Precedent, Compliance and Change in Customary International Law: An Explanatory Theory
University of Virginia School of Law
Georgetown University - Edmund A. Walsh School of Foreign Service (SFS)
July 16, 2014
American Journal of International Law, Vol. 108, pp. 389-434 (2014)
Virginia Public Law and Legal Theory Research Paper No. 2014-38
This article articulates an explanatory theory of customary international law under which precedential concerns are central to explaining CIL formation, compliance and change. In contrast with previous theories, which emphasize the role of reciprocity, retaliation and reputation in sustaining cooperation, we show that fundamental legal and institutional features of CIL complicate the use of such decentralized punishment mechanisms. Yet, the same features support an alternative rationale for compliance: a state may comply because it knows its decision to defect creates a precedent that may undermine a cooperative norm it values. We develop this rationale and show that it explains and clarifies several important aspects of traditional CIL doctrine. By emphasizing the distinctive legal and institutional features of CIL familiar to international lawyers, we also demonstrate the importance of incorporating legal insights in interdisciplinary positive analyses of international law.
Number of Pages in PDF File: 50
Keywords: customary international law, precedent, treaties
JEL Classification: K33, K40, N40
Date posted: July 18, 2014 ; Last revised: December 23, 2014
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