Specially-Affected States and the Formation of Custom

112 American Journal of International Law, 2018

Amsterdam Law School Research Paper No. 2017-45

Amsterdam Center for International Law No. 2017-30

69 Pages Posted: 25 Oct 2017 Last revised: 2 Apr 2018

See all articles by Kevin Jon Heller

Kevin Jon Heller

University of Copenhagen (Centre for Military Studies); Australian National University

Date Written: October 25, 2017

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

Suggested Citation

Heller, Kevin Jon, Specially-Affected States and the Formation of Custom (October 25, 2017). 112 American Journal of International Law, 2018, Amsterdam Law School Research Paper No. 2017-45, Amsterdam Center for International Law No. 2017-30, Available at SSRN: https://ssrn.com/abstract=3058617 or http://dx.doi.org/10.2139/ssrn.3058617

Kevin Jon Heller (Contact Author)

University of Copenhagen (Centre for Military Studies) ( email )

Denmark

Australian National University ( email )

Canberra, Australian Capital Territory 2601
Australia

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