Revolution by Customary International Law?

Abstract

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.