Custom as the product of successful argumentative campaigns
in International organisations, non-State actors, and the formation of customary international law
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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.

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