Hakimi: Custom's Method and Process: Lessons from Humanitarian Law

Monica Hakimi (Univ. of Michigan - Law) has posted Custom's Method and Process: Lessons from Humanitarian Law (in Custom's Future: International Law in a Changing World, Curtis Bradley ed., forthcoming). Here's the abstract:

Much of the literature on customary international law (CIL) goes to method: what is the proper method for “finding” CIL — that is, for determining that particular norms qualify as CIL? The principal goals of this literature are to help identify whether norms that are claimed to be CIL are really CIL and thus to reduce the volatility and susceptibility to abuse in CIL. I argue in this book chapter that the method for finding CIL might be so elusive because the question itself is misconceived. The question of how to find CIL presupposes that finding CIL is an objective exercise and somehow removed from the process for making CIL. The process is notoriously undisciplined and politically charged; disparate actors promote their own interests by advancing and responding to one another’s legal claims. The methodological question assumes that CIL-finding is distinct — that actors who find CIL do not advance their own agendas but rather assess the evidence objectively, and thus that their decisions help weed out invalid claims and settle CIL. I use the recent rise of CIL in international humanitarian law to show that these assumptions are flawed. CIL-finding is deeply entangled with CIL-making. The two exercises operate in much the same way and through the same process, so they share similar limitations. My argument has two practical implications. First, non-state actors can play a much larger role in the formation of CIL than the literature now recognizes. Second, methods for finding CIL are unlikely to discipline global actors or to impose order on CIL, so long as the process for making CIL remains highly undisciplined and disordered.