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Sender, Omri; Wood, Michael --- "The emergence of customary international law: Between theory and practice" [2016] ELECD 584; in Brölmann, Catherine; Radi, Yannick (eds), "Research Handbook on the Theory and Practice of International Lawmaking" (Edward Elgar Publishing, 2016) 133

Book Title: Research Handbook on the Theory and Practice of International Lawmaking

Editor(s): Brölmann, Catherine; Radi, Yannick

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781953211

Section: Chapter 7

Section Title: The emergence of customary international law: Between theory and practice

Author(s): Sender, Omri; Wood, Michael

Number of pages: 27

Abstract/Description:

The present contribution seeks to provide a general overview of the theory and practice concerning the question of how customary international law emerges. Raising some of the central issues rather than offering hard-and-fast answers, it suggests that although the process of formation of customary international law may defy exact definition in light of its inherently informal nature, important signposts exist for those who seek them. In particular, while scholars continue to debate how customary international law is generated, a shared understanding of the essential requirements does exist in practice among States and various international actors, who continue to regard customary international law as deriving from ‘a general practice accepted as law’. Such an understanding of how customary international law comes into existence and what it essentially is, is crucial for establishing a greater certainty with regard to its content and for the legitimacy of international law more broadly.