Daniel Bodansky (University of Georgia Law School) has posted Prologue to a Theory of Non-Treaty Norms (Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, M. Arsanjani, J. Cogan, R. Sloane & S. Wiessner, eds., Brill 2010) on SSRN. Here is the abstract:
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This short contribution to a festschrift for Professor Michael Reisman addresses the problem of non-treaty norms. In lieu of the traditional categories of custom, general principles, and soft law, the essay proposes an alternative categorization of non-treaty norms, focusing on three variables: first, whether a non-treaty norm is accepted directly or because it satisfies a secondary rule of recognition; second, whether a non-treaty norm is the result of a conscious, purposive process, with identifiable authors, or arises in a more organic, non-purposive way; and third, whether a non-treaty norm reflects a behavioral or discursive regularity. The essay suggests that this categorization provides a more useful starting point to explore the normative and explanatory questions about the origin and influence of non-treaty norms.