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Fabian Cardenas

In spite of the International Law Commission’s reluctance to recognize the direct incidence of non-State actors in the formation of customary international law, this chapter suggests that non-State actors can possibly matter in the formation of customary international law. After considering international law as an argumentative practice socially constructed, it will be claimed that customary international law is the product of successful argumentative campaigns carried out by international lawyers who usually work for States as well as those who represent the interests of other actors distinct from States. It will be posited that, although State lawyers’ views tend to be prioritized when identifying customary international law, considerations of lawyers working for non-State actors could be also take into account. It will be argued that the two-element approach to customary international law defended by the International Law Commission is just one possible perspective among many others. In this chapter, a social perspective of customary international law will be advocated with a view to defending that the community of international lawyers can possibly give weight to non-State actors’ positions in the formation of customary international law.

in International organisations, non-State actors, and the formation of customary international law
Universalizing resistance
Fabian Cardenas
Jean d’Aspremont

The authors argue that international investment law does what it does by virtue of its ambivalent relationship towards universality. With a specific emphasis on Latin American legal thought and practice, the chapter shows how international investment law come to simultaneously accommodate claims of universality as well as resistance thereto. The authors explain how the sources metaphoric discourse enable the simultaneous vindication of both universality and resistance to universality. Then, they elaborate on how the enabling of an ambiguous engagement with universality came to inform the systematic use and espousal of the sources of international law in international legal thought and practice in Latin America. The attention turns to how this ambivalence manifests itself in the way in which the content is allocated to the concepts of international investment law like the international minimum standard and the standard of compensation. The chapter ends with a few concluding remarks on how such ambivalence towards universality is not accidental and makes the claim that resistance to universality is a form of cynicism at the service of universality itself.

in Latin America and international investment law