Customary International Law and the Third World: Do not step on the grass

Abstract

The article examines the recent debate between the experts of the Asian-African Legal Consultative Organization and the International Law Commission on the identification of Customary International Law in light of the marginal role that the Third World has played in customary law-making. During the decolonization period, recently independent states and their scholars were quite resistant towards customary law. This cautious stance is justified by the central role of power in the formation of customary rules. Though the doctrine of sources underwent significant reforms during this chapter, recent developments such as the acceleration of custom, the greater role of international organizations and the persistent objector doctrine have not been able to alter this undemocratic bias. Therefore, one should be aware of these limitations when engaging CIL from a Third World perspective.