C The Author 2017. Published by Oxford University Press. All rights reserved.

V
doi:10.1093/chinesejil/jmx012
....................................................................................................................................

Customary International Law

and the Third World: Do Not
Step on the Grass
George Rodrigo Bandeira Galindo* and César Yip**

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 decoloniza-
tion 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.

I. Introduction
1. A recent issue of this Journal has brought an important discussion regarding the
stance of Asian and African experts on the identification of Customary International
Law (CIL).1 The dialogue between the Asian-African Legal Consultative Organization

* Associate Professor, University of Brasilia Law School; Legal Advisor to the Ministry
of Foreign Affairs of Brazil. Contact: ggalindo@unb.br. The views expressed in this
article are the authors’ own and not those of their institutions.
** MA Cand. (University of Brasılia) and BA (University of S~ao Paulo); Diplomat at
the Ministry of Foreign Affairs of Brazil. Contact: cesaryip@gmail.com. The views
expressed in this article are the authors’ own and not those of their institutions.
1 See Sufian Jusoh, A Dialogue Between UN and AALCO Experts on Identification
of Customary International Law, 15 Chinese JIL (2016), 1-2; Sir Michael Wood,
The Present Position Within the ILC on the Topic “Identification of customary in-
ternational law”: in partial response to Sienho Yee, Report on the ILC Project on
“Identification of Customary International Law”, 15 Chinese JIL (2016), 3-15;
.................................................................................................................................................................
Cite this paper by paragraph numbers in this form: Author, Title, 16 Chinese JIL (2017), para.
2 Chinese JIL (2017)

(AALCO) experts and the International Law Commission (ILC) Special Rapporteur is
based on a “desire to change, in however small a way, the traditional weak player status
of the AALCO member States in the formation of customary international law, as a way
to protect as well as to exercise sovereignty”.2 Even though it recognizes that developing
countries are not central players in customary law-making, however, the report of the
Special Rapporteur of the AALCO Expert Group unfortunately does not question the
central assumptions or traditional interpretations regarding CIL.
2. In this article, we try to make a broader assessment of the relations between CIL
and the Third World.3 Our central argument is that the current framework of CIL is
based on an undemocratic4 law-making process, which has been shaped mostly by
powerful states to the disadvantage of the interests of developing countries. Despite be-
ing aware of this situation, the Third World has been unable to fundamentally question
or change this scenario, as shown by the AALCO Special Rapporteur’s Report.
3. In Section II, we examine the stance of recently independent states and their
publicists towards customary law during the decolonization period, between the
1950s and 1970s. Already at that time, there was a strong suspicion towards CIL as a
source of international law, especially because of its Eurocentric roots, its conservative
nature and its incompatibility with an increasingly heterogeneous international soci-
ety. Therefore, alternative approaches emerged, with an emphasis on multilateral de-
cisions taken in international organizations.
4. In Section III, we further examine how scholarship and practice regarding CIL
are biased against the interests of the Third World. It seems widely recognized that
states are treated unequally when it comes to the formation of customary norms and

Stephen Mathias, The Work of the International Law Commission on Identification

of Customary International Law: A View from the Perspective of the Office of Legal
Affairs, 15 Chinese JIL (2016), 17-31; Sienho Yee, A Reply to Sir Michael Wood’s
Response to My Report on the ILC Project, 15 Chinese JIL (2016), 33-40; Rahmat
Mohamad, Some Reflections on the International Law Commission Topic
“Identification of Customary International Law”, 15 Chinese JIL (2016), 41-46.
2 Sienho Yee, A Reply, above n.1, 34.
3 For the continuing relevance of the category of Third World, see B.S. Chimni,
Third World Approaches to International Law: A Manifesto, 8 International
Community LR (2006), 3-27; Upendra Baxi, What May the “Third World”
Expect From International Law?, 27 Third World Quarterly (2006), 713–725;
Karin Mickelson, Rhetoric and Rage: Third World Voices in International Legal
Discourse, 16 Wisconsin ILJ (1997), 353-419.
4 The concept of democracy is certainly one with a multitude of meanings not easily
traceable in all their varieties in the history of political thought. We here refer to
“undemocratic” as a process in which the more consensual elements of what is con-
sidered as democratic governance today are absent, such as, political equality, partici-
pation, inclusion, responsiveness and accountability. See Anne Peters, Dual
Democracy, in Jan Klabbers, Anne Peters, and Geir Ulfstein, The
Constitutionalization of International Law (2009), 265.
 Galindo and Yip, Customary International Law and the Third World 3

the reasons to justify this inequality can be ultimately traced to the distribution of
power in the international order.
5. Section IV evaluates how international legal theory has generally responded to
the challenges posed by the transformation of international society since the second
half of the twentieth century and the impact of these developments on the Third
World. We examine proposals for the acceleration of customary law, the increased
importance of international organizations and the persistent objector doctrine.
6. By way of conclusion, Section V tries to evidence the limits of CIL, in both its
traditional and modern approaches, to the constitution of a democratic law-making
process in international law. It is clear, therefore, that despite the importance of the
engagement of Third World states and experts in the work of the ILC, there are sev-
eral limits for the democratization of international law through CIL.5
7. The comments on this article are based on the ILC Draft Conclusions on the
identification of customary international law,6 with eventual consideration of the
amendments proposed by the Special Rapporteur in his fourth report,7 and the com-
ments in the AALCO Special Rapporteur’s Report on the same issue.8

II. Recently independent states and CIL

8. It has become common sense to characterize new states and their publicists as par-
ticularly defensive regarding their recently acquired sovereignty.9 Consequently, early
writers of the Third World tradition have generally contested, to a certain degree,

