John J. Chung (Roger Williams University – School of Law) has posted Customary International Law as Explained by Status Instead of Contract (North Carolina Journal of International Law and Commercial Regulation, Vol. 37, p. 609, 2012) on SSRN. Here is the abstract:
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Customary international law (“CIL”) forms the foundation of international law. Many attempts to explain CIL are based on analogies to the law of Contracts, with states likened to parties entering into contracts. The analytical framework of CIL has thus been structured as an “either or” choice between a state of nature versus Contract-based ordering. Instead of looking to Contract, however, I suggest that the analysis should look to the basis of social ordering before Contract: Status. My analysis draws upon Henry Maine’s famous observation that “the movement of the progressive societies has hitherto been a movement from Status to Contract.” Commentators describe international law as a primitive system. As such, I contend that CIL should be analyzed through a theoretical model that many international legal theorists would regard as a primitive model: a model based on Status.
The resort to the language of Contracts fails in most aspects to provide a coherent theory. So what explains its continuing vitality? There could be several reasons: (1) The absence of a better explanatory model; (2) cultural bias with historical roots in Western, contract-based social models; and (3) the unfamiliarity of contemporary theorists with Status-based social ordering.
Contract-like behavior may explain some of the ordering among nations of relatively equal power or shared cultural roots. Contract does not explain, however, the development and application of CIL with respect to weaker nations or nations that do not share cultural roots. Status presents a more coherent and viable theory because it accurately explains both the historical origins of CIL (from the colonial era) and the way in which CIL has been formed since then. To that end, the use of Status offers an alternative theory to explain CIL in a way Contract cannot.