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Customary Law in the Postmodern World (Dis)order

  • Andreas Paulus (a1) and Matthias Lippold (a2)
Extract

B.S. Chimni's thought-provoking article presents a welcome opportunity to reflect on both the value and the shortcomings of custom as a source in contemporary international law. Chimni convincingly identifies points of concern with respect to the representativeness of the relevant state practice and the availability of non-Western practice. His article is part of a stream of recent scholarship that examines the relationship between public international law and the so-called Third World under the label of Third World Approaches to International Law (TWAIL). The contribution, like much of the TWAIL literature, is helpful in that it reveals the biases of international law in favor of the former colonial powers and identifies the ways in which these inform the identification and interpretation of (customary) international law. Yet we do not agree with some of the premises of Chimni's critique or his suggested remedies. In particular, we would like to offer a different perspective on the importance of power, the distinction between formal and material sources, and the legitimacy of his concept of postmodern custom.

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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.
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This essay reflects only his personal views.

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References
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1 Cf. Antony Anghie & Bhupinder S. Chimni, Third World Approaches to International Law and Individual Responsibility in Internal Conflicts, 2 Chinese J. Int'l L. 77–103 (2003).

2 Brigitte Stern, Custom at the Heart of International Law, 11 Duke J. Comp. & Int'l L. 89, 90 (2001).

3 Even Kelsen's formalistic doctrine assumed as much. See Hans Kelsen, General Theory of Law and State 119 (1949).

4 Cf. Grigory Tunkin, Politics Law and Force in the Interstate System, 219 Recueil des cours 227, 260–61, 265 (1989). Regarding sovereignty as an argument for the Third World rejection of existing custom, see Mohammed Bedjaoui, Towards a New International Economic Order 135–36 (1979). On the structural, Western bias of custom, see Mohammed Bedjaoui, L'humanité en Quête de Paix et de Dévelopement (II), 325 Recueil Des Cours 408, 408–09, 410, 411, 414–15 (2006).

5 Int'l Law Comm'n, Report on the Work of its Seventieth Session, UN Doc. A/73/10, at 140 (2018) [hereinafter ILC Report 2018].

6 Id. at 142.

7 Id.

8 Fisheries (UK v. Nor.), 1951 ICJ Rep. 116, 138–39 (Dec. 18).

9 Robert Kolb, Selected Problems in the Theory of Customary International Law, 50 Neth. Int'l L. Rev. 136 (2003).

10 Cf. Thucydides, The History of the Peloponnesian War, Bk. V 294 (R. Crawley & R.C. Feetham trans., 1974).

11 Cf. Michael Byers, Custom, Power and the Power of Rules 124–26 (1999).

12 Jutta Brunnée & Stephen John Toope, Self-Defence Against Non-State Actors: Are Powerful States Willing But Unable to Change International Law?, 67 Int'l & Comp. L.Q. 263 (2018).

14 B.S. Chimni, Customary International Law: A Third World Perspective, 112 AJIL 1, 5, 45 (2018).

15 Cf. Kaliña and Lokono Peoples v. Surin., Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 309, para. 224 (Nov. 25, 2015) (addressing positive obligations to protect against human rights abuses through policies and legislation); Poblete Vilches y Otros v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 349, paras. 100–105 (Mar. 8, 2018) (addressing the direct applicability and justiciability of the International Covenant on Economic, Social and Cultural Rights and the right to health); Lagos del Campo v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 340, paras. 141–46 (Aug. 31, 2017) (stability of labor relations); Philip Alston (Special Rapporteur on Extreme Poverty and Human Rights), Report on His Mission to the United States of America, UN Doc. A/HRC/38/33/Add.1, at 4–5 (impact of tax policies on human rights).

16 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase, 1966 ICJ Rep. 6. (July 18).

17 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27).

18 Chimni, supra note 14, at 46.

19 Id. at 20.

20 Andreas Paulus, International Adjudication, in The Philosophy of International Law 223 (Samantha Besson & John Tasioulas eds., 2010).

21 Cf. Chimni, supra note 14, at 44 (“The absence of writings of postcolonial scholars contesting the divide between ‘formal’ and ‘material’ sources of CIL further reduced the possibility of supporting the claims of third world states.”).

23 Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int'l L. J. 475, 477 (2010).

26 Abdulqawi A. Yusuf, Pan-Africanism and International Law, 369 Recueil des Cours 161, 244 (2013).

27 Id. at 251.

28 Id. at 239, 255–56.

29 Chimni, supra note 14, at 6, 23–24, 44–45.

31 Kevin Jon Heller, Specially-Affected States and the Formation of Custom, 112 AJIL 243 (2018).

32 Anthea Roberts, Crimea and the South China Sea Connections and Disconnects Among Chinese, Russian and Western International Lawyers, in Comparative International Law 111–39 (Anthea Roberts et al. eds., 2018).

33 Chimni, supra note 14, at 41.

34 Id. at 43.

35 Id. at 37.

36 Cf. Alston, supra note 15, at § 17 (“[T]he persistence of extreme poverty is a political choice made by those in power.”).

37 Chimni, supra note 14, at 45.

38 For a recent example of the importance of a treaty for customary international law, see Court of Appeal, judgment of 19 July 2018, [2018] EWCA Civ 1719 (customary international immunity for special missions in a non-party state of the Convention on Special Missions of 8 December 1969, entry into force 21 June 1985, 2400 UNTS 231.

* This essay reflects only his personal views.

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