5 Some of these traits have been developed in the works of the so-called Third World
Approaches to International Law (hereinafter TWAIL). See, generally, Makau
Mutua, What is TWAIL?, 94 ASIL Proceedings (2000), 31-38; Antony Anghie and
B.S. Chimni, Third World Approaches to International Law and Individual
Responsibility in Internal Conflicts, 2 Chinese JIL (2003), 77-103; Karin
Mickelson, Taking Stock of TWAIL Histories, 10 International Community LR
(2008), 355-362; Obiora Okafor, Critical Third World Approaches to
International Law (TWAIL): Theory, Methodology, or Both? 10 International
Community LR (2008), 371-378.
6 Text of the Draft Conclusions Provisionally Adopted by the Drafting Committee
During the Sixty-Sixth (2014) and Sixty-Seventh (2015) Sessions of the
Commission (A/CN.4/L.869), hereinafter “ILC Draft Conclusions”.
7 Michael Wood, Fourth Report on Identification of Customary International Law
(2016), A/CN.4/695, hereinafter “fourth report”.
8 Sienho Yee, Report on the ILC Project on “Identification of Customary
International Law”, 14 Chinese JIL (2015), 375–398, hereinafter, “AALCO Special
Rapporteur’s Report”.
9 This has become one of the main issues of debate about an eventual periodization of
TWAIL writings. See, for instance, Antony Anghie and B.S. Chimni, above n.5;
and George R.B. Galindo, Splitting TWAIL? 33 Windsor Yearbook of Access to
Justice (2016), 37-56.
4 Chinese JIL (2017)

classical international law norms, which were created during colonial times, though
such criticism has developed more into a reformist rather than a revolutionary
stance.10
9. It seems almost a corollary of this critical attitude that one should criticize not
only particular norms, but also the very methods and techniques through which this
law comes into being, with a special emphasis on CIL.11 The main reason to question
CIL lies in the fact that recently independent states had to comply with a normative
system in which they had no say, that is, rules that were designed during the colonial
period from the practice of “a handful of western States in their own interests and
without the participation of the Asian-African States”.12 As a result of these undemo-
cratic origins of customary rules, international law would be biased in geographic, re-
ligious, economic and political terms.13 It seemed only natural, therefore, that Third
World states should question the validity of norms that were created with little or no
consideration to their interests.14
10. A second reason to question CIL is that it is biased towards the preservation of
the status quo.15 Since customary rules develop from a general practice of the interna-
tional society, CIL reflects and crystalizes past realities, and not proposed reforms.16
Any state that disagrees with a particular customary rule is bound to comply with it,
since deviations will be treated as unlawful acts unless and until they become accepted
as a new custom, in a process that is just as indefinite as it is contradictory.17

10 See Mohammed Bedjaoui, Problèmes Récents de Succession d’Etats dans les Etats
Nouveaux, 130 RCADI (1970), 481; R. P. Anand, Attitude of the Asian-African
States Toward Certain Problems of International Law, 15 ICLQ (1966), 55-75.
11 Mohammed Bedjaoui, Non-Alignement et Droit International, 151 RCADI
(1976), 382 (“Bref le droit international n’a pas cessé d’^etre oligarchique. Cette con-
statation devrait entraı̂ner la réévaluation de beaucoup d’idées reçues sur les sources
du droit international, en particulier sur la coutume.”).
12 Rahmat Mohamad, above n.1, 41.
13 Mohammed Bedjaoui, above n.11, 384.
14 Georges Abi-Saab, The Newly Independent States and the Rules of International
Law: an Outline, 8 Howard LJ (1962), 106; Jorge Casta~ neda, The Underdeveloped
Nations and the Development of International Law, 15 International Organization
(1961), 41; R.P. Anand, Role of the “New” Asian-African Countries in the Present
International Legal Order, 56 AJIL (1962), 383-385.
15 Georges Abi-Saab, above n.14, 106.
16 Though in a different context, a similar argument can be found in Emily Kadens
and Ernest A. Young, How Customary is Customary International Law?, 54
William & Mary LR (2013), 909.
17 To change a customary rule implies breaking the existing law at least once, in order
to characterize a new practice. But this way of establishing a legal norm by violating
another one seems to be against the general principle that unlawful acts cannot cre-
ate law (ex injuria jus non oritur). See H. Lauterpacht, Règles Générales du Droit de
 Galindo and Yip, Customary International Law and the Third World 5

Moreover, the process for the formation and eventual modification of customary
norms usually takes a long period of time.18 In this context, the possibility of legal re-
form through multilateral treaties seemed like a more prosperous course of action to
promote the reforms desired by the Third World.19
11. A third argument is the difficulty to reconcile this source with an increasingly
heterogeneous international society. It can be argued that the shared cultural back-
ground of western states made it reasonable to believe that dozens of sovereign entities
could develop common practices and beliefs regarding international law. This as-
sumption should be reconsidered in light of the almost two hundred states with very
different interests and cultures that now form international society. Therefore, it is le-
gitimate to assume that the establishment of new customary rules or the derogation
of old ones is a very difficult process.20
12. In this context of resistance, some Third World writers advocated for a larger
role for decisions taken in international organizations, particularly resolutions of the
UN General Assembly, where developing states rapidly became the majority and
could, therefore, exercise a larger influence than their relative power in the interna-
tional system.21 This idea appears not only in academic writings of Third World
scholars,22 but also on the individual opinion of Judge Alejandro Alvarez in the
Fisheries case, which defended that CIL as a source would become obsolete and that
the “juridical conscience of peoples” would be better expressed by the “resolutions of
diplomatic assemblies, particularly those of the United Nations and especially deci-
sions of the International Court of Justice”.23

la Paix, 62 RCADI (1937), 287-291, para.76; A.A. Cançado Trindade,

International Law for Humankind: Towards A New Jus Gentium (I): General
Course on Public International Law, 316 RCADI (2005), 142.
18 The issue of time and the acceleration of CIL is dealt with in Section IV.A. below.
19 This position is stated in S. Prakash Sinha, Perspective of the Newly Independent
States on the Binding Quality of International Law, 14 ICLQ (1965), 121-124. It
should be noted, however, that in a different article the author supports the view
that custom would be the only mechanism available for new states to reform general
international law, as treaties could only produce effects among signatory parties. Id.,
New Nations and the International Custom, 9 William & Mary LR (1968), 796.
20 Mohammed Bedjaoui, above n.10, 480.
21 A very clear description of this process can be found in Guy Ladreit de Lacharrière,
L’influence de l’inégalité de Développement des Etats sur le Droit International,
139 RCADI (1973), 261-263.
22 See, for instance, Jorge Casta~ neda, above n.14; Obed Asamoah, The Legal Effect of
Resolutions of the General Assembly, 3 Columbia Journal of Transnational Law
(1964), 210-230.
23 Fisheries (United Kingdom v. Norway), Judgment, ICJ Reports 1951, 148-149
(ind. op. Alvarez).
6 Chinese JIL (2017)

13. We will come back to this issue on Section IV.B. But first, let us consider if
these early writers of the Third World tradition in international law had a point—
that is, if the scholarship and practice on CIL are indeed biased in favour of powerful
states and against the needs and interests of marginalized peoples. In other words, it is
important to identify if there are structural elements in CIL that could keep reproduc-
ing the interests of Great Powers, even after the formal end of colonial rule.

