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A Postmodernization of Customary International Law for the First World?

  • Jean d'Aspremont (a1)
Extract

In his recent piece in the American Journal of International Law, B.S. Chimni depicts a doctrine of customary international law that has allowed the First World to impose its domination and promote its version of global capitalist justice. From Chimni's perspective, all the gimmicks and sophisticated dichotomies invented by international lawyers to refine international customary law serve a hegemonic socialization process whereby the center imposes its neoliberal ideals on an admiring periphery. But this diagnosis is certainly not the end of the story. In fact, Chimni's dismal image of the world and the role of custom therein is meant to foreground a more central project—i.e., the reinvention of customary international law around “the progressive ideas, beliefs, and practices of the global civil society” and geared towards the promotion of the “common good.” My view is that Chimni's postmodernization of the doctrine of international customary law does not necessarily remedy the charges he levels against custom, let alone redefine the center and the periphery. As much as I share his diagnosis about custom's complicity in hegemonic socialization and the promotion of a global capitalist ethos, I contend that Chimni's postmodernization is at best unavailing and, at worse, rehabilitative of the First World's centrality in norm-setting. Instead of striving to reinvent the doctrine of custom, we must invest in strategies that draw on the malleability and fluidity of the current doctrine and facilitate the types of argumentation that “decenter” the First World, thereby directly empowering international lawyers elsewhere.

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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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2 Like Chimni, I refer to the “postmodernization” of custom as a move to redefine the doctrine of customary international law in a way that strips it of some of its modern trappings. Such usage is lacking in semantic and conceptual rigor, as I appreciate—following Jean-François Lyotard—that postmodernism is primarily a diagnosis, condition, or mindset rather than a method or an outlook. Yet, this loose and unrigorous use of “postmodernization” bears enough didactic virtues to justify a semantic sin.

3 I refer to the “First World” rather than “the West,” “capital-exporting states,” or the “Global North.” It is true that the expression “First World” carries the same unfortunate shortcuts, blind spots, and oversimplifications as the other labels. Yet, I believe the expression more explicitly acknowledges that the hegemony, global capitalist project, and neocolonial forces targeted by Chimni are not exclusively located in the West or the northern hemisphere.

4 Jean d'Aspremont, The Decay of Modern Customary International Law in Spite of Scholarly Heroism, in Global Community Y.B. Int'l L. & Juris. 9 (Giuliana Ziccardi Capaldo ed., 2015).

5 Chimni, supra note 1, at 38.

6 See Jean d'Aspremont, Customary International Law as a Dance Floor: Part II, EJIL: Talk! (Apr. 15, 2014).

7 The recent work of the International Law Commission on the identification of customary international law has confirmed this elasticity. See Int'l Law Comm'n, Identification of Customary International Law: Text of the Draft Conclusions as Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.908 (May 17, 2018).

8 One common example is the conflation of official statements with state practice. I have elaborated on this elsewhere. See Jean d'Aspremont, Customary International Law as a Dance Floor (Part I), EJIL: Talk! (Apr. 14, 2014); d'Aspremont, supra note 6.

9 Jean d'Aspremont & Makane Mbengue, Strategies of Engagement with Scientific Fact-Finding in International Adjudication, 5 J. Int'l Disp. Settlement 240 (2014).

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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