Methodology and Misdirection: Custom and the ICJ

Published on December 1, 2015        Author: 

In Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion, Stefan Talmon revisits the old debate over inductive and deductive methods for finding customary international law (CIL) to see whether we can now, fifty years after the original debates, learn any lessons about whether, when, and how the International Court of Justice uses each. What Talmon finds is that there are no clear patterns in how the ICJ uses each method, and that in fact, it is a third method, assertion, that best exemplifies the Court’s approach. What Talmon only hints at though are much broader lessons—that the ICJ’s failure to adopt a clear methodology for finding customary international law is only a symptom of a much broader problem, that the ICJ has never articulated a clear, coherent explanation of its authority to interpret customary international law or for whom. The ICJ’s efforts to find customary international law may simply be incoherent, a mirage, or even impossible.

The questions that Talmon’s study begs are why. Why isn’t the ICJ more interested in developing a clear methodology and why are there no patterns in the ICJ’s use of deductive or inductive methods? And why aren’t states more concerned? Why haven’t states demanded a clear methodology before treating ICJ decisions on custom as authoritative?

Methodology as Justification

Starting with the first question, the lack of clear methodology hints that the ICJ’s choice of induction, deduction, or assertion has little to do with methodology and everything to do with justification. When the Court invokes each one, it is attempting to justify its authority to interpret or find rules of CIL. Assertion makes this clearest—in the absence of any real evidence of a customary rule, the Court justifies it rules with appeals to “obviousness.” As Talmon wisely observes, both inductive and deductive methods are claims of derivative authority—the Court is not “making” or “choosing” a rule, but merely “finding” the rule made by states themselves in their interaction with one another. This is true whether the Court counts practice and weighs opinio juris or attempts to deduce a specific rule from recognized more general ones. It also tracks the requirement of article 38 of the ICJ Statute that the Court apply “international custom, as evidence of general practice accepted as law.” In essence, the Court‘s claim is that it is simply stepping into the shoes of states and making the same judgment they would make about specific rules and actions.

Negotiated Law and Adjudicated Law

The problem reflected in the ICJ’s methodological muddle is that this task may be impossible and the justification something of a fib. A court cannot step into a state’s shoes. A court forced to find a rule to decide a case is engaged in a fundamentally different activity than a state discerning a rule to guide its actions or jockeying for its favoured interpretation in relations with other states. Read the rest of this entry…

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The International Court of Justice and Customary International Law: A Reply to Stefan Talmon

Published on November 30, 2015        Author: 

There is much to agree with in Professor Talmon’s article, which addresses the International Court of Justice’s methodology for the determination of rules of customary international law, and concludes that “the main method employed by the Court is neither induction nor deduction but, rather, assertion.” But there are some questionable aspects, including its conclusion.

The Court’s approach to the identification of rules of customary international law

Professor Talmon regrets the lack of discussion, both by the Court itself and by writers, of the methodology used by the Court to determine the existence, content and scope of rules of customary international law. But the Court has of course stated in its 2012 Jurisdictional Immunities of the State judgment that in order to determine the existence of a rule of customary international law “it must apply the criteria which it has repeatedly laid down for identifying a rule of customary international law” – as indeed it has. The Court recalls its pronouncements in the North Sea Continental Shelf and Continental Shelf (Libyan Arab Jamahiriya/Malta) cases, where it “made clear” that “the existence of a rule of customary international law requires that there be “a settled practice” together with opinio juris” (I.C.J. Reports 2012, p. 99, at p. 122, para. 55). It could well have cited to other decisions as well, among them Military and Paramilitary Activities in and against Nicaragua and Legality of the Threat or Use of Nuclear Weapons. A coherent methodology does come into sight in these (individually and even more so in the aggregate), even if not all questions relating to it have been fully addressed. It is one thing to suggest, as some have, that the Court does not consistently adhere to this stated methodology; it is a different thing altogether to argue, as Professor Talmon does, that the Court “has hardly ever stated” such methodology. Read the rest of this entry…

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Announcements: CfP Groningen Journal of International Law; CfA Bucerius Law Journal Conference; CfP Changing Narratives of Rule of Law (Rotterdam); Curriculum Vitae A Prequel – Professor Roger O’Keefe; CfS Texas Inequality and Human Rights Conference

Published on November 28, 2015        Author: 

1. Call for Papers: Groningen Journal of International Law. The Groningen Journal of International Law (GroJIL) is now receiving submissions for its Volume 4, Issue I on International Criminal Organisations: Contemporary Challenges. The issue will be focusing on emerging challenges to the effective regulation of international criminal organisations through international law. We are especially interested in areas such as cyber-crime and the role of different actors in regulating international criminal organisations, and the GroJIL is seeking submissions that take an innovative approach, and go beyond a descriptive-empirical analysis of what the current law is. The word limit is 15,000 words, and the deadline for submission is 1 February 2016. Papers should be submitted by 5 December 2015 to groningenjil {at} gmail(.)com. For more information and GroJIL’s publishing profile, please see here.

