GENERAL PRINCIPLES

What should be the role of democratic principles in the determination of customary international law? Based on fundamental ethical principles, we can conceptualize customary international law as a kind of law that is more flexible than treaty making. It allows states to develop legal rules without the formality and specificity of an agreement. The global community of states has consciously developed this alternative, more flexible, system of lawmaking that takes into account both states' views about what rules should be law and their practice as evidence of these views. Many commentators have noted the supple character of customary international law and that often it is “more easily adaptable to new conditions than conventional law.”

I suggest, in keeping with much of the existing doctrine of customary international law accepted by states, that customary law be analogized to an informal parliamentary system of lawmaking within the global community of states. In a similar vein, Norman and Trachtman say that “we might understand the [customary international law] process as an alternative mechanism for global legislation.”

Of course, there are no formal “votes” in this system and states do not meet in any kind of global parliament to adopt customary “laws.” It is accepted doctrine, however, that a majority of some grouping of states can through their words and practice create a legal rule that binds a minority of states, unless these states qualify as persistent objectors.