Skip to main content
×
×
Home

Revolution by Customary International Law?

  • J. Patrick Kelly (a1)
Extract

B.S. Chimni's Customary International Law: A Third World Perspective announces a provocative normative approach to customary international law (CIL) designed to develop progressive norms by deemphasizing state practice and promoting deliberative reasoning as the basis for opinio juris rather than the general acceptance of states. Many of his historical concerns are compelling: the unfairness and dubious validity of the persistent objector principle, the lack of access and attention to non-European state practice, and the questionable legitimacy of CIL norms developed without the participation of a majority of states or their consent. While Chimni makes a compelling case for the problematic origins of much of CIL, his approach to reform raises serious legitimacy and practical questions that undermine the viability of his proposed solution. Problems such as extreme poverty, environmental degradation, and nuclear weapons are best resolved through democratic political institutions rather than weak and undemocratic international tribunals. I will analyze Chimni's approach first as a theory of customary law and then as a theory of the role of international tribunals. Finally, I will raise concerns about his normative goals.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Revolution by Customary International Law?
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Revolution by Customary International Law?
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Revolution by Customary International Law?
      Available formats
      ×
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
Hide All

2 See Kenneth Anderson & David Rieff, Global Civil Society: A Skeptical View, in Global Civil Society (Helmut K. Anheier, Mary Kaldor & Marlies Glasius eds., 2005).

4 Fernando R. Teson, Fake Custom, in Reexamining Customary International Law (Brian D. Lepard ed., 2017).

6 J. Patrick Kelly, Customary International Law in Historical Context, in Reexamining Customary International Law, supra note 4.

7 I use natural law in the broad sense of law extrinsic to positive sources of law and accessible by human reason, whether characterized as based on human nature or a universal juridical conscience.

9 Francisci de Victoria, De Indis et Di Ivre Belli Rellectiones 151–55 (Ernest Nys ed., 1917).

10 See James Thuo Gathii, War, Commerce and International Law 145–90 (2010).

13 Kelly, supra note 6, at 74–78.

14 See Chimni, supra note 1, at nn.16–17.

15 Two recent books are particularly persuasive on world economic progress. See Steven Pinker, Enlightenment Now: The Case for Reason, Science, Humanism and Progress (2018); Hans Roling, Factfulness: Ten Reasons We're Wrong About the World—and Why Things are better Than You Think 53–56 (2018).

16 Roling, supra note 15, at 52–53.

17 Id. at 53.

18 Id. at 53–56.

19 Pinker, supra note 15, at 62–67.

20 Id. at 97–120, particularly 104–05.

21 The number of people in the working middle-class in developing countries nearly tripled from 1991 to 2015. United Nations, Millennium Development Goals Report 4 (2015).

22 Michael Spence, Globalization and Unemployment, Foreign Aff. 23 (July/Aug. 2011).

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed