Customary International Law and Non-State Actors: Between Anthropomorphism and Artificial Unity

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)

Amsterdam Law School Research Paper No. 2018-29

Amsterdam Center for International Law No. 2018-11

25 Pages Posted: 17 Nov 2017 Last revised: 13 May 2019

See all articles by Maiko Meguro

Maiko Meguro

University of Amsterdam - Amsterdam Center for International Law

Date Written: November 14, 2017

Abstract

This chapter seeks to shed light on the role of non-state actors in custom-making processes. It does so by repudiating the dominant understanding of opinio juris and practice within the two-element variant of the doctrine of customary law that has informed practice and scholarship since the 1920s. It shows that dominant approaches to opinio juris and practice are indifferent to the role of non-state actors by virtue of constructions that are highly questionable. Section 1 sketches the dominant understanding of two elements of customary international law. Section 2 discusses the limitations of the dominant understanding of opinio juris by showing the extent to which the anthropomorphic concept of opinio juris fails to perform the functions assigned to it. In section 3, the attention turns to practice which contains a greater variety of approaches. This section particularly emphasizes the role of domestic non-state actors in the creation of international norms that shapes State practice, and increasing role of international organizations to strengthen the grips of the domestic actors in creating international customary norms through the member states. This chapter ends with a few concluding remarks about the general implications of the approach promoted here for the doctrine of customary law as a whole.

Keywords: international law, sources of international law, customary international law, non state actors, liberalism, audience cost, opinio juris, international law commission, fiction, anthropomorphism

Suggested Citation

Meguro, Maiko, Customary International Law and Non-State Actors: Between Anthropomorphism and Artificial Unity (November 14, 2017). 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); Amsterdam Law School Research Paper No. 2018-29; Amsterdam Center for International Law No. 2018-11. Available at SSRN: https://ssrn.com/abstract=3071305

Maiko Meguro (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

HOME PAGE: http://www.uva.nl/profiel/m/e/m.meguro/m.meguro.html

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