SOAS University of London

Public International Law

Sources of International Law I

Course Convenor:
Dr Catriona Drew
e-mail: cd4@[Link]

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  International law – set of rules governing states and their relationships with
other states. Also governs international organisations e.g. UN/multinational
enterprises e.g. global businesses. Also governs individuals – limited rights
and duties under international law (human rights)
 In international law, it is individuals who are held accountable for crimes such
as genocide e.g. overall view that the state of Israel is committing genocide,
under international law, it is Netanyahu who is held accountable for Israel’s
actions.
 Non-state actors (e.g. Hamas, Hezbollah)
 Peoples are the only non-state actors in international law which have the
right to self-determination, e.g. Kosovans gaining self-determination over
Serbians, Palestinians gaining self-determination over Israel

Idea of rules as binding laws you must abide by (hard law)

Soft law –agreements, principles and declarations that are not legally binding.

Sources of international law:



Introduction to the Nature and Sources of International Law

The relevance of international law. Who ‘makes’ international law? Where does it
come from? God? Nature? A world parliament? A world court? States? Other? What
are the distinguishing features of international law compared with, say, politics or
domestic law?

Statute of the International Court of Justice 1945 (Harris, 857) (sources of

international law)

Article 38 (no moral principle, more agnostic. Fundamental underlying principle is

state consent. No one else other than states to build an international legal order.)

1 The Court, whose function is to decide in accordance with international law (not
free to make law – must apply the law) such disputes as are submitted to it, (does
not deal with disputes not admitted to it – some states will purposely not admit
cases) shall apply:

a. international conventions (treaties/international

agreements/pacts/covenants/any written agreement), whether general or particular,
establishing rules expressly recognised by the contesting states;
b. international custom (state practice. not written down – something that has
always happened), as evidence of a general practice accepted as law (accepted by
states);
c. the general principles (principles that are recognised by most legal systems such as

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innocence, etc.) of law recognised by civilised nations (states);
d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists (individuals. Judges/publicists/academics) of the
various nations, as subsidiary (supplementary – if you don’t have sources a-c you
may use it. Not binding.) means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereon.

Sources doctrine as a principal source of anxiety for international lawyers:

 Is article 38 (1) sufficiently up-to-date/comprehensive? Can you think of any

other sources that should be listed?
 Is article 38 (1) helpful? Would it on its own be sufficient for you to
determine whether a purported rule is part of international law or not? Or
do you need to resort to further rules (rules about finding the rules)?
 To what extent is international law based on the consent of States? How can
we build a system of law against the wishes of sovereign States? If you were
put in charge of designing a system of international law, would you want the
legal rules to reflect states’ behaviour – or would you want them to govern
(or restrain) state behaviour? What is the problem with each?

SOURCES:

Harris, Ch. 2

Article 38 (1) b. Statute of the International Court of Justice 1945:

international custom as evidence of a general practice accepted as law;

Questions to consider

As an international law practitioner when/why would you look for the existence of a
customary rule?
What is custom? How is it created? How do we identify customary rules?
Identifying some ‘disciplinary anxieties’ about custom.

Why bother with custom?

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Example: Amnesty International publishes its annual report alleging that Hidesoria
routinely uses the following methods of interrogation to encourage confessions from
political dissidents: hoodings/sleep deprivation/ beatings on the soles of the
feet/and electric shock therapy. Hidesoria is not a party to any human rights treaty.

 To make a legal argument instead of a moral argument, if treaties are off the
table, is to say the torture prohibition doesn’t just exist in the book of law, it
also exists in custom.
 To say Hidesoria is doing something illegal, we must refer to customs.
 A. there might not be a treaty. B, if there is a treaty, the state may not have
signed it.

What are the elements of custom? How is it created? Where do we find it? What
are the rules about customary rule formation?

Two elements of custom:

a) State practice – something states have been doing

b) Opinio juris sive necessitatis – Opinio juris (OJ) – why the state has this
practice. An opinion of law or acceptance as law. Do they think there is a sense of
law/an obligation to do specific actions. Legal reasoning. To be a customary
international law practice Whether this practice is supported by the sense of law or
legal obligation/required by law/supported or justified by law.

Once custom is developed, all states will be bind by custom.

These give rise to a number of questions that in turn have given rise to a number of
rules (rules about how to find the rules).

a) General practice (of States) -

But what amounts to a ‘practice’?
Must be uniform. Recognisably the same each time.
Asylum Case (Columbia v. Peru), ICJ Reports 1950, p. 266; Harris, 18
‘constant and uniform usage’.

How many States are required to participate in the practice?

