Authored by Mohamed Thahir Sulaiman, Second Year student at the National Law School of India University
Introduction
In its seminal North Sea Continental Shelf case, the International Court of Justice (ICJ) established that the formation of Customary International Law (CIL) requires “state practice, including that of states whose interests are specially affected.” While this principle, known as the Specially Affected States Doctrine (SASD), has become a cornerstone of CIL, it is questioned by critical scholars such as Chimni for serving as a tool of Hegemonic International Law (HIL). As part of his larger Third World Approach to International Law, which incorporates critical perspectives drawn from Marxism anti-colonial thought, Chimni argues that the nature of SASD empowers Global North States (GNS) while undermining the practices and interests of Global South States (GSS) in custom formation, thereby excluding the latter from meaningful participation in the identification of CIL and reinforcing the dominance of GNS.
However, recent developments in international law suggest a shifting interpretation of SASD; from international reports to the Chagos decision, such developments demonstrate increasing challenge by GSS towards such traditional notions of what it means for a state to be specially-affected. A possible result of this challenge could be the reimagination of SASD; from existing scholarly understanding as a tool to maintain HIL, the SASD may be rethought as a means to amplify the voices of GSS in shaping CIL. Despite these promising shifts, neither the ICJ’s articulation in the Continental Shelf case nor Chimni’s critique offers a sufficiently nuanced framework to conceptualize the doctrine’s evolving role.
In this context, this article argues for an alternative conceptualisation of SASD that empowers GSS in custom formation while challenging HIL. This article consists of three sections. The first section revisits the conceptual foundations of SASD, with a particular focus on redefining the notion of being ‘specially-affected.’ The second section examines recent developments that position the SASD as a site of contestation, highlighting its potential to amplify the concerns of GSS. The final section offers a methodological framework that integrates these developments into a broader strategy for challenging HIL and arguing for the historic and contextual interests of the GSS.
Reconceptualising the SASD
The essence of SASD lies in the principle that the practice contributing to custom formation must also “include that of states whose interests are specially affected.” Such state practice forms a constituent of CIL, which includes the actions and omissions of state actors that indicate recognition of legal obligation arising from international law. This principle has both positive and negative implications. Positively, it underscores the necessity of such states’ practice for the creation of custom. Negatively, it suggests that the absence of practice by specially-affected states can prevent the formation of custom, even if non-specially-affected states demonstrate consistent practice. These implications thus highlight the critical question: What does it mean for a state to be specially affected?
While no certain criteria are yet established, the notion of specially affected has traditionally come to be understood as per the “Most-Powerful-States Approach” to SASD, one which operates within the power structures of HIL. This approach, invoked by GNS such as the United States and the United Kingdom, particularly in the contexts of jus ad bellum and jus in bello, interprets specially-affected as referring to states impacted by nearly all major political and legal developments in the global arena. In practice, such interpretation thus confines the perception of being specially-affected only to powerful nations, placing them in a dominant position over the formation of CIL.
Chimni critiques this conceptualization of SASD as part of his broader critical framework of CIL and its formation, whereby CIL has historically and systematically reinforced hierarchies of power aligned with the interests of capitalism. He posits that while CIL claims the status of universality, the development of CIL has in fact sought to legitimise and perpetuate HIL, and thereby is insufficient to address concerns of GNS. Within this framework, Chimni identifies SASD, alongside the persistent objector rule, as tools developed to reinforce HIL. He asserts that these tools serve primarily to advance the interests of GNS, further marginalizing GSS in the process of custom formation.
However, this conceptualization by GNS and Chimni has a major shortcoming in that it fails to address the distinct and separate origins of tools of HIL, such as the persistent objector rule, from SASD. Unlike the former, which was developed by GNS, the latter was not initially developed or argued by the GNS. Looking at its origins in the Continental Shelf case, it is observed that SASD was not advanced by any of the parties to the dispute—Germany, Denmark, or the Netherlands. Rather, it was the ICJ’s brief mention that gave rise to SASD.
Furthermore, as noted by the International Law Association (ILA), while the ICJ’s observation introduced a qualitative element to identifying CIL, its intention was merely to ensure that CIL remains grounded in “political reality” regarding whether the practice of delimitation by equidistance had constituted CIL. In this line of reasoning, the ILA also identifies the law of the sea as another area where coastal states, due to their direct interests, are more likely to qualify as specially-affected, particularly regarding CIL on offshore fisheries, compared to landlocked or less-involved states. Thus, a clearer interpretation of the ICJ’s reference to SASD reveals that the determination of whether a state is specially-affected depends on the specific circumstances surrounding the CIL in question. This interpretation is also supported, albeit not explicitly, by the Fisheries case where the ICJ differentiated Iceland from other states, as it was specially affected by fishing customs.
