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The Possibilities and Legitimacy of Non-State Participation in the Formation of Customary Law

In: International Community Law Review
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Non-state actors can contribute to shaping customary law indirectly, through inspiration and pressure, or formally when so empowered by States. Decisions on granting non-state actors customary law-making capacities must be critically decided on a case-by-case basis, in light of the legal interests at stake, risks of making regulation subservient to their interests, and legitimacy and effectiveness considerations. Since non-state involvement in the formation or change of customary law is not limited to direct law-making capacities, different strategies can be used to both receive their input and promote their acceptance of and respect of customary law. Internal and international democratization of State decisions and collective law-making are essential if the (currently) mostly-State-centric system of custom determination is to be fair. This demands a duty to examine non-state proposals in good faith.

Abstract

Non-state actors can contribute to shaping customary law indirectly, through inspiration and pressure, or formally when so empowered by States. Decisions on granting non-state actors customary law-making capacities must be critically decided on a case-by-case basis, in light of the legal interests at stake, risks of making regulation subservient to their interests, and legitimacy and effectiveness considerations. Since non-state involvement in the formation or change of customary law is not limited to direct law-making capacities, different strategies can be used to both receive their input and promote their acceptance of and respect of customary law. Internal and international democratization of State decisions and collective law-making are essential if the (currently) mostly-State-centric system of custom determination is to be fair. This demands a duty to examine non-state proposals in good faith.

1 Introduction

While it is not disputed that international law can directly regulate the conduct, rights and obligations of non-state actors1 as varied as businesses, armed groups or international organizations, it is debated if those actors can have active influence in the making of customary law. The text of Article 38 of the Statute of the International Court of Justice does not specify that customary practice is necessarily that of States, simply referring to “general practice accepted as law”. However, most authors consider that, with the exception of international organizations, which may sometimes contribute to the formation of customary law,2 non-state actors cannot directly participate in the modification or formation of customary norms.

In the second section of this article I critically evaluate that idea. An evaluation is necessary because, to my mind, debates about non-state participation in the development of custom tend to reflect broader perceptions about the sources of international law and the participants in international law making. I will also study in this paper the relevance of informal and indirect non-state influence in custom. This is necessary because an excessively formal approach risks ignoring how non-state actors can interact in relevant ways with international norms,3 in relation to their interpretation, implementation, creation and modification.4 The fact that such participation is sometimes informal should not lead to underestimating it. In fact, as the article will study, non-state initiatives can have a great mediate impact on custom, for instance by stimulating State practice or opinio juris, as Sir Michael Wood has mentioned in the International Law Commission.5

It may be asked why this article focuses on customary law. This is because, in spite of some opinions that have predicted its demise,6 it remains a very important source of international law, arguably because of certain advantages it has over other sources. Firstly, unlike treaties, it is not constrained by complex formal requirements on adoption and entry into force. Secondly, it can have greater dynamism: provided that the right conditions of participation, absence of contrary rules and necessity of quickly tackling problems are met, the formation of custom can sometimes be accelerated.7 And thirdly, it can serve as some form of “quasi-legislation”, binding a greater number of subjects than treaties, because customary law does not require express consent and binds all who are not persistent objectors, as has been recognized in case law and by the International Law Commission.8 This is especially important when there is a pressing need of regulation,9 since the reluctance of some States (provided that they are not especially affected or interested10) cannot block the emergence of custom. Altogether, it is important to examine if actors with ever increasing (positive and negative) relevance in international relation11 can participate in the development of a very important source of international law, how they can do that and if it is important to give them greater participatory entitlements.

As to the factors that make non-state actors important participants in international relations with a potential impact on the effectiveness or the content of custom, one can mention the expertise and the hard or soft power that many non-state actors have. Such power may be economic, military or cultural. This permits some non-state actors to hinder or facilitate the achievement of legal objectives, as the enjoyment of internationally recognized rights, including those regulated by custom, which is a reality that international law must pay attention to.12 This raises the question of whether accommodating the participation of crucial international actors who already engage in standard-setting13 in the formation of customary law – especially when such law may affect their interests – can strengthen or erode its effectiveness and legitimacy. For this reason, the third section will explore if it is desirable to give greater law-making powers to non-state actors de lege ferenda.

In sum, given the decentralized nature of the international society14 and the fact that non-state actors play an important part in it, it must be asked if customary law, whose features largely depend on that decentralization, can and should include the input of expert or powerful actors. Accordingly, the article begins by examining if non-state actors already have the power to shape international customary law, both formally and indirectly. This is a positive law inquiry. Afterwards, and keeping in mind that international law is a social creation that generates a common language15 that can be modified, it will be analysed if non-state actors should enjoy that capacity, and to what degree, or if it is better for States to retain a quasi-monopoly on the formation of customary international law. This amounts to a normative inquiry as to how things should be. It will be argued that these questions must be answered on a case-by-case and actor-by-actor basis, based on factors as the sensitivity of certain legal interests, the risks of normative capture – i.e. non-state actors taking advantage of their participation to make norms subservient to their own interests –, and the relevance of the expertise, knowledge or cooperation of certain non-state actors.

Following that structure, in the second section it will be proposed that currently non-state actors lack a general capacity or entitlement to participate in the development of customary law, but that this they can still have an impact on that development in informal and indirect ways, for instance, triggered by domestic activism, especially if they are motivated by the desire of taking advantage of expressive or coercive effects of future customary law. Additionally, it will be argued that States have the power to authorize non-state actors to participate in the shaping of customary law. Considering this, the third section of this article will then explore when States should grant such authorization for the sake of making customary law be perceived as legitimate and thus more likely to be effective; why there should be a good faith duty to analyse non-state input; and if there are alternative ways of promoting the legitimacy and observance of customary law by non-state actors in ways that do not involve the concession of formal direct law-making powers.

2 Non-State Actors as Participants and Agents of the Shaping of International Customary Law

Insofar as conceptions on the capacity of non-state actors to interact with customary law may reflect underlying beliefs about what international law is or ought to be16 rather than an accurate portrayal of positive law, as has happened with the doctrine of legal personality,17 it is convenient to analyse how accurate the assertion that international customary law is almost always developed by States is. This requires critically examining if the purported State-centeredness of the dynamics related to the formation and modification of customary law accurately reflects the possibilities of non-state participation or if it actually reflects some viewpoints of how international affairs should be conducted. Whatever the case, it is necessary to ponder if this objective of State pre-eminence in the formation of custom, truly envisaged in law or handled by practitioners, is justified. Possible rationales include the objective of preventing non-state powers from hindering State sovereignty – which, it must be stressed, is subject to the rule of law-. However, that activism has mostly been indirect or informal, suggesting that, even if alternatives are regarded as desirable by some, there is no general right of non-state participation in the formation of international law.

Historical reasons may explain this. For a long time, the Westphalian structure of international law was Euro-centric and favoured certain powers, excluding many non-state actors and peoples.18 Excluding their voices from the processes of formation of international customary law certainly benefited the European States and those States who reached independence, often to the detriment of natives and other peoples. The narratives of the sources of international law led to socio-normative constructions that, while not being incontrovertible, came to be regarded as logical, “natural” or “inevitable”. Over time, the consistent practice of the selected (States) created a common language on the basis of which international legal transactions came to be conducted,19 with the unprivileged others having no choice but to accept. This raises the question of whether a mostly State-centred system of customary law is appropriate and accurately reflects both legal practice and needs. After all, processes of universalization, cooperation, inclusion and humanization have dramatically altered many pillars of international law, and call for examining if the identity of actors with entitlements to participate in customary law foster exclusion or rather serves those processes.

In this regard, an exclusively State-centred framework of customary law that fully excluded the possibility of any non-state participation would certainly contradict current social needs and dynamics. However, such full exclusion does not exist. This is because, as will be argued, a) some actors, namely international organizations, can contribute in the shaping of custom in connection with their functions; b) States can ad hoc empower non-state actors without the capacity to do so to participate in the formation of custom; c) States can make non-state conduct as theirs in the formation of custom; and d) because non-state actors can have a relevant indirect influence in custom.

