There has been a recent proliferation of scholarship on the development, identification, and determination of customary international law [CIL]. Much of this has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. However, there are influential voices who argue that CIL nevertheless continues to play a necessary role in the international legal system, and that many of the problems that have been identified are exaggerated. This paper maintains that the problems which have been identified in the processes of identification and determination of CIL are of such a serious and institutionalized nature as to produce a presumptive distrust of any statement about what is or is not CIL. It argues that the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.
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