2. Call for Abstracts: Bucerius Law Journal Conference on International Investment Law & Arbitration. The Bucerius Law Journal Conference on International Investment Law & Arbitration has issued a call for abstracts. The conference will be hosted from 22-23 April 2016 in cooperation with the renowned practitioners Neil Kaplan QC CBE SBS and R. Doak Bishop in Hamburg, Germany. Recent challenges in Investment Law & Arbitration will be discussed in panels based on the submitted works of participants. The two best abstracts will receive scholarships. The deadline is 11 January 2016. For further information see here.

3. Conference and Call for Papers: Changing Narratives of Rule of Law (Rotterdam). On 28 and 29 January 2016, Erasmus School of Law in Rotterdam will hold the conference ‘Changing Narratives of Rule of Law: Historical and Contemporary Perspective’. The conference revisits the notion of the ‘rule of law’ from critical theoretical, historical and other angles of inquiry. Papers from international law, European Union law, legal theory, political science and history are welcome. The confirmed speakers include Prof. Kim Lane Scheppele (professor of sociology and international affairs, Princeton University), Prof. Jan Klabbers (professor of International Law, University of Helsinki), Prof. Nikolas Rajkovic (professor of international law, Tilburg University) and Prof. Robert von Friedeburg (professor of early modern history, Erasmus University). Abstracts of 300 – 500 words should be sent by email to Dr. Nathanael Ali, at ali {at} law.eur(.)nl by 16 December 2015. Further details can be found here.

4. Curriculum Vitae. A Prequel – Professor Roger O’Keefe. This lecture on 10 December 2015, from 18.00 – 19.00, forms part of University College London’s Current Legal Problems lecture series 2015 – 2016. Chaired by His Excellency Judge James Crawford AC (International Court of Justice), Professor Roger O’Keefe’s inaugural lecture will tease out some recurrent international legal problems through the story of the life and opinions of D. H. G. H.-G. Salamander, lesser highly qualified publicist and minor poet. See here for further information. Admission is free, but registration is required. The lecture will be held at UCL Gustave Tuck Lecture Theatre, Wilkins Building, Gower Street, London WC1E 6BT.

5. Call for Submissions: Inequality and Human Rights Conference. The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin, School of Law invites submissions for an interdisciplinary conference on the theme “Inequality and Human Rights,” to be held 7-8 April 2016. Papers are invited from any discipline that considers whether international human rights law, movements, and discourses have, could or should engage with the problem of economic inequality nationally or internationally. The deadline for submissions has been extended to 13 December 2015. A limited number of travel grants are available. Further details can be found here.


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Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion

Published on November 27, 2015        Author: 

Methodology is probably not the strong point of the International Court of Justice (ICJ) or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the ICJ has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the ICJ’s jurisprudence to the inductive and deductive method of law determination. In the Gulf of Maine case, a Chamber of the Court stated that ‘customary international law […] comprises a set of customary rules whose presence in the opinio juris of States can be tested by induction based on the analysis of a sufficiently extensive and convincing practice and not by deduction from preconceived ideas’ ([1984] ICJ Rep 246 [111]). The use of the words ‘can be’, rather than ‘is’, implies that customary international law rules can also be discovered deductively. That deduction is part of the ICJ’s methodological arsenal is demonstrated by the fact that in the North Sea Continental Shelf cases five judges used the deductive method in their separate or dissenting opinions. For example, Judge Tanaka stated that ‘[i]n the event that the customary law character of the principle of equidistance cannot be proved, there exists another reason which seems more cogent for recognizing this character. That is the deduction of the necessity of this principle from the fundamental concept of the continental shelf’ ([1969] ICJ Rep 179). In the ICJ’s more recent jurisprudence, the Arrest Warrant case is widely seen an example of deductive reasoning, while the Jurisdictional Immunities of the State case is regarded as a prime example of the Court using the inductive method.

It is not only the ICJ itself that has largely remained silent on its methodology for the determination of customary international law. The legal literature has also had little to say on this subject. The great debate in the 1960s between Georg Schwarzenberger and Wilfred Jenks over the right method in international adjudication remains an isolated incident. [See Jenks, The Prospects of International Adjudication (1964), at 617–662 (‘Inductive and Deductive Reasoning in International Adjudication’) & Georg Schwarzenberger, The Inductive Approach to International Law (1965), at 115–164 (‘The Inductive Approach Refuted?’)]  Jenks saw in Schwarzenberger’s inductive approach to international law ‘a challenge to creative jurisprudence’, while, for Schwarzenberger, the deductive method was nothing more than ‘judicial legislation’ in disguise. In view of the fact that determining the law always also means developing and, ultimately, creating the law, it is surprising that the question of the ICJ’s methodology has attracted such little interest.