2.1 Direct Non-State Impact on Customary Law

It is generally accepted that international organizations, in connection with their goals and functions, can sometimes contribute to the development of customary law independently of their members.20 In this sense, the International Law Commission has considered that “[i]n certain cases, the practice of international organizations also contributes to the formation [. . .] of rules of customary international law.”21 This capacity of international organizations to participate in the formation of custom related to their functions reveals that social and cooperation needs can lead to allowing non-state actors to participate in the determination of customary law. The formal reason why international organizations have that capacity is the fact that they are authorized to do so by States. This suggests that other actors may similarly acquire that capacity. This is even consistent with State-centric conceptions of law-making, as those of Jean D’Aspremont, for whom “states always retain the final word” on bestowing law-making capacities upon non-state actors.22 In other words, States may decide to grant international law-making powers to non-state actors on a case-by-case basis.

In this regard, it is useful to point out that the International Law Commission has recognized, for instance, that treaty-making powers can be given to non-state actors. In this sense, in a 1962 draft on the law of treaties, it stated that non-state subjects of international law can be granted or possess the “capacity to enter into treaties”, since “other subjects of international law [can be] invested with such capacity by treaty or by international custom”.23 Likewise, in its 1966 draft, the Commission considered that “other subjects of international law, such as international organizations and insurgent communities, may conclude treaties.”24 Referring to the treatment of non-state participation in law-making through treaty law is pertinent. After all, customary law and treaties are the two main sources of international law,25 and there is no reason why the same underlying logic about non-state participation cannot apply to both: that those who control those sources can allow others to participate, especially considering that the rationales of consent and flexibility underlie all the principal sources of international law.26 In sum, non-state actors can be empowered to directly and formally participate in the formation of international customary law. If they should be so authorized is a different question, to be examined in the third section.

Furthermore, States can allow non-state actors to participate in the process of shaping customary international law, which is a collective process, either generally, only in a given field, for some time, on a case-by-case or actor-by-actor basis, or only once and for a single event. For bilateral custom, one State must concede that power; for general custom, all States that can be bound by that custom must accept the intention of some State(s) to grant that power, either expressly or by acquiescence, and so on. In other words, States – and, de facto, judges when determining who can shape custom27 can determine how and to what extent non-state actors can enjoy the capacity to participate, along with others, in the formation of customary law. This replicates the idea that different actors may enjoy different legal capacities, as mentioned by the International Court of Justice, according to which “[t]he subjects of law in any legal system are not necessarily identical [. . .] in the extent of their rights, and their nature depends upon the needs of the community”. Authors as Andrew Clapham and Daniel O’Connell have said as much.28 This means, for instance, that an actor can be given the capacity to participate exclusively in the formation of International Humanitarian customary Law, only for one particular aspect of it or regarding a specific customary norm. This facilitates the materialization of one aspect of customary law: the possibility of there being bilateral custom.29 Thus, a State can authorize an actor to contribute to the creation of bilateral custom (with itself or another actor), exclusively or in addition to the power to participate in other customary developments. Moreover, empowerment to contribute to the formation of a given custom does not imply an extension to shape others, unless such capacity has been granted. After all, as common article 3 of the Geneva Conventions indicate, the assignation of specific legal capacities to non-state actors does not grant more than those ones.

2.2 Indirect Non-State Impact on the Content of Customary Law

While non-state actors can be authorized to directly and formally participate in customary law-making, they can also – and without State authorization being needed – have an impact on the content of custom indirectly or informally. Actually, quite often more attention is paid to non-state material, indirect or informal influence in international customary law. As it happens with other sources of international law, non-state actors may, after all, be behind State initiatives,30 since States are collective actors whose agents can be influenced by non-state actors; and non-state actors can exert influence on the normative content of custom in other ways. Therefore, it is necessary to draw a distinction between non-state formal and direct influence in customary norms, on the one hand, and informal and indirect influence, on the other, in order to identify which practices and opinions can directly determine the emergence of customary norms. Still, different factors make “mere” material, informal and indirect participation quite relevant and even crucial.

In that regard, it must be borne in mind that States and international organizations are collective actors that operate through agents, who are ultimately individuals. Therefore, to understand why States agents shape or react to a nascent custom, it is convenient to examine their conduct and motivations in a disaggregated manner.31 After all, individual State agents are the ones through which States act and which determine what their States are supposed to believe (opinio juris). Psychological, ideological, political or other factors can shed light on how non-state activism and pressure can impact the decisions and reactions of those State agents. Non-state actors can, for example, attempt to exert influence on the deliberations of State agents that can have an ulterior impact on custom, such as judicial or parliamentary discussions. Such attempts can be subtle or overt, licit or not, involve threats or promises, rely on shared ideas or on warnings, among other possibilities.

Secondly, it is possible to look at non-state influence in the determination of the content of customary law from another perspective: one that, instead of focusing on the motivations of State agents, looks at State processes. Concerning this, it must be borne in mind that the State as a whole is a construction with a legal character that is embedded in a given political and normative framework. Therefore, States are expected or required to act and respond to challenges or petitions, depending on the circumstances and applicable or identifiable norms (both domestic and supranational). State action or omission that is relevant for customary law purposes may accordingly be triggered by non-state legal arguments in judicial, parliamentary or administrative fora, among others, and be required by domestic or supranational (e.g. eu law) standards. In this sense, Sir Michael Wood has mentioned that State practice may emanate from non-state actors when such actors, for instance, encourage “State practice by bringing international law claims in national courts or by being relevant when assessing such practice”.32

Interestingly, since non-state actors can also ask State authorities to implement customary law, such requests may have a mediate impact in the content of future customary norms. After all, there may be events in which avowed requests to implement customary international law – which are initiatives related to its “observance” (something non-state actors can do, as the International Law Commission and Sir Michael Wood well point out33) – are based on interpretations that fail to reflect what positive law truly says. Thus, when an actor confuses lex lata and lex ferenda, by purposefully or not blurring its own policies or objectives with positive law, it may end up contributing to the practice or opinio juris of an eventual new customary regulation – provided of course that State authorities accept its position. In this regard, it is useful to recall that non-state actors may confuse lex lata and lex ferenda;34 and that State conduct not in conformity with existing customary law can lead to modifications or innovation in customary regulations.35

Apart from resorting to domestic fora that have an impact on State practice on opinion or conduct, non-state actors can resort to informal processes as socialization, shaming, acculturation or the adoption of non-binding standards, all of which can have an impact on State conduct and attitudes. Needless to say, non-state actors can not only influence practice, but also opinio juris, when inspiring, prompting or pressurizing States to come up with certain discourses36 and to convince them that a given practice is or ought to be mandatory.37 This happens, for instance, when they convince judges to support their arguments, since judicial discourses entail a legal opinion.

Non-state actors can, in these and other ways, contribute to the shaping of the content of custom indirectly and remotely. This happens when non-state initiatives succeed to influence the conduct or opinion of a State, and the resulting State practice and opinio juris coincides with those of other actors empowered to make customary law, mostly States. Furthermore, mobilization by some transnational non-state actors, as prestigious ngos or influential transnational corporations, can sometimes succeed in convincing multiple States. In such events, non-state initiatives will have more proximate legal implications, because it is more likely to be a key factor in making multiple States coincide, something crucial in a collective system as that of the development of customary law.38

When examining non-state informal or indirect attempts to influence the development of custom, it cannot be ignored that different non-state actors can oppose each other when vying for influence on State conduct and attitudes that are relevant for customary law purposes (e.g. ngos, corporations, armed groups, and all other actors without a State nature39). On the other hand, while State involvement in processes that may lead to the adoption or consent of a treaty is more or less easy to identify, it is not easy at all to pinpoint actual and successful non-state influence on a given State’s practice or opinio juris. Especially because, often, non-state conduct does not directly or consciously seek to have an impact on custom through the State it tries to influence. After all, legislation, judicial opinions, executive action, pronouncements of ombudsmen and other State actions can be relevant for customary law purposes and have an impact on it,40 and non-state actors can seek to influence those State processes without an express design to remotely affect custom.

