The Under-Representation of Third World States in Customary International Law: Can Interpretation Bridge the Gap?

Abstract

Among scholars researching the position of the Third World in the formation and application of customary international law (CIL), there is consensus that States belonging to this category are significantly under-represented in the process. The scholarly criticism surrounding this under-representation is broadly organized along three lines of argument. Firstly, it is argued that the current CIL framework is undemocratic when it comes to the participation of the Third World. This lack of ‘democratic legitimacy’ does not only concern customary rules formed in the colonial period, but also customary rules formed in the late 20th and 21st century. Secondly, it is argued that since customary rules develop from a general practice of international society, CIL reflects and crystalizes past realities and not proposed reforms. Thus, CIL is biased towards the status quo and is not conducive to changes in the international legal system. Thirdly, it is argued that the formation and application of CIL is disproportionally influenced by powerful developed States, often neglecting the role or interests of the Third World. This line of criticism identifies several mechanisms within the CIL framework which maintain the imbalance, including the dominance of first world practice when analysing the ‘State practice’ requirement, the development of the persistent objector doctrine, and the appropriation of the specially affected States doctrine by powerful States of the Global North. This paper explores the criticism towards CIL from the Third World perspective and examines whether the issues identified by scholars may be addressed through the identification, development, and application of uniform guidelines for the interpretation of CIL. In this sense, the paper examines how a consistent practice of CIL interpretation after the formation and identification of a CIL rule may offer an approach which addresses the lack of democratic legitimacy of CIL, CIL’s bias towards the status quo, and the dominance by powerful States in the formation and application of CIL. The paper thus argues that interpretation may offer an answer to these critiques by: i) enhancing uniformity in the application of CIL; ii) offering a solution to the critique of dominance by laying out uniform guidelines for the interpretation and application of CIL; and iii) providing an opportunity for CIL rules to evolve through the process of interpretation.