Special Workshop Abstract

Internally, the identified elements of custom, namely state practice and opinio juris of states, have been labeled by commentators as subjective, impossible to adequately categorise, impractical, and devoid of any concrete substance. Opinio juris, an attempt to identify a state’s adoption of a binding legal obligation, is more aspiration than reality, especially upon integrating the political dimension of state declarations within international organizations. State practice, although an identifiable reference point, is impractical in any realistic sense. Identifying relevant practice is subjective and reflective of the relative applications of international law, such that the whims of the state tend to drive the development of custom.

While political uses are external in nature as well, the problem is further exacerbated when factoring in actors other than states, particularly international organizations and non-governmental actors who maintain a role in the development of custom. Hence custom is problematic not only because of the subjective context, but also due to other external forces creating changes to the standard.

The difficulty with custom is that it results from a subjective process deriving from a host of interests and political desires. The task is to consider the manner in which one is to focus on the development and events surrounding the emergence of custom. Questions like why does a particular claim reflect custom and how did one reach the point whereby an assertion could be made regarding custom are just as important as the identified elements. This is not solely an examination of the contents of the assertions, but rather treating the assertions as objects and considering the process by which these assertions developed. Given that discerning a customary norm is too diffuse, the focus could lie on the discursive formation that led towards custom. Custom is not solely a matter of identifying actual practice, but also is a reflection of the social condition and historical development that influence and change the actions of a state.

Adopting a transgressive approach to custom recognizes that a customary norm results from a variety of activities in and out of the state. The state is part of the ongoing discourse. The formation then takes on added importance not as creating the standard of custom, but as an ongoing process that is subject to constant change and development, and is part of a discourse among the various international actors. State practice then also would account for other actors and their role in the international order.