Additionally, when exploring non-state indirect or informal influence in customary law, it is important to not overestimate non-state impact on the conduct of a single State. Unless that State is a major power or especially interested in a particular customary rule, in which case its participation can have a greater or special weight,41 the conduct of isolated States is not decisive for customary law-making purposes – because it cannot determine whether a new customary norm will be created or a previous one modified.42 In other words, non-state influence on custom cannot be crucial unless multiple law-makers coincide with the outcome of such influence on a given State. For this reason, non-state alliances, networks and joint initiatives are relevant for non-state participants. After all, coordinated or coincidental efforts of different but like-minded non-state actors43 to impact on the practice and conduct of different law-makers have greater chances of success. In consequence, when it comes to devising strategies for changing custom, non-state actors can imitate the initiatives they have conducted to bring about or influence treaty-making processes, as those that led to the Statute of the International Criminal Court or the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction.44

While many prefer to concentrate on “hard law” and formal processes, non-state actors can be relevant participants in international legal processes even as “outsiders”. Hence, the relevance of informal and indirect non-state influence in custom cannot be dismissed lightly, reason why I have explored it. Its relevance explains why some studies of non-state participation in customary law processes usually focus on their “material” dimension, that is to say on how non-state actors can inspire or convince law-makers45 (mainly States46). Expressions different from the term “material” are sometimes used to describe that influence, such as “informal” or “indirect” impact on the content of international customary law.

Despite nuances, all three notions refer to the fact that, even when non-state actors lack direct formal law-making powers, their influence may be considerable. The election of each term may serve to stress a different aspect in a given scenario. For example, an actor may have informal impact on custom internationally but enjoy a formal influence on practice or opinion with international relevance domestically. Indirect international impact, in turn, may be brought about by a direct domestic impact on State conduct. In any case, non-state influence in the development of custom, be it more or less proximate, can be either conscious or unintentional. For instance, non-state conduct may lead to an outcome regarding the content of customary law without an agenda or a conscious desire to do so.47 Some examples illustrate these considerations.

For example, an ngo may persuade State agents to take a stand against the use of certain weapons, in turn leading that State to promote that position and convincing others to change customary law accordingly. The ngo would thus inspire the State with its concerns, but perhaps just tried to make the State refrain from using the respective weapons with no intention of changing custom. In this scenario, the impact on customary law would have been indirect and remote internationally; and proximate and formal locally. Conversely, if the actor were consciously trying to promote changes in customary law in league with other organizations or persuading different States, that actor would have a proximate but informal international influence.

Another case is that of lawsuits: an actor can prompt the judiciary to publicly determine that the State must behave in a given way. If the respective State behaviour has international implications and coincides with the conduct of other States, the non-state initiative can, in addition to its internal implications, be regarded as a “material” source of the formation of international custom. Domestically speaking, however, its initiative would not be inspiration, since the actor would have forced the State to adopt a given decision by asking the judges to take sides. Given the legal nature of the arguments that Courts will provide and the binding nature of their decisions, the result will likely have an impact on the practice and on opinio juris of that State

A third example is that of an actor whose identity is not closely related to the goal of persuading States to comply with their duties (which is what many ngos seek):48 rebel non-state armed groups. While they may enter into treaties with States if they allow this,49 it is unlikely (and illegitimate) for this type of actor to be conferred upon general customary law-making powers so far when they reject and disregard humanitarian considerations to further their goals; and a direct influence of theirs on normative content could end up undermining guarantees. In the case of an armed group that commits atrocities suffered by the population of one State, those abuses can lead such State to support custom condemning them or to take the initiative and ask others to shape custom to prohibit or condemn its practices: in this case, the group would provide “negative” material sources, since custom would emerge to react against the conduct it engages in. On the other hand, an armed group can adopt honourable codes of conduct, which could be taken into account by States when promoting customary regulations of the duties of armed groups.

Additionally, it is important to note that informal non-state impact on customary law is not necessarily local in origin: non-state initiatives sometimes directly takes place at the international or transnational social level, and States can react by endorsing or rejecting them. For instance, States may feel prompted to respond in favour or against proposals or recommendations of ngos, at least to say that they disagree with them, to not be exposed as indifferent to plights that require legal attention, especially when that ngo has influence due to its prestige and can publicize reactions to its proposals.

Other examples of non-state international action include participation in fora as human rights bodies or international conferences. Non-state participants can seek to trigger responses of States or authorities. For example, given its reputation, the statements and requests of the International Committee of the Red Cross (icrc) have a certain weight and importance despite not being binding in themselves50 (although they may be based on legal arguments reflecting obligations, case in which their content is mandatory). Therefore, States are socially under pressure and expected to consider them in good faith. Those pronouncements may ask for new customary standards or for certain interpretations of existing customary law. Interestingly, if those interpretations reflect lex lata inaccurately but are heeded nonetheless, they may lead to new customary regulation.51 In other words, some non-state actors can propose and create expectations of State reactions at the international level, being it more or less likely that those proposals are taken into consideration in light of their relevance and when judicial and quasi-judicial bodies react favourably to them by considering that they espouse valid legal arguments,52 given the expectation that States consider what those bodies say in good faith, even when they issue advisory opinions or general comments.53

After all, duly considering what supervisory bodies and non-state actors with auctoritas or reputation have said may be a factor leading States and organizations to adjust their practice or legal opinions if they are convinced to agree. Even if non-state pronouncements do not have a direct impact on the formation of customary law, they will be important inspiration or “material” sources explaining what States end up doing.54 Such influence is more likely to occur if non-state initiatives are convincing; if it is feared that those who disregard them will be ostracized or regarded as engaging in wrongful acts; or if it is thought that ignoring them will be politically detrimental, for instance when membership in a given social or legal body de facto depends on heeding them, regardless of their truly reflecting existing customary law or not.55 These dynamics are more intense when International Courts and Tribunals side with a given non-state initiative. Needless to say, judicial authorities can prompt State reactions that are relevant for customary law purposes. According to the Special Tribunal for Lebanon, for instance:

The combination of a string of decisions [. . .] coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinio juris necessary for holding that a customary rule of international law has evolved.56

2.3 Non-State Standards and Customary Law

To complete the discussion of non-state influence in customary law, it is convenient to examine the possible relations between non-state standards and customary law. They can interact in at least two ways. One option is for actors entitled to shape custom to take into account the content of standards adopted by non-state actors.57 The latter may inspire developments in practice and opinio juris, for instance when deemed worthy of emulation due to their being innovative or convenient to address problems. In such events, law-makers may introduce the content of non-state standards fully or partly in custom, with or without adjustments, when necessary or convenient. It must be recalled the development of international law is familiar with techniques that incorporate the content of other regulations, as happens when treaties include the content of other norms or refer to it via special clauses.58 Hence, the content of non-binding standards can find its way into customary law. A second possibility is for non-state standards to produce some indirect international legal effects due to the operation of principles and norms enshrined in international customary law, such as the principle of good faith.59 Finally, there is an additional possibility to empower non-state participation: States can allow non-state actors to represent them for the purposes of its participation in the formation of custom; or ratify, adopt or acknowledge non-state conduct as their own in processes of formation of customary law.60

In this section, it has been argued that while non-state actors can undeniably have an informal impact on the content of custom, there is no general norm giving them direct law-making powers, but that still States may, on a case-by-case basis, decide to empower non-state actors to shape customary law. Considering these positive law aspects, some normative questions follow: is it convenient or necessary for States to use this possibility of granting law-making capacities to non-state actors for practical or legitimacy purposes? If so, under what circumstances?

