“The Obsolescence of Customary International Law”

By Susan Yoshihara, Ph.D.
Center for Family and Human Rights

“A verbal contract is not worth the paper it is printed on,” quipped film producer Samuel Goldwyn. The study’s author, Fletcher School professor Joel Trachtman says the aphorism sums up the reason nations have moved beyond the 300 year-old ethic of customary law that evolves over many years of practice but isn’t negotiated or necessarily consented to.

Of the 300 customary laws the study identified, only 13 had not been codified in treaties. In an era in which nations don’t just have to coexist but must cooperate in a complex global economy, treaty law’s specificity is preferred. It is more legitimate in the age of democratic governments, Tracthman notes, and it is more practicable than ever at a time when delegates can easily travel to negotiations and international conferences.

Tractman notes that some legal experts today promote the idea of “instantaneous customary law” which is based upon non-binding UN General Assembly resolutions. But he argues that such claims are inconsequential since nations no longer rely custom except in widely accepted cases such as the right of warships in distress to enter a port and the duty of combatants to disobey unlawful orders.

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