Therefore, contrary to the conceptualisation of GNS and Chimni, the “Most-Powerful-States Approach,” while being mainstream cannot be understood as what the ICJ propagated, nor can it be regarded as the sole interpretation of SASD. As the ILA rightly asserts, SASD does not imply that the notion of being specially-affected is only confined to major powers. This thus raises the question of whether SASD may be reconceptualised to safeguard the interests of GSS as well. Indeed, the perusal of recent developments in this regard does point towards such possibility.
SASD as a Site of Contestation
By reframing our understanding of being ‘specially-affected’ away from the Most-Powerful-States approach, a glance of recent developments reveals SASD not merely as a tool of HIL, but as a site of contestation, where GSS are increasingly asserting their concerns in custom formation. While such development cannot yet be considered complete, or said to lead to definite outcomes, a broader effort at reconceptualization is still discernible, which may be seen in two connected strands.
One strand of this change can be observed in reports from international bodies, namely the International Committee of the Red Cross (ICRC) and International Law Commission (ILC). The ICRC in its report on Customary International Humanitarian Law presents a new interpretation of SASD, one which asserts that the concept of ‘specially-affected’ must vary depending on the context. In illustrating such contextual understanding, the ICRC states that while states developing laser weapons may be considered specially-affected in certain situations, in the realm of humanitarian law, this status can cover states that either provide aid or are recipients of it. This interpretation is thus significant in that it departs from the traditional focus on jus ad bellum by suggesting that states affected by the consequences of certain practices can also qualify as specially-affected, thus opening up the possibility of SASD being invoked by GSS as well.
Similarly, the commentary to Draft Conclusion 8 in the Seventieth Report of the ILC too rejects the notion that the term specially-affected States should be taken to refer to the relative power of States.’ Instead, it emphasizes that such states are simply those that had the “possibility of applying the alleged rule.”
Unsurprisingly, this reinterpretation has faced opposition from GNS. The United States contented in its response to the ILC report that “custom must be only determined by practice of participating states,” advocating a narrower understanding of SASD. Additionally, in its response to the ICRC report, it further contended that a distinction must be made between participating states, with only some regarded as specially affected. In contrast, China’s response to the ILC report presents a more inclusive view, arguing that any state with ‘concrete influence’ on the formation of a rule should be considered specially-affected, regardless of its size or strength. This view is thus consistent with the interpretation of both report as well as the interests of the Global South, and challenges power-relative understandings of the doctrine.
The second strand of this development is evident in the recent Chagos Archipelago decision by the ICJ. In arguing for the withdrawal of British forces from colonially-held Mauritian territory, the African Union argued that the ICJ’s earlier decision in Continental Shelf should be extended to CIL concerning post-colonial nations; it contended that such post-colonial states are “specially-affected” due to their unique historical experiences as victims of colonialism. While this decision does not have significant precedential value given Article 59 of the ICJ Charter, it still remains significant in that it recognised a broader understanding of the SASD; by deciding the case in their favour, the ICJ acknowledged this argument, thereby demonstrating a broader application of SASD is possible and legitimizing its use by GSS to address historical injustices.
The significance of this decision lies in the multitude of possibilities it unlocks, particularly for decolonized nations. For example, it has been argued that the return of cultural artifacts taken during colonialism could be demanded, with former colonies qualifying as “specially-affected” due to their history of exploitation in such contexts.
Returning to Chimni in light of these developments, it is too observed that Chimni himself does not preclude the possibility of this interpretation. Indeed, in combatting CIL, Chimni’s ‘postmodern doctrine’ too gives way to this possibility; he acknowledges that this doctrine would expand the meaning of SASD to encompass “the interests of rule takers” as well. This broader application has the potential to amplify the voices of historically marginalized states and move international law towards greater inclusivity and fairness. This ongoing reinterpretation of SASD thus represents a significant shift in the dynamics of international law. By challenging traditional power-centric frameworks, these developments present a conceptual framework for the Global South to assert their interests and address systemic inequities, fostering a more representative and just international legal system
Methodological Framework and HIL
With the SASD as a site of contestation offering a conceptual framework for amplifying GSS’s concerns, it also raises a critical question: what methodological framework should ground this approach? In operating within entrenched HIL power structures, SASD still risks limited transformative potential without a clear methodology; while it may address short-term objectives in specific categories, an inadequate approach could undermine broader goals of challenging hegemonic structures, perpetuating selective inclusion, and leading to superficial reform.