3 Legitimacy and Effectiveness as Criteria to Guide Decisions on Non-State Involvement in the Formation of Customary Law

Granting new or greater customary law-making powers to non-state actors can have implications both on how legitimate customary law and the process of its formation are perceived to be and on the willingness of non-state addressees or non-state actors indirectly affected by custom to abide by it or contribute to its implementation. To help analysing in which cases States should allow non-state actors to participate in the formation of customary law, it is useful to bear in mind two considerations: first, the importance that law recognizes and responds to the needs and reality of the society it regulates (sic societas, sicut jus),61 which is currently global and includes transnational actors; and secondly the defence of prevalent community values.62 These criteria are sometimes at odds. For instance, it may happen that an actor has tremendous power in military terms and an undeniable impact on social events, reason why giving it customary law-making powers could increase the likelihood of compliance by it with custom. Yet, doing so could facilitate that actor promoting a lowering of standards. Eventual tension between the criteria of effectiveness and protection of fundamental values is inevitable, considering that the world society is heterogeneous and actors sometimes have contradictory agendas and values. Therefore, when responding to non-state demands of greater participation it is important to consider that, rather than overarching decisions, States should grant law-making powers when necessary and when there is no risk of undermining fundamental legal and social interests, such as the protection of human rights.

Refusing to grant those powers when deemed to be unnecessary or convenient should not be considered as an outright rejection of non-state participation and democratization. Such participation, after all, is not solely formal, as argued in the previous section. This permits non-state actors to seek to have policy legal impacts63 in informal ways. Therefore, it is important to consider what the goals and added value of permitting direct non-state impact on customary law can be.

One objective can be the desire of taking advantage of the flexibility, knowledge and expertise of certain non-state actors in the formation of custom. Such features enable some actors to promote legal interests in ways that States cannot.64 However, one must wonder if it necessary to give law-making powers to those non-state actors in order to benefit from their strengths. The answer: not necessarily. Even without formal participation – being formal, for our purposes, the entitlement to directly participate in the collective process of formation of customary law from a positive law perspective –, those actors can still provide expert knowledge and information, and may actually be eager to do so. For instance, some ngos strive to influence State delegations in negotiations, and even if a treaty is not reached, this influence can have ulterior customary relevance. Additionally, actors supporting a given customary development may desire to have a role in its implementation,65 even if they are not its formal authors. The underlying logic is that actors which endorse a given customary content will still make efforts to favour its normative emergence and promote its observance in different ways.

Of course, there may be complicated situations. Perhaps one crucial actor is reluctant to provide information and participate informally. Yet, probably what ultimately matters to most actors is that their opinions are seriously considered. Let us not forget that some non-state actors have provided proposals and information to delegations and conferences in treaty processes, sometimes even as members of delegations; and that some actors have been given participation rights without voting powers in them. Furthermore, domestic legal venues permit many actors to suggest or prompt States to adopt a given stance regarding custom.

Why is it important to explore the convenience of granting participation powers to non-state actors? Because non-state participation in the formation of customary law may have an impact on its procedural legitimacy and on its effectiveness. A norm may be deemed legitimate if some conditions are satisfied in the process of its adoption. Foremost amongst them are aspects of publicity and participation. Full procedural legitimacy, though, depends on how direct law-makers listen to all stakeholders, not only to some of them. Even non-expert actors may be influential in a given normative field because of their power or position, and their reluctance or cooperation may be decisive. In turn, procedural legitimacy may determine the effectiveness and implementation of customary law, because it can be one decisive factor making relevant actors feel compelled to respect or observe customary law or not.

But apart from procedural legitimacy, perceptions of substantive or material justice of customary norms can also have an impact on their observance. This depends on how fair they are perceived to be rather than being on how they came to be adopted or are enforced.66 As discussed above, giving law-making powers to an influential powerful actor seeking to lower the protection of fundamental rights in order to lessen its own obligations could make that actor perversely perceive the norm as procedurally “legitimate”, but this would run the risk that others may agree on the lowering of standards and that an inadequate norm is adopted, especially if that actor is given the same formal law-making status as that of others.

One can think of the debates on the nature of corporate human rights responsibilities.67 Some corporations favour only social responsibilities, arguing that international legal obligations are unnecessary and that that their opinion must be heard when deciding on this issue. If corporate conduct and opinion are given equal weight to that of States when determining if they will have legal duties, the process and outcome could be paradoxical: the existence of obligations of respect of potential abusers would depend on their “acceptance” by them, something that international criminal law rejects (individuals are imposed duties without their consent). States do consent to human rights duties, but they are supposed to be domestically accountable.

Another hypothetical case further illustrates potential tensions between different objectives and between procedural legitimacy and substantive justice when it comes to non-state participation in customary law. We can picture a non-state armed group with considerable military power that participates in a “transnationalized” non-international armed conflict. If it opposes the notion of continuous combat function, which according to the icrc does not change customary law but rather flows its interpretation;68 vowed to attack civilians if the notion is not abandoned; and demanded a change of custom to permit attacking some civilians, would it be convenient or just to consider the practice and opinion of that armed group as parallel to that of States? Not at all. States, for instance, could consider that they would be in serious military disadvantage is the notion of continuous combat function is rejected; and the respect of human dignity admits no concession. The example also suggests that, even when non-state proposals are rejected to defend substantive justice, States should offer persuasive arguments as to why the proposals or overtures of non-state actors are rejected. This may actually heighten procedural legitimacy in the eyes of other non-state actors and persuade future leaders of opposing groups.

The previous scenarios indicate, first, that decisions on granting or not customary law-making powers to non-state actors must be decided on a case-by-case and actor-by-actor basis; and secondly that while it is certainly important to strive to make custom have procedural legitimacy, this must not be done at the expense of the material justice of the content of custom, which would be compromised if specially-protected standards, as peremptory and human rights ones,69 are undermined. Thirdly, apart from the relevance of State controls, the discussion of the examples illustrates the importance of the checks and balances between different non-state actors.

That being said, analyses of the effectiveness and legitimacy of customary law in connection with non-state participation are seldom simple. It is convenient to explore why, in the case of international organizations, these functional subjects enjoy some capacity to participate in the formation of international customary norms related to their functions. This can shed some light on questions on attributing powers to a non-state actor or not de lege ferenda.

One reason why international organizations have that capacity lies in their role and importance for cooperation purposes. After all, they exist to facilitate the achievement of objectives, which cannot be accomplished by the isolated action of States, no matter how powerful.70 Perhaps they were given law-making powers because it is considered that missing their voices could impoverish processes of change and formation of customary law, or that their conduct was important enough to have an impact on the evolution of custom. Nonetheless, States did not feel confident enough (international affairs are rife with mistrust), and so retain a large degree of control: due to the difficulty of having organizations coincidental functions, the participation of States is necessary and to form custom even when international organizations participate. On the other hand, the evolution of the practice of international organizations has led to the acceptance that their practice alone can have an impact on their own rules and powers.71 This confirms that the extent of law-making powers may depend on the specificities of actors, and that some non-state practices may have normative implications exclusively opposable to their respective authors.

The possible participation of international organizations in customary law processes offers additional lessons. First, it confirms that States may confer customary law powers upon non-state actors, and may do so with the intention of facilitating or permitting the accomplishment of certain objectives, among other reasons. This indicates that considerations of effectiveness and legitimacy are not solely dependent on law-making powers of a given actor, and are also connected with different aspects. Yet, reasons of implementation, socialization, internalization, and acceptance may be factors that help to decide if permitting an actor to participate in the formation of customary law, either directly and formally or otherwise. Secondly, that even when permitting some non-state influence, States likely desire to retain controls and checks over the law-making powers they confer upon non-state actors, which can be limited.

Ultimately, this also demonstrates that non-state participation in custom is also related to the question of which society is regulated by international law: non-state actors have an ever greater weight in the world society, as international organizations do. While non-state actors do not displace or eliminate States (although some can challenge weaker States), their impact makes it important to regulate their conduct and persuade them to cooperate. Considering that customary law is important in a society that is decentralized, namely the international society,72 it is logical to ask if other relevant actors in it ought to be permitted to participate as well.

