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Traditional and Modern Approaches to Customary International Law: A Reconciliation

by Anthea Elizabeth Roberts
American Journal of International Law ()

Abstract

There are two contemporary approaches to the determination of customary international law: the "traditional," which emphasizes state practice, and the "modern," which emphasizes opinio juris. This article proposes a theory of custom that incorporates both approaches, It rejects analyzing custom on a "sliding scale" in favor of a reflective interpretive approach that reconciles the descriptive and normative justifications for traditional and modern custom.

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