Must be general – but need not be universal. Vast majority of states. Not
everyone (as that would give every state a veto). Most states, most of the time.
Anglo-Norwegian Fisheries Case, ICJ Reports 1951, p. 116; Harris, 327.
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark
and the Netherlands), ICJ Reports 1969, p. 3; Harris, 21.

Which States’ practice counts for custom formation? Is the practice of all
States equally weighty?
North Sea Continental Shelf Cases ICJ Reports 1969 p. 3, para.73 (Harris, 20).
‘specially-affected States’. Any state; vast majority, doesn’t matter which
states. In the north sea continental shelf case, it says you whould look at relevant

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states to the particular case (e.g. if a dispute is over a sea, only states which have a
sea)

Duration: How long must a practice have been in place?

Traditional rule: ‘Time Immemorial’.
But see: North Sea Continental Shelf Cases ICJ Reports 1969 p.3 para.73
(Harris, 21).
Can custom be ‘instant’? The more states practicing (with OJ), the quicker the
time needed.

b) Opino Juris sive Necessitatis –

What do we mean by opinio juris?

Attitude/opinion of law
In order to be the law, there must be enough states carrying out an act with
the belief that it is already the law.
Asylum Case, (Columbia v. Peru), ICJ Reports 1950, p.266; Harris, 18.
Must be: ‘constant and uniform usage, accepted as law.’
North Sea Continental Shelf Cases, ICJ Reports 1969, p.3 para.77; Harris, 20 at
22.
No assumption of opinio juris, if there is no evidence of it then it will not
become law.

Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law
requiring it … The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation … The frequency, or even
habitual character of the acts is not in itself enough (you must have OJ).
There are many international acts, e.g. in the field of ceremonial and
protocol, which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and not by any
sense of legal duty.

Where and how do we find evidence of opinio juris?

If there is a general state practice can we presume that there is also opinio
juris?
North Sea Continental Shelf Cases, ICJ Reports 1969, p.3 para. 78, Harris, 20
at 22-23
(Applying Lotus).

[t]he position is simply that in certain cases - not a great number - the States
concerned agreed to draw or did draw the boundaries concerned according
to the principle of equidistance. There is no evidence that they so acted
because they felt legally compelled ... by reason of a rule of customary law

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 obliging them to do so…

Contrast: Judge Sorenson, Dissenting Opinion, North Sea Continental Shelf

Cases, ICJ Reports 1969, p. 3; Harris, 25.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. the
United States of America) (Merits) ICJ Reports 1986 p. 148 para.207; Harris,
27

What if opinio juris is divided?

Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ
Reports 1996. p. 226 para.67; 35 ILM (1997) 809; Harris, 784

E.g. of nuclear weapons (whether it is lawful if opinion juris is divided).

Customary international law terms – Since 1945, no state has used nuclear
weapons. Must shopw that everyone not using nuclear weapons has a sense
of legal obligation to not use nuclear weapons.
To deter someone from using their nuclear weapons, you have to believe
they will/would use it.

Furthermore, the Members of the international community are profoundly

divided on the matter of whether non-recourse to nuclear weapons over the
past fifty years constitutes the expression of an opinio juris. Under these
circumstances the Court does not consider itself able to find that there is
such an opinio juris.

Some issues with custom:

i. The effect of a customary rule. Who does it bind?

a. All states are bound by customary rules/laws. Two exceptions:
Local/regional custom. Persistent Objector rule – If a state publicly
persistently objects to a rule before it becomes law then you are
not bound by it.
[Link] is the relationship between treaties and custom?
[Link] happens if there is no clear customary practice?
iv. How can we distinguish a State’s violation of international law from its
practice (contributing to custom formation).

i) The effect of a customary rule. Who does it bind?

General rule: custom is binding on all States (contrast treaties).
Two exceptions:
a) Regional or local custom
The Asylum Case, ICJ Reports 1950 p. 266, paras. 277- 278; Harris, 18.
‘American international law in general’.

The Party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the

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 other Party. The Colombian Government must prove that the rule
invoked by it is in accordance with a constant and uniform usage
practised by the States in question, and that this usage is the expression
of a right appertaining to the State granting asylum and a duty incumbent
on the territorial state’.

How many states are necessary to establish a local custom?

Rights of Passage over Indian Territory, (Merits), ICJ Reports 1960 p. 6 at 39;
Harris, at 220

...it is difficult to see why the number of States between which a local
custom may be established on the basis of a long practice must
necessarily be larger than two. The Court sees no reason why long
continued practice between two States accepted by them as regulating
their relations should not form the basis of mutual rights and obligations
between the two States…

b) The Persistent Objector rule

The Asylum Case ICJ Reports 1950 p. 266; Harris, 18

a. If a state publicly persistently objects to a rule before it becomes

law then you are not bound by it.

even if it could be supposed that ... a custom of [diplomatic asylum] existed

between Latin American States only, it could not be invoked against Peru
which, far from having by its attitude adhered to it, has, on the contrary,
repudiated it.

