The article offers an alternative account of the evolution, formation, and function of customary international law (CIL) from a third world perspective. It argues that there is an intimate link between the rise, consolidation, and expansion of capitalism in Europe since the nineteenth century and the development of CIL that is concealed by the supposed distinction between “formal” and “material” sources of CIL. In fact, both “traditional” and “modern” CIL sustain the short-term and systemic interests of global capitalism. It proposes a “postmodern” conception of CIL that would contribute to the global common good.
1 The other two being “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states” and “the general principles of law recognized by civilized nations.”
2 International Law Association, London Conference, Final Report of Commission on Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law (2000), available at https://perma.cc/5CJ8-UTR2 [hereinafter ILA Final Report].
3 Int'l Law Comm'n, Identification of Customary International Law: Text of the Draft Conclusions Provisionally Adopted by the Drafting Committee, UN Doc. A/CN.4/L.872 (2016) [hereinafter Draft Conclusions]. This and other International Law Commission materials are available at http://legal.un.org/ilc.
4 Int'l Law Comm'n, Rep. on the Work of Its Sixty-Seventh Session, para. 74, UN Doc. A/70/10 (2015).
5 Continental Shelf (Libya v. Malta), 1985 ICJ Rep. 13, para. 27 (June 3) (cited with approval in the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, para. 64 (July 8)).
6 Draft Conclusions, supra note 3, at 1.
7 ILA Final Report, supra note 2, at 13. Draft Conclusion 6 defines “state practice” as follows:
Forms of practice
1. Practice may take a wide range of forms. It includes both physical and verbal acts. It may, under certain circumstances, include inaction.
2. Forms of State practice include, but are not limited to: diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct “on the ground”; legislative and administrative acts; and decisions of national courts.
3. There is no predetermined hierarchy among the various forms of practice.
Draft Conclusions, supra note 3, at 2.
8 ILA Final Report, supra note 2, at 40.
9 Id. at 41. However, it is important to draw attention to ILA Principle 19 which states: “It appears that, in the conduct of States and international courts and tribunals, a substantial manifestation of acceptance (consent or belief) by States that a customary rule exists may compensate for a relative lack of practice, and vice versa.” Id. at 40.
10 Int'l Law Comm'n, Rep. on the Work of Its Sixty-Fourth Session, at 242, UN Doc. A/69/10 (2014) (emphasis added). This view would appear to have the support of the United States. In the context of identifying customary international law (CIL) rules of international humanitarian law, two U.S. spokesmen have observed: “Although the same action may serve as evidence both of State practice and opinio juris, the United States does not agree that opinio juris simply can be inferred from practice. Both elements instead must be assessed separately in order to determine the presence of a norm of customary international law” (emphasis added). Bellinger, John III & Haynes, William J. II, A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law , 89 Int'l Rev. Red Cross 443, 466 (2007).
11 Draft Conclusions, supra note 3, at 3. Draft Conclusion 10 explains:
Forms of evidence of acceptance as law (opinio juris)
1. Evidence of acceptance as law (opinio juris) may take a wide range of forms.
2. Forms of evidence of acceptance as law (opinio juris) include, but are not limited to: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference.
3. Failure to react over time to a practice may serve as evidence of acceptance as law (opinio juris), provided that States were in a position to react and the circumstances called for some reaction.
12 As Baker points out, “[a]t its core ‘modern custom’ challenges ‘traditional custom's’ reliance on the state practice prong in the test for customary international norms. Instead, ‘modern custom’ seeks to de-emphasize state practice in exchange for a heightened reliance on opinio juris, and in this sense is more deductive in its logical reasoning where ‘traditional custom’ is more inductive.” Baker, Roozbeh (Rudy) B., Customary International Law: A Reconceptualization , 41 Brook. J. Int'l L. 439, 446 (2016). Elsewhere he has noted that “the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer are.” Baker, Roozbeh (Rudy) B., Customary International Law in the 21st Century: Old Challenges and New Debates , 21 Eur. J. Int'l L. 173, 175 (2010). Andrew Guzman offers a definition of CIL relying on opinio juris: “the beliefs of states generate a legal obligation that affects payoffs.” Guzman, Andrew T., How International Law Works: A Rational Choice Theory 195 (2008). Neils Peterson observes, “[i]n cases where there is a divergence between short-term incentives of states and long-term social benefits, we could identify customary rules rather based on opinio iuris than on actual state practice.” Niels Petersen, Customary International Law and Public Goods 11 (Max Planck Institute for Research on Collective Goods 2015/5), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2568605. Decades earlier Cheng had proposed the idea of “instant customary international law” to deal with developments in international space law as it had the support of the entire international community. Cheng, Bin, United Nations Resolutions on Outer Space: “Instant” International Customary Law , 5 Indian J. Int'l L. 23 (1965).
13 Guzman, supra note 12, at 186.
14 “A more rigorous approach to establishing opinio juris is required. It is critical to establish by positive evidence, beyond mere recitations of existing treaty obligations or statements that as easily may reflect policy considerations as legal considerations, that States consider themselves legally obligated to follow the courses of action reflected in the rules.” Bellinger III & Haynes II, supra note 10, at 447. Roberts, Anthea, Traditional and Modern Approaches to Customary International Law: A Reconciliation , 95 AJIL 757 (2001).
15 Blutman writes that “[c]onsiderable theoretical efforts have been made in the last three decades to explain the formation and operation of customary international law or to propose desirable and viable approaches to it.” Blutman, Laszlo, Conceptual Confusion and Methodological Deficiencies: Some Ways that Theories of Customary International Law Fail , 25 Eur. J. Int'l L. 529, 552 (2014).
16 On a third world perspective to international law, see Chimni, B. S., Third World Approaches to International Law: A Manifesto , in The Third World And International Order: Law, Politics, And Globalization 47–73 (Anghie, Antony, Chimni, Bhupinder, Mickelson, Karen & Okafor, Obiora eds., 2003); Anghie, Antony & Chimni, B. S., Third World Approaches to International Law and Individual Responsibility in Internal Conflict , in The Methods of International Law (Ratner, Steven R. & Slaughter, Anne-Marie eds., 2004). For the purpose of this article, no distinction is made between emerging powers such as Brazil, China, and India and other third world states. See generally in this regard, Capitalism, Imperialism and International Law in the Twenty First Century , 14 Oregon Rev. Int'l. 17 (2012).
17 In his well-known book, Capitalism and Freedom, Milton Friedmann defined capitalism as the “organization of the bulk of economic activity through private enterprise operating in a free market.” Friedmann, Milton, Capitalism And Freedom 4 (1962). On the other hand, following Marx, the British economist Maurice Dobb defined capitalism as follows: “Capitalism was not simply a system of production for the market—a system of commodity production as Marx termed it—but a system under which labor power had “itself become a commodity” and was bought and sold on the market like any other object of exchange. Its historical prerequisite was the concentration of ownership of the means of production in the hands of a class, consisting of only a minor section of society, and the consequent emergence of a propertyless class for whom the sale of their labor power was their only source of livelihood.” Dobb, Maurice, Studies in the Development of Capitalism 7 (1946). Any reference to capitalism in the essay is primarily to the Dobb understanding of capitalism which can and has assumed a variety of economic and political forms over time. As Friedman observes, you can “have economic arrangements that are fundamentally capitalist and political arrangements that are not free.” Id. at 10. After all, as he notes, “Fascist Italy and Fascist Spain, Germany at various times …, Japan before World Wars I and II, tsarist Russia in the decades before World War I—are all societies that cannot conceivably be described as politically free. Yet, in each, private enterprise was the dominant form of economic organization.” Id. It only needs to be added that this article proceeds on the assumption that in order to sustain itself there is an inherent tendency in capitalism to expand beyond the boundaries of a nation-state giving rise to the phenomenon of imperialism. It was the German thinker Rosa Luxembourg (1871–1919) who first argued that imperialism is linked to the very survival of capitalism. Luxemburg, Rosa, The Accumulation of Capital (1958). In her time, competitive colonialism was the outcome. Colonialism was followed by neocolonialism and then succeeded by global imperialism. For a history of the relationship between capitalism, imperialism, and international law since the seventeenth century, see Chimni, B. S., International Law and World Order: A Critique of Contemporary Approaches 477–523 (2017); and Anghie, Antony, Sovereignty, Imperialism and International Law (2003).
