Groundwork for International Law
108 American Journal of International Law 650 (2014)
30 Pages Posted: 15 May 2015
Date Written: 2014
International customary law has suffered from indeterminacy. It was an art of expertise judgment whether a given action added to the practice of states or was in violation of that practice. Moreover, traditional methodology made it impossible to figure out how state practice got started or how it could ever be changed. The present article offers for the first time an objective method of ascertaining rules of customary law: when there is an interstate dispute, pick the rule that offers greater long-term stability. This article looks at law from the inside — as a mechanism for perpetuating itself. Law therefore exhibits a propensity to absorb and amplify rules that cohere better with stability than with anarchy or chaos.
Keywords: general systems, autopoiesis, customary international law, persistent objector, opinion juris, domestication, special custom, conflict resolution
JEL Classification: K10, K19, K30, K33
Suggested Citation: Suggested Citation