Indeed, as is characteristic of critical approaches more broadly, although reinterpretations of existing doctrines like SASD may provide a conceptual basis for asserting the concerns of GSS, historical experience demonstrates that such efforts often fail to challenge the foundational power dynamics of HIL itself. While these reinterpretations are valuable in highlighting inequities, they risk being co-opted into the very structures they seek to reform. The reinterpretation of SASD must therefore be accompanied by the development of a comprehensive methodology or strategy aimed at combating HIL. Although no concrete methodology currently dominates practice, such as an alternative conceptualisation of CIL or active action by GNS to break the dominance of HIL, recent events suggest certain emergent practices that hold promise for reimagining SASD as a methodological tool. Building on these, this article proposes a two-strand methodology for reinterpreting SASD, foregrounding these practices to enable more systemic and enduring reform.
The first strand involves shifting the basis of CIL from formal to material sources, as suggested by Chimni. By grounding CIL in socio-historical contexts, this approach acknowledges the diverse power dynamics and development realities of the GSS. Such a shift can be discerned in the recognition of certain equitable principles within CIL, such as the principle of Common but Differentiated Responsibilities and Respective Capabilities in the Rio Declaration, which acknowledges the varying stages of development among states. This shift can be emphasized by rethinking development beyond just economic interests propagated by the Transnational Capitalist Class (TCC), by drawing from Amartya Sen’s conceptualisation of Development as Freedom. This approach could thus reimagine trade and development, fostering treaties and customs reflective of material realities in GSS.
The second strand focuses on strengthening this shift toward material CIL through more collective and concerted efforts by the GSS. Firstly, this involves the assertion of a unified GSS voice to articulate their interests and concerns. Given that GSS constitute the majority of global states, such efforts could significantly influence the determination of “widespread and representative participation” in CIL formation. For example, atleast 134 countries may be deemed to constitute the Global South, showcasing their numerical dominance over the GNC. Given this fact, mechanisms such as UN General Assembly resolutions and regional organizations can serve as effective platforms for asserting these concerns. Though often dismissed as rhetorical, such declarations do hold substantive value; for instance, returning to the Chagos case, the African Union’s declarations had significantly influenced the ICJ’s decision. Now defunct coalitions like the G77 could also be revitalized to further this agenda. Similarly, as seen in South Africa’s approach to investment treaties, which subjects foreign investment disputes to domestic laws and courts, GSS can also reject TCC interests by prioritizing the protection of their constitutional goals and ensuring development tailored to the needs of their people over globalization.
Secondly, this involves the proactive development of domestic legal frameworks and participation in norm formation. As Chimni notes, GSS often miss out on CIL formation due to a lack of formal sources and participation. For instance, the report of the 73rd session of the UN attributes the absence of universal environmental conventions to the lack of comprehensive domestic legislation and standards, particularly in the GSS. This deficiency, which extends beyond environmental law, often results in CIL being shaped primarily by GNS’ state practices, unsuited to GSS contexts. This prevents environmental practices in GSS from being recognized as widespread, undermining their contribution to CIL. By strengthening domestic legal frameworks, in non-environmental regimes as well, GSS can assert contextually relevant standards, countering norms crafted by GNS to suit their development priorities. A relevant example of this is the concept of the Permanent Sovereignty over Natural Resources which were developed by Latin American countries through the 19th and 20th centuries to assert their sovereignty against colonial powers. This has been specifically articulated further by the G 77, with a United Nations General Resolution being passed regarding it in 1962.
Conclusion
This article has reconceptualised SASD as a tool for empowering GSS in the formation of CIL while challenging the entrenched power dynamics of HIL. By examining recent developments, it has proposed a reimagined SASD, within a methodological framework, thus highlighting the evolving potential of the doctrine in amplifying voices of GSS in custom formation. This reimagined approach thus both fulfils Chimni’s arguments for integrating historical and contextual interests into international law to promote equity and inclusivity, and provides a practical framework for advancing scholarly calls, such as those made by Heller, for Global South States to engage with the SASD. In light of the proposed framework, this article thus concludes by recommending that Global South States pursue the material, collective, and formal articulation of their concerns through the invocation of the SASD, whether by way of resolutions or through argumentation in international forums and agreements.