III. Power and the undemocratic character of CIL

14. In a famous metaphor, Pitt Cobbett compared the creation of a customary rule to
the “formation of a path across a common”, in which “gradually, by reason either of
its directness or on some other ground of apparent utility, some particular route is fol-
lowed by the majority”, eventually leading to this path becoming obligatory.24
Charles de Visscher built upon this formulation, but underlined that, in this process
of formation of CIL from the footprints of states, powerful states leave deeper foot-
marks than others:
Parmi les usagers, il en est toujours qui plus profondément que d’autres, mar-
quent la terre de l’empreinte de leurs pas, soit en raison de leur poids, c’est-a-
dire de leur puissance en ce monde, soit parce que leurs intér^ets les appellent
plus fréquemment a effectuer le parcours. C’est ainsi qu’après avoir imprimé a
l’usage une orientation définie, les grandes Puissances s’en constituent encore
les garants et les défenseurs.25
15. This sort of statement is anything but isolated in scholarly writings regarding
the sources of international law. Many authors acknowledge that states carry different
weight in the formation of CIL, though only some of them recognize that this is an
influence of power.26 Most of them usually refer to the issue of specially affected
states27 to explain why some actors have more influence in customary law-making.
16. The ILC Draft Conclusions on the identification of customary law quite
rightly recognize that, in order to be considered general, a practice must not only be

24 Pitt Cobbett, Cases on International Law, vol. 2 (1931), 5.

25 Charles de Visscher, Théories et Realités en Droit International Public (1995), 189-
190.
26 Among those that explicitly recognize the influence of power, see Malcolm N.
Shaw, International Law (2008), 79; Jonathan I. Charney, Universal International
Law, 87 AJIL, 537; Pitt Cobbett, above n.24, 10; J. Patrick Kelly, The Twilight of
Customary International Law, 40 Virginia JIL (2000), 453; Karol Wolfke, Custom
in Present International Law (1993), 78-79.
27 North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands),
Judgment, ICJ Reports 1969, 43.
 Galindo and Yip, Customary International Law and the Third World 7

widespread, but also representative.28 In his Statement, the Chairman of the ILC
Drafting Committee clarifies that practice “needs to be followed by a sufficiently rep-
resentative group of States, usually in different regions”, but “also depends on the rule
in question and this condition is also to be examined with some flexibility”.29 The
requisite of representativeness is an important recognition that a particular group of
states cannot alone shape international law. In this sense, it could be said that the
work of the ILC points to a democratization of CIL.
17. When considering this issue, the AALCO Special Rapporteur’s Report reflects a
certain tension between sovereign equality and pragmatic recognition of unequal weight
depending on the subject matter. Though it praises the inclusion of representativeness
in the ILC Draft Conclusions and calls for its further development, the AALCO Special
Rapporteur’s Report reaffirms the importance of specially affected states, that “leave a
heavier footprint in the formation of rules relating to that matter”, though the Report is
quick to ascertain that this should not have any relation to matters of power:
By now it should be clear that the concept of specially affected States is not re-
served for the big and powerful States, but applies to all States who are specially
concerned with the subject matter under consideration and whose interests are
specially affected by the rule under consideration. A State need not be big and
powerful to be specially affected, as one can tell from the emergence of the ar-
chipelagic State regime.30
18. In any case, there seems to be a general recognition of the need for clarification
on this issue.31 In the following paragraphs, we will attempt to show how such

28 ILC Draft Conclusions on Identification of Customary International Law, 8.1.

29 Gilberto Saboia, Identification of Customary International Law: Statement of the
Chairman of the Drafting Committee, ILC (2014), 16 (http://legal.un.org/ilc/ses
sions/66/pdfs/english/dc_chairman_statement_identification_of_custom.pdf).
30 AALCO Special Rapporteur’s Report, above n.8, para.48; generally, ibid., paras. 47-
53.
31 Rahmat Mohamad states that the issue deserves “serious consideration”, above n.1,
46, para.22. Such statement by the AALCO Special Rapporteur’s Report is quite
similar to a consideration made by Dinstein in his influential course, given at the
Hague Academy of International Law, on the relationship between treaties and cus-
tom. For him: “The Big Powers have a natural advantage in this respect, since they
are heavily committed to almost every type of human endeavour. Still, less potent
States are not excluded from the prioritized list of major players in particular arenas.
Pre-eminently, some small countries have made a striking contribution to the prog-
ress of the customary law of the sea: it is not the size of the country (in area or in
population) that affords a privileged position in this regard, but the volume and vari-
ety of marine and naval operations”. Yoram Dinstein, The Interaction between
Customary International Law and Treaties, 322 RCADI (2007), 289. The problem
with such argument is that, normally, only few examples of great influence by
non-big powers on the process of custom formation are provided. The idea that the
8 Chinese JIL (2017)

differentiated treatment works in practice. Our hypothesis is that legal practice usu-
ally attributes more weight to the practices and opinio juris of the most powerful
states. In this way, in many respects, CIL reveals itself as a privileged language for the
translation of power into norms in the international order.
19. According to Michael Byers, the task of identification of CIL takes into ac-
count “patterns of legally relevant behavior”.32 It should come as no surprise that in
the nineteenth century this sort of legally relevant behaviour was to be found on the
“general consensus of opinion within the limits of European civilization”.33
Nevertheless, even in the present international order, no longer restricted to the
European society, practice and opinio juris of states are attributed different degrees of
legal relevance. An analysis of legal scholarship and practice points to the fact that this
different treatment is, directly or indirectly, a matter of power. Anthea Roberts is clear
on the fact that, “Powerful states wield disproportionate and often decisive influence
in determining the content and application of custom. Further, courts tend to focus
primarily on Western state practice.”34 Therefore, even after decolonization, it is the
practices and opinions of Great Powers that determine what is and what is not CIL,
or, in Charles de Visscher’s analogy, powerful states, or even powerful companies,35
are the ones that leave deeper footprints.
20. This phenomenon through which power is inscribed in international law can
be explained by four factors.
21. The first issue is the different degree of publicity and availability of evidences
attesting the practice of states. Effectively, scholars, courts and lawyers generally can
more easily obtain documents proving the practice of western states than of the Third
World.36 This different standard of publicity between acts and opinions of states,
however, cannot be considered a given. It is rather a social construction influenced, in
great extent, by factors such as unequal media coverage, and the fact that the main
journals and yearbooks on international practice are located in the developed world.