18 Insofar as the present article links the development of CIL with the rise and spatial expansion of capitalism since the nineteenth century, it differs from the traditional third world critique of the doctrine of CIL. For a recent example of this critique from a third world perspective, see George Rodrigo Bandeira Galindo & Yip, Cesar, Customary International Law and the Third World: Do Not Step on the Grass , 16 Chinese J. Int'l L. 251 (2017). Galindo and Yip explicitly rule out dealing with the question as to “why certain norms are designated or evolve as norms of customary international law and others do not.” Id. at 269 (quoting Chimni, B. S., An Outline of a Marxist Course on Public International Law , 17 Leiden J. Int'l L. 1, 15 (2004)). In contrast, this article places emphasis on deep structures and the world of idea and beliefs as opposed to that of simply the factor of power to explain why CIL norms tend to support the interests of advanced capitalist states. It also differentiates between short-term and long-term interests of powerful capitalist states. However, the present author shares many of the traditional third world views on how CIL is conceptualized, formed, and implemented. Many of these matters were touched upon in an earlier essay. See Chimni, B. S., An Outline of a Marxist Course on Public International Law , 17 Leiden J. Int'l L. 1 (2004). These are also the subject of further comment in Section IV infra.
19 In the same way as the task of the capitalist state is not to defend the narrow corporate interests of this or that capitalist but the general interests of the capitalist class or its dominant fraction, CIL focuses on the long term and general interests. Gramsci, Antonio, Selections from the Prison Notebooks of Antonio Gramsci 181 (Hoare, Quintin & Smith, Geoffrey Nowell eds., 1971).
20 Bradley, Curtis A., Goldsmith, Jack L. & Moore, David H., Sosa, Customary International Law, and the Continuing Relevance of Erie , 120 Harv. L. Rev. 869 (2007); Goldsmith, Jack L. & Posner, Eric A., A Theory of Customary International Law , 66 U. Chi. L. Rev. 1113 (1999); Posner, Eric A. & Goldsmith, Jack L., Understanding the Resemblance Between Modern and Traditional Customary International Law , 40 Va. J. Int'l L. 639 (2000).
21 On the other hand, critics of Bradley et al. correctly point to the importance of CIL rules, albeit without theorizing the interests that these serve. Paust, Jordan J., Customary International Law and Human Rights Treaties Are Law of the United States , 20 Mich. J Int'l L. 301 (1999).
22 Indeed, “[t]here are … few topics in international law that are more over-theorized than the creation and determination of custom.” Talmon, Stefan, Determining Customary International Law: The ICJ's Methodology Between Induction, Deduction and Assertion , 26 Eur. J. Int'l L. 417, 429 (2015). However, others believe that much of “academic work is atheoretical.” Guzman, supra note 12, at 187.
23 To put it differently, the rules for identification of CIL cannot proceed in the abstract. It is interesting in these regards that even “States (and other international actors) tend not to address themselves to the principles of customary law formation in the abstract.” ILA Final Report, supra note 2, at 3.
24 Honorable exceptions include Bedjaoui, Mohammed, Towards a New International Economic Order (1979).
25 This perhaps explains why “[t]here was not a trace of … [opinio juris] in any of the nineteenth century arbitrations.” Carty, Anthony, The Decay of International Law? 27 (1986). These arbitrations were between western states and opinio juris was presumed.
26 The judgment is available at http://www.icj-cij.org/en/case/158/judgments.
27 Guzman, Andrew T., Saving Customary International Law , 27 Mich. J. Int'l L. 116 (2005).
28 Int'l Law Comm'n, First Report on Formation and Evidence of Customary International Law, at 15, para. 35, UN Doc. A/CN.4/663 (May 17, 2013) (prepared by Special Rapporteur Michael Wood) [hereinafter ILC First Report] (footnotes in the original text have been deleted).
29 For instance, Article 3(2) of the World Trade Organization's Understanding on Rules and Procedures Governing the Settlement of Disputes states that an objective of the WTO dispute settlement system is “to clarify the existing provisions” of covered agreements “in accordance with customary rules of interpretation of public international law.” Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 1, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Ann. 2, 1869 UNTS 401. The primary rules of interpretation are codified in Articles 31–33 of the Vienna Convention on the Law of Treaties, and are viewed as part of CIL, but these are not comprehensive in scope. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
30 While the norms in these domains eventually come to be generated by treaty law there remains a surplus of norms that forms part of modern CIL. As Andrew Guzman and Jerome Hsiang point out, “[t]he consent-based system of international law creates a powerful status quo bias that makes it difficult for the law to adapt as circumstances change. CIL introduces some, albeit modest, flexibility into this system, both by allowing the emergence of some rules without the consent of some states and by allowing other rules to change over the objections of some states.” Guzman, Andrew T. & Hsiang, Jerome, Some Ways that Theories on Customary International Law Fails: A Reply to Laszlo Glutman , 25 Eur. J. Int'l L. 553, 557 (2014). They go on to observe that “[t]he consequence of a pure consent-based system is that agreement is impossible unless every affected state benefits. There is simply no way to adopt a rule over the protests of an objecting state… . CIL offers some modest relief in certain circumstances.” Id.
31 Scharf, Michael P., Book Review of “Custom's Future: International Law in a Changing World,” 111 AJIL 206, 208 (2017).
32 See generally Gunning, Isabelle R., Modernizing Customary International Law , 31 Va. J. Int'l L. 211 (1991); Lillich, Richard B., The Growing Importance of Customary International Human Rights Law , 25 Ga. J. Int'l & Comp. L. 1 (1995/96); McIntyre, Owen & Mosedale, Thomas, The Precautionary Principle as a Norm of Customary International Law , 9 J. Envtl L. 221 (1997); Meron, Theodor, The Continuing Role of Custom in the Formation of International Criminal Law , 90 AJIL 238 (1996).
33 Guzman & Hsiang observe “that this is a good thing.” Guzman & Hsiang, supra note 30, at 557.
34 Id. at 558. They conclude that “[t]he end result is far more likely to be good, from a global perspective, than bad.” Id. at 559.
