scholarly journals Customary International Law: A Third World Perspective

2018 ◽  
Vol 112 (1) ◽  
pp. 1-46 ◽  
Author(s):  
B. S. Chimni
Keyword(s):  
International Law ◽  
Common Good ◽  
Third World ◽  
Alternative Account ◽  
Short Term ◽  
Customary International Law ◽  
Material Sources ◽  
Intimate Link ◽  
And Function ◽  
World Perspective

AbstractThe 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.

scholarly journals Customary Law in the Postmodern World (Dis)order

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 308-312
Author(s):  
Andreas Paulus ◽  
Matthias Lippold
Keyword(s):  
International Law ◽  
Third World ◽  
Customary Law ◽  
Public International Law ◽  
Customary International Law ◽  
Material Sources ◽  
Recent Scholarship ◽  
State Practice ◽  
The Relationship

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.

scholarly journals “Customary International Law: A Third World Perspective”: Reflections in Light of an Approach to CIL Based on Fundamental Ethical Principles

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 303-307
Author(s):  
Brian D. Lepard
Keyword(s):  
International Law ◽  
Third World ◽  
Global Capitalism ◽  
Ethical Principles ◽  
Alternative Theory ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Customary International Law ◽  
The Third World ◽  
World Perspective

B.S. Chimni's stimulating article makes an important contribution to the burgeoning literature on customary international law (CIL) by examining CIL from the perspective of developing states, a perspective underrepresented in this literature. His article articulates well many valid points about the sociohistorical biases of CIL. At the same time, there may be reasons for more optimism than Chimni appears to possess about the ability of CIL to serve global interests, including those of the Third World. Furthermore, some of Chimni's proposals merit further refinement. In this essay I propose to evaluate the strengths and potential shortcomings of Chimni's arguments in light of an approach to CIL that I have developed that is based on fundamental ethical principles recognized in international law. After laying out an alternative theory that still has many resonances with Chimni's proposals, I discuss critically three of the key theses articulated by Chimni: First, that CIL is inherently colonialist and inconsistent with the values of Third World peoples; second, that even contemporary customary international human rights law (IHRL) is a means of furthering global capitalism to the detriment of Third World peoples; and third, that the remedy for CIL's biases lies in the creation of a “postmodern” doctrine of CIL that incorporates reference to the “juridical conscience of humankind.”

scholarly journals Decolonial CIL: TWAIL, Feminism, and an Insurgent Jurisprudence

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 313-318 ◽  
Author(s):  
Vasuki Nesiah
Keyword(s):  
International Law ◽  
First Nations ◽  
Third World ◽  
World Order ◽  
Feminist Critique ◽  
Customary International Law ◽  
The Public ◽  
Fundamental Assumption ◽  
Its Analysis ◽  
Material Sources

In advancing a Third World Approaches to International Law (TWAIL) analysis of customary international law (CIL) and its dominant doctrinal conceits, B.S. Chimni shows how the jurisprudence of custom has been co-constitutive with colonization and capitalism. He contends that CIL's most fundamental assumption—the “supposed distinction between ‘formal’ and ‘material’ sources of CIL”—privileges Western states while legitimizing CIL as a neutral and universal body of law. In dialogue with Chimni, this essay extends the conversation in two directions. First, I show that there are important resonances between Chimni's deconstruction of the distinction between “formal” and “material” sources of CIL, and a feminist critique of the public/private distinction in international law. Chimni describes his approach as postmodern. I argue that its analysis of the conceptual architecture of the dominant doctrine and its systematic exclusions is also, at its core, a feminist approach to international law. Second, and inspired by Chimni's critique, I explore insurgent jurisprudential traditions that challenge the hierarchies, inequalities, and biases in received doctrine regarding the sources of CIL. Chimni's decolonial approach acknowledges CIL's imperial past, and prepares the ground for democratizing and pluralizing sources by paying attention to a so-called opinio juris communis that incorporates the interests of those critical of, or oppressed by, the dominant world order. Building on this ground, I draw on the Panchsheel principles, first nations’ conceptions of sovereignty and citizenship, and practices of fugitive freedom by maroon communities to begin to supply content and form to a counterrepertoire of custom.