concept of “specially affected states” is not necessarily biased against “weaker states”
still remains in a high level of abstraction in international legal argument.
32 Michael Byers, Custom, Power and the Power of Rules: Customary International
Law from an Interdisciplinary Perspective, 17 Michigan JIL (1995), 115.
33 Pitt Cobbett, above n.24, 10.
34 Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary
International Law: A Reconciliation, 95 AJIL (2001), 768.
35 Patrick Daillier, Mathias Forteau and Alain Pellet, Droit Internacional Public
(2008), 360.
36 A.A. Fatouros, International Law and the Third World, 50 Virginia LR, 798. See
also Michael Akehurst, Custom as a Source of International Law, 47 BYIL (1975),
23 (“Of course some States exercise a greater influence on the development of cus-
tomary law than other States, but that is because the practice of some States is more
frequent or better publicized than the practice of other States, not because it is in-
trinsically more important than the practice of other States”).
 Galindo and Yip, Customary International Law and the Third World 9

Even initiatives to collect, systematize and publish the practice of individual Third
World states regarding international law remain marginal,37 often because of the lack
of economic resources.38 The fact that statements of decision-makers in developed
countries are considered easily accessible, while legal opinions of Ministries of Foreign
Affairs of the Third World are not is, above all, a manifestation of power. This seems
to justify Byers’s conclusion that “[a]ll other things being equal, the actions of more
powerful states are accorded greater weight by the customary process than the actions
of less powerful states”.39 Hence, the lack of or poor publicization reveals a problem
of great magnitude, that of the politics of knowledge40 in international law. Such pol-
itics, in the way it is practiced today, widens the gap between developing and devel-
oped states and affects the very underpinnings of international society.
22. A related barrier for researchers of Third World practice is language. Indeed, it
is quite expensive for these states to translate their documents regarding practice and
opinio juris in languages other than their native tongue. In his article, the ILC Special
Rapporteur recognizes that taking into account writings from all regions and tradi-
tions “may at times be problematic, depending on the language in which they
write”.41 Once again, however, this reveals not a difficulty in obtaining documents in

37 For example, in the preface to the second edition of his book series on the Brazilian
practice regarding international law, published in 2012, Judge A.A. Cançado
Trindade regretted that, although the Organization of American States urged,
through a Resolution voted in 1984, Latin-American states to publish collections of
their state practice in international law, the Brazilian initiative remained the sole one
in the region. See A.A. Cançado Trindade, Prefacio a 2a Ediç~ao, in A.A. Cançado
Trindade (ed.), Repertorio da Pratica Brasileira do Direito Internacional P ublico:
Perıodo 1899-1918, 2nd. ed., (2012), 19.
38 See Manuel Becerra Ramırez, Notas sobre Problemas Teoricos de la Costumbre
Internacional, in Manuel Becerra Ramırez et al, Obra en Homenaje a Rodolfo Cruz
Miramontes, vol. 2 (2008), 183.
39 Michael Byers, above n.32, 144.
40 The meaning we attribute to this term is clearly expressed in Fernando Domınguez
Rubio and Patrick Baert, Politics of Knowledge: An Introduction, in Fernando
Domınguez Rubio and Patrick Baert (eds.), The Politics of Knowledge (2012), 2:
“[t]he title of this book, Politics of Knowledge, captures what they [the essays] have
in common: the recognition that knowledge is constitutive of the world and there-
fore political. In this respect, the authors argue against a widespread and influential
notion of the relationship between knowledge and politics which, for the sake of
brevity, will be referred to henceforth as the ‘liberal view.’ The central tenet of this
liberal view is that knowledge and politics are, and must be kept as, separate
activities”.
41 Sir Michael Wood, above n.1, 13, para41.
10 Chinese JIL (2017)

understandable language, but actually concerns the effects of the prevalence of certain
languages, like English and French, as working languages in international law.42
23. Apart from that, legal scholarship—which several times helps in the task of
identifying emerging customary international rules—is also dominated by a couple of
languages that are not mastered by a great number of international legal scholars. For
many international lawyers from the Third World to be taken seriously by the main-
stream of international legal academia, they must have the same linguistic compe-
tences of their (mainly) Anglophones counterparts.43
24. Apart from the difficulty in obtaining documents relating to the Third World, a
different explanation for this unequal weight is the cost of action. Powerful states are in
a better position to afford the costs of acting or stating opinions relating to the very
complex and diversified network of relations in the world system. Third World states,
on the other hand, lack the resources to act in the same way, effectively circumscribing
their actions to matters that are intimately and immediately related to their closest in-
terests.44 It seems natural, therefore, that, in most cases, the majority of practices and
opinions available for the decision-maker would be those of the most powerful states.
25. This concern is at least partially reflected in the AALCO Special Rapporteur’s
Report. When dealing with the issue of inaction, the Report states that “inaction may
constitute practice if the situation demands reaction from the concerned State, which
is clearly conscious of this situation and has taken a conscious decision not to act”
(Comment G). This approach seems to recognize that states are not obliged to act or
to react at all times regarding facts or actions by other states. This cautious approach
reaffirms the principle that it is up to the party arguing for a particular rule to show
that there is indeed general practice, and protects weaker states from arguments that
they should have acted against some emerging practice in order to bar its formation.
Similarly, Byers argues that the interpreter should be sensible to this unequal distribu-
tion of resources to cope with the cost of action and defends that greater weight
should be attributed to the practice of a state that adopts a course of action despite

