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The Need to be Rid of the Idea of General Customary Law

  • Anthony Carty (a1)
Extract

B.S. Chimni's study of customary international law (CIL) is a review of its role both as a supporter of the existing global capitalist order and as a potential instrument to challenge that order in favor of a postmodern deliberative reasoning as the shaper of a new CIL. It has been my view, since the The Decay of International Law? in 1986, that general customary international law is not an intelligible concept and not actually used in practice to demonstrate empirically the existence of any rule of law. I follow Hans Morgenthau, who wrote in 1940 in the American Journal of International Law that the manner in which the International Court of Justice (ICJ) uses this concept is to decide what it likes and call it customary law. I reiterated this view in my review of the ICJ in the first edition of my Philosophy of International Law in 2007. While Chimni quotes my writings on general custom frequently and very positively in his article, this is always to support a progressive customary law and never to do what I would propose, which is to make a complete break with CIL in favor of an independent approach to the problems it is supposed to answer.

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Copyright
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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2 Anthony Carty, The Decay of International Law? A Reappraisal of the Limits of Legal Imagination in International Affairs (1986).

3 Hans J. Morganthau, Positivism, Functionalism, and International Law, 34 AJIL 260, 265–66 (1940).

4 Anthony Carty, Philosophy of International Law 26–49 (2007).

5 Chimni, supra note 1, at 7, 16.

6 Id. at 17.

7 Carty, supra note 2, at 30–35; Anthony Carty, Philosophy of International Law 35–43 (2d ed. 2017) [hereinafter Carty, Philosophy].

8 Carty, Philosophy, supra note 7, at 41.

9 Chimni, supra note 1 at 20.

10 Id. at 30.

11 Id. at 20.

12 Id. at 37–43.

13 Id.

14 Id. at 27.

15 Id. at 20.

16 Id. at 45.

18 Here he can align himself with Roberts, Postema, and Tasioulas. Chimni, supra note 1, at 36, 38, 43.

19 Id. at 5 (citing Goldsmith and Posner, among other realists).

20 Id. at 15.

21 See Clive Parry, Sources and Evidences of International Law 67–68 (1965).

22 See, for instance, Chimni's description of Talmon's critique of international jurisprudence. Chimni, supra note 1, at 26.

23 There is a need for new frames of analysis to explore the normative experience of international society. See Carty, Philosophy, supra note 7, at 50–51.

24 See Chimni, supra note 17, at 477–78.

25 Chimni, supra note 1, at 19–20.

26 Chimni, supra note 17, at 493–94.

27 Carty, Philosophy, supra note 7, at 251–52.

28 Id. at 286.

29 See his excellent critique of financial globalization in Chimni, supra note 17, at 509–15.

30 Carty, Philosophy, supra note 7, at 251–52, 257.

31 Conquest never excluded the possibility of reconquest as a legal concept, so is it really a legal concept? See Carty, supra note 2, at 49, 52, 57, 61. Many jurists have doubted whether conquest was ever more than a matter of fact.

32 Carty, Philosophy, supra note 7, at 252.

33 Chimni, supra note 1, at 30–36.

34 Id. at 38–41.

35 These are among many other supposedly morally pure forces. See Chimni, supra note 17, at 499–504.

36 Chimni, supra note 1, at 38.

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