The article aims to refocus attention on the methodology used by the ICJ when determining the rules of customary international law that it applies, and to highlight the role played by methodology in the development of customary international law. Read the rest of this entry…

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Discussion of Stefan Talmon’s “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion”

Published on November 27, 2015        Author: 

I am delighted to announce that, over the next few days, we will be hosting a discussion of Professor Stefan Talmon’s (University of Bonn) recent article – “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion” – which was published a few months ago in (2015) EJIL Issue no. 2 . As he explains in the abstract:

This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law.

Commenting on the article will be Sir Michael Wood, who is the International Law Commission’s Special Rapporteur on “The Identification of Customary International Law”, writing together with Omri Sender (of the World Bank); Harlan Grant Cohen (University of Georgia); and Fernando Lusa Bordin (University of Cambridge). They have all previously written brilliantly on customary international law. We are grateful to each of them for taking part in this discussion. As usual, comments by readers are welcome. Stefan’s article is freely available on the EJIL and OUP websites so do take a look at it in advance of the discussion.

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Was the Downing of the Russian Jet by Turkey Illegal?

Published on November 26, 2015        Author: 

There has been much talk of improvement of the relationship between Russia and the West following the deadly terrorist attacks in Paris two weeks ago. Whatever gains have been made on that front will risk being reversed following Tuesday’s incident involving the Russian and Turkish air forces. Although the exact facts are—and likely will remain—disputed, the essence of the incident is known: a Russian fighter jet was shot down in the morning of 24 November by the Turkish military near the Turkish-Syrian border. This post weighs the international law considerations raised by the incident and suggests that on the basis of the available facts, the question from the title should likely be answered in affirmative.

The Russian SU-24 jet was in the region as part of the recent military offensive conducted by the Russian forces with the consent of the government of Syria against a number of armed groups on the Syrian territory, including the notorious Islamic State. The central contested fact is, of course, whether the aircraft had crossed over the border into the Turkish airspace. The Turkish prime minister Ahmet Davutoğlu emphatically claimed that it had; the Russian president Vladimir Putin denied it in equally strong words. An unnamed US official was reported as having said ‘that the Russian incursion into Turkish airspace lasted a matter of seconds’. Later, a Turkish letter addressed to the President of the Security Council (and duly leaked online) stated the incursion had lasted for exactly 17 seconds.

The legal analysis under international law is reasonably clear if the Russian version of the events is taken as factually accurate. The shooting down of another State’s military aircraft amounts to a use of force against that State. The recognized exceptions of the use of force in self-defence and under the authorization of the Security Council being inapplicable on the facts, the destruction of the jet would be caught by the general prohibition on the use of force under Article 2(4) of the UN Charter and thus unlawful.

Read the rest of this entry…

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The new enemy of mankind: The Jurisdiction of the ICC over members of “Islamic State”

Published on November 26, 2015        Author: 

President Obama has called the recent Paris terror attacks an “attack on all of humanity”. In doing so, he has touched upon the core of so-called crimes against humanity. Due to their quantitative and qualitative dimensions and their utter disregard for fundamental values, such crimes are directed not only against individual persons, but against humanity as a whole. The link to a State was abandoned in the Statutes of the UN Ad Hoc Tribunals in 1993 (ICTY) and 1994 (ICTR) and then, with a universal claim,  in 1998 with the definition adopted in Article 7 of the Rome Statute of the International Criminal Court (ICC). Since then, it has been possible for crimes against humanity to be committed by non-state actors. Their traditional State-based rationale – punishing the representatives of the morally perverted State that uses its power against its own citizens without restraint – can be transferred to non-state actors. When these actors, like the so-called Islamic State (IS), send suicide assassins into a concert hall to execute innocent civilians, this reveals a level of moral perversion that is typical of crimes against humanity. That the perpetrators invoke God when doing so makes the matter even worse. Religiously motivated perpetrators of crimes against humanity not only deny their victims’ right to exist, but in doing so place themselves above us “unbelievers” as part of a supposedly divine mission; in fact, they act in the same manner as the crusaders they claim to be fighting against.