42 An interesting debate on this issue has been developing on this journal, started by
the article of Peter J. Laverack, The Rise of Asia and the Status of the French
Language in International Law, 14 Chinese JIL (2015), 567-583. See also Laurent
Pic, A Reply to Peter Laverack, “The Rise of Asia and the Status of the French
Language in International Law”, 15 Chinese JIL, (2016), 215-216.
43 See Daniel Bonilla, La Economıa Polıtica del Conocimiento Jurıdico, 2 Revista de
Estudos Empıricos em Direito (2015), 49.
44 See R.P. Anand, above n.14, 385: “It is only natural that the participation of the
smaller and less developed countries in international affairs should be less active.
Accordingly, their contribution to the formulation of general practice, and hence
customary law, is considerably more limited”.
 Galindo and Yip, Customary International Law and the Third World 11

big costs to do so.45 Nevertheless, the fact remains that, when it comes to positive
acts, powerful states have an advantage.
26. A third reason for the larger role played by powerful states on CIL relates to is-
sues of an essentially technical nature. In matters related to technologic and scientific
progress, it is reasonable to assume that developed states have a deeper knowledge
and, therefore, a louder voice in the network of discussions and interactions that
shape CIL. Similarly, only developed states detain certain technologies and resources
and, therefore, their opinion or practice could be the only ones available. This could
be the case in certain matters related to space, the deep seabed or nuclear
technology.46
27. This discussion could once again be translated in the language of specially af-
fected states. One could say that the nuclear states are specially affected when it comes
to the law on the use of nuclear resources. Nevertheless, one cannot overlook the fact
that, if only a small number of states are at the forefront of technologic innovation,
this is a reflection of the unequal distribution of power and resources in the interna-
tional order. Whatever the legal rhetoric, it is clear that this is a way to inscribe the
distribution of power resources into law.
28. Fourth, power clearly affects the work of international adjudicatory bodies.
Decisions of international courts tend to reinforce the role of opinio juris to the point
that the practice of states is not only downgraded in its importance, but almost oblit-
erated in the process of identification of a customary rule. It is not uncommon for
scholars to criticize international courts for a lack of rigor when dealing with aspects
related to CIL.47 Making customary international law exclusively an expression of a
certain opinio juris is dangerous in many respects, especially because the practice of
states can effectively play a role of protecting the interests of Third World states
against the will of Great Powers. But the tendency of international courts to empha-
size the role of opinio juris is even more dangerous when it represents the opinion of a
single set of judges under the disguise of states’ opinio juris. More than ten years ago,
Vladimir Degan identified a tendency of an extreme judicial activism by ad hoc inter-
national criminal tribunals in the field of CIL. He puts in crystal-clear way: “in any
case, the matter cannot be of the opinio juris of judges or of professors of international
law”.48

45 Michael Byers, above n.32, 143.

46 Patrick Daillier, Mathias Forteau and Alain Pellet, above n.35, 360.
47 For an in-depth and critical study about the (lack of) methodological concern of the
ICJ in the field of CIL, see Stefan Talmon, Determining Customary International
Law: The ICJ’s Methodology between Induction, Deduction and Assertion, 26
EJIL (2015), 417-443.
48 Vladimir-Djuro Degan, On the Sources of International Criminal Law, 4 Chinese
JIL (2005), 45-83. Such criticism regarding the ad hoc international criminal tribu-
nals is disseminated among many international legal scholars. See, e.g., Andrea
12 Chinese JIL (2017)

29. It seems clear that, for the aforementioned reasons, the practice of the most
powerful states carry a heavier weight in CIL to the detriment of the Third World. In
this way, CIL can be characterized as an undemocratic law-making process. The is-
sues of publicity of acts, language, resources and technological development are,
above all, manifestations of power, not only by states, but encompassing also interna-
tional courts. Having established that, in the following section we consider recent de-
velopments in scholarship and practice to see if there are ways to curb this democratic
gap in CIL.

IV. Assessing new approaches to CIL

30. The last half-century has witnessed several changes or new approaches to the schol-
arly and practical treatment of CIL. Some of these innovations could seem to address
the concerns about the impact of CIL on the Third World. With different arguments,
writers have called for an acceleration of customary law, with a prominence of opinio ju-
ris over practice, which could respond to criticisms about the slow process of customary
law-making. Similarly, it is usually considered that resolutions adopted in international
organizations now carry a heavier weight for the interpretation of creation of CIL, which
could also be seen as a victory of the propositions of early Third World writers. Lastly,
international legal scholarship has crystalized the understanding that a state can avoid
becoming bound by a customary norm if it is a persistent objector, which could ease
weaker states’ fear that the imposition of norms could undermine their sovereignty.
31. In this section we assess if these new approaches and techniques on CIL re-
spond to the critiques of the Third World or, on the other hand, if they preserve the
undemocratic nature that tends to favour the most powerful states.

IV.A. The acceleration of CIL and the role of opinio juris

32. The passage of a specific lapse of time was never considered a requisite for the for-
mation of customary norms. Already in 1969, the ICJ observed that “the passage of
only a short period of time is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law”.49 Nevertheless, the law-making process of
CIL is usually associated with the repetition of acts during a certain period of time,50
meaning that it tends to evolve slower than, say, the negotiation of a treaty.
Gattini, Le Rôle du Juge International et du Juge National et la Coutume
International, in Denis Alland et al (ed.), Unité et Diversité du Droit International:

Ecrits en l’honneur du professeur Pierre-Marie Dupuy (2014), 253-274.
49 North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands),
Judgment, ICJ Reports 1969, 43.
50 Jörg Kammerhofer, Uncertainty in the Formal Sources of International Law:
Customary International Law and Some of its Problems, 15 EJIL (2004), 530 (“in
one form or another most jurists would rather think that a practice has become
 Galindo and Yip, Customary International Law and the Third World 13

