The present work addresses the role of un in the formation of customary international law from a constructivist perspective. It dialogues with the International Law Commission and, in contrast with the latter, it argues that the importance of the un is a matter to be defined empirically. Its organs are capable of acting as norm entrepreneurs, articulating and promoting new norms. They are capable of affecting social processes in order to create pressure on the states that resist emergent norms. Thus, instead of a mere agent of states the un is capable of deeply influencing them both in behavioural and attitudinal terms. Furthermore, the un promote the formalization and institutionalization of new norms, elucidating their scope, application, and embedding them in consistently coherent amalgamation of norms and practices. Hence, it is capable of fostering the processes that lead to the crystallization of norms as customary international law.
See e.g. International Law Association, ‘Final Report of the Committee on the Formation of Customary (General) International Law’, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London(2000) (hereunder the London Statement); International Committee of the Red Cross, ‘Study on Customary International Humanitarian Law’ (icrc, 2007) 30IC/07/ 8.3.
Alexander Wendt, ‘Collective identity formation and the international state’American political science review(1994) p. 384. Ann Florini, ‘The evolution of international norms’ 40 International Studies Quarterly (1996) p. 363. Martha Finnemore and Kathryn Sikkink, ‘International norm dynamics and political change’ 52 International organization (1998) p. 887. Jeffrey T. Checkel, ‘The constructive turn in international relations theory’ 50 World politics (1998) p. 324.
See J. Crawford, “The Identification and Development of Customary International Law” p. 11. (‘. . . it is nearly impossible to identify with precision the exact point in time the [customary international law rule] was created. The creation of customary international law is not momentary. It emanates from an “intensive dialectical process” between different actors of the international society’). Moreover, see Michael Wood, “Fourth Report on Identification of Customary International Law” para. 17 (responding to the delegations of some states, which, reacting to the work of the Commission, affirmed the difficulty ‘that often arises in identifying the precise moment when a critical mass of practice accompanied by acceptance as law (opinio juris) has accumulated, and a rule of customary international law has thus come into being’. Wood noted that ‘the draft conclusions seek to provide guidance as to whether, at a given moment, it may be said that such processes had occurred’).
László Blutman, ‘Conceptual Confusion and Methodological Deficiencies: Some Ways that Theories on Customary International Law Fail’ p. 538(The author explores the differences between the definitions of opinio, most notably, between opinio as acceptance and as belief).
International Court of Justice, North Sea Continental Shelf, Judgment, ICJ Reports 1969, pp. 3, 231(Dissenting Opinion of Judge Lachs). Contrast with Draft conclusion n. 9 (‘1. The requirement, as a constituent element of customary international law, that the general practice be accepted as law (opinio juris) means that the practice in question must be undertaken with a sense of legal obligation’).
Rosalyn Higgins, The Development of International Law through Political Organs of the United Nations pp. 3–4. (‘How, in practice, do political bodies such as these contribute to the development of international law? These organs are called upon, in the course of their ordinary work, to interpret their own constitution [i.e. the un Charter]. This constitution not only is an international treaty, but also contains many accepted concepts of international law. Interpretative decisions inevitably must reflect upon the meaning of international law. Moreover, even the decisions on the internal workings of the United Nations, on its constitutional powers under the Charter, ultimately reflect on general international law . . .’).
d’Amato, The Concept of Custom in International Law, p. 110et seq. (Arguing, inter alia, that treaties with generalizable norms, and containing a ‘manifest intent’ to create customary law may indeed create it). However, see Scobbie, “The Approach to International Customary Law in the Study” pp. 32–3. (Rejecting the notion that universal participation in a convention may transmute its provisions into customary law; and affirming that the assessment of the practice in respect to the putative customary norm must be distinguished from compliance with a provision in a treaty [I add, resolution] containing the same norm).