When resisting a social trend for their inclusion in normative participation, States may desire to prevent a lowering of standards or even to make the change and evolution of customary law manageable, lest infinite voices are involved. Still, for the controls and exclusions of non-state participation to be fair, States must truly operate as impartial arbiters and truly channel the will of populations without disrespecting minorities and fundamental rights. Likewise, it is also important to acknowledge that some of the reasons that may motivate the exclusion of some actors from customary law processes may not be reasonable. This would happen with abusive States desiring to retain privileges at the expense of ignoring legitimate demands and the voice of certain non-state actors. That is why a legitimate State control of customary law requires respect of a democratic principle. This demands making sure that non-state voices, as those of civil society, can be expressed domestically, that minority and fundamental rights are respected, and that a pluralistic international discussion is permitted.

Indeed, non-state voices can contribute to democratize international legal processes, customary ones included, as long as all the competing and conflicting voices within the world society are truly head, not only those favouring certain ideological or political positions; and provided that the actors and participants are accountable and truly representative. Therefore, non-state participation should not be outright excluded, since it can help to form and identify a minimum of shared values,73 inspiring State practice and opinion. Indeed, non-state actors can provide different opinions and information. Sometimes, their direct participation can be crucial, for instance regarding especially affected actors; but other times (perhaps most frequently) their participation needs not be formal. Yet, a State duty to consider such opinions in good faith must be defended in order to defend democratization. The utter ignorance and exclusion by States of legitimate voices, formally or de facto, must be avoided. This does not mean that non-state opinions on custom cannot be rejected, but that they may be legitimately set aside after having been seriously examined in processes of normative formation. If non-state actors perceive that their opinion has been considered in good faith, they are more likely to contribute to achieving global common objectives the achievement of which is greatly facilitated by non-state action.74 Such non-state involvement can consist in contributing to shaping custom, advising on how to do it, or contributing to its implementation.

That being said, when a crucial non-state actor demands greater and formal input and makes its contribution depend on it, what must be done? In such complex cases, different factors must be considered. First, there must be no real serious risks of non-state participation leading to poorer essential guarantees and standards. If so, alternative means of non-state participation are the only choices; and strategies that promote compliance must also be employed, including those with links to both the implementation and norm creation stages.

For instance, there are ihl and human rights norms that, despite protecting and being based on the recognition of human dignity, are deemed as ‘capitalist’ or ‘oligarchical’ by leftist armed groups, or as contrary to their own ‘standards’ or ideology. It is certainly important to be aware of challenges of non-state armed groups and to try to promote compliance by them through persuasion and other techniques, since the lowering of humanitarian standards is unacceptable. One first step is to clearly indicate that those groups are directly bound by the respective customary norms and face possible responsibility. This can be done through legal education,75 persuasion about the meta-legal importance of the rules, and shaming strategies, exposing abusers to social (exclusion, etc.) and legal sanctions, as those adopted in Security Council resolutions, decisions of the International Criminal Court, or local measures based on extraterritorial or transnational jurisdiction.

Dissuasion and persuasion strategies can include socialization strategies, possibly linked to risks of reputational losses, which can counter false non-state propaganda; non-adversarial initiatives to convince actors of the benefits and reasonableness of custom; or the internalization of norms accepted not only in legal but also in meta- or extra-legal terms, among others. In turn, the effectiveness of threats of punishing breaches of customary law by non-state actors also depends on the prospects of its effective implementation and on the fairness of punishments and their consistency with the principle of legality and its components of foreseeability and accessibility.76 Given the expressive functions and effects of international law, those and other strategies may well have an impact on non-state attitudes. This is relevant because non-state culture has an important role in the respect of human rights by non-state actors.77 That being said, the most effective strategies are those that convince actors that the norms should be obeyed out of conviction78 while persuasively explaining why their position was not accepted. This confirms the importance of a legitimate formation and content of customary law.

Non-state actors have and have had relevant roles in the formation and implementation of implementation of international law,79 and due to their growing importance and the heterogeneous composition of society there is a trend calling for their inclusion in some legal processes.80 But whether non-state inclusion in customary law-making processes should be formal or not must be answered by those who can confer law-making powers on a case-by-case and actor-by-actor basis, considering what is at stake, what an actor demands and what the interests at stake are. Furthermore: acceptance of a norm, customary or otherwise, by a non-state actor is not to be understood in a static manner. This means that even if an addressee did not “consent” to being bound by custom at the stage of its formation, it may still accept it afterwards as valid (in philosophical, political or legal terms), necessary, pertinent or real, at least out of fear of prospects of sanctions or losses tied to non-compliance.

In pluralist and democratic terms, civil society and different actors may have fair and legitimate demands regarding the content of custom. Their participation can be accommodated in various ways. But in a pluralistic society all voices must be heard, which is important since non-state actors can discuss among themselves, enriching the discussion. For instance, ngos may challenge claims of armed groups about the content of customary law. In fact, not only States but also non-state actors who support customary law may bring pressure upon other non-state addressees of it. This is more likely to happen if that law is perceived as just and legitimate. Yet, official sanctions must also exist, because some actors can overcome adverse social losses, as those brought about by some boycotts. Additionally, extra-legal initiatives are important insofar as legal sanctions may be hard to implement due to confusion about who is entitled to enforce them or due to the unwillingness or lack of capacity of (some) States to implement them. Considering that non-state actors may participate in the collective process of shaping custom when authorized to do so, it is important to make sure that actors whose conduct or attitude towards community and peremptory legal interests is negative, or which have serious conflicts of interest that could lead them to try to lower the protection of fundamental interests, do not have direct customary law-making powers.

4 Conclusions

International law is not static, as proven by its ongoing humanization, related to the emergence of normative aspects not based on reciprocity (as erga omnes obligations81), and by the introduction of a hierarchical normativity with jus cogens. One of the main features of a legal system has to do with its subjects, both addressees and law-makers. Despite a State-centric narrative that has sometimes benefited the privileges of a few actors, nothing fully prevents other actors from being allowed to participate in international law-making processes too. Logically, when it comes to custom, a single actor cannot effectively determine its content. This, and the facts that States decide if giving customary law-making powers to an actor and that States will participate in the collective process of forming bilateral, regional or general custom, serve as checks against potential risks of non-state formal participation when such participation is permitted. Furthermore, granting customary law-making capacity to non-state actors may seem to keep up with the reality of a world society that is heterogeneous and in which many actors participate in decisive ways. Although such authorization may be understood in abstract terms as increasing the democratic character of international law, there are problems that may arise with non-state participation in customary law-making. They include questions on the manageability of different voices; and risks of inappropriate normative capture.

Even the necessity of coincident practice and opinio juris of other actors could be sometimes insufficient to prevent those risks, due to the possibility of collusion of different actors that would benefit from inappropriate non-state initiatives (although, States alone may also agree to lower guarantees) or accept inadequate proposals out of weakness, ignorance or path dependency.82 This indicates that, apart from permitting adequate non-state participation (direct or not, depending on the circumstances), it is imperative to ensure that the content of custom is consistent with peremptory and humanitarian considerations. Currently, the existence of jus cogens ensures a minimum content, since acts contrary to it lack validity. Still, problematic cases in which no peremptory law is affected may arise.

Additionally, it cannot be ignored that (some) non-state actors can also be very positive players.83 All opinions should be heard in good faith, being it convenient to permit them to be expressed through direct and formal channels in the formation customary law, informally or in systems that grant them formal participation without giving them a “vote”, i.e. without their conduct and opinion being capable of directly forming custom in conjunction with that of others. Otherwise, important information could be ignored and the process of normative formation could become illegitimate. It is also important to ensure that groups that have been traditionally excluded due to artificial reasons and whose essential interests are at stake are effectively heard.

