International Relations Looks at Customary International Law: A Traditionalist's Defence

Abstract

A recent influential article by two American law professors, one of whom has held high positions in the US Government, asserts that customary international law plays little or no role in decisions by states. It rests this conclusion on the basis of an analysis that relies on game theory or public choice analysis. It attempts to confirm this result by surveying the history of customary international law controversies. It is the purpose of this essay to demonstrate that the article omits many other important controversies in which arguments about custom have exerted considerable influence.