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74 University of Cincinnati Law Review 105 (2006)


In the wake of the Supreme Court's decision in Sosa v. Alvarez-Machain, future Alien Tort Claims Act (ATCA) litigants seemingly will be asked to demonstrate that the norms giving rise to their actions are violations of clearly established Customary International Law (CIL). Given the mutable character of CIL, especially in the area of human rights, this will surely fuel the already voluminous literature on the content of the CIL of human rights.

While debate will certainly arise over the norms that have been become CIL, significant attention must be also be devoted to the problems inherent in the CIL of human rights. Among the most significant is its focus on the statements, actions and beliefs of sovereign states to the exclusion of the individuals the human rights regime aims to protect.

This article asks whether the traditional formation and function of Customary International Law (CIL) might be outmoded, given identifiable changes in international law on the one hand and identity formation on the other. Legal scholars have often pointed to changes international law has undergone in the years since the signing of the Universal Declaration of Human Rights, due to the focus human rights has placed on the individual, both as subject and object of that law. At the same time, the literature on cosmopolitanism suggests that how individuals think of citizenship and identity has also weakened traditional notions of sovereignty. This article concludes that such changes may require a new formulation for CIL: one that takes into account the beliefs of individuals as to their human rights under CIL.