The Individual and Customary International Law Formation

The schedule presents an outline. Click to see the complete abstracts.

Dinner at Michael's Uptown Cafe

Casual

Continental Breakfast

Welcome and Remarks

9:15 - 10
Moot Court Room

Video* or MP3 audio

Keynote: Non-State Actor Participation

• Jordan Paust

  "Non-State Actor Participation"

  During Professor Paust's keynote speech, a jurisprudential orientation is identified that allows awareness of non-state actor participation in the formation, reaffirmation, and termination of customary international law as well as what others term the "process of review" of elite decisions. This is contrasted with the pretense of early 20th century British positivism, always widely opposed, that international law was merely state-to-state or that "states" are the only actors in the international legal process. Prior to and during the rise of such a preference, it was well understood that there were actors other than the "state," such as nations, cities, tribes, and belligerents. Today, there has also been more attention to the role of certain "peoples," groups, and individuals in the formation of law.

10 - 11:45
Moot Court Room

Video* or MP3 audio

Panel One
Making Ancient Trans-border Custom: The History and the Players

Legal historians will account for the role of private actors and individuals in law formation; and specifically customary law formation, prior to the establishment of the state-based international law system that makes up the core of our knowledge base.

• Elisabeth Zoller (moderator)
• Timothy Waters

  "Travelers in an Antique Land: Pre-Modern Models of Jurisgenerative Community"

  Modern legal regimes -- even transnational projects -- are profoundly territorial. They assume that legal ordering functions must be vested in entities with territorial scope; these may overlap, but each has its defined space of competence, leaving only interstitial, residual space for non-territorial organization. And this produces a curiously humble scope for projects of reform: Thus minority rights -- which have an identity or status component that might challenge the state -- govern family law, but seldom the criminal or commercial code. But we have antique examples of an alternative. The Roman concept of ius gentium provides a model that devolves core functions of the state onto communities of identity. Problems of anachronism and fit with modern rights sensibilities abound, but the idea and the doctrine -- secular in character, grounded on principles any civil law lawyer intuitively understands and respects -- sound a challenge to assumptions about what is a necessary unit for making law.

• Stephane Beaulac

  "Emer de Vattel, or Who Killed Individuals on the International Plane"

  The paper argues that Swiss author Emer de Vattel (1714-1768), with his Le droit des Gens, is responsible for the articulation of our traditional positivist theory of international law that excludes any participation whatsoever for individuals. The hypothesis is demonstrated in three steps. First, Vattel's concept of state involves a corporate-type entity encompassing individuals. Second, his notion of sovereignty, which he externalised, gives exclusivity of power to the state internationally. Third, individuals loose their identity as subjects of law with such an understanding of state and sovereignty. The conclusion offers examples of the continuing relevance of Vattel in modern debates on the role of individuals in international law, particularly in regard to the formation of international customs.

• Mark Janis

  "Individuals and Customary International Law from Blackstone's Law of Nations to Bentham's International Law"

  Blackstone (1765) recognized individuals as subjects of the Law of Nations. Bentham (1789) viewed individuals as merely objects of International Law. Though it was Bentham's International Law which caught the fancy of the 19th century, it was Blackstone's turn in the 20th. In the 21st century, what are the chances for us to become even more Blackstonian? What difference does it make how we define International Law? How we define Customary International Law? What has the 18th century to teach the 21st?

11:45 - 1 pm
Faculty Lounge

Lunch

1 - 3
Moot Court Room

Video* or MP3 audio

Panel Two
The Individual and Customary International Law Formation

Customary international law experts will explore the possibility of participation by individuals or other non-state actors in the customary international law formation process. This panel will explore the theoretical and doctrinal aspects of this possibility.

• Tim Waters (moderator)
• Julie Mertus

  "Blind spots and tight turns: The post-9/11 landscape for nonstate actor influence on customary international law"

  Nonstate actors have always had to struggle to exert influence over the development of customary international law, which by definition is state-centric, but the task became almost insurmountable post-9/11. Today's tense socio-political landscape has created an obstacle course to meaningful participation by nonstate actors, governed by new rules of the road, and filled with blind spots (where issues are overlooked) and tight turns (where disaster is narrowly averted). It is within this new landscape that nonstate actors must continue to find ways to impact decision making and influence the distribution of power over processes and outcomes. This paper considers each of these phenomena in turn and in so doing suggests areas for further research.

• Donald J. Kochan

  "The Temptation Toward an International Tapestry of Torts: Why the Judicial Process Should Not Be Available For Any and Every Aggrieved Individual"

  With increasing frequency and heightened debate, United States courts have been citing foreign and "international" law as authority for domestic decisions. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There is a temptation to pick from some tapestry to find an international tort. Once we place the individual over jurisdictional limitations, the individual will be lost. So when we consider the individual and customary international law, we must be concerned about the way individuals are protected by the dictates of governance based on appropriate procedures and a rule of law.

• Errol Meidinger

  "Constructing Customary Transnational Law through Competitive Supra-Governmental Regulation"

  Much transnational law is being made by ‘supra-governmental’ networks competing with each other to establish and implement regulatory requirements. These networks are primarily driven by non-governmental organizations, but also include government actors, corporations and business associations, activists, professionals, and academics of various kinds. The competing programs can be seen as trying to define and implement customs that will receive wide public acceptance over time and thus be incorporated into the legal fabric. This paper describes competitive supra-governmental regulatory processes in several sectors and then considers whether they may be sketching out a new form of anticipatory democracy.