Anglo-Norwegian Fisheries Case (UK. v. Norway) ICJ Reports 1951, p.116;

Harris, 329.

ii) What is the relationship between treaty and custom? Can a treaty
rule ever become customary? And what would be the significance if
it did?

Treaty norms can become customary norms too. General rule is that it won’t
happen. It is not something to be done/taken lightly but it is possible.
It must be a norm e.g. genocide, torture

ILC, Draft Conclusions on Identification of Customary International Law (2018)

[A/71/10] Conclusion 11(1):

A rule set forth in a treaty may reflect a rule of customary international law if

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it is established that the treaty rule:

a) codified a rule of customary international law existing at the time when

the treaty was concluded;
b) has led to the crystallisation of a rule of customary international law that
had started to emerge prior to conclusion of the treaty’ or
c) has given rise to a general practice that is accepted as law (opinio juris)
thus generating a new rules of customary international law.

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark

and the Netherlands), ICJ Reports 1969, [Link].70-76; Harris, page 20.

Para. 71 … There is no doubt that this process is a perfectly possible one and
does from time to time occur: it constitutes indeed one of the recognised
methods by which new rules of customary international law may be formed.
At the same time this result is not lightly to be regarded as having been
attained. It is possible but it is not lightly regarded as it slightly goes against
state sovereignty.

The Test

 fundamentally norm creating character - such as could be regarded as

the basis for a general rule of law (para.72);
 widespread and representative participation in the treaty – especially by
States whose interests are specifically affected. (para.73);
 duration – short time element not itself a bar - if practice is extensive and
virtually uniform (para.74).

See further, Military and Paramilitary Activities in and Against Nicaragua (

Nicaragua v. the United States of America) (Merits), ICJ Reports 1986, p. 148
paras.182, 183, 187, 188 & 189 (Harris, 731)

Why do you think the Court stated that it is not ‘lightly’ to be regarded that
a rule has passed from treaty into custom?

Example of treaty passing into custom:

Legal Consequences of the Construction of a Wall in Palestinian Occupied

Territory, Advisory Opinion, 9th July 2004 available at <<[Link]
[Link]>>; ICJ Reports 2004, p. 136; 43 I.L.M. 1009 (2004), Harris, 604.

89. As regards international humanitarian law, the Court would first note that
Israel is not a party to the Fourth Hague Convention of 1907, to which The
Hague Regulations are annexed. The Court observes that, in the words of the

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 Convention, those Regulations were prepared “to revise the general laws and
customs of war” existing at that time. Since then, however, the International
Military Tribunal of Nuremberg has found that the “rules laid down in the
Convention were recognised by all civilised nations, and were regarded as
being declaratory of the laws and customs of war” (Judgment of the
International Military Tribunal of Nuremberg, 30 September and
1 October 1946, p. 65). The Court itself reached the same conclusion when
examining the rights and duties of belligerents in their conduct of military
operations (Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996 (I), p. 256, para.75). The Court considers that
the provisions of the Hague Regulations have become part of customary law,
as is in fact recognized by all the participants in the proceedings before the
Court.

iii) What happens if there is no clear customary (or treaty) rule prohibiting
state action?
The default position or the ‘Lotus Presumption’.
The Lotus Case (France v. Turkey), PCIJ Reports, Series A. No. 10 (1927)
(Harris, 226).

Do we need a rule that tells us we can’t do something? If we can’t find one,

does that mean we can do it?
French boat crashed into Turkish boat. Turks took French captain and put him
on trial. France tried to look for a rule saying that was unlawful but couldn’t
find one.
One argument (French) – In the absence of the rule, you must prove there is
a positive rule and if you can’t then you can’t do it.
Other (Turkish) argument – States are sovereign, there is no rule and so we
can do what we like until you show us a law that says we can’t.

International law governs relations between independent States. The rules of

law binding upon States therefore emanate from their own free will as
expressed in conventions (treaties) or by usages (practice/custom) generally
accepted as expressing principles of law…. Restrictions upon the
independence of States cannot therefore be presumed. (emphasis added)

Unless you find a rule that says Turkey can’t put the French captain on trial, they are
free to do it.

iv) How can we distinguish violations of international law from new practice
contributing to custom formation? [NB: we will revisit this issue when we
come to look at the legal basis for the use of force in Iraq towards the end
of the course].

