Customary International Law: An Instrument Choice Perspective

48 Pages Posted: 23 Oct 2015 Last revised: 6 Feb 2017

See all articles by Laurence Helfer

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Ingrid B. Wuerth

Vanderbilt University - Law School

Date Written: February 5, 2017

Abstract

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law — treaties — and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law.

This article applies an instrument choice perspective to demonstrate custom’s continuing relevance to contemporary international lawmaking. First, we use instrument choice to identify the distinctive design features that distinguish CIL from treaties and soft law. As an ideal-type and in comparison to conventions and nonbinding norms, custom is a non-negotiated, unwritten and universal form of cooperation. Second, instrument choice illuminates the constraints that limit custom to particular types of cooperation problems, which we label as custom’s “domains.” Specifically, CIL’s design features limit custom to situations in which all-states-benefit from a norm, hegemonic custom, and normative custom. Third, an instrument choice approach predicts that states will continue to prefer custom over treaties and soft law when its design features or substantive norms offer advantages over international agreements and nonbinding norms. Custom thus retains contemporary relevance even in an age of soft law and treaties, so long as states act within the constraints imposed by custom’s domains.

Keywords: instrument choice; rational choice; customary international law

JEL Classification: K33

Suggested Citation

Helfer, Laurence and Wuerth, Ingrid B., Customary International Law: An Instrument Choice Perspective (February 5, 2017). Michigan Journal of International Law, 2016 Vol. 37(4): 563-609; Vanderbilt Public Law Research Paper No. 15-35; Duke Law School Public Law & Legal Theory Series No. 2015-49. Available at SSRN: https://ssrn.com/abstract=2677300

Laurence Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Ingrid B. Wuerth

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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