35 Verdier, Pierre-Hugues & Versteeg, Mila, International Law in National Legal Systems: An Empirical Investigation , 109 AJIL 514, 515, 527 (2015). Albeit, they add that “[a]t the same time, a growing portion of countries consider custom to be hierarchically inferior to domestic law, which limits the ability of courts to apply it directly in many circumstances and preserves the legislature's ability to displace customary rules.” Id. at 515. On the other hand, “domestic courts have invoked the jus cogens status of certain CIL rules to override domestic law, thus effectively giving these rules supralegislative status.” Id. at 529. See also Nollkaemper, André, National Courts and the International Rule of Law (2011); Sandholtz, Wayne, How Domestic Courts Use International Law , 38 Fordham Int'l L.J. 595 (2015); International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion (Shelton, Dinah ed., 2011); Waters, Melissa A., Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties , 107 Columbia L. Rev. 628 (2007); Int'l Law Comm'n, Memorandum by the Secretariat, Identification of Customary International Law: The Role of Decisions of National Courts in the Case Law of International Courts and Tribunals of a Universal Character for the Purpose of the Determination of Customary International Law, UN Doc. A/C.4/691 (Feb. 9, 2016).
36 Int'l Law Comm'n, Rep. on the Work of Its Sixty-Third Session, Annex A, para. 2, UN Doc A/66/10 (2011), available at http://legal.un.org/ilc/reports/2011/english/annex.pdf [hereinafter Annex A].
37 See generally Slaughter, Anne Marie & Burke-White, William, The Future of International Law is Domestic (or, The European Way of Law) , 47 Harv. Int'l L.J. 327 (2006).
38 Bradley, Goldsmith & Moore, supra note 20, at 870.
39 Id. at 872.
40 Id. at 935–36.
41 Writing in the late 1980s, Asante observed that the principle has “been strenuously challenged since the turn of this century by Latin American jurists, the socialist States of Eastern Europe and, more recently, the newly emergent States of Asia and Africa and by some Western jurists.” Asante, Samuel K. B., International Law and Foreign Investment: A Reappraisal , 37 Int'l & Comp. L. Q. 588, 589 (1988).
42 Jean d'Aspremont, International Customary Investment Law: Story of a Paradox, 54 (Amsterdam Law School Research Paper No. 2011-19), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1916713.
43 Annex A, supra note 36, para. 2.
44 See Tunkin, G. I., Theory of International Law 127–33 (Butler, William E. trans., 1974); D'Amato, Anthony A., The Concept of Custom in International Law 188 (1971). It may also be recalled here that the International Court of Justice (ICJ) has observed that “[I]n international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise.” Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 ICJ Rep. 14, para. 269 (June 27). For the ambivalent view of Soviet scholars of CIL, see Erikson, Richard J., Soviet Theory of the Legal Nature of Customary International Law , 7 Case Western J. Int'l L. 148 (1975).
45 Bedjaoui, supra note 24, at 134. He noted that “the newly independent States refuse to consider themselves bound by various customary principles when these principles still express relationships of domination, inequality or privilege.” Id. at 132.
46 D'Aspremont, supra note 42, at 6.
47 Id. at 10.
48 Id. at 6.
50 Id. at 9.
51 The text of G.A. Res. 1803 (XVII), Permanent Sovereignty over Natural Resources (Dec. 14, 1962) is available at http://www.ohchr.org/Documents/ProfessionalInterest/resources.pdf. The text of G.A. Res. 3281 (XXIX), Charter of Economic Rights and Duties of States (Dec. 12, 1974) is available at http://www.un-documents.net/a29r3281.htm. There is a vast amount of literature on the subject that need not be referenced here. See generally, Schrijver, Nico, Sovereignty over Natural Resources (1997); Chimni, B. S., Review Article: Permanent Sovereignty over Natural Resources: Toward a Radical Interpretation , 38 Indian J. Int'l L. 208 (1998); Asante, supra note 41; Francioni, Francesco, Compensation for Nationalization of Foreign Property: The Borderland Between Law and Equity , 24 Int'l & Comp. L. Q. 255 (1975).
52 Martha Finnemore and Stephen Toope observe that “[l]aw is a broad social phenomenon deeply embedded in the practices, beliefs, and traditions of societies, and shaped by interaction among societies. Customary international law displays this richer understanding of law's operation … .” Finnemore, Martha & Toope, Stephen J., Alternatives to “Legalization”: Richer Views of Law and Politics , 55 Int'l Org. 743 (2001).
53 See, e.g., D'Amato, supra note 44. Lon Fuller wrote that “a proper understanding of customary law was of capital importance in the world of today” and pointed to the fact that “much of international law, and perhaps the most vital part of it, as essentially customary law.” Fuller, L. L., Human Interaction and the Law , in Lloyds Introduction to Jurisprudence 911 (5th ed. 1985).
54 Id. at 4. Other writings in the 1970s include: Akehurst, Michael, Custom as a Source of International Law , 47 Brit. Y.B. Int'l L. 34 (1974–75); Thirlway, Hugh, International Customary Law and Codification 47 (1972).
55 North Sea Continental Shelf Cases (Ger. v. Den. & Neth.) 1969 ICJ Rep. 227 (Feb. 20). See generally Anand, R.P., Studies in International Adjudication 53–119 (1969).
56 Annex A, supra note 36, para. 2.
57 Guzman, supra note 27, at 175. Earlier, Kelly observed that “[i]nternational legal theory is in disarray. Despite the rapid internationalization of commerce and finance, there is neither a common understanding of how customary international legal norms are formed, nor agreement on the content of those norms.” Kelly, J. Patrick, The Twilight of Customary International Law , 40 Va. J. Int'l L. 449, 450 (2000). He spoke of “the indeterminate and manipulable theory of CIL … there is no common understanding of how to determine customary norms.” Id. at 451, 499. See further Charney, Jonathan I., The Persistent Objector Rule and the Development of Customary International Law , 56 Brit. Y.B. Int'l L. 1 (1985); Stein, Ted L., The Approach of the Different Drummer: the Principle of the Persistent Objector in International Law , 26 Harv. Int'l L.J. 457 (1985); Kirgis, Frederick L. Jr, Custom on a Sliding Scale , 81 AJIL 146 (1987); Blutman, supra note 15; Mendelson, Maurice H., The Formation of Customary International Law , 272 Hague Academy of International Law, Collected Courses 155 (1998); Kammerhofer, Jorg, Uncertainty in the Formal Sources of International Law: Customary International Law and Some of its Problems , 15 Eur. J. Int'l L. 523 (2004); Fidler, David P., Challenging the Classical Concept of Custom: Perspectives on the Future of Customary International Law, 39 German Y.B. Int'l L. 198 (1996); Roberts, supra note 14, at 757.
58 But a single powerful state like the United States alone may not be able to prevent change. See Toope, Stephan, Powerful but Unpersuasive? The Role of the United States in the Evolution of Customary International Law , in United States Hegemony and the Foundations of International Law 309–13 (Byers, Michael & Nolte, Georg eds., 2003). He attempts “to demonstrate that attempts by the United States to cast itself as a persistent objector often end in failure.” Id. at 309.
59 As one researcher has reminded, in the final analysis “[t]he theoretical problems of customary international law are the theoretical problems of international law as a whole.” Kammerhofer, supra note 57, at 536. Blutman writes that “a plausible theory of customary international law cannot be devoid of a theory, thesis or, at least, a hypothesis related to the very nature of a (legal) norm.” This rendered the task of attending to CIL even more urgent. Blutman, supra note 15, at 538.
60 See generally Chimni, supra note 16.
61 ILC First Report, supra note 28, para. 28. Special Rapporteur Michael Wood had earlier observed, that “[t]he present topic … aims to provide guidance on how to identify a rule of customary international law at a given moment, not to address the question of which particular rules have achieved such status.” Id., para. 22.
