Custom, Codification, and the Verdict of History

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In a terrific new article, Professor Timothy Meyer challenges this exalted view of codification, which numerous scholars since Oppenheim have echoed. Meyer argues in Codifying Custom that codification is a self‐interested project undertaken by rational and perhaps even cunning states seeking to write the rules in their own favor. He does not dismiss the possibility that codification projects clarify or progressively develop international law, but he views this possibility, which he terms the Clarification Thesis, as overstated. He argues that another common motive for codification is what he calls the Capture Thesis: “states often use codification to capture customary international legal rules to benefit themselves at the expense of the general welfare . . . .”

In this Response, I consider the strength of Professor Meyer's Capture Thesis and discuss some implications of his findings. Professor Meyer makes a persuasive case that states might pursue codification to advance understandings of customary international law that will advantage them at the expense of other states. But I have difficulty with his further claim that such capture is in fact a common motive for codification. My objections stem from two main sources. First, Professor Meyer relies on a model that overstates the likely power of capture. Second, the landscape of codification today aligns more with the Clarification Thesis than with the Capture Thesis. Thus, I think the Capture Thesis is much less powerful than Professor Meyer suggests. Since I accept that capture could sometimes drive codification, however, I close this Response by considering how international law might respond to the risk of capture. I argue that international law already responds to these risks by codifying international law through mechanisms that partially bypass the traditional principle of state consent.

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