International Customary Law and Articulation Theories: an Economic Analysis
George Washington University - Department of Economics
University of Minnesota - Law School; University of Bologna
International Law and Management Review, Vol. 2, p. , 2007
George Mason Law & Economics Research Paper No. 02-24
Minnesota Legal Studies Research Paper No. 07-28
Notable scholars have considered the conditions under which rules of customary law can emerge spontaneously through the voluntary interaction and exchange of states in the international community. In this paper, we model the process of international customary law formation under different regimes. We start by considering a traditional model of customary law where legal rules emerge out of past practice. Once established by practice, legal customs enjoy reciprocal application among the states. Our model reveals the limits of the process of custom formation when choices are sequential and players know their roles at the time of strategy selection. After studying the effect of reciprocity, we examine the effects of "articulation" theories, which allow states to commit publicly to a strategy before their respective roles are unveiled. The welfare analysis of the alternative mechanisms of custom formation reveals the advantages and limits of the various processes of customary law formation.
Number of Pages in PDF File: 32
Keywords: Customary law, Custom Formation, Articulation, Norms
JEL Classification: K10, K33, D70
Date posted: October 7, 2002
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