Problem: According to reports of Amnesty International more than 130 states

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 practise torture. Could it be argued that there is a State practice in favour of
torture? Or could it be argued that at the very least there is no rule
prohibiting torture as lots of states do it. In other words, could the practice of
130 States serve to undermine the international law prohibition on torture?

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. the

United States of America), (Merits), ICJ Reports 1986 p. 14 at p. 98 para.186;
Harris, 731.

The Court does not consider that for a rule to be established as customary the
corresponding practice must be in absolutely rigorous conformity with the rule. In
order to deduce the existence of the customary rules the court deems it sufficient
that the conduct of states should in general be consistent with such rules and that
instances of state conduct inconsistent with a given rule should generally have been
treated as breaches of that rule not as an indication of the recognition of a new rule.
If a state acts in a way prima facie incompatible with a recognised rule but defends
its conduct by appealing to exceptions or justifications contained within the rule
itself then whether or not the state’s conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken the rule. (emphasis
added)

The authority of law in international law is based on what states do/their behaviour
whereas English law’s authority is not based on behaviour.
If youre trying to justify or hide the fact that you are breaking a rule, you are still
trying to fit in the rule in some way meaning there is opinio juris as there is a
sense that there is a rule that must be followed, even if you are not following
it

Class Thought exercise: Torture

Tutorial

1. a.) A series of General Assembly resolutions stretching from 1982 to the

present day:
While General Assembly (GA) resolutions are not binding, they can contribute
to evidence of customary international law if they reflect widespread state
practice and are adopted with the belief that states are legally obligated to
follow them (opinio juris). A series of resolutions over time could indicate a
pattern of state practice and opinio juris, so this may be relevant to your
case, depending on the content and context of the resolutions.
2. b.) Basic principles of natural justice and equity:
Principles of natural justice and equity, while important in legal reasoning, are
not sufficient on their own to establish customary international law. Customary
international law requires evidence of consistent state practice and opinio juris.

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 However, these principles may guide the interpretation of customary law but are
not a direct source.
3. A Security Council resolution adopted under Chapter VII of the United
Nations Charter:
Security Council (SC) resolutions under Chapter VII are
binding on all UN member states, but they do not
directly form part of customary international law.
However, such resolutions could influence state
practice or demonstrate opinio juris, especially if widely
followed. This resolution might provide evidence
supporting the existence of customary law but is not,
on its own, customary international law.
4. A decision of the International Criminal Tribunal for the former
Yugoslavia (ICTY):
Decisions of international tribunals, like the ICTY, can
help interpret and apply customary international law,
but they are not themselves a source of custom. They
may, however, reflect how customary law is
understood or confirm the existence of a rule based on
previous state practice and opinio juris.
5.  A single General Assembly resolution unanimously adopted last week:
A single GA resolution, even if adopted unanimously, does not establish
customary international law by itself. Customary law requires consistent state
practice over time. However, if this resolution reflects a long-standing belief
and practice, it could be used as part of the argument that custom exists.
6. A provision of a treaty to which Utopia is a party but Militaria is not:
A treaty provision is binding only on the parties to the
treaty, not on non-parties like Militaria. However, if the
treaty provision reflects a broader customary rule
followed by states, including Militaria, it could be used
as evidence of customary law.

In preparing Utopia's case, the most relevant sources for

customary international law would likely be the series of General
Assembly resolutions stretching from 1982 to the present day (if they reflect
widespread state practice and opinio juris), potentially
supported by the Security Council resolution (depending on how it
has been followed by states) and the decision of the ICTY (if it
reflects customary law). The other sources are less directly
applicable to establishing custom but may still provide
useful context or supporting arguments.

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QUESTION 2

Key Information:

1. Dystopia has signed but not ratified the United Nations Convention
against Torture (UNCAT).
2. Dystopia is not a party to any human rights treaty.
3. Reports suggest routine use of torture by Dystopian police.

The key question is whether Dystopia has violated any

international legal obligations despite not being a party to
specific treaties like UNCAT or other human rights
conventions.

1. Dystopia isn’t a party to a human rights treaty and has

not ratified (confirmed) the UN Convention against
Torture. This means it has intent to be bound but has
not yet accepted its legal obligations so it isn’t bound
yet It is also not a party to any human rights treaty.
a. It is not yet bound by the treaty and so isn’t
breaching it.
2. Custom - The prohibition of torture is widely recognized as part
of customary international law. Customary international law binds all states,
regardless of whether they have ratified specific treaties. Torture is considered
a violation of jus cogens norms, which are peremptory norms of international
law from which no derogation is permitted.