Transnational Criminal Investigations in Cyberspace: Challenges to National Sovereignty

2017 ◽  
Vol 20 (1) ◽  
pp. 239-321 ◽  
Author(s):  
Ulrich Sieber ◽  
Carl-Wendelin Neubert
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Common Good ◽  
The Internet ◽  
Future Perspectives ◽  
International Treaty ◽  
Customary International Law ◽  
Criminal Investigations ◽  
Territorial Sovereignty ◽  
Significant Obstacle

The internet has become a major place of business for criminals. Due to the properties of cyberspace, crime committed on or by means of the internet is typically transnational in nature. This poses a significant obstacle for law enforcement authorities. As a rule, transnational exercise of enforcement jurisdiction traditionally constitutes a violation of another State’s territorial sovereignty. But do the same rules apply in the ‘global cyberspace?’ This article examines the applicability of the principle of territorial sovereignty in cyberspace. It rejects solutions that treat cyberspace as a common good and argues that transborder online criminal investigations infringe the territorial sovereignty of the State where the accessed data are located. Consequently, the analysis assesses justifications for such infringements on the basis of international treaty law, customary international law, and circumstances precluding wrongfulness. For the most intricate cases of loss of location, the analysis develops a carefully delimited, new solution based on the principle of necessity. The article also sheds light on future perspectives and advocates for a ‘cooperative cyberspace’ of investigators to counterbalance the unfettered global cyberspace of perpetrators.

Third World Resistance as a Counter-hegemonic Phenomenon in Customary International Law

2020 ◽  
Vol 9 (2) ◽  
pp. 183-219
Author(s):  
Joycelin Chinwe Okubuiro
Keyword(s):  
International Law ◽  
Third World ◽  
International Affairs ◽  
Customary International Law ◽  
Post Colonial ◽  
Inclusive System ◽  
State Actors ◽  
The Third World ◽  
Western Perspective

The role of non-state actors in custom-making provokes divergent views, skewed by state practice and opinio juris and derived from a Western perspective, which promotes hegemony. This paper shines a new light on this perennial debate by presenting resistance of Third World non-state actors as a counter-hegemonic tool in the development of customary international law. It contributes to scholarship relating to non-state actors in the formation of custom from a Global South perspective by reflecting African reality. This has become relevant in the clamour for increased participation of the Third World in international affairs as post-colonial states are deemed ineffective in representing their interests. It is observed that non-state actors employ diverse mechanisms to assert their position in law-making, thereby expanding the frontiers of custom-making. This paper explores such roles by non-state actors in the development of international custom and recommends an inclusive system that accommodates these stakeholders in custom-making.

scholarly journals A Postmodernization of Customary International Law for the First World?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 293-296
Author(s):  
Jean d'Aspremont
Keyword(s):  
International Law ◽  
Common Good ◽  
Customary Law ◽  
Socialization Process ◽  
Customary International Law ◽  
Beliefs And Practices ◽  
The World ◽  
The Common ◽  
First World

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.

Internal Self-Determination in International Law: A Critical Third-World Perspective

2013 ◽  
Vol 3 (2) ◽  
pp. 305-339 ◽  
Author(s):  
Kalana SENARATNE
Keyword(s):  
International Law ◽  
Present Article ◽  
Third World ◽  
Democratic Governance ◽  
Self Determination ◽  
The West ◽  
The Third ◽  
The Third World ◽  
World Perspective

Internal self-determination is a popular dimension of self-determination in international law. Often regarded as a right to democratic governance, its early promoters were largely Western states and international lawyers. A central observation made by such promoters was that the West favoured internal self-determination while the Third World did not. The present article will argue why this is a misconception and an outdated observation today. However, having argued so, the article proceeds to develop a Third World-oriented constructive critique of internal self-determination, suggesting why the Third World should nevertheless be more critically cautious and vigilant about the promotion of internal self-determination by Western actors as a distinct and concrete right in international law.

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