Revisiting the Role of Non-State Actors and International Courts in the Making of (Customary) International Law: General Considerations and the Case of Indigenous Peoples

Abstract

The (May) 2016 draft conclusions of the International Law Commission (ILC) on the Identification of Customary International Law (CIL) confirm states as primary subject of international law, with a central role in the creation and development of international law, while denying a meaningful, direct role for non-state actors and courts in the creation and development of CIL. In this paper I question the stance taken by the ILC, combining general considerations about the current realities of global governance and the de facto impact of jurisprudence, with arguments focused on indigenous peoples’ rights to Free, Prior and Informed Consent (FPIC) in relation to (projects affecting) their ancestral lands. It is argued that when non-state actors engage in strategic litigation, (international) courts are enabled to develop steady lines of jurisprudence, thus strengthening the latter’s de facto impact on law-development. This role is further enhanced in case of transnational litigation and transnational judicial dialogue, entailing the emergence of similar lines of jurisprudence across jurisdictions/regions. The paper puts forward possible interpretations of the ‘general practice’ and ‘opinio iuris’ element of customary international law that would recognize a more outspoken role for non-state actors and international courts in the (co-)determination of customary international law. The importance of having a sufficient level of state practice that supports the norm for it to be elevated to the status of customary international law is not denied. However, the paper highlights the important role of non-state actors as norm entrepreneurs and of international courts as developers of international law, pointing to an incremental process whereby non-state actors and international courts are becoming co-determinants of international (customary) law. The paper goes on to trace the emergence of the right to FPIC of indigenous peoples with special regard for strategic litigation and jurisprudential trends across jurisdictions, as challenging, persuading and guiding states to adapt their practice while setting normative expectations about the appropriate behaviour towards indigenous peoples in relation to projects affecting their lands.