Specially-Affected States and the Formation of Custom

Abstract

Although the US has relied on the ICJ’s doctrine of specially-affected states to claim that powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has been almost completely ignored both by the ICJ and by legal scholars. This article attempts to fill that lacuna. In particular, by focusing on debates in a variety of areas of international law -- from the law of the sea to the jus ad bellum -- it addresses two questions: (1) what makes a state “specially affected”? and (2) what exactly is the importance of a state qualifying as “specially affected” for the formation of custom? The article concludes not only that the US approach to the doctrine of specially-affected states is flawed, but also that a more theoretically coherent understanding of the doctrine would give states in the Global South significant power over custom formation.

Keywords: Customary International Law, ICJ, Specially-Affected States, ILC, Custom, International Law

JEL Classification: K33