62 Id. at 12, n. 56 (emphasis added). The distinction has been endorsed in different ways in later reports. For instance, in 2016, the ILC SR observed: “As has previously been agreed, it is not the aim of the topic to explain the myriad of influences and processes involved in the development of rules of customary international law over time, especially given the desire is to keep such processes flexible, as they inherently are.” Int'l Law Comm'n, Fourth Report on Identification of Customary International Law, at 5, para. 15, UN Doc. A/CN.4/695 (Mar. 8, 2016) (prepared by Special Rapporteur Michael Wood) [hereinafter ILC Fourth Report].
63 ILA Final Report, supra note 2, at 5 (emphasis added).
64 Id. at 12 (emphasis added).
65 Blutman expresses this in the following way: “[i]t is misleading to suggest that customary international law is one of the sources of international law. Customary international law forms part of international law. If it is part of international law, then it cannot be its source. (What is the source of a phenomenon cannot be part of this phenomenon at the same time.) It is customary international law itself, as part of international law, which may be said to have a source or sources. What these sources are and how they can be determined are separate questions.” Blutman, supra note 15, at 532.
66 Kadens, Emily & Young, Ernest A., How Customary is Customary International Law , 54 Wm. & Mary L. Rev. 885, 906 (2013).
67 Id. at 911.
68 Id. at 906.
69 Carty, Anthony, Doctrine Versus State Practice , in The Oxford Handbook of the History of International Law 974 (Fassbender, Bardo & Peters, Anne eds., 2012).
70 Kunz, Josef L., The Nature of Customary International Law , 47 AJIL 662, 663 (1953) (emphasis added). See also d'Aspremont, Jean, The Idea of ‘Rules’ in the Sources of International Law , 84 Brit. Y.B. Int'l L. 103, 109–10 (2014).
71 D'Amato wrote: “[O]ne has only to look at the numerous definitions [of ‘sources’] that have been advanced from time to time to see the ambiguities involved in this term. Among the definitions put forth in the literature, we might discern no fewer than six planes of discourse. On the first plane, one might think of ‘sources’ of law such as nature, reason, morality, the mind of men, the Deity, the wise elders, and so forth. Second, the source of law might lie in tradition, habit, policy, necessity, or convenience. A third plane would consider sources such as legislation, judicial teachings, treaties, custom, diplomatic correspondence, or the writings of publicists. A fourth interpretation of the term ‘sources’ might refer to the physical items containing the ‘law,’ such as books, libraries, microfilms, letters, journals, newspapers, and the like. Fifth, one might argue that the law stems from judges, decision-makers, diplomats, and other authoritative personnel. Finally, a psychological refinement of the preceding category would find sources of law in the psychology of judges, the ‘subjectivities’ of decision-makers, or the ‘shared expectations’ of people in a position of power or authority.” D'Amato, supra note 44, at 264–65.
72 Id. at 265.
74 Kelly, supra note 57, at 464.
75 Onuma, Yasuaki, A Transcivilizational Perspective on International Law 220 (2010). Carty observes that “[a]mong the eighteenth-century positivists it is possible to find a theory of general custom. However, it is lacking a psychological element. This is because custom was understood merely in the sense of a practice which gave rise to a presumption as to future intentions. There was no duty as such to adhere to a customary practice.” Carty, supra note 25, at 28.
76 Carty, supra note 69, at 974.
78 Id. at 972. Therefore, Carty writes, “[t]here is no comprehensive history of the concept of customary international law.” Id. at 977.
79 Id. at 977.
80 Anghie, supra note 17, at 13–32.
81 Onuma, supra note 75, at 221–22.
82 Milos Vec, From the Congress of Vienna to the Paris Peace Treaties of 1919, in The Oxford Handbook of the History of International Law, supra note 69, at 654, 658 (emphasis added).
83 Carty, supra note 25, at 33. Pierre Legrand observes: “A rule does not have any empirical existence that can be significantly detached from the world of meanings that defines a legal culture; the part is a synthesis and expression of the whole: it resonates.” Legrand, Pierre, What “Legal Transplants”? , in Adapting Legal Cultures 59 (Nelken, David & Feest, Johannes eds., 2001).
84 Annelise Riles, Comparative Law and Socio-legal Studies, in The Oxford Handbook of Comparative Law 808, 776–812 (Mathias Reimann & Reinhard Zimmermann, Online Edition).
85 Chimni, supra note 17, at 486–89.
86 Vec, supra note 82, at 668.
87 Id. at 658.
89 Anghie, supra note 17, at 54.
90 According to Strydom, the sources include: “Roman law concepts of consuetudo and consensus; Von Savigny's theory of the collective consciousness; the contributions of Francois Gény and the legal sociologists on the sources of the law; and Ernst Bierling's psychological acceptance theory.” Strydom, H. A., Customary International Law: The Legacy of the False Prophets , 27 Comp. & Int'l L.J. S. Afr., 277, 276–313 (1994).
91 Id. at 277 (emphasis in original).
93 Kammerhofer, supra note 57, at 534. See also Benson, Peter, François Gény's Doctrine on Customary Law , 20 Canadian Y.B. Int'l L. 267 (1983).
94 O'Toole, Thomas J., The Jurisprudence of François Gény , 3 Villanova L. Rev., 460, 455–68 (1958).
95 Cited by O'Toole, id. at 461.
96 Nunn, Kenneth B., Law as a Eurocentric Enterprise , 15 L. & Ineq. 340, 323–71 (1997).
97 Strydom, supra note 90, at 290.
98 O'Toole, supra note 94, at 461.
99 Tasioulas, John, Customary International Law and the Quest for Global Justice , in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives 325–26, 307–35 (Perreau-Saussine, Amanda & Murphy, James Bernard eds., 2009).
100 Strydom, supra note 90, at 276.
101 Charlesworth, Hilary, The Unbearable Lightness of Customary International Law , 92 ASIL Proc. 44, 44–47 (1998). See generally Weil, Prosper, Towards Relative Normativity in International Law? , 77 AJIL 413 (1983).
102 Charlesworth, supra note 101, at 44.
103 Id. at 45.
104 Another example of this is when Bruno Simma and Phillip Alston contend that “material … [be] not equated with State practice but … [be] rather seen as a variety of ways in which moral and humanitarian considerations find a more direct and spontaneous ‘expression in legal form.’” Cited in Lillich, supra note 32, at 16. The reference is to Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Cogens, Jus, and General Principles, 12 Aus. Y.B. Int'l L. 82, 106 (1992). Lillich criticized the two for in the end they tend to reveal the cultural and political sources of customary international human rights law (CIHL). Lillich would on the other hand like to present these as reflecting the practices of states and tribunals.
105 Vec, supra note 82, at 669.
106 Keene, E., The Treaty-Making Revolution of the Nineteenth Century , 34 Int'l Hist. Rev. 475–500 (2012).
107 David J. Bederman, The Sea, in The Oxford Handbook of the History of International Law, supra note 69, at 359, 372–76.
108 Id. at 371.
109 See generally Brownlie's Principles of Public International Law, ch. 9, 25 (James Crawford ed., 2012).
110 Robert Kolb, The Protection of the Individual in Times of War and Peace, in The Oxford Handbook of the History of International Law, supra note 69, at 317–37.
111 As Carty observes of the nineteenth century formulation of custom, “[c]ustom has two essential stages, legal consciousness, as the inner ground, and then external conduct and practice.” Carty, supra note 25, at 32.
112 The ILC has attempted to address this problem in various ways. For a summary of the ways in which “making the evidence of customary international law more readily available” has been treated, see ILC Fourth Report, supra note 62, at 13–19.
