Customary International Law in Historical Context: The Exercise of Power Without General Acceptance

Reexamining Customary International Law (Cambridge University Press, 2017)

Widener University Delaware Law School Legal Studies Research Paper Series No. 17-06

43 Pages Posted: 17 Feb 2017

See all articles by J. Patrick Kelly

J. Patrick Kelly

Widener University Delaware Law School

Date Written: February 17, 2017

Abstract

Many international legal norms were not developed by the participation or acceptance of the overwhelming majority of states. If customary international law (CIL) is an inductive, decentralized method of law making formed by consistent state practice and the general acceptance of norms, then historically few CIL norms met either of these requirements. Non-western nations and societies as well as less powerful western nations played little role in the formation of international legal norms. Their views were, by and large, ignored and considered irrelevant.

The claim here is that if one looks back at how norms were actually articulated and justified during the sixteenth century through much of the twentieth century, state practice and general acceptance played a minor role in the formation of CIL norms. Even many norms that were labeled as CIL had their roots in an assumed universal natural law and remained deductive despite the label of “custom.” Rather, CIL development during this long gestation period might be characterized as dominated by the exercise of military and economic power and justified by western legal maxims using a deductive methodology. This disconnect between how norms were actually determined and formal customary international law theory raises significant questions about the legality and legitimacy of many purported CIL norms.

This chapter begins with a brief analytical discussion of the history of international legal thought. Second, I examine the development of the law of state responsibility, with particular attention to the international minimum standard for compensation for expropriation. This body of law is an ongoing example of the use of power to impose norms, sometimes by force, contrary to the views of a significant group of states. Third, I examine the conflicted history of the customary international law of the territorial sea that culminated in a set of significantly different standards in a treaty regime. Finally, I examine the history of the persistent objector principle that threatens to undermine the claim of the legitimacy of customary international law as a form of norm creation.

Keywords: custom, legal history, customary international law, international legal theory, treaty, legitimacy, colonialism, international law, persistent objector, international adjudication

JEL Classification: K33

Suggested Citation

Kelly, J. Patrick, Customary International Law in Historical Context: The Exercise of Power Without General Acceptance (February 17, 2017). Reexamining Customary International Law (Cambridge University Press, 2017); Widener University Delaware Law School Legal Studies Research Paper Series No. 17-06. Available at SSRN: https://ssrn.com/abstract=2919607

J. Patrick Kelly (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
223
Abstract Views
840
rank
136,138
PlumX Metrics