 Since the prohibition of torture is a jus cogens norm, Dystopia would be in

breach of its international obligations even if it is not party to any human
rights treaties. The routine use of torture during police interrogations would
violate this fundamental principle.

2B

The **Nicaragua case (1986, ICJ)** offers critical insight into the question of
whether widespread state violations of an international law rule (such as the
prohibition of torture) undermine the existence of the rule. In this case, the
**International Court of Justice (ICJ)** clarified that **contrary state practice does
not invalidate a customary international law norm** if **opinio juris** (the belief
that a practice is legally required or prohibited) persists.

### Applying the **Nicaragua** judgment to torture and customary law:

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1. **Contrary State Practice**:

Even though **more than 130 states engage in torture**, this does not mean there is
insufficient practice to ground a **customary international law** prohibition against
torture. The **Nicaragua case** shows that widespread violations of a norm do not
negate its existence as long as states continue to recognize that the norm exists as a
legal obligation.

2. **Opinio Juris and Customary Law**:

In the Nicaragua case, the ICJ emphasized that violations of international law rules
do not undermine those rules if the violating states **acknowledge the rule's legal
authority**. Even when states practice torture, they often do not claim that torture is
legal. Instead, they deny committing torture, hide it, or justify it under national
security or extreme circumstances, which reinforces the existence of **opinio juris**
that torture is prohibited. This mirrors the ICJ's reasoning in Nicaragua: breaches of
international law, when combined with states’ recognition of their illegality, do not
invalidate the law itself.

3. **Jus Cogens Norms**:

The **prohibition of torture** is considered a **jus cogens norm**—a peremptory

norm of international law from which no derogation is permitted. Jus cogens norms
hold the highest authority in international law, and no state can opt out of them. The
ICJ recognized that customary international law can coexist with treaty law and that
violations of jus cogens norms like torture do not invalidate the norm itself.

### **The "Ticking Bomb" Debate**:

The **"ticking bomb"** argument, which proposes that torture could be justified in
extreme situations to prevent imminent harm, has been debated in legal and moral
circles. However, from an international legal standpoint, the **prohibition of torture
remains absolute**. Under both customary international law and treaties like the
**United Nations Convention against Torture (UNCAT)**, torture is prohibited
**under all circumstances**, including emergencies or national security concerns.

Thus, the existence of debates about legalizing torture in extreme scenarios like the
"ticking bomb" does not undermine the **international law rule** that torture is
illegal. International law’s position on torture, as reinforced by customary law,
remains clear and non-derogable.

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### Conclusion:

Based on the reasoning from the **Nicaragua case**, even widespread state practice
contrary to the prohibition of torture does not undermine the existence of the
customary international law prohibition on torture, because states generally do not
claim that torture is lawful (thus maintaining opinio juris). Additionally, the
prohibition of torture is a jus cogens norm, which further strengthens its standing in
international law【12†source】.

QUESTION 3

The question of whether **customary international law**

(CIL) is outdated in a world facing **non-state actors**, the
**climate crisis**, **nuclear weapons**, and **artificial
intelligence (AI)** is a nuanced one. While CIL remains an
important tool in creating international legal obligations, it
faces significant challenges in addressing these modern
issues effectively. Here's a breakdown of the arguments:

### 1. **Strengths of Customary International Law**:

CIL is built on the general practice of states accepted as law

(**opinio juris**), and it has proven to be a flexible and
evolving source of international law over centuries. For
example:

- **Human rights law**, including the prohibition of torture

and slavery, has developed through CIL.

- **Environmental protections** and certain **humanitarian

principles** have been established and reinforced via
customary rules.

However, in addressing new and emerging challenges, there

are limitations:

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### 2. **Non-State Actors**:

CIL traditionally focuses on **state practice** and the

behavior of **sovereign states**. In today's world, **non-
state actors**—such as terrorist groups, multinational
corporations, and insurgent movements—play increasingly
important roles in global affairs.

- **Challenge**: CIL struggles to apply to non-state actors,

as it relies on state practice to create obligations. For
instance, how can international law effectively regulate
transnational tech companies developing AI, or non-state
militant groups possessing nuclear materials? These actors
are not bound by treaties in the same way as states.

- **Solution?**: There has been movement in recognizing

non-state actors in certain international legal frameworks
(e.g., humanitarian law), but this is an area where CIL
struggles to adapt quickly.

### 3. **The Climate Crisis**:

The **climate crisis** is a complex global issue that requires

urgent cooperation. CIL has had limited success in
addressing **environmental degradation**, and its reliance
on **state practice** is a slow process, especially given the
**urgent timeframe** required to mitigate climate change.

