Pushing the Boundaries: Rethinking International Law in Light of Cosmopolitan Obligations to Developing Countries

Abstract

This article argues for a change in the normative assumptions of international law so as to attenuate the historical marginalization of developing countries. It describes a form of collective responsibility called "cooperative cosmopolitanism" that requires individuals and states to take responsibility for harms to those beyond their borders. Cooperative cosmopolitanism entails obligations shared by all that are realized collectively and cooperatively. Taking a phenomenological approach and relying on examples of areas of international law (especially international investment law) that have a disproportionately negative impact on developing countries, the article suggests five ways in which international law should evolve in order to take better account of our cosmopolitan obligations: (1) widening the ambit of international law beyond state-based issues; (2) de-emphasizing state practice and opinio juris as criteria for creating international law; (3) recognizing an increased role for equity in international law; (4) broadening state responsibility to include harms caused by their nationals abroad; and (5) articulating a cosmopolitan understanding of the responsibilty to protect foreign nationals.

Keywords: international law, cosmopolitanism, developing countries, international investment law, responsibility to proect, equity, customary international law

JEL Classification: K33