An Experimental Contribution to the Theory of Customary (International) Law

Christoph Engel

No 2010_13, Discussion Paper Series of the Max Planck Institute for Research on Collective Goods from Max Planck Institute for Research on Collective Goods

Abstract: In their majority, public international lawyers postulate that for a new rule of customary law to originate, two conditions must be fulfilled: there must be consistent practice, and it must be shown that this practice is motivated by the belief that such behaviour is required in law. Maurice Mendelson (Recueil des Cours 272 (1998) 155) has challenged this view. He believes that the majority view ignores the fundamentally incomplete nature of public international law. He claims that the new rule emerges because mere practice leads to convergent expectations. This paper uses data from student experiments with a linear public good to show that behaviour con-verges even absent verbal communication; that convergence is guided by mean contributions in the previous round, which serve as an implicit norm; that freeriding on this implicit norm is re-garded as illegitimate; that cooperation can be stabilised at a high level if “reprisals” are permitted. Hence the mechanism of norm formation proposed by Maurice Mendelson is fully borne out by the experimental data.

Keywords: experiment; customary international law; opinio iuris; linear public good (search for similar items in EconPapers)
JEL-codes: C91 D03 D23 F53 H41 K33 (search for similar items in EconPapers)
Date: 2010-04
New Economics Papers: this item is included in nep-cbe, nep-exp, nep-hpe, nep-law and nep-pbe
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Persistent link: https://EconPapers.repec.org/RePEc:mpg:wpaper:2010_13

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