33. In any case, by the end of the twentieth century, several writers noted that the
customary law-making process became faster. This can be attested by concepts such
as coutume sauvage,51 new international customary law,52 or even instant custom.53
According to this approach, this acceleration would be brought to reality by a preva-
lence of opinio juris over practice.54 Therefore, the consistent and reiterated practice
of states would be secondary to the convergence of points of view regarding the exis-
tence of a given rule.
34. When considered in principle, this acceleration could be seen as a way to prop-
erly respond to the critique by Third World writers that traditional CIL crystalized
the status quo that could only be challenged by a slow and difficult process. Indeed,
some of these approaches explicitly consider the position of Third World states. For
instance, when analysing what he called “revolutionary custom”, René-Jean Dupuy
states that poor countries “ont conscience d’assumer une misère ou une pauvreté qui
confère a leur temps psychologique plus de valeur et de poids qu’un temps historique
que la plupart d’entre eux ne vivent que depuis une indépendance encore récente”.55
35. It is worth questioning, however, if this so-called acceleration actually answers
to these demands. Some writers that defend this new approach argue that this acceler-
ation can happen because of the “self-evident nature of some shared interests”56 or

customary law over another practice if it exhibited longer and more consistent usage
by more states than a practice which had been in use for a shorter time, and with
less repetition and generality than the first”).
51 René-Jean Dupuy, Coutume Sage et Coutume Sauvage, in: La Communauté
Internationale: Mélanges Offerts a Charles Rousseau (1974), 75-87.
52 Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal
Common Law: a Critique of the Modern Position, 110 Harvard LR (1997), 838-
842.
53 Bin Cheng, United Nations Resolutions on Outer Space: ‘Instant’ International
Customary Law? 5 Indian JIL (1965), 23–48. For a recent appraisal of this concept,
see Diego German Mejıa-Lemos, Some Considerations Regarding “‘Instant’
International Customary Law”, Fifty Years Later, 55 Indian JIL (2015), 85-108.
54 See, for instance Paulo Borba Casella, Contemporary Trends on Opinio Juris and
the Material Evidence of International Customary Law, Gilberto Amado Memorial
Lecture Series (2013), 13 (http://legal.un.org/ilc/sessions/65/pdfs/2013_amado_lec
ture_casella.pdf); Bruno Simma and Philip Alston, The Source of Human Rights
Law: Custom, Jus Cogens and General Principles, 12 Australian YIL (1998), 88-90.
A famous critique of this emphasis on opinio juris can be found in Anthony
D’Amato, Trashing Customary International Law, 81 AJIL (1987), 101-105.
55 René-Jean Dupuy, above n.51, 85.
56 Michael Byers, above n.32, 145-147. See the critique of Corten, for whom an inter-
national customary rule based upon the practice of a single case, however clear it is,
is merely the expression of realpolitik. Olivier Corten, Méthodologie du Droit
International Public (2009), 152.
14 Chinese JIL (2017)

“society’s values”.57 By this line of thought, customary norms that promote these val-
ues would not require the observance of a general and reiterated practice through
time, but only its acceptance as law. This sort of resort to universal values, however,
has many risks, “particularly in a situation where ‘society’ is quite often equated with
dominant Northern views”.58 A clear example of these risks can be found on Michael
Scharf’s argument about a “Grotian moment”, which “minimizes the extent and du-
ration of the state practice that is necessary during such transformative times, pro-
vided there is an especially clear and widespread expression of opinio juris”.59 It is
revealing that the possible examples of Grotian moments provided by the author to il-
lustrate his thesis include mainly circumstances relating to the interests of Great
Powers, such as the space race between a couple of states, NATO’s intervention on
the former Yugoslavia and the terrorist attacks of 9/11.
36. Also some European scholars, by professing the resort to universal values, open
the door to a view of CIL that is not sufficiently attentive to Third World countries’
needs. Luigi Condorelli, for example, attributes a fundamental role for CIL in the de-
bate on the so-called fragmentation of international law. For him, CIL may offer “inter-
national relations principles and rules appropriate to ensuring unity and coherence to
the system”. At the same time, he recognizes the possibility of acceleration of custom
without further inquiring about its detrimental consequences to a number of interna-
tional subjects. He also accepts, apparently in an approving way, that courts such as the
ICJ pay much more attention in its case-law to the opinio iuris element than the practice
of states.60 The problem with such interpretation is that, in many ways, the idea of uni-
versalism hides in its core several exclusions. Universalism as an intellectual category can
hardly be presupposed; one should verify the keeping of its promise on a daily basis.
37. Therefore, it becomes evident that this acceleration does not necessarily take
into consideration the interests of the Third World nor does it question the biased
character of CIL. This kind of approach may indeed facilitate allegations of powerful
states about the need for an urgent change in the established rules, so as to answer to
their own needs. In other words, this can be a shortcut for Great Powers to overcome
eventual resistance to certain rules of their interest.61 By this perspective, it seems that
the ILC and AALCO got it right by sticking to the traditional two-element approach.

57 Mary Ellen O’Connell, New International Legal Process, 93 AJIL (1999), 349.
58 Antony Anghie and B.S. Chimni, above n.5, 98.
59 Michael P. Scharf, Seizing the “Grotian Moment”: Accelerated Formation of
Customary International Law in Times of Fundamental Change, 43 Cornell ILJ
(2010), 467-468.
60 Luigi Condorelli, Customary International Law: The Yesterday, Today, and
Tomorrow of General International Law, in: Antonio Cassese (ed.), Realizing
Utopia: The Future of International Law (2012), 150-151, 153
61 Obiora Chinedu Okafor, Newness, Imperialism, and International Legal Reform in
Our Time: A Twail Perspective, 43 Osgoode Hall LJ (2005).
 Galindo and Yip, Customary International Law and the Third World 15

IV.B. The role of international organizations62

38. A second development of the matter is the greater importance attributed to deci-
sions taken in multilateral organizations for the formation of CIL.63 Once again, the
ultimate goal to justify this change would be to overcome divergences and allow for
faster modification of international law, especially when supported by the large major-
ity of states.
39. Effectively, as seen in section II, this increased importance of international or-
ganizations as a source of international law was one of the main proposals of early
writers of the Third World tradition, since it would allow Third World states to orga-
nize majorities and develop what René-Jean Dupuy called stratégies coutumières.64
40. The ILC has considered this issue and came to the conclusion that even though
“[a] resolution adopted by an international organization or at an intergovernmental
conference cannot, of itself, create a rule of customary international law”, still it “may
provide evidence for establishing the existence and content of a rule of customary in-
ternational law, or contribute to its development”.65 The AALCO Special
Rapporteur’s Report substantially agrees with the approach of the ILC on this issue,
but expresses even more caution, calling for “a clear rule on how to use such resolu-
tions as evidence in the identification of customary international law [. . .], in order to
ensure better quality in and better respect for the exercise of sovereignty”.66
41. The “all due caution” called for by the AALCO Special Rapporteur’s Report is
justified. The recognition of the importance of resolutions by the General Assembly
and similar bodies is not horizontal, but selective. International legal scholarship has
developed a set of criteria so as to analyse the degree of influence of multilateral reso-
lutions in the development of CIL. Mark Ellis, for instance, lists four requisites:
(1) a requisite degree of consensus in support of the resolution, (2) language
which adequately indicates and describes the resolution’s legal nature, (3)