A perpetrator of a crime against humanity is “hostis humani generis”, an enemy of mankind. The concept was used to refer to pirates long before crimes against humanity existed. The IS is far worse than pirates, and its acts carry all of the hallmarks of crimes against humanity. While this may have been doubted before Paris, after the attacks these doubts are gone with the wind. In the dry technical language of the so-called context element of crimes against humanity, the attacks represent a widespread and systematic attack directed against the civilian population. The attack targeted a large number of civilians and had been planned in a premeditated fashion. The intentional killing of more than 100 people constitutes the required single act of ‘murder’. As a consequence, the ICC has jurisdiction ratione materiae, without any need for recourse to war crimes. This makes the matter simpler, as it is highly controversial – despite the unambiguous language of the French President Hollande (“acte de guerre”) – whether an armed conflict can actually exist between a transnational non-state actor and a State under current International Humanitarian Law.

However, does the ICC also have formal jurisdiction over acts committed by members of Islamic State? Read the rest of this entry…

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Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups

Published on November 25, 2015        Author: 

On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.

Mixed Message

This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.

The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.

But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).

Effect of non-binding Resolutions

That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.

This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. Read the rest of this entry…

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Russia’s Intervention in Syria

Published on November 25, 2015        Author: 

Previous posts on Syria (see for example here and here) have commented on the air strikes by the US-led coalition, but the Russian air strikes on Syrian territory (as reported here and here) have been largely left undiscussed. This post will analyse the legality of Russia’s actions. Russia has been acting upon the request of President Assad (see here and here), which means that the international legal basis for Russia’s use of force is intervention by invitation. First, the concept of intervention by invitation itself needs to be addressed. Second, it is contested whether an intervention is even allowed during a civil war.

Intervention by Invitation

There is no explicit reference to intervention by invitation in the UN Charter nor is it covered by article 2(4). Pursuant to that article, states shall refrain from using force “in their international relations”. Using force upon an invitation, however, is not using force in international relations as no force is used by one state against another, but the two states are working together, using the force on one side. This falls outside the scope of article 2(4). Therefore no prohibition comes into play and this type of force is allowed. The importance of valid consent (the invitation) was addressed by the ICJ in the case DRC v. Uganda. The Court dealt with the situation after the consent had been withdrawn by the DRC, thereby emphasising the importance of valid consent, yet also indirectly making clear that before the withdrawal no violation of international law occurred. Thus, intervention by invitation falls outside the scope of article 2(4), as long as the consent is valid.

Intervention in a Civil War?

The second issue, which is a contemporary topic of international law as evidenced here, questions the legality of an intervention by invitation in a civil war. Read the rest of this entry…

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Syria the Land of Impunity

Published on November 24, 2015        Author: 

FullSizeRenderThe Geneva Communiqué of the Action Group for Syria of 30 June 2012, which was endorsed by the UNSC Resolution 2118 (2013), identified key steps for a Syrian led political transition. The Communiqué problematized the “Syrian conflict” as one involving a challenge of security, safety and restoration of stability and calm. During the first half of 2015, Mr. Staffan De Mistura, the UN Special Envoy for Syria, carried out a series of consultations in Geneva with various local and international actors in the Syrian conflict, to explore views on how to “operationalize” the Geneva Communiqué. The consultations produced a proposal to set up four thematic intra-Syrian working groups, which would bring together Syrians from the government and the oppositions to discuss a range of transition topics, including a group on “safety and protection for all”. On 30 October 2015, all regional and international actors involved in the “Syrian conflict” met in Vienna and produced the Vienna Declaration, which promised to launch a “renewed political process” based on eight points of agreement. On 14 November 2015, the same group met again in Vienna and formed the International Syria Support Group (ISSG).  The ISSG pledged to bring the Syrian government and the opposition together to embark on a “political process pursuant to the 2012 Geneva Communiqué.”

Nowhere in the diplomatic literature produced so far can one find the word “impunity.” Indeed the political solution contemplated in the Geneva Communiqué, which is still at the core of the renewed political process, rests on the absence of this potentially explosive word. Instead, the Communiqué sets forth at point No. 10(d) that in order to achieve “safety, stability and calm” there needs to be a commitment to accountability for future crimes. As for accountability for acts committed during the present conflict, this must be addressed pursuant to a comprehensive package for transitional justice. The Communiqué stresses, in particular, “national reconciliation” and “forgiveness.”

The problematization of the “political process” as one involving a technocratic challenge to ensure “safety” is hugely shortsighted. The current diplomatic efforts are entirely geared towards bringing the local actors to the negotiation table. The language of “justice” and “rights” is seen as inadequate and unhelpful, as it is likely to subvert the political process. However, in the Syrian context this premise is both historically unwarranted and politically untenable. Indeed, the Syrian political process will have little chance of success if it does not address head-on the question of impunity, which is at the core of the Syrian conflict. Read the rest of this entry…

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