Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 7: The emergence of customary international law: Between theory and practice

Omri Sender and Michael Wood


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.

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