which customary international law (CIL) is formed. A good portion of the article is devoted to a discussion of the concept of custom, as well as to a brief history of CIL, and the current thinking regarding CIL (both in terms of accepted doctrine and critiques thereof). Because the idea that non-state actors ought to participate in the CIL-formation process has not gained a tremendous amount of traction previously, the article also steers readers through the existing literature addressing the possibility, reality and prospects for inclusion of non-state actors in this process. Readers not familiar with CIL doctrine or these contributions to its various sub-literatures will surely find this section informative. However, as is so often the case, it is the second half of the article to which I would like to draw your attention, for it is here that the central portions of my argument– that the CIL-formation process should include individuals – takes shape. In the second half of the article, I venture to provide theoretical underpinnings for the proposition that individuals should be recognized in CIL formation doctrine and construct a framework for how this might be accomplished, both doctrinally and practically.

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 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 international law accepts the participation of individuals in international law – particularly those aspects in which they are most interested, such as human rights – and creates routes for this participation. The article focuses on the recognized participation of individuals in the process by which human rights treaties are formed to illustrate that while 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 of their populations (see, e.g., the recent events in Burma).

The article also discusses social/philosophical bases for including the individual. These bases ought to be quite familiar to international law scholars and include globalization, cosmopolitanism and cosmopolitan identity, as well as transnationalism, and globalization from below. The premise of each of these theories is that the hold of the state on international power and influence is no longer monolithic. If this is the case, then we are pushed to rethink not just who international law protects and who it governs but also how it is made and by whom. Given the deeply democratic rhetoric and idealism of the international project and the real and perceived need to continually reinforce the legitimacy of that project, the article stops briefly to inquire about the relationship of democracy to a democratized method of law formation. (I develop this inquiry further in a forthcoming note titled, The Relationship of Participatory Democracy to Participatory Law-Formation, 15 INDIANA J. GLOBAL LEGAL STUD. __ (2008, forthcoming)).

I imagine some of you will suggest, as some of you already have, that my article is self-limiting in that it does not propose that all manner of non-state actors (including private groups) be included in the CIL formation process. I sympathize with that critique. It is very possible that other non-state actors should similarly be included in CIL formation. I did not address other actors comprehensively because I opted for the more careful and methodical approach afforded by addressing only individuals. As a result, other non-state actors simply fell outside of the purview of the article. Thinking through the doctrinal and social/philosophical justifications for including other non-state actors will clearly be a separate and significant undertaking. I hope, however, that if that task is taken up by someone else, before I get to it in my own work, that my bases for expanding the formative actors of CIL will be helpful to those future authors.

For those persuaded by the arguments I make for doctrinal alterations, I would especially like to direct your attention to the last section of the article, titled “Operationalizing the Inclusion of Individuals” – the section in which I make an early foray into the practical application of my theory. In the first part of this last section I begin to develop a framework for assessing custom among individuals (presumably if individuals are to be included in determinations of CIL, a methodology for doing so would have to be developed). This is the section of the article that I find most exciting because it is here that the real prospective puzzles lie. These puzzles, perhaps not surprisingly, mirror those that have vexed CIL scholars for decades. What would “count” as custom; individuals’ beliefs about their rights or their expectations about how various actors ought to behave, or both? And what use would we make of the practice of individuals, given that custom arises from conduct and actual behavior as opposed to arising from beliefs and expectations alone? And what levels of uniformity, universality and duration would we expect of individual’s beliefs, expectations and behavior before custom could be asserted and ascertained?

Finally, I attempt to address another question that will naturally arise: What would be the material sources that could serve as evidence of the formation of international custom among individuals? This section leaves open significant questions for future debate – questions that mirror the debate that has ensued since Article 38(1)(b) was drafted – about the proper material sources of evidence in respect to state opinio juris and practice. Because the study of individuals, their behavior, their beliefs and their customs has not traditionally been a focus of the law, this is an inherently cross-disciplinary endeavor that will require contributions from and dialogue with, among others, political scientists, anthropologists, sociologists and journalists. Again, the article offers only a framework and a list of possible avenues for obtaining evidence of custom formation among individuals.

Given the significant scholarly attention and debate that has been devoted to these questions under traditional state-oriented CIL doctrine, it is my hope and expectation that these questions will attract the attention of current and future international law scholars as they contribute to a new literature on the possibility of non-state actor contributions to CIL. I hope for this because I believe in the project – I believe individuals really should be consulted in the CIL formation process.

For those of you especially interested in this article, please feel free to contact me (cochoa AT indiana DOT edu). The Indiana University School of Law is hosting a conference on April 3-5, 2008 on “The Individual and Customary International Law Formation,” during which these ideas will be further explored and developed. It would be wonderful to see you in Bloomington for that event.

5 Responses

  1. Christiana, I enjoyed reading your article. Since there has not been many comments posted so far to the colloquy, I thought I would ask a question. This may be somewhat premature as Jordan’s commments are not posted, but I suspect he may focus on other issues.

    If you count the acts of individuals in creating custom, do you have any concern that individuals with illiberal worldviews may push CIL formation towards illiberal values. Said differently, that counting individual beliefs or expectations in the formation of CIL can lead to CIL that is antithetical or not entirely consistent with international human rights as currently understood?

  2. I have to read a lot of boring, jargon-filled stuff all day long in my job. I expect a blog entry to be short, pithy, and get to the point. Words like “operationalizing” do not belong. Can we please go back to the old format?

  3. Professor Ochoa, what areas of CIL do you think individuals could effect the most? Is it primarily human rights law? If so, would the debate between universalism and relativism be even more relevant than it is now?

    If individuals could form CIL beyond human rights to how states behave with one another, wouldn’t individuals express their opinion according to their national and self interest? In the nuclear weapons context, for example, the public opinion in a nuclear weapons state regarding the right to possess and use of weapons as threats surely would be different from states without such capabilities.

    I hope all is well.

  4. Although not directly on point, I think it is worth noting that the “Intergovernmental Group of Experts for the Protection of War Victims” has invited the International Committee of the Red Cross “to prepare, with the assistance of experts in IHL representing various geographical regions and different legal systems, and in consultation with experts from governments and international organisations, a report on customary rules of IHL applicable in international and non-international armed conflicts, and to circulate the report to States and competent international bodies.” Ted Meron, 90 AJIL 238 (1996). Thus, state actors are asking the ICRC to help formulate and articulate CIL.

    I would think that the ICRC is a prime example of a non-state actor that has a leading role in the development of customary international law of IHL. And the interesting thing is that the states want them to have that role.

    Roger Alford

  5. The IRCR is updating the CIL project at Cambridge, headed by Michael Carrel. I don’t think, however, that they would consider themselves as forming CIL. Rather, I suspect that they might consider themselves be gathering state and international tribunals practice that forms CIL. In that respect, this is still closer to the traditional notion of CIL, rather than what Professor Ochoa proposed.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.