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“Customary International Law: A Third World Perspective”: Reflections in Light of an Approach to CIL Based on Fundamental Ethical Principles

  • Brian D. Lepard (a1)
Extract

B.S. Chimni's stimulating article makes an important contribution to the burgeoning literature on customary international law (CIL) by examining CIL from the perspective of developing states, a perspective underrepresented in this literature. His article articulates well many valid points about the sociohistorical biases of CIL. At the same time, there may be reasons for more optimism than Chimni appears to possess about the ability of CIL to serve global interests, including those of the Third World. Furthermore, some of Chimni's proposals merit further refinement. In this essay I propose to evaluate the strengths and potential shortcomings of Chimni's arguments in light of an approach to CIL that I have developed that is based on fundamental ethical principles recognized in international law. After laying out an alternative theory that still has many resonances with Chimni's proposals, I discuss critically three of the key theses articulated by Chimni: First, that CIL is inherently colonialist and inconsistent with the values of Third World peoples; second, that even contemporary customary international human rights law (IHRL) is a means of furthering global capitalism to the detriment of Third World peoples; and third, that the remedy for CIL's biases lies in the creation of a “postmodern” doctrine of CIL that incorporates reference to the “juridical conscience of humankind.”

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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3 Id. at 8.

4 See id. at 128–38.

5 See Draft Conclusion 2, entitled “Two Constituent Elements,” in Int'l Law Comm'n, Fifth Report on Identification of Customary International Law, Annex, Draft Conclusions Adopted on First Reading, with the Special Rapporteur's Suggested Changes, UN Doc. A/CN.4/717, at 57 (March 14, 2018) (prepared by Special Rapporteur Michael Wood) (“To determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law.”); see also Michael Wood, Foreword, in Reexamining Customary International Law xiv (Brian D. Lepard ed., 2017).

6 See Lepard, supra note 2, at 78–81.

7 See id. at 87.

8 See, e.g., id. at 153 (“The preeminent ethical principle of unity in diversity furthermore points to the imperative of at least considering the views of a broad array of states representing a wide range of cultures and perspectives, including non-Western cultures.”).

9 See id. at 156.

10 To give two examples, the most revered book in Hinduism, the Bhagavad-Gita, affirms that the “whole world” is “united,” while African culture has long emphasized the principle of ubuntu, which essentially maintains that “people are family.” Bhagavad-Gita 11.7, in The Bhagavad Gītā 55 (Franklin Edgerton, trans., 1972); M. Munyaka & M. Motlhabi, Ubuntu and Its Socio-Moral Significance, in African Ethics: An Anthology of Comparative and Applied Ethics 63, 71 (M.F. Murove ed., 2009).

11 See generally Lepard, supra note 2, at 90–91. For examples of support for this concept in non-Western as well as Western religious and philosophical traditions, see Brian D. Lepard, Rethinking Humanitarian Intervention: A Fresh Legal Approach Based on Fundamental Ethical Principles in International Law and World Religions 69–71 (2002).

12 Chimni, supra note 1, at 43–44.

13 Id. at 44.

14 Id. at 45.

15 Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 588–89 (1823).

16 See, e.g., Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 ICJ Rep. 168, 251–52 (Dec. 19) (recognizing as CIL “the principle of permanent sovereignty over natural resources” as expressed in various General Assembly resolutions).

17 See, e.g., Peter Ørebech et al., The Role of Customary Law in Sustainable Development (2005).

18 See Peter Ørebech and Fred Bosselman, The Linkage Between Sustainable Development and Customary Law, in id. at 12, 17 (affirming that for a local custom “to acquire the status of law it must carry a popular perception of valid legal obligation (opinio necessitatis sive obligationis)”).

19 Chimni, supra note 1, at 14.

20 For accounts of non-Western systems of international law, including CIL, see, e.g., Jeremy I. Levitt, Illegal Peace in Africa: An Inquiry into the Legality of Power Sharing with Warlords, Rebels, and Junta 7–16 (2012); K.R.R. Sastry, Hinduism and International Law, 117 Recueil des Cours 503, 567–80 (1966); The Islamic Law of Nations: Shaybānī’s Siyar 9 (Majid Khadduri trans., 1966).

21 Chimni, supra note 1, at 5.

22 Id. at 37.

23 See, e.g., International Covenant on Civil and Political Rights art. 1(1), Dec. 16, 1966, 999 UNTS 171.

24 See, e.g., Universal Declaration of Human Rights art. 23(1), GA Res. 217A (III) (Dec. 10, 1948).

25 See UN Sub-Comm'n on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003). On the opposition of many business groups to the Norms, see David Kinley & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law, 6 Hum. Rts. L. Rev. 447, 448–50 (2006).

26 Chimni, supra note 1, at 46.

27 Id. at 38, 46.

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