Since international law is dynamic, its features on the formation of customary law are also prone to change. In a system where States decide so much and so many of those States are known for their heinous abuses, it is important to hear multiple voices, especially on issues on the respect and protection of human dignity and the representation of different peoples, who risk being silenced and ignored by artificial international legal notions. Legal processes, as the ones related to the formation of customary law, must serve as means to benefit the ones who should be the true protagonists and beneficiaries of international law and every law: human beings.84 Otherwise, we may end up with what we have had for centuries: many legal constructions that fail to serve those in need or affected. In a world with totalitarian and abusive regimes, it may well be that non-state participation is the check and balance we need, and this criterion may call for direct non-state participation sometimes. It is important to ensure that all the voices of civil society (contradictory ones included) are heard. In addition to this, non-state standards may serve as examples and pave the way for or inspire developments in customary law. The more voices we hear the better, given the importance of exchanges and communication.85

When addressing questions on whether non-state actors should participate in the formation of customary law, and how they may do so, it is important to be creative. Permitting direct or other forms of participation in a way that respects fundamental standards can enhance the legitimacy of customary law and make its respect and promotion more likely. Nonetheless, while it is worth striving to ensure non-state participation in collective processes in different ways, it is imperative to ensure that it does not lead to unduly lowering guarantees or to losses of achievements in the humanization of international law.

1 See Theodor Meron, The Humanization of International Law, (Martinus Nijhoff, 2006) pp. 40–41; “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal”, ii Yearbook of the International Law Commission (1950) Principles i, ii and vi; Kononov v. Latvia [gc], no. 36376/04, Reports of Judgments and Decisions, echr 2010, paras. 155, 185, 236–237.

2 International Law Commission, Third report on identification of customary international law by Michael Wood, Special Rapporteur, A/CN.4/682, 27 March 2015, paras. 68–79.

3 Rosalyn Higgins, Problems & Process: International Law and How We Use it (2004) p. 50.

4 See Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order”, 53 The American Journal of International Law (1959) pp. 9–10.

5 International Law Commission, Fourth report on identification of customary international law by Michael Wood, Special Rapporteur, A/CN.4/695, 8 March 2016, para. 21.

6 Joel P. Trachtman, “Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness”, AJIL Unbound (2014); Michael P. Scharf, “Accelerated Formation of Customary International Law”, 20 ILSA Journal of International & Comparative Law (2014) pp. 308–310.

7 Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general (2010) pp. 208–209; Michael P. Scharf, op. cit., pp. 329, 338–341.

8 Fisheries case, Judgment of 18th, December I951: ICJ Reports 1951, p. 116, at 131; International Law Commission, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, A/CN.4/L.869, 14 July 2015, Draft conclusion 15 [16].

9 Malcolm N. Shaw, International Law (7th ed., 2014), op. cit., pp. 13–16, 32 of section ‘3 Sources’ (Kobo eBook version).

10 North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, paras. 73–74.

11 Fred Halliday, “The Romance of Non-state Actors”, in D. Josselin and W. Wallace (eds.), Non-state Actors in World Politics (2001), pp. 22–37; Bob Reinalda, “Private in Form, Public in Purpose: NGOs in International Relations Theory”, in B. Arts et al. (eds.), Non-State Actors in International Relations (2001) pp. 18–37; Jordan J. Paust, “Nonstate Actor Participation in International Law and the Pretense of Exclusion”, 51 Virginia Journal of International Law (2011), pp. 977, 997; Celestino Del Arenal, “La Nueva Sociedad Mundial y las Nuevas Realidades Internacionales: Un Reto para la Teoría y la Política”, in Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz 2001 (2002) pp. 34, 62–65, 71, 77.

12 See, e.g. I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, paras. 166–168, 172–177; Alexandra Gatto, “Corporate Social Responsibility in the External Relations of the EU”, in P. Eeckhout and T. Tridimas (Eds.), 24 Yearbook of European Law (2005) p. 423; Francisco Galindo Vélez, “Consideraciones sobre la determinación de la condición de refugiado”, in S. Namihas (ed.), Derecho Internacional de los Refugiados (2001) pp. 125–126; Celestino Del Arenal, op. cit., pp. 23, 27–29, 34, 52– 53, 64–66; Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law”, 20 European Journal of International Law (2009) pp. 25, 32–56; Janne E. Nijman, “Non-state actors and the international rule of law: Revisiting the ‘realist theory’ of international legal personality”, Amsterdam Center for International Law Research Paper Series (2009) pp. 7–19, 40; Fred Halliday, op. cit., p. 37.

13 See Jan Klabbers, International Law (2013) locations 9807–9821 (Kindle version); Anne Peters et al., “Non-state actors as standard setters: framing the issue in an interdisciplinary fashion”, in A. Peters et al. (eds.), Non-State Actors as Standard Setters (2009) pp. 1–7, 12–22, 26; Non-State Actors Committee of the International Law Association, Preliminary issues for the ILA Conference in Rio de Janeiro, Discussion Report, Rio de Janeiro Conference (2008) p. 3.

14 See Malcolm N. Shaw, op. cit., pp. 8, 11 of section ‘3 Sources’ (Kobo eBook version); Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 205.

15 See Jan Klabbers, op. cit., locations 846–854, 9584, 9760–9767 (Kindle eBook version).

16 On the influence of beliefs and ideology on legal practice, see: Jan Klabbers, op. cit., locations 541–550; Mario G. Losano, “Towards a Common Good: A Path to Utopia?: From Philosophy through Legislation to the Dignified Life”, 6 European Journal of Law Reform (2004) pp. 329–330; Andrea Bianchi, “Globalization of Human Rights: The Role of Non-state Actors”, in G. Teubner (ed.), Global Law Without a State (1997) pp. 185, 191.

17 Anna Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (2001) pp. 50–52, 60–63; Andrew Clapham, Human Rights Obligations of Non-State Actors (2006) pp. 60–63.

18 See Antonio Remiro-Brotóns, Civilizados, bárbaros y salvajes en el nuevo orden internacional, Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz 1994 (1995) pp. 83–84; Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., pp. 46–50.

19 See Jan Klabbers, op. cit.

20 See Malcolm N. Shaw, op. cit., p. 33 of section ‘3 Sources’ (Kobo eBook version); International Law Association, Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Final Report of the Committee, London Conference (2000) p. 19; Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 243; International Law Commission, Michael Wood, Special Rapporteur, Second report on identification of customary international law, A/CN.4/672, 22 May 2014, paras. 43–44; footnote 2, supra.

21 International Law Commission, Identification of customary international law, Text of the draft conclusions provisionally adopted by the Drafting Committee, A/CN.4/L.869, 14 July 2015, Draft conclusion 4 [5].

22 Jean D’Aspremont, “The Doctrinal Illusion of the Heterogeneity of International Law-Making Processes”, in J. Crawford and S. Nouwen (eds.), Select Proceedings of the European Society of International Law (2010) pp. 301, 304.

23 International Law Commission, “First Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur”, ii Yearbook of the International Law Commission (1962) A/CN.4/144 and Add.1, article 3, pp. 32, 35–36.

24 International Law Commission, Draft Articles on the Law of Treaties with commentaries, ii Yearbook of the International Law Commission (1966) pp. 189–190.

25 See Non-State Actors Committee of the International Law Association, Non-state Actors in International Law: Aims, Approach and Scope of Project and Legal Issues, First Report of the Committee, The Hague Conference (2010) pp. 11.

26 Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 40.

27 Vassilis P. Tzevelekos, “The Making of International Human Rights Law”, in C.M. Brölmann, Y. Radi (eds.), Research Handbook on the Theory and Practice of International Law – Making (2016); Vassilis P. Tzevelekos, Juris Dicere: Custom as a Matrix, Custom as a Norm, and the Role of Judges and (their) Ideology in Custom Making, in Rajkovic, Aalberts and Gammeltoft-Hansen (eds.), Power of Legality: Practices of International Law and their Politics (2016).

