The Individual and Customary International Law Formation

Abstract:     
A state monopoly on customary international law formation was once required and acceptable, given the status states enjoyed as the sole subjects of international law. Since the drafting of the most commonly cited doctrinal sources of customary international law, legal personhood has been extended to individuals. During this same time period, individuals have come to participate in treaty-making in some key areas of international law, including human rights. The customary international law of human rights, no less than treaty law, has direct effects on individuals. It sees them as the subjects protected by those provisions that have attained the status of customary law. Unlike treaty law, though, there is no space in the traditional customary international law doctrine for individuals to participate in the law-making process. As a result, there is currently a disjuncture in customary international law; individuals are its subjects but are not seen as legitimate participants in its formation.

Uncomfortable with this state of affairs, this Article seeks to investigate whether the participation of individuals in customary international law formation is desirable. First, it takes note of a prior observation of legal scholars that individuals do, through various mechanisms, already play an active role in customary international law formation despite the doctrinal insistence that only States play such a role. Second, this Article develops theoretical justifications for the inclusion of individuals in customary international law formation. Finally, calling on established legal institutions as well as on social science tools for assessing individuals' practices, beliefs and expectations, the Article proposes methods by which individuals might participate in the customary international law formation process.

Keywords: custom, customary international law, CIL, international law, human rights, individuals, cosmopolitanism, cosmopolitan

Accepted Paper Series