62 We only deal here with one of the three dimensions identified by Stephen Mathias,
that is, international organization as the “stage” of the formation of CIL, above n.1,
24-25, para.37-42.
63 Roozbeh B. Baker, Customary International Law in the 21st Century: Old
Challenges and New Debates, 21 EJIL (2010), 180-183; Paulo Borba Casella,
above n.54, 15-16.
64 René-Jean Dupuy, above n.51, 84. See also Michael Byers, above n.32, 118; and
above nn.22 and 23.
65 ILC Draft Conclusion 12. It should be noted that the special rapporteur has pro-
posed small amendments on these paragraphs in his fourth report (2016), 13, para.
36-37.
66 AALCO Special Rapporteur’s Report, above 8, paras.62-64.
16 Chinese JIL (2017)

sufficient expectations that the resolution is legally binding, and (4) a requisite
degree of implementation and reliance upon the resolution.67
42. The degree of consensus is a particularly interesting requisite. Ellis stresses that
it must be assessed not in a purely quantitative manner but also in qualitative terms,
in a way that would evaluate the weight of states that supported or opposed a certain
decision in order to consider if it qualifies as an evidence of a custom. Foreseeing
eventual critics, the author discards that this matter of weight has anything to do with
power, “but rather reflects the State’s ‘interest’ in the subject matter of the resolution,
and corresponds to the impact which the resolution’s principles may have on a partic-
ular State”.68 Even though Ellis tries to put aside the question of power, his examples
seem to reveal a different picture. Effectively, he argues for the centrality of the
United States in any discussion about outer space or the exploration of the sea-bed,
since the US is one of the few states with the technology to explore these areas. As al-
ready noted in Section III, it would be quite artificial to consider the monopoly over
technological resources as anything but a matter of power. Other writers are more ex-
plicit on this issue, and make it clear that the main criterion to assess the weight of
UN General Assembly Resolutions should be the support of the Great Powers.69
43. Therefore, one can see how it all comes back to the unequal weight of states,
this time in an indirect manner, not by a consideration of state practice directly, but
the support to multilateral decisions as evidence of CIL. Once again, quite differently
from what Third World authors called for in the 1950s and 1960s, the use of these
resolutions did not become a remedy for the undemocratic nature of international
law, and may even, depending on how their legal significance is interpreted, have the
opposite effect.

IV.C. The persistent objector

44. Another development in international law with complex consequences for the dis-
cussion about CIL and the Third World concerns the persistent objector doctrine.
The ILC Draft Conclusion 15 puts forward a pretty clear and uncontroversial defini-
tion that “[w]here a State has objected to a rule of customary international law while
that rule was in the process of formation, the rule is not opposable to the State con-
cerned for so long as it maintains its objection”. The AALCO Special Rapporteur’s

67 Mark E. Ellis, The New International Economic Order and General Assembly
Resolutions: The Debate over the Legal Effects of General Assembly Resolutions
Revisited, 15 California Western ILJ (1985), 692-693.
68 Ibid., 695.
69 D.N.H. Johnson, Book Reviews: The Legal Significance of the Declarations of the
General Assembly of the United Nations by Obed Y. Asamoah, 16 ICLQ (1967),
1172-1173.
 Galindo and Yip, Customary International Law and the Third World 17

Report does not go much further, adding only that this possibility exists only to the
extent that a norm has not attained the status of jus cogens.70
45. Though this doctrine is now taken for granted, studies show that it was only re-
cently developed. It is generally accepted that the ICJ recognized it in the 1950s. In
the two cases used to support this assertion, however, the Court only considered the
issue in obiter dictum and after acknowledging that the customary norm in question
did not exist at all.71
46. According to Curtis Bradley and Mitu Gulati, the doctrine was developed in le-
gal scholarship in the 1960s and became widely accepted only in the 1970s or
1980s.72 As a matter of fact, it can be argued that this doctrine arose precisely to deal
with the independence of Third World states and its effects in the international legal
order, when “Western States feared losing control over the development of customary
law”.73 In this sense, the doctrine would be a sort of “counter-reformation” by the
West against the attempt of Third World countries to use their majority in multilat-
eral organizations to reshape international law,74 or, in other words, an exhaust valve
so that traditional states would not be bound by the norms put forward by the Third
World.
47. Besides this questionable historical origin, it would be possible to argue that
the concept of persistent objector could favour the defence of sovereignty by Third
World states that would be able to contract out of norms that were not in their best

70 AALCO Special Rapporteur’s Report, above n.8, paras.56-61.

71 In the Asylum case (Colombia v. Peru), ICJ Reports (1950), 277-278, the Court
states: “The Court cannot therefore find that the Colombian Government has
proved the existence of such a custom. But even if it could be supposed that such a
custom existed between certain Latin-American States only, it could not be invoked
against Peru which, far from having by its attitude adhered to it, has, on the con-
trary, repudiated it [. . .].” In the Fisheries case (United Kingdom v. Norway), ICJ
Reports (1951), 131: “In any event the ten-mile rule would appear to be inapplica-
ble as against Norway inasmuch as she has always opposed any attempt to apply it
to the Norwegian coast.” Judge A.A. Cançado Trindade, in his concurring opinion
on the Inter-American Court of Human Rights Advisory Opinion 16, described the
persistent objector doctrine as a “nebulous figure [. . .] which has never found the
support that it sought in vain in the international case-law”. IACtHR, Advisory
Opinion 16 (Mexico Request), 27 (concurring op. Cançado Trindade).
72 Curtis A. Bradley and Mitu Gulati, Withdrawing from International Custom, 120
Yale LJ (2010), 233-234.
73 Patrick Dumberry, Incoherent and Ineffective: The Concept of Persistent Objector
Revisited, 59 ICLQ (2010), 783. For this author, the concept of persistent objector
has no basis in state or judicial practice and is logically inconsistent. Ibid, 801-802.
74 J. Patrick Kelly, above n.26, 514. See also Curtis A. Bradley and Mitu Gulati, above
n.72, 206.
18 Chinese JIL (2017)

