Non-State Actors and the Formation of International Customary Law: Unlearning Some Common Tropes
Forthcoming, Iain Scobbie and Sufyan Droubi (eds), Non-State Actors and the Formation of Customary International Law, Melland Schill Perspectives on International Law (Manchester University Press, 2018)
29 Pages Posted: 21 Nov 2017
Date Written: November 10, 2017
This paper returns to the last decade of scholarly reflections on the question of non-state actors and customary international law and revisits some of the specific argumentative constructions and presuppositions that have informed — and continue to inform — discourses on the contribution of non-state actors and international law. This paper is specifically premised on the idea that international legal thought and practice on non-state actors and customary international law have remained chained by certain modes of reasoning and category of thoughts which have been precluding any renewal of scholarly reflection on the matter. It is submitted in this paper that, in order to make a chance of novelty and creative thinking, any new wave of scholarly reflections on the contribution of non-state actors to custom-forming processes must reinvent the very categories around which international legal discourses are currently articulated. It is argued here that three tropes have been mechanically repeated in previous rounds of scholarly debates on non-state actors and customary law and must be confronted for scholarly reflections to have any potential to generate new insights.
These constructions can be summarised as follows:
- The idea that the two-element variant of the doctrine of customary international law originates in article 38 of the Statute of the Permanent Court of International Justice (hereafter the PCIJ); - The continuous attachment of international lawyers — including the ILC — to the distinction between practice and opinio juris; and
- The understanding of the concept of non-state actors as a plain and innocent descriptive category.
Keywords: international law, customary international law, non-state actors, international law commission, liberal legal thought, managerialism
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