113 Here we are not concerned with other problems concerned with determining the meaning of state practice. For instance, the distinction between what a state says (“verbal acts”) and does (“physical acts”) has been the subject of much debate with some stressing the relevance of latter over the former and others otherwise. Kammerhofer, supra note 57, at 526. The ILC Draft Conclusion 6(1) states that: “Practice may take a wide range of forms. It includes both physical and verbal acts. It may, under certain circumstances, include inaction.” Draft Conclusions, supra note 3, at 2.
114 In the instance of western nations, state practice is collected systematically. Thus, for instance, there is the Digest of United States Practice in International Law, which is produced each year by the State Department's Office of the Legal Adviser. Editions since 1989 are available at https://www.state.gov/s/l/c8183.htm. It may however be noted that these digests do not address the complicated theoretical questions with regard to the identification of CIL rules. See also Galindo & Yip, supra note 18, at 258.
115 ILC First Report, supra note 28, at 4.
116 Id. at 49.
117 Byers, Michael, Custom, Power and the Power of Rules 153 (1999). In fact, “[o]nly the more affluent States publish digests of their own practice of relevance to international law.” Id.
118 According to Guzman, “[a]s a practical matter … the evaluation of state practice is fairly ad hoc and heavily favors powerful countries with easily accessible records in a commonly spoken language.” Guzman, supra note 12, at 186. In the past, “[t]he norms characterized as ‘customary’ were based on the limited practice and opinio juris of a small number of the Western Great Powers.” Onuma, supra note 75, at 135 (emphasis in original).
119 Onuma, supra note 75, at 226. Onuma cites Oscar Schachter to the effect that “[a]s a historical fact, the great body of customary international law was made by a remarkably few States.” Id. at 226–27. In the circumstances “[t]here is a tendency to prematurely conclude that one's policy preferences, particularly when shared by other Western societies, have become customary norms. In making these assessments, Western writers virtually ignore the domestic policies and perspectives of non-Western cultures.” Kelly, supra note 57, at 468.
120 Kelly, supra note 57, at 472.
121 Id. at 519.
122 Id. at 476. He argues that “[t]he International Court of Justice, when basing a decision on CIL, … frequently avoids a detailed empirical inquiry into either element.” … “Instead, the Court deduces norms that it terms customary from treaties, general principles of law: U.N. resolutions, analogous legal issues and other non-inductive sources.” Id.
123 North Sea Continental Shelf Cases, supra note 55, Dissenting Opinion of Judge Manfred Lachs, at 228.
124 Kelly, supra note 57, at 453.
125 Scoville, Ryan M., Finding Customary International Law , 101 Ia. L. Rev. 1893, 1948 (2016) (emphasis added).
126 See Galindo & Yip, supra note 18, at 262–63.
127 ILA Final Report, supra note 2, at 25.
128 Id. at 26.
130 Id. It observes that “in this regard, customary international law is at least in touch with political reality.”
131 Indeed, as one researcher observes, “[t]here is an unspoken assumption that the practices, theories, and perspectives of the United States and the United Kingdom, each of which have been paramount powers in distinctive periods of international law, have preeminent weight. The practices of non-Western cultures are just not taken seriously.” Kelly, supra note 57, at 473.
132 Id. at 515–16. Kelly writes: “The rise of the persistent objector principle is testament to the fact that the powerful states will not accept norms with which they do not specifically agree. CIL appears to be consensual for some and universal for others.” Id. at 517. But the SR has noted that: “The inclusion of a draft conclusion on the persistent objector rule was supported by almost all delegations who addressed the matter in the Sixth Committee, indicating widespread agreement that the rule does form part of the corpus of international law.” ILC Fourth Report, supra note 62, para. 27 (emphasis added). See Galindo & Yip, supra note 18, 266–68.
133 Draft Conclusions, supra note 3, at 4. Draft Conclusion 15(2) clarifies that “[t]he objection must be clearly expressed, made known to other States, and maintained persistently.” Id.
134 Kelly, supra note 57, at 511. He further writes: “If the persistent objector principle were to become part of CIL theory, it must be demonstrated that the principle has been generally accepted by states. However, this has not been the case and there is no indication that non-Western states have accepted this fundamental change in the structure of international law.” Id. at 512.
135 Byers, supra note 117, at 180. Galindo & Yip observe that in that case, “the Court only considered the issue in obiter dictum and after acknowledging that the customary norm in question did not exist at all.” Galindo & Yip, supra note 18, at 267.
136 Reisman, W. Michael, Canute Confronts the Tide: States Versus Tribunals and the Evolution of the Minimum Standard in Customary International Law , 30 ICSID Rev. 616, 621 (2015) (emphasis in original).
137 Kelly, supra note 57, at 508. In D'Amato's well-known book on customary international law published in 1971 the term “persistent objector” does not appear in the index. He instead uses the term “protest.” D'Amato, supra note 44, at 98. According to D'Amato, “most states most of the time clearly do not issue notes of protest to the actions of other states that they regard as illegal under international law. Foreign offices which do so would have very little time for little else.” Id. at 99. Elias writes that “[s]ince the publication of the first edition of Brownlie's Principles of Public International Law in 1966, the term ‘persistent objector’ has become a term of art in international law.” Elias, Olufemi, Some Remarks on the Persistent Objector Rule in Customary International Law , 6 Denning L.J. 37 (1991). In the first edition of the book, Brownlie did not cite a single authority in support of the persistent objector rule. The rationale for the rule according to him was “the fact that ultimately custom depends on the consent of states.” Brownlie, Ian, Principles of Public International Law 8 (1966). For a skeptical view, see also Charney, Jonathan, The Persistent Objector Rule and the Development of Customary International Law , 56 Brit. Y.B. Int'l L. 1–24 (1985).
138 Galindo & Yip observe that “the structure of this legal doctrine does not really do much for developing countries, for two reasons: the impossibility of recently independent states to question customary rules developed during the colonial period and the difficulty to object to a rule during the process of its formation.” Galindo & Yip, supra note 18, at 268.
139 A critical gap here is the fact that the privilege of objections is not extended to social movements or activities of global civil society. Their objections to a rule of CIL are not considered relevant.
140 Bedjaoui, supra note 24, at 101.
141 Byers, supra note 117, at 77.
142 ILA Final Report, supra note 2, at 24.
143 Bedjaoui, supra note 24, at 135.
144 Guzman, supra note 27, at 173.
145 Carty, supra note 69, at 981. The SR has also noted that: “despite the great mass of materials that is now at hand, coverage of State practice remains limited given that many official documents and other indications of governmental action are still unpublished and thus unavailable.” ILC Fourth Report, supra note 62, para 46.
146 Carty, supra note 69, at 995.
147 Id. at 995.
148 Morgenthau, Hans, Positivism, Functionalism and International Law , 34 AJIL 260 (1940).
150 ILC First Report, supra note 28, para. 47.
151 Draft Conclusions, supra note 3, at 4.
152 Onuma, supra note 75, at 135.
153 Int'l Law Comm'n, Rep. on the Work of Its Sixty-Seventh Session, UN Doc A/70/10 (2015).
154 Id., para. 103.
155 Among the bibliography listed in the first instance, only the name of Georges Abi-Saab belongs to the Global South. Indian case law is not considered in the report on the subject. See Annex A, supra note 36.
