Global Cooperation Research Papers 22, Duisburg 2019
Keywords: repetition, customary law, expert commitee, International Law Commission, pathways, polycentric governance
Rules of customary law figure prominently in today’s law and policy. Across policy fields, courts and policy-makers are called to interpret and apply customary law. However, it is still a bit of a mystery how rules of customary law emerge and how they can be identified in the first place. In this paper, I set out why the mystery of customary law is bound to remain unresolved. Customary law cannot be treated as a body of rules ‘out there’, ready for application by domestic, regional or global authorities. Instead, it is part of a process of global cooperation where rules of customary law emerge and grow because they are restated. Rules of customary law only exist if they are successfully presented as already there.