28 Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: ICJ Reports 1949, p. 174, at 178; Andrew Clapham, Human Rights Obligations of Non-State Actors, op. cit. p. 71.

29 See Hugh Thirlway, “The Sources of International Law”, in M. D. Evans (ed.), International Law (4th ed., 2014) pp. 102–103; Malcolm N. Shaw, op. cit., pp. 80–85 of section ‘3 Sources’ (Kobo eBook version).

30 See Non-State Actors Committee of the International Law Association, Non-State Actors in International Law: Lawmaking and Participation Rights, Second Report of the Committee, Sofia Conference (2012) p. 6; International Law Association, Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Final Report of the Committee, London Conference (2000) p. 16; Luis Pérez-Prat Durbán, “Actores no estatales en la creación y aplicación del Derecho Internacional”, in: V. Abellán-Honrubia and J. Bonet-Pérez (eds.), La incidencia de la mundialización en la formación y aplicación del Derecho Internacional Público: Los actores no estatales: ponencias y estudios (2008) pp. 23, 26–28.

31 Eric A. Posner, The Perils of Global Legalism (2009) pp. 40–41, 71.

32 International Law Commission, Second report on international law, identification of customary by Michael Wood, Special Rapporteur, A/CN.4/672, 22 May 2014, para. 45.

33 Ibid.

34 Andrea Bianchi, op. cit.

35 Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., at 213.

36 See Jordan J. Paust, op. cit., pp. 1002–1004; Math Noortmann and Cedric Ryngaert, “Introduction: Non-State Actors: International Law’s Problematic Case”, in M. Noortmann and C. Ryngaert (eds.), Non-State Actor Dynamics in International Law (2010) p. 3; Non-State Actors Committee of the International Law Association, Non-State Actors in International Law: Lawmaking and Participation Rights, Second Report of the Committee, Sofia Conference (2012) p. 5; Luis Pérez-Prat Durbán, op. cit., pp. 27–31, 34–38; International Law Commission, Michael Wood, Special Rapporteur, Second report on identification of customary international law, op. cit., para. 45.

37 See Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., pp. 209–210; Hugh Thirlway, op. cit., pp. 98, 101.

38 Malcom N. Shaw, op. cit., pp. 35, 37–38 of section ‘3 Sources’ (Kobo eBook version); Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 207.

39 Andrew Clapham, “Non-state Actors”, op. cit.; Philip Alston, “The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors”, in P. Alston (ed.), Non-State Actors and Human Rights (2005) pp. 3–6.

40 Hugh Thirlway, op. cit., p. 100.

41 See Malcom N. Shaw, op. cit., pp. 27–32 of section ‘3 Sources’ (Kobo eBook version); Hugh Thirlway, op. cit., p. 99.

42 Hugh Thirlway, op. cit., p. 103.

43 See Andrea Bianchi, op. cit., pp. 190, 192–194, 198–203; Luis Pérez-Prat Durbán, op. cit., p. 27.

44 See Luis Pérez-Prat Durbán, op. cit., pp. 29–31; Anne Peters et al., op. cit., p. 5.

45 See Non-State Actors Committee of the International Law Association, Non-state Actors in International Law: Aims, Approach and Scope of Project and Legal Issues, First Report of the Committee, The Hague Conference (2010) pp. 8–9; International Law Association, Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Final Report of the Committee, London Conference (2000) p. 16; Non-State Actors Committee of the International Law Association, Non-State Actors in International Law: Lawmaking and Participation Rights, Second Report of the Committee, Sofia Conference (2012) p. 6.

46 Non-State Actors Committee of the International Law Association, Non-State Actors in International Law: Lawmaking and Participation Rights, Second Report of the Committee, Sofia Conference (2012) p. 5.

47 Luis Pérez-Prat Durbán, op. cit., pp. 22–29, 34; Daniel Thürer, “The Emergence of Non-Governmental Organizations and Transnational Enterprises in International Law and the Changing Role of the State”, in R. Hofmann and N. Geissler (eds.), Non-State Actors as New Subjects of International Law (1999) p. 45; Jordan J. Paust, op. cit., pp. 1001, 1004.

48 Fred Halliday, op. cit., p. 26; Daniel Thürer, op. cit., pp. 44, 46.

49 See International Law Commission, Draft Articles on the Law of Treaties with commentaries, ii Yearbook of the International Law Commission (1966) p. 189 (para. 5 of the commentary to article 2); John R. Crook, “Abyei Arbitration – Final Award”, 13 asil Insights (2009) in light of the jus ad tractatum power correlated to the conclusion of international arbitration agreements, as discussed in: Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., pp. 241, 622; Nicolás Carrillo-Santarelli, “An International Legal Agreement between the FARC guerrilla and the Colombian Government?”, Opinio Juris, 19 May 2016.

50 See Jean-Marie Henckaerts, “Customary International Humanitarian Law: a response to US comments”, 89 International Review of the Red Cross (2007) pp. 478–479; Non-State Actors Committee of the International Law Association, Non-state Actors in International Law: Aims, Approach and Scope of Project and Legal Issues, First Report of the Committee, The Hague Conference (2010) p. 12.

51 See Hugh Thirlway, op. cit., p. 98.

52 Jean-Marie Henckaerts, op. cit., pp. 478–450.

53 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, p. 639, paras. 66–67.

54 See International Law Commission, Michael Wood, Special Rapporteur, Second report on identification of customary international law, op. cit., para. 46.

55 Concerning these issues, see: Harold H. Koh, “Review Essay: Why Do Nations Obey International Law?”, 106 The Yale Law Journal (1997) pp. 2600–2601; Ryan Goodman and Derek Jinks, “Incomplete Internalization and Compliance with Human Rights Law”, 19 European Journal of International Law (2008) pp. 725–731; David Capie, “Influencing Armed Groups: Are there Lessons to be Drawn from Socialization Literature?”, in Geneva Call, Exploring Criteria & Conditions for Engaging Armed Non-State Actors to Respect Humanitarian Law & Human Rights Law, Conference Report (2007) pp. 87–89.

56 Marko Milanovic, “Formation of Custom and the Inherent Powers of the Special Tribunal for Lebanon”, ejil: Talk! (2010); Special Tribunal for Lebanon, Appeals Chamber, Case No. CH/AC/2010/02, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing, 10 November 2010, para. 47.

57 On those standards, see: Gunther Teubner, “‘Global Bukowina’: Legal Pluralism in the World Society”, in G. Teubner (ed.), Global Law Without a State (1997); Luis Pérez-Prat Durbán, op. cit., pp. 31–34; August Reinisch, “The Changing International Legal Framework for Dealing with Non-State Actors”, in P. Alston (ed.), Non-State Actors and Human Rights (2005) pp. 42–53; Alexandra Gatto, op. cit., pp. 425–432; Benedict Kingsbury, op. cit., at 52–55.

58 See Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., pp. 197, 365–366.

59 See Non-State Actors Committee of the International Law Association, Preliminary issues for the ILA Conference in Rio de Janeiro, Discussion Report, Rio de Janeiro Conference (2008) p. 3; Markus Kotzur, “Good Faith (Bona fide)”, Max Planck Encyclopedia of Public International Law (2009).

60 Non-State Actors Committee of the International Law Association, Non-state Actors in International Law: Aims, Approach and Scope of Project and Legal Issues, First Report of the Committee, The Hague Conference (2010) p. 11.

61 Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 37.

62 See Santiago Villalpando, “The Legal Dimension of the International Community: How Community Interests Are Protected in International Law”, 21 European Journal of International Law (2010).

63 Myres S. McDougal and Harold D. Lasswell, op. cit., pp. 1–6, 11, 18–19, 21, 29.

64 See Daniel Thürer, op. cit., p. 45; Pierre Calame, “Non-state actors and world governance”, Discussion paper (2008) pp. 1, 9–11, 19–20, 23.

