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Precedent, Compliance and Change in Customary International Law: An Explanatory Theory

American Journal of International Law, Vol. 108, pp. 389-434 (2014)

Virginia Public Law and Legal Theory Research Paper No. 2014-38

50 Pages Posted: 18 Jul 2014 Last revised: 23 Dec 2014

Pierre-Hugues Verdier

University of Virginia School of Law

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS)

Date Written: July 16, 2014

Abstract

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.

Keywords: customary international law, precedent, treaties

JEL Classification: K33, K40, N40

Suggested Citation

Verdier, Pierre-Hugues and Voeten, Erik, Precedent, Compliance and Change in Customary International Law: An Explanatory Theory (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. Available at SSRN: https://ssrn.com/abstract=2467101

Pierre-Hugues Verdier (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS) ( email )

Washington, DC 20057
United States

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