- **Challenge**: The development of environmental law

under CIL is sluggish, and even when international norms
emerge (e.g., the "no harm" principle for transboundary
pollution), they may not have the force or specificity needed
to address climate challenges comprehensively.

- **Solution?**: Multilateral treaties like the **Paris

Agreement** offer a more direct and enforceable approach
to climate regulation than waiting for CIL to develop fully.
However, enforcing these treaties can also be a problem
when states refuse to comply.

### 4. **Nuclear Weapons**:

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Nuclear weapons present an existential threat, and while
there is a strong CIL prohibition on the **use of force** (from
**opinio juris** and treaties like the **Non-Proliferation
Treaty (NPT)**), CIL’s ability to tackle **nuclear
disarmament** and **nuclear deterrence** is limited.

- **Challenge**: Nuclear weapons states (like the U.S.,

Russia, China) may acknowledge international norms
prohibiting their use in certain circumstances, but they
maintain large arsenals under doctrines of deterrence. These
doctrines contradict emerging CIL, and nuclear weapons
states resist disarmament pressures.

- **Solution?**: CIL remains an insufficient mechanism for

ensuring disarmament or even nuclear restraint in some
regions, but it complements **treaty-based systems** (e.g.,
NPT) and helps to reinforce norms against the use of nuclear
weapons.

### 5. **Artificial Intelligence (AI)**:

AI is advancing rapidly and has the potential to disrupt

**legal, economic, and social systems** globally. CIL is ill-
equipped to regulate such technological developments:

- **Challenge**: AI development is driven largely by private

corporations and is not confined by national borders. The
pace of AI evolution far outstrips the ability of CIL to
respond. Additionally, AI governance would require norms
that reflect global consensus, but there is little precedent for
CIL on such emerging technologies.

- **Solution?**: The development of international norms for

AI will likely need to rely on **international agreements** or
even **soft law** (guidelines, frameworks) rather than CIL.
However, AI might gradually be incorporated into CIL
through repeated state practices on **autonomous
weapons**, **data rights**, and **privacy standards**,
though this process would be slow and likely reactive.

### 6. **Adaptability of Customary International Law**:

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CIL is inherently slow-moving, as it requires widespread
state practice and recognition of legal obligations, which can
take decades. While this provides stability, it is poorly suited
to respond quickly to the **fast-evolving threats** posed by
nuclear weapons, AI, and the climate crisis.

- **Limitation**: CIL is primarily backward-looking—based on

established practice—making it difficult to anticipate or
rapidly regulate emerging global challenges.

- **Potential**: While CIL has historically adapted to new

realities, relying on it to address current existential threats
might not be enough. Treaty law, international regulatory
bodies, and even **soft law approaches** may offer faster,
more targeted responses.

### Conclusion:

While **customary international law is not wholly

outdated**, it is increasingly **insufficient on its own** to
address some of the **complex global challenges** we face
today, particularly non-state actors, the climate crisis,
nuclear weapons, and AI. These issues demand **faster,
more proactive frameworks** that CIL is unlikely to develop
in a timely manner. **Multilateral treaties**, **soft law**,
and new international institutions will likely play a more
critical role in shaping the legal landscape in response to
these threats, while CIL will continue to evolve but at a
slower pace.

In sum, CIL remains relevant, but its limitations are evident

in the face of today's rapidly changing global dynamics.

QUESTION 4

In his article on **customary international law (CIL)** from a

**Third World perspective**, B.S. Chimni argues that the

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**rules governing the formation of CIL** reflect the
**dominance and hegemony of Western ideas and beliefs**
and support the interests of advanced capitalist countries.
His critique is based on several key arguments:

### 1. **Historical Link to Capitalism and Colonialism**:

Chimni posits that the development of CIL is intimately

linked to the rise, consolidation, and expansion of
**capitalism in Europe** since the 19th century. He
contends that both "traditional" and "modern" CIL have
sustained the short-term and systemic interests of global
capitalism. CIL, in its formation, has been influenced by the
needs of the **European capitalist system**, and its norms
often reflect the priorities of **Western economic, political,
and cultural orders**. This has historically enabled European
powers to assert dominance over non-Western nations,
particularly during the colonial period.

Chimni explains that the **material and formal sources** of

CIL, such as state practice and opinio juris, are identified
primarily based on **European experiences and
perspectives**. The **positivist methodology** that
separates these sources obscures the fact that CIL rules
were created within a context of **colonial dominance** and
continue to serve the interests of **capital-exporting
nations** at the expense of **Third World countries**.