• Galit Sarfaty

  "International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation"

  This paper offers an empirical analysis of how international human rights norms become embedded in a local community. Drawing on my field research at the Pimicikamak Cree Nation in Canada, I analyze how international law is shaping how local actors design their laws and legal institutions. I argue that indigenous groups like the Cree are engaging in "legal mediation," as they negotiate between multiple normative commitments. They are creating a government that integrates Canadian and international law while also adapting cultural norms and customary practices. This case study contributes to the international legal scholarship on norm diffusion by examining the local process by which international norms are internalized. It demonstrates how human rights norms are received and transformed in communities, and how they interact with state and non-state norms.

Break

3:30 - 5:30
Moot Court Room

Video* or MP3 audio

Panel Three
Making Law From Below

We will hear from an emerging group of scholars who have identified the possibility of international law and globalization occurring "from below," or from sub-state origins, and have noted the phenomenon of norm formation, perhaps even law formation, rooted in the work of non-state actors.

• Archana Sridhar (moderator)
• Cesar A. Rodriguez-Garavito

  "Law and Globalization from Below: Toward a Post-Westphalian Approach to International Law and Legal Mobilization"

  In this presentation, I argue that international law and socio-legal scholarship largely continue to operate with a theoretical framework developed for a Westphalian world centered on self-contained nation-states. Thus, despite the proliferation of global legal institutions and transnational movements contesting and shaping them from below, international law scholars have yet to construct a conceptual toolkit attuned to the realities of globalization.

  Bringing together contributions from international relations, transnational social movement studies, and law and society scholarship, in this presentation I develop the case for a post-Westphalian approach to international law and social movements. To that end, I focus on the struggle over international labor rights, and empirically ground my case on systematic evidence on transnational anti-sweatshop campaigns in Mexico, Central America, and the Caribbean between 1990 and 2005.

• Yanis Varoufakis

  "IN VITRO 'LAW MAKING'? Lessons from an experiment that generated social norms in a laboratory"

  Recent experimental work offers interesting new insights into the birth of discriminatory social conventions which, in a very short time, evolve into social norms that seem capable of impressive regulation of both the actors’ social behaviour and their normative expectations regarding what others do. After describing the experimental design and data, Varoufakis will draw conclusions regarding the lessons to be learnt vis-à-vis the emergence of informal norms, even of formal legislation, from below both nationally and internationally.

• Harlan G. Cohen

  "Making International Law: Looking for Legitimacy Rules in Fragmenting International Communities"

  A continuation of earlier challenges to the vitality of the doctrine of sources, this project argues that international law must increasingly be judged according to standards of legitimacy developed within different international communities. Previously, I argued that international laws should be judged by processes of norm internalization and legitimization underlying their acceptance rather than by formal categories like treaty or custom. Here, I suggest that in certain international law areas those processes are no longer controlled solely by states. Instead, in both human rights law and global administrative law, other actors are helping decide the standards by which the legitimacy of rules will be assessed.

• Anthony Chase

  "Human Rights from Below: How to Conceptualize Contributions from the Muslim World"

  To understand human rights' foundations and origins it is essential to grapple with its legal, political, normative, and institutional groundings, and bear in mind its ongoing reconfigurations in a transnational context. This is illustrated by how movements for the rights of women and sexual minorities have come to impact on the transnational Muslim world and how, in turn, international human rights have been impacted by the transnational Muslim world and movements within it for human rights. This talk will explore the extent and limits to these intersections.

Free Time

Dinner at the Indiana Memorial Union Federal Room

Continental Breakfast

10 - 12
Faculty Conference Room (335)

Video* or MP3 audio

Panel and Roundtable
Finding Custom: Possibilities and Obstacles

Scholars of various disciplines - including law, journalism, anthropology, and political science - will identify the possibilities and obstacles of identifying custom among non-state actors and individuals as a precursor to law formation and law-making.

• Amy Reynolds

  "Freedom of Expression and the Role of the Individual & Non-State Actors"

  Freedom of expression is subject to the various social, political, economic or legal controls of its society. Legal scholar Thomas David Jones has observed that free speech is a "general norm of customary international law." Several human rights declarations including The Universal Declaration of Human Rights, consider freedom of expression a fundamental human right. This presentation will discuss various international interpretations and customs of free speech and press to help identify both obstacles as well as possibilities that could lead to the inclusion of non-state actors and individuals as a precursor to law formation and law-making.

• Kenneth Gallant

  "Individuals and International Organizations in the Creation of Customary International Criminal Law and Related Customary Human Rights Law"

  The practice of international criminal courts and tribunals has become vital to the making of customary international criminal law, as well as customary international human rights law related to criminal procedure and to other liberties which may be affected by criminal justice systems. Individuals participate in this system as a matter of right under international law by making claims about jurisdiction, procedure, the substance of criminal law, and the substance of other human rights. They thus participate in the creation of instances of practice of international organizations (the tribunals), and their arguments become part of the material out of which the opinio juris of these international entities is formed. This presentation will examine instances of the role of individuals in the creation of customary international law in different contexts within the criminal justice process.

• Christiana Ochoa (panelist and moderator)

  "Among Individuals, What Might Custom Look Like and How Will We Find It?"

  Beyond the theoretical possibility of individuals participating in customary international law formation, or even the arguable evidence that individuals may already play a de facto role in this process, this paper will explore the question of how CIL source-doctrine might accommodate the role individuals might (or do) play in CIL formation. In addition to examining the relevant existing doctrine for possibilities, the paper will address what we might actually mean by "custom" when referring to individuals and how we might go about identifying whether custom has indeed emerged. The paper will end by asking if and why the participation of individuals and other non-state actors in CIL formation matters at this juncture.

Lunch