156 Bedjaoui, supra note 24.
157 See Section VI infra.
158 Talmon, supra note 22, at 419. Talmon contends that the ICJ combines the use of inductive and deductive methods to arrive at a norm of CIL. He observes that, “[i]nduction and deduction are not two competing or opposing monolithic analytical methods but, in practice, are intermixed.” Id. at 442.
159 Id. Talmon notes that “[t]he deductive method is not an alternative to the inductive method but, rather, is complementary to it and may be applied whenever the Court cannot ascertain any rules of customary international law by way of induction.” Id. at 423. Talmon then proceeds to identify three different methods of deduction used by ICJ: “normative, functional and analogical deduction.” Id. “First, there is normative deduction. New rules are inferred by deductive reasoning from existing rules and principles of customary international law … . Second, there is functional deduction. The ICJ deduces rules from general considerations concerning the function of a person or an organization… . Third, there is “analogical deduction.” Id. at 423, 425–26.
160 Id. at 443. Talmon identifies four situations in which the method of induction is “impossible to use.” “[F]irst, state practice is non-existent because a question is too new.” “Second, state practice is conflicting or too disparate and thus inconclusive.” “Third, the opinio juris of states cannot be established.” “Fourth, there is a discrepancy between state practice and opinio juris.” Id. at 422.
161 Id. at 443.
162 Id. at 430, 443.
163 Kadens & Young, supra note 66, at 907.
164 Id. at 912. According to Kadens & Young, “[t]he community problem plagues any system of law that purports to operate at a level that lacks either a shared sense of political and cultural identity or a common set of democratic institutions.” Id. at 913. In fact, “[h]istorical experience suggests that the success of such law may depend on a much thicker set of communal ties than the abstract theories of the jurists might suggest. The prospects for international custom must be assessed in light of actual experience, not just theory.” Id. at 913–14.
165 Hernandez, Gleider I., A Reluctant Guardian: The International Court of Justice and the Concept of ‘International Community,’ 83 Brit. Y.B. Int'l L. 59, 13–60 (2013).
166 Posner & Goldsmith, supra note 20, at 1114.
167 Id. at 1114–15.
168 Id. at 1177. Even a mainstream textbook such as Malcolm Shaw's International Law concedes the role of power: “[I]t is inescapable that some states are more influential and powerful than others and that their activities should be regarded as of greater significance. This is reflected in international law so that custom may be created by a few states… . Law cannot be divorced from politics or power and this is one instance of that proposition.” Shaw, Malcolm, International Law 79 (6th ed. 2007). See also Galindo & Yip, supra note 18.
169 Schachter, Oscar, New Custom: Power, Opinio Juris, and Contrary Practice , in Theories of International Law at the Threshold of the 21st Century: Essays in Honor of Krzysztof Skubiszewski 531, 536 (Makarcyk, Jerzy ed., 1996). He goes on to note that “[o]nly the States with navies—perhaps 3 or 4—made most of the law of the sea. Military power, exercised on land and sea, shaped the customary law of war and, to a large degree, the customary rules on territorial rights and principles of State responsibility.” Id. at 536–37.
170 Shaw concludes that “for a custom to be accepted and recognized, it must have the concurrence of the major powers in that particular field.” Shaw, supra note 168, at 63.
171 Byers, supra note 117, at 151.
172 Guzman, supra note 12, at 195.
173 As Sally Falk Moore observed, “[t]he preexisting arrangements, interests, and ideas … produce their own developments. These matters are seldom thought of from the beginning as an integral part of the process of inserting a new policy or law. The subsequent altered outcome is often unpredictable, but almost always inevitable.” Moore, Sally Falk, An Unusual Career: Considering Political/Legal Orders and Unofficial Parallel Realities , Ann. Rev. L. Soc. Sci. 1, 13 (2015).
174 As has been aptly pointed out, “the United States alone cannot … unilaterally build its own ‘custom,’ though, like any State, it may launch a process of claim and response that leads ultimately to normative change.” Toope, supra note 58, at 313.
175 In order “[t]o shape customary law, the United States cannot rely on its raw material power to exert brute force, because such practice will simply fail to partake of a legitimate process of law creation… . Legal power lies in the capacity to persuade.” Id. at 316. According to Toope, the draw of a rule of CIL is “an expression of the legitimacy of the processes through which it is created and the power of its rhetoric… .” Id. at 315. The United States also cannot alone stop a CIL rule from forming or being modified. Id.
176 Cheng, supra note 12.
177 An understanding of “hegemony” can be found the following observations of Gramsci: “[T]he supremacy of a social group manifests itself in two ways, as ‘domination’ and as ‘intellectual and moral leadership.’ A social group dominates antagonistic groups, which it tends to ‘liquidate,’ or to subjugate perhaps even by armed force; it leads kindred and allied groups. A social group can, and indeed must, already exercise ‘leadership’ before winning governmental power (this indeed is one of the principal conditions for the winning of such power); it subsequently becomes dominant when it exercises power, but even if it holds it firmly in its grasp, it must continue to ‘lead’ as well.” Gramsci, supra note 19, at 57–58. More directly Gramsci wrote: “[t]he ‘spontaneous consent’ given by the great masses of the population to the general direction imposed on social life by the dominant fundamental group; this consent is ‘historically caused’ by the prestige (and consequent confidence) which the dominant group enjoys because of its position and function in the world of production.” Id. at 12. According to Cox, “[h]egemony in the international level is … not merely an order among states… . World hegemony is describable as a social, … an economic, … and a political structure… . World hegemony … is expressed in universal norms, institutions and mechanisms which lay down general rules of behavior for states and for those forces of civil society that act across national boundaries—rules which support the dominant mode of production.” Cox, Robert, Gramsci, Hegemony and International Relations: An Essay in Method , in Gramsci, Historical Materialism and International Relations 49, 61–62 (Gill, Stephen ed., 1993). See generally Bates, Thomas R., Gramsci and the Theory of Hegemony , 36 J. Hist. of Ideas 351 (1975); Litowitz, Douglas, Gramsci, Hegemony and the Law , 2000 BYU L. Rev. 515 (2000); Bieler, Andreas & Morton, Adam David, A Critical Theory Route to Hegemony, World Order and Historical Change: Neo-Gramscian Perspectives in International Relations , 82 Capital & Class 85–113 (2004).
178 Mattei, Ugo, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance , 10 In. J. Glob. Legal Stud. 383, 385 (2003). He goes on to observe that “[w]hile in the ages of colonialism such political battles for international hegemony were mostly carried on with an open use of force and political violence (in such a way that final extensive conflict between superpowers was unavoidable), in the age of globalization and of economic Empire, political violence has been transformed into legal violence.” Id. at 386–87.
179 Id. at 385.
181 See Chimni, B. S., International Institutions Today: An Imperial Global State in the Making , 15 Eur. J. Int'l L. 1 (2004).
182 Baker, Customary International Law: A Reconceptualization, supra note 12, at 446–47.
183 As Guzman observes: “Once one recognizes that practice is not itself a requirement for the existence of a rule of CIL capable of influencing states, the proper way to interpret practice becomes clear. If practice is used to demonstrate the existence of opinio juris, then one should obviously give greater weight to practice that sheds greater light on opinio juris. So explicit state action that seems contrary to the short-term interests of the state and that is accompanied by a claim that the state is acting in compliance with a CIL obligation would represent strong evidence of opinio juris.” Guzman, supra note 12, at 203.
184 José E. Alvarez, Is the Trans-Pacific Partnership's Investment Chapter the New “Gold Standard”?, at 19 (IILJ Working Paper 2016/3), available at http://www.iilj.org/publications/1887.