### 2. **Continued Influence in the Neoliberal Era**:

Chimni argues that in the **postcolonial era**, CIL continues

to reflect **hegemonic Western ideas** that align with the
needs of **neoliberal globalization**. For example, he points
to the **Fair and Equitable Treatment (FET)** principle in
**international investment law (IIL)**, which, while framed
as part of CIL, primarily serves to protect foreign investors
from advanced capitalist countries. The rules of CIL in fields
such as **international human rights law**, **international

18
humanitarian law**, and **international environmental law**
also tend to legitimize and stabilize global capitalism.

### 3. **Marginalization of Third World Voices**:

Chimni emphasizes the **marginalization of state practice

from Third World countries** in the formation of CIL. The
lack of availability of their state practice and the dominance
of **Western scholarly opinion** means that the CIL norms
are largely shaped by the **interests of powerful capitalist
nations**. The **persistent objector** rule, which allows
powerful nations to exempt themselves from emerging CIL
norms, further reinforces the dominance of Western nations.

### How Compelling is His Critique?

Chimni’s critique is compelling in its historical analysis of

how **capitalist expansion and colonialism** influenced the
creation of CIL. His argument that the **positivist
approach** used to define CIL today obscures its **imperial
origins** is persuasive, especially given the historical role
international law has played in legitimizing colonial
expansion. The idea that CIL reflects **power dynamics**
and **economic interests** rather than an impartial
international order is well-supported by his examples in
international investment law and the marginalization of non-
Western voices.

However, the critique may appear less convincing to those

who believe that CIL has **evolved** and now addresses
global concerns beyond the **immediate interests of
capitalist countries**. For instance, CIL’s role in **human
rights law** has been seen as transformative, even if it also
serves broader systemic interests.

### What Can Be Done?

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Chimni advocates for a **"postmodern" conception of CIL**
that could contribute to the **global common good**. This
would involve greater **inclusion of Third World
perspectives** and a focus on **deliberative reasoning**
rather than merely reflecting the practices of powerful
states.

- **Resolutions from international organizations** and the

**practices of global civil society** could play a larger role in
shaping CIL, thus making it more **democratic** and
**inclusive**.

- **Reinterpreting CIL** through a **Marxist or critical lens**

could expose its role in reinforcing **global inequalities**
and help reform it to better serve **underrepresented
communities**.

### Can Anything Be Done?

It is difficult to radically transform CIL in the short term,

given the entrenched **power structures** of the
international system. However, **incremental changes**
could be achieved through the **mobilization of coalitions**
of Third World states and **progressive forces**. **Global
South scholars** and advocates could challenge the
**hegemonic narratives** that dominate international legal
scholarship, contributing to a **more pluralistic and
equitable** development of international norms.

In summary, Chimni’s critique highlights important flaws in

the existing CIL framework and provides a compelling case
for reform, though achieving such reforms would require
significant shifts in global power dynamics.

SIMPLY

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B.S. Chimni argues that the rules of **customary
international law (CIL)** are shaped by **Western ideas**
and primarily benefit **advanced capitalist countries**. His
main points are:

### 1. **Historical Link to Western Capitalism and

Colonialism**:

Chimni claims that CIL developed alongside the growth of

**capitalism in Europe** and was heavily influenced by
**colonialism**. Many of the rules of CIL were created to
protect the interests of European powers as they expanded
their influence globally. These rules were framed to support
**capital-exporting countries** (the wealthy, developed
nations) while ignoring or even harming the interests of
**colonized countries**.

Chimni argues that even though CIL is supposed to be based

on state practice and a sense of legal obligation (**opinio
juris**), it has mostly reflected the **experiences and
interests** of **Western nations**, especially during the
colonial period. This historical connection to Western
dominance has been carried forward into modern CIL.

### 2. **CIL Supports Global Capitalism Today**:

Chimni believes that CIL continues to benefit the **global

capitalist system** even in the present day. For example, in
**international investment law**, CIL rules like the **Fair and
Equitable Treatment (FET)** principle are designed to
protect **foreign investors** from rich countries when they
invest in poorer countries. Similarly, rules in areas like
**human rights** and **environmental law** may help
stabilize the **global economic system** but do not
necessarily address the deeper problems faced by **Third
World** or developing countries.

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### 3. **Exclusion of Third World Perspectives**:

Chimni points out that **state practice** from **Third World

countries** (developing nations) is often **ignored** in
forming CIL. Most of the influence comes from **Western
scholars** and legal experts, which means the laws tend to
reflect **Western interests**. Additionally, powerful
countries can use the **persistent objector** rule to opt out
of CIL rules they don’t like, further favoring the interests of
**wealthier nations**.

