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.

A Comment on the Ways and Means of Researching Customary International Law a Half-Century after the International Law Commission's Work

1996 ◽  
Vol 24 (3) ◽  
pp. 302-309
Author(s):  
Roy M. Mersky ◽  
Jonathan Pratter
Keyword(s):  
International Law ◽  
Basic Problem ◽  
Public International Law ◽  
Customary International Law ◽  
Half Century ◽  
Material Sources ◽  
State Practice ◽  
Basic Issue ◽  
International Law Commission ◽  
Do So

As a glance at his bibliography shows, Dr. Sipkov, as well as a law librarian, was a publicist in the original sense of the term — a scholar of public, in particular public international, law. It is therefore fitting that our comment deals with a basic issue that arises at the intersection of international law and librarianship. We would like to evoke the problem of defining and then finding the “material sources” of customary international law. That means understanding, then locating, the concrete, usually documentary, materials that must be used to confirm the existence of a state practice. The consistent, generalized, though not necessarily universal, practice of states forms the objective element of a customary rule. This basic problem of international legal research is not new, but as we approach the fiftieth anniversary of the United Nations International Law Commission, it makes sense to examine it again. Developments over the last half century should help in understanding how we try currently to solve the difficulties and will do so in the future.

scholarly journals The Third United Nations Conference on the Law of the Sea: the 1976 New York Sessions

1977 ◽  
Vol 71 (2) ◽  
pp. 247-269 ◽  
Author(s):  
Bernard H. Oxman
Keyword(s):  
New York ◽  
United Nations ◽  
International Law ◽  
Customary Law ◽  
Law Of The Sea ◽  
Customary International Law ◽  
The Third ◽  
Geneva Conventions ◽  
State Practice ◽  
The Law

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

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.

Part II The Criteria for the Operation of the Persistent Objector Rule, 6 The Timeliness Criterion

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Broad Sense ◽  
Customary Law ◽  
Customary International Law ◽  
Ex Post ◽  
State Practice ◽  
Ex Post Facto ◽  
Right Of Withdrawal

This chapter analyses the last criterion for the operation of the persistent objector rule, namely, timeliness. A common feature of all mainstream understandings of the rule is that a state's objections must occur during the period where the embryonic customary law being objected to is still ‘emerging’. The chapter starts by identifying the timeless criterion in the literature and argues that state practice supports it in a broad sense. The chapter then argues that the commonly advanced justifications for the timeless criterion are unsatisfactory. The chapter then examines more pragmatic rationales. It also engages with arguments that have been made by a few commentators in support of an ex post facto right of withdrawal from customary international law. The chapter finally turns to the problems associated with actually applying the timeless criterion.

From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom

2014 ◽  
Vol 3 (2) ◽  
pp. 323-339
Author(s):  
Ole W. Pedersen
Keyword(s):  
International Law ◽  
Precautionary Principle ◽  
The Other ◽  
Customary Law ◽  
Customary International Law ◽  
The Precautionary Principle ◽  
Cross Border ◽  
Current State ◽  
State Practice ◽  
Indus Waters Treaty

AbstractThe question of what status the precautionary principle enjoys in international law has once again reared its head, most recently in the Indus Waters Treaty dispute between India and Pakistan before the Permanent Court of Arbitration. This article assesses the current state of play in respect of the precautionary principle and its status in international law. It identifies what it terms the two camps of custom – the custom camp and the no-custom camp – which find themselves on opposing sides in the debate. The article argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In so doing, the article shows that one side is guilty of ‘precaution spotting’, whereas the other ignores the implications of the ‘rule v. standard’ dialectic. These two concepts help us to understand the different claims advanced by the two camps. They also alert us to the fact that it is possible to conceptualize customary international law along two separate lines of inquiry: one lending emphasis to state practice and one relying on statements and declarations of rules. In pursuing these arguments, the article compares the precautionary principle with (other) norms of customary law, such as the ‘no-harm rule’ and the rules on cross-border environmental impact assessment, and argues that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.

The Judgement of the International Criminal Tribunal for the former Yugoslavia in the Vasiljević Case

2003 ◽  
Vol 16 (2) ◽  
pp. 321-330
Author(s):  
ELENA MARTÍN SALGADO
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Trial Chamber ◽  
Case Note ◽  
Customary Law ◽  
Former Yugoslavia ◽  
Customary International Law ◽  
State Practice ◽  
Key Aspects

This case note focuses on two key aspects of the Vasiljević Judgement. The first one is the accused's acquittal of the charge of ‘violence to life and person’ under common Article 3 for the reason that the trial chamber was not satisfied that it constituted a crime under customary international law. The second aspect is the trial chamber's analysis of state practice to identify the definition under customary law of extermination as a crime against humanity.

Part II The Relationship to Domestic Jurisdictions, 12 The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation

2015 ◽  
Author(s):  
Jacobs Dov
Keyword(s):  
International Law ◽  
Rome Statute ◽  
United Nations Security Council ◽  
Genocide Convention ◽  
Complex Relationship ◽  
State Party ◽  
Public International Law ◽  
Customary International Law ◽  
The Relationship ◽  
State Cooperation

This chapter addresses the relationship between immunities and the requirements of state cooperation in cases where the person prosecuted is a national of a non-State Party (e.g. Al Bashir). It examines the complex relationship between Articles 27 and 98 of the Rome Statute and the manner in which they comport with clearly established norms of public international law. The chapter highlights a number of possible legal avenues to circumvent the obstacle posed by immunities, which include reference to customary international law, analysis of the powers of the United Nations Security Council, and the Genocide Convention. It argues that all these solutions have a number of flaws that are difficult to overcome.

Sources in the Anti-Formalist Tradition

2018 ◽  
Author(s):  
Upendra Baxi
Keyword(s):  
International Law ◽  
Third World ◽  
Customary Law ◽  
Public International Law ◽  
The Third ◽  
The Third World

This chapter explores the dialectics of international customary law. It argues that custom is at once a sheet anchor of public international law and its rope of sand as well. The chapter discusses aspects of chapter 9, the Third World Approaches to International Law (TWAIL) contexts of ‘custom’ as the source of international law norms and standards, the jusnaturalist invocation of custom, and the idea of a ‘future’ custom. In addition, the chapter argues that much of the TWAIL thought about resistance and renewal stands to be redirected to the varieties of imperial legal positivisms. It also asks whether the UN Charter principle-and-purposes-centric perspective is a perspective more relevant to our reconceptualization of the role of custom as a source for a future international law.

scholarly journals Revolution by Customary International Law?

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 297-302
Author(s):  
J. Patrick Kelly
Keyword(s):  
International Law ◽  
Political Institutions ◽  
Customary Law ◽  
Customary International Law ◽  
General Acceptance ◽  
State Practice ◽  
International Tribunals ◽  
Deliberative Reasoning ◽  
World Perspective

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.

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.

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