185 The text of the World Bank's Guidelines on Treatment of Foreign Direct Investment is available at https://www.italaw.com/documents/WorldBank.pdf.
186 See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994), available at https://www.wto.org/english/docs_e/legal_e/03-fa_e.htm.
187 UNCTAD, Bilateral Investment Treaties 1959–1999, at iii (2000), available at http://unctad.org/en/docs/poiteiiad2.en.pdf.
188 Kill, Theodore, Don't Cross the Streams: Past and Present Overstatement of Customary International Law in Connection with Conventional Fair and Equitable Treatment Obligations , 106 Mich. L. Rev. 853, 858 (2008). On the ITO Charter being the first enunciation of the principle, see also OECD, Fair and Equitable Standard in International Investment Law, available at http://www.oecd.org/daf/inv/investment-policy/WP-2004_3.pdf.
189 Id. at 867.
190 Id. at 858.
191 Alvarez, supra note 184, at 19–20 (emphasis added).
192 Sornarajah, M., The International Law of Foreign Investment 349 (3d ed. 2010). He cites Vasciannie as observing in 1999, that “the pronounced reliance on the fair and equitable standard in treaties has not been matched by judicial consideration of the meaning of the standard in particular cases.” Id. at 349–50.
193 Kill, supra note 188, at 877.
194 Id. at 871.
195 Id. at 880. Under the circumstances, what is one to make of Article 9.6., Section 1 of the Trans-Pacific Partnership which, inter alia, reads: “Each Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security.”
196 Parlett, Kate, Claims Under Customary International Law in ICSID Arbitration , 31 ICSID Rev. 434 (2016). It has been observed by another researcher: “The view that is taken on the relationship between treaty and custom; on the applicability of rules of customary international law within the treaty framework and on the content of customary investment law is capable of having a crucial effect on the outcome of particular disputes… . If the gold of custom is really capable of being made out of the base metal of treaty practice, it holds out the prospect that it may bind States where no treaty applies.” McLachlan, Campbell, Is There an Evolving Customary International Law on Investment? , 31 ICSID Rev. 257, 258 (2016).
197 The India Model Bilateral Investment Treaty (2015), available at https://www.mygov.in/sites/default/files/master_image/Model%20Text%20for%20the%20Indian%20Bilateral%20Investment%20Treaty.pdf. For observations on an earlier draft that captures most of the changes made in the final draft, see Grant Hannesian & Duggal, Kabir, The 2015 Indian Model BIT: Is This the Change the World Wishes to See? , 30 ICSID Rev. 729–40 (2015).
198 Reisman, supra note 136, at 622.
200 Id. at 623.
201 Sornarajah, supra note 192, at 335.
202 Earlier “arbitral tribunals had independently created ‘law’ through their awards asserting the existence of an international minimum standard of treatment of aliens, including foreign investors.” Id. at 334. What is more, critics point out that: “a reference to FET provides an imprecise right to foreign investors that simultaneously provides little guidance to state regulators, delegates considerable ‘law-making’ power to creative investor claimants and arbitrators, and enables foreigners to claim protections not available to national investors under national law.” Alvarez, supra note 184, at 20. For possible interpretations of the FET clause, see Alvarez, id. at 20.
203 See generally Chimni, B. S., Prolegomena to a Class Approach to International Law , 21 Eur. J. Int'l L. 57 (2010).
204 Carty, Anthony, Scandinavian Realism and Phenomenological Approaches to Statehood and General Custom in International Law , 14 Eur. J. Int'l L. 817 (2003).
205 Id. at 831. His view that “formal logic is the logic of a simplified, abstract world, incapable of expressing the reality of actual social movement” is also entirely appropriate. Id. at 832.
206 One problem is that of “conceptual stretching.” Baker explains: “customary international law suffers from a heavily state centric bias that fails to take into account the very real effects non-state forces, such as norm-generating transnational actors, have on the international system. The attempt of ‘modern custom’ to de-emphasize state practice in favor of opinio juris can perhaps be seen then as a way to broaden the array of actors that contribute to the development of international norms but, shackled to the state-centric biases of international legal theory, ‘conceptual stretching’ has been the only result.” Baker, Customary International Law: A Reconceptualization, supra note 12, at 456–57.
207 More generally, as the French thinker Michel Foucault pointed out, “where there is power, there is resistance.” Foucault, Michel, History of Sexuality Vol 1: An Introduction 95 (1990) (emphasis added).
208 See supra note 51.
209 On the question of nationalization and expropriation of property Article 2(2)(c) stated:
Each State has the right: …
To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.
G.A. Res. 3281 (XXIX), Charter of Economic Rights and Duties of States (Dec. 12, 1974).
210 Schachter, Oscar, Compensation for Expropriation , 78 AJIL 121, 123 (1984).
211 Brownlie, Ian, Control of Major Natural Resources, 255 Recueil des Cours 141, 150 (1995).
212 There is no attempt made in this article to bring in the factor of capital exporting countries from the Global South (such as China and India) as it does not affect the basic argument.
213 Schwebel, Stephen M., The Influence of Bilateral Investment Treaties on Customary International Law , 98 ASIL Proc. 27 (2004).
214 According to Alvarez, “While references to ‘fair and equitable treatment’ date back centuries, that guarantee did not receive sustained attention from adjudicators until investor-state claims began being heard in significant numbers starting in the late 1990s. Today, with some 600 investor-state arbitral claims either being heard or already decided, this provision has drawn prominent attention at the highest levels of government.” Alvarez, supra note 184, at 19–20. According to Subedi, the “[v]iolation of the fair and equitable treatment principle by the host state concerned is the most common allegation made by foreign investors before international investment tribunals.” Subedi, Surya P., International Investment Law: Reconciling Policy and Principle 63 (2008).
215 Alvarez writes: “Reference to FET as such does not have a single core meaning. The meaning and scope of this guarantee varies depending on the treaty text, including the context of the provision, the negotiating history of the particular treaty and all the other factors authorized under the traditional rules for treaty interpretation.” Alvarez, supra note 184, at 22. See also Subedi, supra note 214, at 64–66.
216 See generally Streeck, Wolfgang, How Will Capitalism End? (2016); The Great Credit Crash (Konings, Martin ed., 2010); Robinson, William I., Global Capitalism and the Crisis of Humanity (2014).
217 For some basic principles that could inform a post-capitalist order, see Chimni, supra note 17, at 543–50.
218 Sornarajah, supra note 192, at 176.
219 Id. at 334.
220 Andrew Hurrell, Comments on Chapters 10 and 11, in United States Hegemony and the Foundations of International Law, supra note 58, at 353, 352–56 (emphasis added).
221 In other words, “the role of ‘cultural’ and ‘ideational’ considerations” is critical. As Toope aptly adds, “interests are not exogenous variables at all. They are often deeply affected by the construction of a State's identity, a construction that itself can shift over time.” Toope, supra note 58 at 305, 314. Gill rightly observes that “in international studies the Gramscian approach is an epistemological and ontological critique of the empiricism and positivism which underpin the prevailing theorizations.” Stephen Gill, Epistemology, Ontology and the “Italian School,” in Gramsci, Historical Materialism and International Relations, supra note 177, at 21, 22.
222 As Roberts observes, “[l]ower standard of practice may be tolerated for customs with a strong moral content because violations of ideal standards are expected.” Roberts, supra note 14, at 790.