### How Convincing is Chimni's Argument?

Chimni’s critique is compelling because he shows how CIL

was historically shaped by **colonialism** and the
**expansion of capitalism**. He argues convincingly that CIL
still tends to reflect **Western economic interests**,
especially in areas like investment law. His point that Third
World countries have little say in shaping CIL is also
powerful, as it highlights the **unequal nature** of
international law.

However, some might argue that **CIL has evolved** over

time, particularly in areas like **human rights**, and that it
can now serve broader global interests, not just Western
powers.

### What Should Be Done?

Chimni suggests that we need a **new way of thinking about

CIL** that focuses more on the **global common good** and
includes **perspectives from the Global South**. To achieve
this:

- **International organizations** and **civil society** should

have a bigger role in shaping CIL.

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- **Scholars and activists from developing countries** need
to challenge the current system and push for more
**inclusive** and **democratic** international laws.

### Is Change Possible?

It may be hard to completely overhaul CIL because the

current system is strongly tied to **powerful Western
countries**. However, change could happen gradually
through **coalitions of developing nations** and
**progressive global movements** working together to push
for more **fair and inclusive international laws**.

In simpler terms, Chimni argues that CIL was made to serve

the **economic and political interests** of **wealthy
Western countries** during and after the colonial period, and
it still does so today. He calls for a rethinking of CIL to make
it more **fair** and representative of **all nations**, not just
the rich ones.

SUMMARY

B.S. Chimni's argument in "Customary International Law: A

Third World Perspective" critiques the development and
function of customary international law (CIL) from the
perspective of Third World countries. Chimni contends that
CIL is closely linked to the expansion of capitalism in Europe
from the 19th century, and this connection is concealed by
the distinction between "formal" and "material" sources of
law. Both "traditional" and "modern" CIL, Chimni argues,
primarily serve the interests of global capitalism, shaping
norms that benefit powerful capitalist states while
marginalizing the interests of Third World countries.

23
Chimni calls for a "postmodern" conception of CIL that
focuses on the global common good, rather than sustaining
the systemic interests of the capitalist order. He critiques
the dominance of Western legal scholarship in framing CIL,
arguing that this process has often neglected the voices and
practices of Third World states, resulting in norms that
legitimize global inequalities and sustain the capitalist
system. Ultimately, Chimni advocates for a rethinking of CIL
to address the historical injustices and to promote a more
inclusive and equitable global legal order【5†source】.

Chimni argues that the rules governing the formation of

customary international law (CIL) reflect the dominance or
hegemony of Western ideas and beliefs because these rules
were historically constructed within the context of European
capitalism and colonialism. He asserts that the principles of
CIL, particularly those related to state practice and *opinio
juris* (the belief that certain practices are legally obligatory),
emerged in the 19th century when European powers were
consolidating their capitalist systems. This context shaped
the development of CIL to serve the interests of these states
and ensure the stability and expansion of global capitalism.

Chimni identifies several ways in which CIL supports the

interests of advanced capitalist countries:

1. **Selective Use of State Practice**: The formation of CIL

relies heavily on the practice of powerful states, often
neglecting the practices and views of Third World or less
powerful nations. The lack of access to records of state
practice from Third World countries further reinforces the
dominance of Western states in defining what constitutes
"general practice."

2. **Opinio Juris and Hegemony**: Chimni critiques how

*opinio juris*, which should reflect the legal obligations
states believe they are bound to, is shaped by hegemonic

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Western values. This hegemony is evident in how Western
states and scholars promote the idea of modern CIL, which
relies more on ethical considerations and international
consensus—often aligned with capitalist and Western
priorities—rather than actual state practice.

3. **Persistent Objector Rule**: This doctrine allows powerful

Western states to opt out of emerging norms they oppose,
thereby protecting their interests and ensuring that CIL
norms unfavorable to them do not become binding.

4. **Colonial and Imperial Origins**: Chimni emphasizes that

the formal and material sources of CIL are rooted in
European cultural, economic, and political traditions. He
argues that the rules of CIL have always been linked to
sustaining the global capitalist order, with norms like *pacta
sunt servanda* (agreements must be kept) and principles of
international investment law serving to legitimize and
protect the interests of capital-exporting countries.

5. **Imposition of Norms**: In the colonial era, CIL norms

were imposed on non-European nations, reflecting the power
imbalance and Western dominance. In the post-colonial era,
Western legal and economic ideas continue to be
hegemonic, with CIL evolving to serve the systemic interests
of global capitalism under the guise of universal legal
principles.

Chimni concludes that CIL remains a tool for legitimizing the

political and economic dominance of advanced capitalist
nations and calls for a "postmodern" version of CIL that
better reflects the global common good rather than
capitalist interests【5†source】.

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