Joyner: Why I Stopped Believing in Customary International Law

Daniel Joyner (Univ. of Alabama - Law) has posted Why I Stopped Believing in Customary International Law (Asian Journal of International Law, forthcoming). Here's the abstract:

There has been a recent proliferation of scholarly treatment on the development, identification, and determination of customary international law (CIL), in response to the International Law Commission’s work program on this topic, which it began in 2012. Much of this scholarship has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. At the same time, there are influential voices who argue that, notwithstanding these problems, some of which they contend are overstated, CIL nevertheless continues to play a practically useful and necessary role in the international legal system, and that there is nothing fundamentally wrong with the orthodox process for identifying CIL. This article maintains that the problems which have been identified by scholars in the processes of identification and determination of CIL, and their implication for the international legal system, are of such a serious and institutionalized nature as to give rise to a presumptive distrust of any statement about what is or is not a rule of CIL. It argues that if CIL is going to retain its place as a source of international legal obligation, the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.