65 See Luis Pérez-Prat Durbán, op. cit., pp. 34–36, just as non-state actors have participated in the implementation of treaty regimes, States can also give them functions regarding the implementation of customary law.

66 On the presence of both substantive (justice) and a procedural (legitimacy) dimensions of fairness (being there disagreements as to the latter’s content), see: Thomas M. Franck, Fairness in International Law and Institutions (2002) pp. 7–8, 22, 25–26; Steven R. Ratner, The Thin Justice of International Law (2015).

67 See, for instance, Human Rights Council, Report on the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, with the mandate of elaborating an international legally binding instrument, A/HRC/31/50, 5 February 2016; Response of Surya Deva and David Bilchitz to Comments of Professor John Ruggie on “Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?” (Cambridge University Press, 2013), 15 January 2014, available at: http://business-humanrights.org/sites/default/files/media/documents/surya-deva-david-bilchitz-re-ruggie-15-01-14.pdf (last visit: 19 May 2016).

68 Nils Melzer and International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009) pp. 9, 16.

69 See Stefan Kirchner, “Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System?”, 5 German Law Journal (2004) pp. 57–61.

70 See Janneke Nijman, “Sovereignty and Personality: A Process of Inclusion”, in Gerard Kreijen et al. (eds.), State, Sovereignty and International Governance (2002) pp. 132–134; Joel P. Trachtman, op. cit.

71 See Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., pp. 150, 200, 203, 243, 395; article 2.1.j of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (21 March 1986); and article 2 of the Draft articles on the responsibility of international organizations adopted by the International Law Commission at its sixty-third session, 2011, with the commentaries to it (paras. 16–19). The last article says: ‘“rules of the organization” means, in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization’.

72 Malcolm N. Shaw, op. cit., pp. 8, 11 of section ‘3 Sources’ (Kobo eBook version); Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 205.

73 Elena Pariotti, “Non-State Actors, International Law, and Human Rights”, in S. R. Silverburg (ed.), International Law: Contemporary Issues and Future Developments (2011); Andrea Bianchi, op. cit., pp. 202–204; Janneke Nijman, op. cit., pp. 140–144; Nicolás Carrillo-Santarelli, “Enhanced Multi-Level Protection of Human Dignity in a Globalized Context through Humanitarian Global Legal Goods”, 13 German Law Journal, (2012) pp. 843–844.

74 See Meghnad Desai, “public Goods: A Historical Perspective”, in I. Kaul et al. (eds.), Providing Global Public Goods (2003) p. 63; Inge Kaul, Pedro Conceição, Katell Le Goulven and Ronald U. Mendoza, “Why Do Global Public Goods Matter Today?”, in I. Kaul et al. (eds.), Providing Global Public Goods (2003) pp. 9–10, 13–14, 16.

75 See Frits Kalshoven and Liesbeth Zegveld, “Constraints on the Waging of War” (3rd edition, 2001) pp. 70–71; David Capie, op. cit., pp. 87–93; Olivier Bangerter, “The ICRC and Non-State Armed Groups”, in Geneva Call, Exploring Criteria & Conditions for Engaging Armed Non-State Actors to Respect Humanitarian Law & Human Rights Law, Conference Report (2007) pp. 82–84; Fred Halliday, op. cit., p. 35.

76 Kononov v. Latvia [gc], no. 36376/04, Reports of Judgments and Decisions, echr 2010, paras. 185, 187, 235–236.

77 On the impact of regulation on non-state culture, and its importance, see: Fred Halliday, op. cit., p. 35; John Ruggie, “Protect, Respect and Remedy: A Framework for Business and Human Rights”; Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/8/5 (2008) paras. 27, 29–32, 105. Regarding the expressive function and effects of law, see: Ryan Goodman and Derek Jinks, op. cit., pp. 725–726, 735; Mauricio García Villegas, “De qué manera se puede decir que la Constitución es importante”, in Álvarez Jaramillo et al. (eds.), Doce ensayos sobre la nueva Constitución (1991) p. 40.

78 See Harold H. Koh, op. cit., p. 2601.

79 Jordan J. Paust, op. cit., pp. 985, 1002.

80 Janneke Nijman, op. cit., pp. 111, 134–144.

81 Vassilis P. Tzevelekos, “Revisiting the Humanisation of International Law: Limits and Potential” 6 Erasmus Law Review (2013).

82 See Elizabeth A. Kirk et al., “SUDS law: Non-State actors and the haphazard route to implementation of international obligations”, 4 Non-State Actors and International Law (2004) pp. 88, 106–107.

83 Elena Pariotti, op. cit.

84 Concurring Opinion of Judge A.A. Cançado Trindade to: I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28 2002. Series A No. 17, para. 19; Janneke Nijman, op. cit., p. 136.

85 I/A Court H.R., Case of Ivcher Bronstein v. Peru. Merits, Reparations and Costs. Judgment of February 6 2001. Series C No. 74, paras. 148–149.

  • 6

    Joel P. Trachtman, “Reports of the Death of Treaty Are Premature, but Customary International Law May Have Outlived Its Usefulness”, AJIL Unbound (2014); Michael P. Scharf, “Accelerated Formation of Customary International Law”, 20 ILSA Journal of International & Comparative Law (2014) pp. 308–310.

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  • 14

    See Malcolm N. Shaw, op. cit., pp. 8, 11 of section ‘3 Sources’ (Kobo eBook version); Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 205.

  • 20

    See Malcolm N. Shaw, op. cit., p. 33 of section ‘3 Sources’ (Kobo eBook version); International Law Association, Committee on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Final Report of the Committee, London Conference (2000) p. 19; Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 243; International Law Commission, Michael Wood, Special Rapporteur, Second report on identification of customary international law, A/CN.4/672, 22 May 2014, paras. 43–44; footnote 2, supra.

  • 36

    See Jordan J. Paust, op. cit., pp. 1002–1004; Math Noortmann and Cedric Ryngaert, “Introduction: Non-State Actors: International Law’s Problematic Case”, in M. Noortmann and C. Ryngaert (eds.), Non-State Actor Dynamics in International Law (2010) p. 3; Non-State Actors Committee of the International Law Association, Non-State Actors in International Law: Lawmaking and Participation Rights, Second Report of the Committee, Sofia Conference (2012) p. 5; Luis Pérez-Prat Durbán, op. cit., pp. 27–31, 34–38; International Law Commission, Michael Wood, Special Rapporteur, Second report on identification of customary international law, op. cit., para. 45.

  • 38

    Malcom N. Shaw, op. cit., pp. 35, 37–38 of section ‘3 Sources’ (Kobo eBook version); Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 207.

  • 40

    Hugh Thirlway, op. cit., p. 100.

  • 41

    See Malcom N. Shaw, op. cit., pp. 27–32 of section ‘3 Sources’ (Kobo eBook version); Hugh Thirlway, op. cit., p. 99.

  • 42

    Hugh Thirlway, op. cit., p. 103.

  • 43

    See Andrea Bianchi, op. cit., pp. 190, 192–194, 198–203; Luis Pérez-Prat Durbán, op. cit., p. 27.

  • 48

    Fred Halliday, op. cit., p. 26; Daniel Thürer, op. cit., pp. 44, 46.

  • 51

    See Hugh Thirlway, op. cit., p. 98.

  • 52

    Jean-Marie Henckaerts, op. cit., pp. 478–450.

  • 64

    See Daniel Thürer, op. cit., p. 45; Pierre Calame, “Non-state actors and world governance”, Discussion paper (2008) pp. 1, 9–11, 19–20, 23.

  • 72

    Malcolm N. Shaw, op. cit., pp. 8, 11 of section ‘3 Sources’ (Kobo eBook version); Antonio Remiro-Brotóns et al., Derecho Internacional: Curso general, op. cit., p. 205.

  • 78

    See Harold H. Koh, op. cit., p. 2601.

  • 79

    Jordan J. Paust, op. cit., pp. 985, 1002.

  • 80

    Janneke Nijman, op. cit., pp. 111, 134–144.

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