Haniehalsadat Aboutorabifard
Abstract
The traditional approach to international law granted states an absolute monopoly in making international law and it discussed the rights and powers of states as a sole subject of international ...
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The traditional approach to international law granted states an absolute monopoly in making international law and it discussed the rights and powers of states as a sole subject of international law. However, the proliferation of norms made by non-state actors raises questions with regard to the status of the actors as well as the legitimacy of the norms in the international fora, while it also challenges the state-centric orientation of international law. In consideration of the foregoing, customary law—whichwas traditionally comprised of two state-based elements of practice and opinio juris, as an important source of international law—has been faced with a strand of inquiry: can non-state actors generate international customs? Through 1) an in-depth survey of scholarly arguments regarding law-making in certain circumstances that could also belong to private parties; and 2) a close examination of the lex mercatoria as an example of existing international customs developed by non-state actors, this article tries to clarify a) the legitimacy crisis of a more inclusive approach to international law and b) proposes opportunities whereby non-state actors could participate in the law-making process.
