Document Type

Working Paper

Publication Date

8-7-2018

SSRN Discipline

PSN Subject Matter eJournals; Political Institutions: International Institutions eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; Public International Law eJournals; Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; International Law & Trade eJournals; AARN Subject Matter eJournals; Political Institutions eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

There has been a recent proliferation of scholarly treatment on the development identification and determination of customary international law CIL in response to the International Law Commission's work program on this topic which it began in 2012 Much of this scholarship has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law At the same time there are influential voices who argue that notwithstanding these problems some of which they contend are overstated CIL nevertheless continues to play a practically useful and necessary role in the international legal system and that there is nothing fundamentally wrong with the orthodox process for identifying CIL This article maintains that the problems which have been identified by scholars in the processes of identification and determination of CIL and their implication for the international legal system are of such a serious and institutionalized nature as to give rise to a presumptive distrust of any statement about what is or is not a rule of CIL It argues that if CIL is going to retain its place as a source of international legal obligation the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules

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