B.S. Chimni's stimulating article makes an important contribution to the burgeoning literature on customary international law (CIL) by examining CIL from the perspective of developing states, a perspective underrepresented in this literature. His article articulates well many valid points about the sociohistorical biases of CIL. At the same time, there may be reasons for more optimism than Chimni appears to possess about the ability of CIL to serve global interests, including those of the Third World. Furthermore, some of Chimni's proposals merit further refinement. In this essay I propose to evaluate the strengths and potential shortcomings of Chimni's arguments in light of an approach to CIL that I have developed that is based on fundamental ethical principles recognized in international law. After laying out an alternative theory that still has many resonances with Chimni's proposals, I discuss critically three of the key theses articulated by Chimni: First, that CIL is inherently colonialist and inconsistent with the values of Third World peoples; second, that even contemporary customary international human rights law (IHRL) is a means of furthering global capitalism to the detriment of Third World peoples; and third, that the remedy for CIL's biases lies in the creation of a “postmodern” doctrine of CIL that incorporates reference to the “juridical conscience of humankind.”

B.S. Chimni's thought-provoking article presents a welcome opportunity to reflect on both the value and the shortcomings of custom as a source in contemporary international law. Chimni convincingly identifies points of concern with respect to the representativeness of the relevant state practice and the availability of non-Western practice. His article is part of a stream of recent scholarship that examines the relationship between public international law and the so-called Third World under the label of Third World Approaches to International Law (TWAIL). The contribution, like much of the TWAIL literature, is helpful in that it reveals the biases of international law in favor of the former colonial powers and identifies the ways in which these inform the identification and interpretation of (customary) international law. Yet we do not agree with some of the premises of Chimni's critique or his suggested remedies. In particular, we would like to offer a different perspective on the importance of power, the distinction between formal and material sources, and the legitimacy of his concept of postmodern custom.

In advancing a Third World Approaches to International Law (TWAIL) analysis of customary international law (CIL) and its dominant doctrinal conceits, B.S. Chimni shows how the jurisprudence of custom has been co-constitutive with colonization and capitalism. He contends that CIL's most fundamental assumption—the “supposed distinction between ‘formal’ and ‘material’ sources of CIL”—privileges Western states while legitimizing CIL as a neutral and universal body of law. In dialogue with Chimni, this essay extends the conversation in two directions. First, I show that there are important resonances between Chimni's deconstruction of the distinction between “formal” and “material” sources of CIL, and a feminist critique of the public/private distinction in international law. Chimni describes his approach as postmodern. I argue that its analysis of the conceptual architecture of the dominant doctrine and its systematic exclusions is also, at its core, a feminist approach to international law. Second, and inspired by Chimni's critique, I explore insurgent jurisprudential traditions that challenge the hierarchies, inequalities, and biases in received doctrine regarding the sources of CIL. Chimni's decolonial approach acknowledges CIL's imperial past, and prepares the ground for democratizing and pluralizing sources by paying attention to a so-called opinio juris communis that incorporates the interests of those critical of, or oppressed by, the dominant world order. Building on this ground, I draw on the Panchsheel principles, first nations’ conceptions of sovereignty and citizenship, and practices of fugitive freedom by maroon communities to begin to supply content and form to a counterrepertoire of custom.

B.S. Chimni's study of customary international law (CIL) is a review of its role both as a supporter of the existing global capitalist order and as a potential instrument to challenge that order in favor of a postmodern deliberative reasoning as the shaper of a new CIL. It has been my view, since the The Decay of International Law? in 1986, that general customary international law is not an intelligible concept and not actually used in practice to demonstrate empirically the existence of any rule of law. I follow Hans Morgenthau, who wrote in 1940 in the American Journal of International Law that the manner in which the International Court of Justice (ICJ) uses this concept is to decide what it likes and call it customary law. I reiterated this view in my review of the ICJ in the first edition of my Philosophy of International Law in 2007. While Chimni quotes my writings on general custom frequently and very positively in his article, this is always to support a progressive customary law and never to do what I would propose, which is to make a complete break with CIL in favor of an independent approach to the problems it is supposed to answer.

The seventieth anniversary of the Universal Declaration of Human Rights (UDHR) comes at a time of more contestation than usual over the future of human rights. A sense of urgency animates debates over whether the institutions and ideas of human rights can, or should, survive current geopolitical changes. This symposium, by contrast, shifts the lens to a more slow-moving but equally profound challenge to human rights law: how technology and its impacts on our social and physical environments are reshaping the debate on what it means to be human. Can the UDHR be recast for a time in which new technologies are continually altering how humans interact, and the legal status of robots, rivers, and apes alike are at times argued in the language of rights?