interest.75 The AALCO Special Rapporteur’s Report reiterates this position, stating
that “this rule offers the final protection for a State from the tyranny of the majority
and a guarantee of its sovereignty with respect to the particular rule at issue”.76
Nevertheless, it can be argued that the structure of this legal doctrine does not really
do much for developing countries, for two reasons: the impossibility of recently inde-
pendent states to question customary rules developed during the colonial period and
the difficulty to object to a rule during the process of its formation.
48. The structure of this doctrine guarantees that a state can only contract out of a
customary norm if it presents its objection during the formative process. Eventual
manifestations after the rule has already been established are irrelevant. Therefore, re-
cently independent states would not have the right to oppose rules in force, created
before their independence; “their objections came, as it were, too late”.77
49. The persistent objector would be a window of opportunity for new states only
with prospective effects—in other words, a shield against customary norms that were
not fully established at the time of their independence. Even so, the use of this prerog-
ative by the Third World is rather difficult because of the scarcity of resources avail-
able to monitor and promptly react to the founding moments of a custom. Powerful
states, on the other hand, have the appropriate resources “to support, in a timely fash-
ion, those developments which they perceive as furthering their interests, and to ob-
ject to those developments which they view as being contrary to those interests”.78
50. It is clear, therefore, that the concept of persistent objector is not particularly
useful as an instrument of guarantee for weaker states against the impositions of rules
by the Great Powers. As a matter of fact, it may even have the opposite effect,79 be-
coming a tool for powerful states to pick and choose the rules of their interest and
contract out of norms proposed by Third World countries, while the latter will hardly
be able to timely and publicly react to all sorts of emerging norms being proposed in
the international legal community.

75 Ted L. Stein, The Approach of the Different Drummer: The Principle of the
Persistent Objector in International Law, 26 Harvard ILJ (1985), 467-468.
76 AALCO Special Rapporteur’s Report, above n.8, para.58.
77 Ted L. Stein, above n.75, 467. See also Curtis A. Bradley and Mitu Gulati, above
n.72, 206. Remiro Brotons et al have a strong argument against this position that is,
in our view, both logical and historically accurate. For them, it is not coherent for an
old state not to apply a given customary rule because of the persistent objector doc-
trine and at the same time demand from a new state (specially a decolonized state)
to obey a rule in whose formation it did not participate. See Antonio Remiro
Brotons et al, Derecho Internacional: Curso General (2010), 211.
78 Michael Byers, above n.32, 115.
79 See Caterina Garcia and Angel J. Rodrigo, Los Lımites del Proyecto Imperial:
Estados Unidos y el orden internacional en el siglo XXI (2008), 136-137.
 Galindo and Yip, Customary International Law and the Third World 19

V. Conclusion
51. In Section II of this article, we showed how early writers of the Third World tra-
dition in international law expressed concerns regarding custom as a source of inter-
national law. According to these scholars, CIL was biased towards the maintenance of
the status quo in a manner that its change would be too slow to adequately respond to
the urgent need for reform. Consequently, these writers stressed the need to work on
alternative paths to develop international law, such as resolutions of the UN General
Assembly.
52. Section III explored the issue of the undemocratic nature of CIL and its bias
against the Third World. Legal scholarship admits, often openly, that powerful states
have a larger influence in the development of customary norms. This unequal weight
can be explained by the different degree of publicity of their acts and opinions, the
costs of action and the dominion over technological resources. Only the most power-
ful states would gather enough resources in these elements, leading to a greater influ-
ence of their practice and opinio juris on the determination of CIL.
53. In Section IV, recent developments in the understanding of CIL were ad-
dressed, such as the acceleration of customary rules, the role of resolutions in diplo-
matic bodies and the persistent objector doctrine. Each of these developments,
though theoretically able to respond to the demands for reform in international law,
did not change the undemocratic bias of CIL and, quite to the contrary, can be used
to reinforce this pattern.
54. This assessment shows that even though Third World states and scholars were
aware of their disadvantaged status in the formation of customary law, still they were
not able to fundamentally correct this unjust situation. CIL is still a subjectively con-
centrated law-making process, which leads to questions regarding its legitimacy. This
does not mean that the Third World can never see its pleas reflected in customary
norms. In some areas, such as the issue of compensation for expropriation of foreign
investment, the Third World managed to influence the evolution of customary law.80
Nevertheless, there is a structural difficulty in inscribing, in the body of customary
norms, the interests of states and peoples of the Third World.
55. As a matter of fact, any analysis on how CIL emerges should take into account
“why certain norms are designated or evolve as norms of customary international law
and others do not”.81 This seems to be the initial and crucial question for Third
World states involved in international law-making and a question that cannot be

80 Though it is also true that this achievement was largely overcome by the prolifera-
tion of Bilateral Investment Treaties. See Margot E. Salomon, From NIEO to Now
and the Unfinishable Story of Economic Justice, 62 ICLQ (2013), 40.
81 B.S. Chimni, An Outline of Marxist Course on Public International Law, 17
Leiden JIL (2004), 15.
20 Chinese JIL (2017)

answered only within the limits of international law. However, this is beyond the
scope of this article.
56. That being said, it seems clear, at least, that there is an evident democratic defi-
cit in this chapter of the doctrine of sources of international law,82 in which some
states are bound by norms over which they have very little say. One may wonder if
this is a particularity of customary rules or rather a trait of international law in general.
Still, in treaty law, even though powerful states may also wield a larger influence,
states always have the option to either sign a particular treaty or not. In CIL, on the
other hand, despite the persistent objector doctrine and its controversial character,
states may find themselves bound by rules to whose formation they never imagined
to be contributing.
57. AALCO’s engagement on this issue may be seen as a positive step to curb this
democratic deficit in the customary law-making process. As a matter of fact, even the
discussion of the issue on the ILC could expose the problem and make states, practi-
tioners and scholars aware of this issue. Nevertheless, this engagement has to consider
the structural limitations mentioned in this article in order not to fall into old traps.
To return to the metaphor to which we referred in Section III, it could be said that if
CIL is a path across a grass field, powerful states are the ones whose footprints lead
the way. Third World countries hardly have the privilege of exploring alternative
paths, being constrained to follow the trails developed by Great Powers. In other
words, one could say that, from the perspective of the Third World, the fundamental
norm of CIL can be read as follows: Do not step on the grass.

82 Anthea Elizabeth Roberts, above n.34, 767; J. Patrick Kelly, above n.26, 519–520.