SCIEL Public Event - Human Agency in the Identification of Customary International Law
The Sheffield Centre for International and European Law is pleased to host Dr Massimo Lando (City University of Hong Kong) who will be speaking on the subject of Human Agency in the Identification of Customary International Law.
Presentation Title: Human Agency in the Identification of Customary International Law
Date of event: Wednesday 8 March 2023
Event Time: 4-5.30pm
Event Location: Hybrid
- Bartolomé House (Moot Court), Winter Street, Sheffield, S3 7ND
- Online link will be sent to those that book the morning of the event.
Whilst it is helpful if you use the Eventbrite to indicate in advance if you are attending, you are also very welcome to turn up in-person on the day of the event and without pre-booking. You will need to pre-book the online attendance though as we will need to know where to send the joining link. For online bookings you will be sent an email with the joining link the morning of the event.
All SCIEL members, staff, students and public members are invited to attend this seminar.
Abstract: It is the established view that States are central to the formation of customary international law, understood as the dialectic process by which customary rules come into existence. States are the origin of practice and opinio juris, evidence of which they provide by acting on the international plane. However, States become disassociated from the formation of customary rules when the existence of those rules has to be ascertained, in a process known as identification. I will argue that, because human agency is inevitable in custom identification, the States' influence on determining which customary rules exist and their content is much more limited than it is generally thought to be. To support this argument, I will build on the doctrinal view of customary international law as the union of State practice and opinio juris. I will draw on empirical data from the judicial decisions of international courts and tribunals to show that custom identification is a process solidly in the hands of individuals, namely judges, and not States. Because of how judges select evidence to identify customary rules, States are bound by customary international law which either is not representative of widespread or extensive practice, or has been identified in a biased manner.
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