223 It is possible that rules crucial to the workings of the international system may come to be incorporated in both CIL and treaty law. An instance is the rule relating to the prohibition of the threat or use of force that is fundamental to the stability of the global capitalist system and is part of both CIL and the Charter of the United Nations.
224 Scharf, Michael P., Seizing the “Grotian Moment”: Accelerated Formation of Customary International Law in Times of Fundamental Change , 43 Cornell J. Int'l. L 439, 444 (2010). He however confines the idea of “transformative development” or “Grotian moment” to major developments in a particular phase of international relations. He does not think of it in terms of systemic change as was intended in the original use of the term by Richard Falk—the reference being to the transition from feudalism to capitalism. Scharf writes: “[I]n periods of extraordinary change, whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, a concept that rationalizes accelerated formation of customary rules is required if international law is to keep pace with such developments. Unlike the oft criticized notion of ‘instant customary international law,’ the concept of ‘Grotian Moment’ does not do away with the requirement of state practice or rely solely on General Assembly resolutions; rather, the ‘Grotian Moment’ minimizes the extent and duration of the state practice that is necessary during such transformative times, provided there is an especially clear and widespread expression of opinio juris.” Id. at 467–68. Scharf himself cites Richard Falk who first used the term “Grotian Moment” to mean: “a period in world history that seems analogous at least to the end of European feudalism … when new norms, procedures, and institutions had to be devised to cope with the then decline of the Church and the emergence of the secular state.” Id. at 444. See Falk, Richard, The Grotian Quest , in International Law: A Contemporary Perspective 36 (Falk, Richard, Kratchwil, Friedrich & Mendolovitz, Saul H. eds., 1985).
225 Bodansky, Daniel, Customary (And Not So Customary) International Environmental Law , 3 In. J. Glob. Legal Stud. 105, 115 (1995).
226 Lillich, supra note 32.
227 This is true even of the advanced capitalist nations themselves. See Pikkety, Thomas, Capital in the Twenty-First Century (2014); Stiglitz, Joseph, The Great Divide: Unequal Societies and What We Can Do About Them (2015); World Inequality Lab, World Inequality Report (2018), available at http://wir2018.wid.world/files/download/wir2018-full-report-english.pdf.
228 Chimni, B.S., Sovereignty, Rights and Armed Intervention , in Faultlines of International Legitimacy 303 (Charlesworth, Hilary & Coicaud, Jean-Marc eds., 2010).
229 Postema, G. J., Custom, Normative Practice, and the Law , 62 Duke L.J. 707, 738 (2012).
230 For the different theoretical underpinnings, see Habermas, Jurgen, Moral Consciousness and Communicative Action (1990); Habermas, Jurgen, Theory of Communicative Action, Vol. I (1984); Ackerman, Bruce, Social Justice in the Liberal State (1980); Postema, G. J., Public Practical Reason: Political Practice , in NOMOS XXXVII: Theory and Practice 345–85 (Shapiro, Ian & Wagner, Judith eds., 1995).
231 See Galindo & Yip, supra note 18, at 260.
232 Judge Cançado Trindade's Dissenting Opinion is available at http://www.icj-cij.org/files/case-related/158/19146.pdf.
233 Article VI of the Nuclear Non-proliferation Treaty, 1968 states:
Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.
The text of NPT treaty is available at https://www.iaea.org/sites/default/files/publications/documents/infcircs/1970/infcirc140.pdf.
234 Dissenting Opinion, supra note 232, para. 150 (emphasis added).
235 Id., para. 119 (emphasis added).
236 Id., para. 303.
237 Id., para. 304.
238 Id., para. 328. Judge Cançado Trindade recalled that in the ICJ's 1986 Advisory Opinion on the Threat or Use of Nuclear Weapons, the Court acknowledged that: “General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character.” Id., para. 87. Judge Cançado Trindade undertook an extensive review of relevant UN General Assembly (UNGA) and UN Security Council (UNSC) resolutions and submitted that these “provide significant elements of the emergence of an opinio juris, in support of the gradual formation of an obligation of customary international law, corresponding to the conventional obligation under Article VI of the NPT.” See id., para. 65 He emphasized that “the fact that the Security Council calls upon all States, and not only States Parties to the NPT, to pursue negotiations towards nuclear disarmament in good faith (or to join the NPT State Parties in this endeavour) is significant. It is an indication that the obligation is incumbent on all U.N. member States, irrespectively of their being or not Parties to the NPT.” See id.
239 Id., para. 305.
240 Id., para. 77.
241 The text of the Treaty on the Prohibition of Nuclear Weapons, 2017 is available at http://www.icanw.org/wp-content/uploads/2017/07/TPNW-English1.pdf. See also Claire Mills & Lauren Culpin, A Treaty on the Prohibition of Nuclear Weapons (House of Commons Briefing Paper Number 7986, July 11, 2017). They note that “the nuclear weapon states refused to participate in the talks labeling them [the Open-Ended Working Group] ‘divisive’ and lacking ‘the vital components that would guarantee both a meaningful collaboration and a productive outcome.’” Id. at 1–2.
242 The resolution of international organizations, as Judge Bedjaoui notes, “holds a real attraction for the countries of the Third World because of its flexibility, its rapidity and the security it gives [third world] countries through their control of the technique as a result of their numbers.” Bedjaoui, supra note 24, at 140.
243 ILA Final Report, supra note 2, at 55 (emphasis added).
244 ILA Final Report, supra note 2, at 61.
245 Id. at 62.
246 This would be made possible by Draft Conclusions 12(2) and (3) that read:
2. A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development.
3. A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris).
Draft Conclusions, supra note 3, at 4.
247 Id. at 61.
248 Charnowitz, Steve, Non-governmental Organizations and International Law , 100 AJIL 348 (2006).
249 Draft Conclusions, supra note 3, at 2.
250 Gunning, supra note 32, at 213.
251 Reisman, supra note 136, at 616. See generally Pedraza-Farina, Laura, Conceptions of Civil Society in International Lawmaking and Implementation: A Theoretical Framework , 34 Mich. J. Int'l L. 605 (2013); Woodward, Barbara K., Global Civil Society in International Law Making and Global Governance: Theory and Practice (2010).
252 Reisman, supra note 136, at 619. But Reisman does not explain why the ILA did the same. The reasons go deeper and lie in the use of the positivist method.
255 Id. at 620.
256 Tasioulas, supra note 99, at 328.
257 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Second Phase), Separate Opinion of Judge Ammoun, 1970 ICJ Rep. 286–334 (Feb. 5, 1970).
258 Id. at 298.
259 Gerald J. Postema, Custom in International Law: A Normative Practice Account, in The Nature of Customary Law, supra note 99, at 279, 300.
260 Tasioulas, supra note 99, at 324. He goes on to explain: “This is because how much state practice and opinio juris is needed to establish a customary norm, and in what proportion, depends in crucial part on an evaluation of the content of the putative norm… . The exact nature of the ‘trade off’ between state practice and opino juris will depend on a judgment about the efficacy of the putative norm in achieving the goals of international law (peace, human rights, environmental protection and so on) in a legitimate manner.” Id. at 325 (emphasis added).
261 ILA Report, supra note 2, at 33.
262 “By nature [CIL] has always been anti-democratic.” Bedjaoui, supra note 24, at 135. See also Galindo & Yip, supra note 18, at 269.
I would like to profusely thank the anonymous reviewers whose perceptive and constructive comments greatly helped improve the article. Needless to add, I alone am responsible for the errors and infelicities.
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