The Transformation of Quantity into Quality: Critical Mass in the Formation of Customary International Law
78 Pages Posted: 29 Feb 2012 Last revised: 13 Apr 2013
Date Written: February 21, 2012
Abstract
The formation of customary international law has long been criticized for its lack of a clear methodology, characterized by an ambivalent relationship with state consent. Although customary international law seems to be entirely a creature of state consent, after all it is based on actual practice, in reality the fit with state consent is loose at best. Customary international law only awkwardly bridges the gap between a descriptive and prescriptive norm. Unable to move forward, the study of the formation of customary international law appears to have largely reached an impasse. Yet, states still appear to support and apply customary international law as a source of law, so we are faced with the situation of embracing a source of law that we do not understand well and where the applicable law is often vague.
This article is an attempt to bring into international law a perspective from the hard and soft sciences for discussing the formation of customary international law, specifically the study of critical mass in collective group behavior. This language is not entirely new to discussions on customary international law. Where it has been mentioned, the implications of critical mass theory have not been fully explored. Critical mass can be a loose concept to simply describe the accumulation of small actions that result in large shifts in collective behavior; however, it is also an empirically-based scientific study that attempts to assess how those changes come about. This article seeks to delve more deeply into critical mass and apply the insights from this study to the formation of customary international law.
Following a very brief introduction with background on customary international law, the paper will describe how the social sciences have embraced the critical mass theoretical perspective in the study of collective decision-making. Three primary elements of social change will be identified: (1) the importance of the content of the norm, (2) the role of influence through networks, and (3) the role of key individuals, “opinion leaders” and “opinion diffusors”.
Following this review of the science, the author will draw some implications for customary international law. In particular, the author will re-characterize three major discussions within customary international law into the three key factors of critical mass. The first discussion is that over the qualitative assessment of norms. The second is the growing influence of networks either as transnational governance or international organization rule-making. The final discussion is a proposal to understand the role of the “specially interested” state as a norm entrepreneur. The paper will conclude that study of critical mass can contribute to a better, and more formal, methodology for understanding customary international law.
Keywords: international, law, custom, critical, source
JEL Classification: K33, K39, K30, K19, K10, K00
Suggested Citation: Suggested Citation