This chapter reflects on 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 to the formationof customary international law. It is argued here that three tropes have been mechanically repeated in previous rounds of scholarly debates on non-State actors and customary law. 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; the continuous attachment of international lawyers – including the International Law Commission – to the distinction between practice and opinio juris; the understanding of the concept of non-State actors as a plain and innocent descriptive category.
This collection of chapters provides the most comprehensive study of the theory and practice on the contribution of international organisations and non-State actors to the formation of customary international law. It offers new practical and theoretical perspectives on one of the most complex questions about the making of international law, namely the possibility that actors other than states contribute to the making of customary international law. Notwithstanding the completion by the International Law Commission of its work on the identification of customary international law, the making of customary international law remains riddled with acute practical and theoretical controversies which have been left unresolved and which continue to be intensively debated in both practice and scholarship. Making extensively reference to the case-law of international law courts and tribunals as well as the practice of treaty-monitoring bodies while also engaging with the most recent scholarly work on customary international law, this new volume provides innovative tools and guidance to legal scholars, researchers in law, law students, lecturers in law, practitioners, legal advisers, judges, arbitrators, and counsels as well as tools to address contemporary questions of international law-making.
This chapter sheds light on the extent of the emancipation from the international investment protection regime contemplated by the African Society of International Law (AfSIL) and situates it against the backdrop of some recent contestations of international investment law. After recalling the drafting history of the AfSIL Principles and some recent contestations, the attention turns to the content of, and possible adjustment to, the international investment protection regime vindicated by AfSIL. This short chapter ends with a few concluding remarks on the choice for an emancipatory mode of contestation rather than a reformist one.
Stories about international organisations, non-State actors, and the formation of customary international law
This chapter shows that the dominant approach to custom-forming has remained adverse to the idea that international organizations and non-State actors contribute to the formation of customary international law. This orthodoxy promotes an image of these actors with which we, and the subsequent contributors to this volume, engage. From the perspective of the dominant approach, international organizations are often understood as having very restricted formal participation in the formation of customary international law. More generally, this traditional perspective holds that international organizations and non-State actors only have an instrumental or merely accidental participation in custom-formation. In some variants of this perspective, the role of non-State actors in custom-formation is even denied. This dominant approach offers a convenient starting point for this discussion attempted in this volume. It simultaneously provides a sounding board for reflecting anew on the possible ways in which international organizations and non-State actors can be seen as contributing to the formation of customary law. This chapter also introduces the contributions in this volume and comments on the suggestions that the process of formation of customary international law be understood beyond the static, formal rule-making framework.