Using the example of harmful speech online, this essay argues that duties to others—a core component of our humanness—require us to consider the impact our speech has on those who hear it. The widening availability of tools for sharing information and the rise of social media have opened up new avenues for individuals to communicate without the need for journalistic intermediaries. While this presents considerable opportunities for expression, it also means that there are fewer filters in place to manage the harmful effects of speech. Moreover, the structure of online spaces and the uneven legal frameworks that regulate them have exacerbated the effects of harmful speech, allowing mob behavior, harassment, and virtual violence, particularly against minority populations and other vulnerable groups.

“Digital technology is transforming what it means to be a subject.” The increase in the use of big data, self-learning algorithms, and fully automated decision-making processes calls into question the concept of human agency that is at the basis of much of modern human rights law. Already today, it is possible to imagine a form of “algorithmic authority,” i.e., the exercise of authority over individuals based on the more or less automated use of algorithms. What would this development mean for human rights law and its central categories? What does the Universal Declaration of Human Rights (UDHR), adopted seventy years ago as a founding document of the human rights movement at the international level, have to say about this?

This essay discusses how, despite the liberatory potential of technology, racial bias pervades the digital space. This bias creates tension with both the formal, de jure equality notion of “colorblindness” (in U.S. constitutional law) as well as the broader, substantive, de facto equality idea (in international human rights law). The essay draws on the work of Osagie Obasogie to show how blind people perceive race in the same way as sighted people, despite not being able to see race. It then uses blindness as a metaphor to explore how race is seen and not seen online, and analyzes the implications of this for human rights.

With the ever-increasing range of medical technologies at our disposal to mediate the processes of life, from conception to death, comes an ever-increasing number of decision points about human control of fate. And as we debate altering our fate—whether dictated by a deity or by chance—the discussion frequently devolves into a question of whether we may alter not only our own fate, but also that of our children. The advent of genome editing, whether by older methods or the newer, often more easily used methods employing CRISPR, has only made debating the controversial possibility of heritable “germline” editing more urgent. The advent of genome editing, whether by older methods or the newer, often more easily used methods employing CRISPR, has only made debating the controversial possibility of heritable “germline” editing more urgent. On the eve of the Second International Summit on Human Genome Editing, held at the end of November 2018 in Hong Kong, a startling and disturbing story began circulating - a Chinese researcher announced the first births of children whose genomes had been edited at the embryonic stage. The work (assuming the claim can be verified) suffered from myriad problems, beginning with the lack of a compelling medical need, and including inadequate preclinical research, lack of peer review, flawed subject recruitment and consent procedures, and an apparent disregard for both formal and informal rules governing genetic manipulation of embryos. The summit's organizing committee issued a statement, distinguishing this experiment from what would be a responsible translational pathway forward. But not surprisingly, others around the world immediately called for a global, enforceable prohibition on such genetic engineering. On the occasion of the Universal Declaration on Human Rights (UDHR)’s seventieth anniversary, this essay argues that the current human rights law on germline editing misunderstands both the mechanisms of genetics and the moral basis for human rights, suggesting a more nuanced approach as we move forward and keep pace with new gene-editing technologies.

This essay considers the Universal Declaration of Human Rights (UDHR) at a time at which humans are dramatically changing the planet, prompting scientists to suggest that we are living in a new geological epoch: “the Anthropocene.” The Anthropocene, even if an essentially contested concept, prompts reconsideration of our interhuman socioeconomic relations and our understanding of the human-nature interface, both of which come with significant challenges. This essay suggests that the UDHR offers the space for engaging with these challenges, if we adopt an Anthropocene-relevant reading of its provisions. This essay also argues that such a reading of the UDHR, on its own, is unlikely to lead to the adoption of an Anthropocene-relevant reading of other international instruments, international economic instruments in particular. It points to enhanced regime interaction as a way to address this issue.

In May 2018, U.S. President Donald Trump spoke about illegal border crossings: “We have people coming into the country, or trying to come in … . You wouldn't believe how bad these people are. These aren't people. These are animals.” Such dehumanization (in this case of undocumented migrants at the U.S.-Mexico border) has been a standard discursive strategy to prepare, instigate, facilitate, and exculpate violence committed by humans against other humans throughout history. It is exactly in reaction to excesses of such dehumanizing mass violence committed in the Third Reich and during World War II that the Universal Declaration of Human Rights (UDHR) was adopted in 1948. This essay argues that the objectives of the UDHR itself would be furthered if the United Nations (or another international body such as the Food and Agriculture Organization, the World Health Organization, or the World Organisation for Animal Health (OIE)) engaged in work on a universal animal rights declaration. While animal welfare is increasingly protected in domestic jurisdictions, animal rights are still hardly recognized, although they would serve animals better. Animal rights would need to be universalized in order to have an effect in a globalized setting. The international legal order is flexible and receptive to nonhuman personhood. The historical experience with international human rights encourages the international animal rights project, because it shows how the equally pertinent objection of cultural imperialism can be overcome. Animal rights would complement human rights not least because the entrenchment of the species-hierarchy, as manifest in the denial of animal rights in many cases, condones disrespect for the rights of humans themselves.