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.

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.

Images and Customary International Law, or the Destruction/Construction of International Norms through Images

Pólemos ◽  
2019 ◽  
Vol 13 (1) ◽  
pp. 25-42
Author(s):  
Annalisa Ciampi
Keyword(s):  
International Law ◽  
International Norms ◽  
Customary International Law ◽  
The Public ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
General Rules ◽  
Scope Of Application ◽  
Modern Technologies

Abstract This paper explores the power of images vis-à-vis the practice and theory of international law, with a focus on rules of customary international law, i. e. the unwritten general rules of international law, that apply to all states (as well as to non-state actors falling within their scope of application), irrespective of specific acceptance. As Sherwin writes: “We are awash in images.” States, international organizations (IOs), non-governmental organizations (NGOs), insurgents, terrorists and other groups of individuals of all sort, are in the news and our movies, on our TV screens, newspapers, internet and social media. Modern technologies, visual digital technologies, in particular, have a profound impact on the means and speed of communications across the globe and immensely facilitate the task of seeking information of all sort. In international law, images are a means for spreading knowledge about the practice of states and other actors. As with law in general, images are also found to be a valuable resource in explicating the rules of international law. They aid and clarify the analysis of international law and the determination of the existence and content of rules of customary international law. In contemporary international settings, however, modern technologies of visual representation are also a means for influencing the development of international law, i. e. the existence and content of international norms. Moreover, looking at implementation, at no time in history has there been more information available to governments and the public about violations of international norms (particularly, but not exclusively human rights violations): more and more these violations are documented through images. Yet, international law doctrines have failed so far to comprehensively assess the power of images, beyond that of a toolkit for thick cultural description – the power of narrative – and analysis. The present essay offers a contribution in this direction.

One Hundred Years of Faith: The Baltic States’ Contribution to International Justice

2020 ◽  
Vol 17 (1) ◽  
pp. 39-59
Author(s):  
Rytis Satkauskas
Keyword(s):  
International Law ◽  
World Order ◽  
International Justice ◽  
World War ◽  
The Rule Of Law ◽  
The Public ◽  
The First World War ◽  
State Behaviour ◽  
The Baltic ◽  
First World

One hundred years on from the establishment of the first World Court provides an excellent occasion to assess the evolution of International Justice and its role in setting new standards of inter-State behaviour. Faith in the rule of law and international justice in the institutionalised world order by Lithuania, Latvia and Estonia was based on the public mood in the aftermath of the First World War, as well as distinctly practical security interests. Early acceptance of the Court’s jurisdiction in turn contributed to the formation of international law with three cases and interpretation by the Court of numerous rules of international law.

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 Concept and Position of Peremptory Norms (Jus Cogens) in International Law: A Preliminary Study

2019 ◽  
Vol 5 (2) ◽  
pp. 235
Author(s):  
Irawati Handayani
Keyword(s):  
International Law ◽  
Natural Law ◽  
Order Theory ◽  
Theoretical Background ◽  
Customary International Law ◽  
The Public ◽  
Natural Law Theory ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship

Peremptory norms or jus cogens hold a unique position in international law. Unlike customary international law and treaty law, they abide no derivation and bind all states regardless of their willingness to be bound. Some scholars had elaborated fundamental theories to answer the theoretical background of jus cogens. However, they have never reached a satisfactory result. This study aims to elaborate the theoretical background of jus cogens and to observe the relationship between jus cogens, obligation erga omnes, and customary international law. The positivists recognize that jus cogens is an imperative norm within state practice and opinio juris. The positivist theory is not in line with the concept that jus cogens bound to states without their consent since every state has their sovereignty and cannot be bound by any kind of provision without consent. The proponents of the natural law theory stated that peremptory norms are inherited from the tradition of natural law so that it is the highest norm in international law that directly binds countries. On the other hand, the public order theory states that international law recognizes important (imperative) norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law. The three theories are considered insufficient to answer the philosophical basis of jus cogens. In its development, therefore, some new theories have been developed to challenge the basis of jus cogens.

scholarly journals The Dynamic Evolution of International Law – The Case for the More Purposeful Development of Customary International Law

2018 ◽  
Vol 49 (4) ◽  
pp. 561
Author(s):  
Bill Campbell
Keyword(s):  
International Law ◽  
New Technology ◽  
Islamic State ◽  
New Developments ◽  
Customary International Law ◽  
The Public ◽  
Number Of Factors ◽  
The Subject ◽  
The Law ◽  
Self Defence

A fundamental underpinning of the ongoing relevance of international law is that of its ability to adapt and change to meet new developments and challenges including new technology, new (or newly developing) threats to both the public and the international order and newly developed practices, for example trans-border corporate and taxation practices. How then to effect that change? The timely negotiation of treaties to deal with the subject matter of these new developments and challenges would be ideal but can be difficult due to a number of factors. The answer could lie in the more purposeful and expeditious development of customary international law – that is, by taking coordinated action, and by publicising that action and its legal basis.This will not result in changes to the law of the detail that might be expected in a treaty, but it could address particular issues of moment. Indeed, individual states may well see themselves as having no option but to take action to meet time sensitive and critical aspects of new developments and global challenges either alone or in concert with others with a view to the development of a more widespread custom. Initial characterisation of some such action as "illegal but justified" (or words along those lines), whilst a contradiction in terms, does at the very least point to a real need for a change in the law. An example of such purposeful action may well be the development of the customary international law of self-defence to support the use of force against non-state actors in certain circumstances – such as the force used by a number of states against the Islamic State of Iraq and the Levant (ISIL) in Syria on the basis of the collective self-defence of Iraq.

Part II The International Law Framework of Investment Protection and Political Risk, 5 History and Development of the Customary International Law of Expropriation and Investment Protection

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Historical Development ◽  
Customary International Law ◽  
The Public ◽  
Investment Protection ◽  
Public Purpose ◽  
Current State ◽  
State Practice ◽  
Full Compensation ◽  
Compensation Standard

This chapter discusses the principles of customary international law related to expropriation. It includes an overview of the historical development of the international law of expropriation, as developed in international arbitration decisions, commentators, treaties, and State practice. It also discusses the current state of the customary international law of expropriations, including the various substantive protections established in customary and conventional international law, such as the full compensation standard for expropriation, the public purpose requirement, and the prohibition against discrimination. The chapter concludes that a State may expropriate the property of aliens within its borders, but must compensate the foreigner for full value of the property taken. The primary change in the international law of expropriation since the nineteenth century is that the State may no longer use force against another State to rectify or prevent a taking of property by the host State.

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