Home Articles posted by Stefan Talmon

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…


The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law

Published on March 3, 2011        Author: 

Stefan Talmon is Professor of Public International Law at the University of Oxford.

The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’

Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference

‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’

While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.

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Filed under: EJIL Analysis, Government, Libya

Has the United Kingdom De-Recognized Colonel Qadhafi as Head of State of Libya?

Published on February 28, 2011        Author: 

On 27 February 2011, it was reported in the media that the United Kingdom had revoked the diplomatic immunity of Libyan leader Muammar Qadhafi and his family (see here and here). Earlier that day, the British Foreign Secretary, William Hague, told BBC1`s Andrew Marr Show:

‘[…] the people of Libya have risen up against Colonel Gaddafi. We have here a country descending in to civil war with atrocious scenes of killing of protestors and a Government actually making war on its own people so, of course, it is time for Colonel Gaddafi to go. That is the best hope for Libya and last night I signed a directive revoking his diplomatic immunity in the United Kingdom but also the diplomatic immunity of his sons, his family, his household so it`s very clear where we stand on, on his status as a head of state.’

William Hague`s statement seems to give the impression that the United Kingdom no longer recognizes Colonel Gadhafi as ‘head of State’, despite him still being listed as such on the Foreign and Commonwealth Office`s website ‘Country Profile: Libya’. This also seems to be confirmed by the fact that an operation by British special forces the night before which rescued some 150 oil workers from remote desert camps in Libya was carried out without the ‘official permission’ of the Qadhafi Government.

The revocation of personal immunity and, even more so, the withdrawal of recognition from a serving head of State who continues to control substantial parts of the foreign State`s territory would seem an unprecedented move in British State practice. Recognition is usually withdrawn and, consequently, immunity lost when a government ceases to be effective, either because it is forced into exile or comes under foreign military occupation. Withdrawal of recognition takes place either by express notification or public statement, or implicitly through the recognition of a new de jure government. The British Government withdrew its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938, the Polish Government of Unity and National Defence on 5 July 1945, the Nationalist Government of China on 6 January 1950, and the Government of Democratic Kampuchea on 6 December 1979.

Rather than withdrawing head of State recognition from Colonel Qadhafi and depriving him of diplomatic or personal immunity in the United Kingdom, the Direction signed by Foreign Secretary William Hague has, in fact, a much more limited effect.

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Filed under: EJIL Analysis, Government, Libya

Could the International Court of Justice Indicate a ‘No-Fly Zone’ over Libya?

Published on February 25, 2011        Author: 

Stefan Talmon is Professor of Public International Law at the University of Oxford.

A wind of change is currently sweeping through North Africa and the Middle East. While the transformation in Tunisia and Egypt has, at least so far, occurred peacefully the popular uprising in Libya, according to some media reports, has already claimed more than 1,000 lives. There were reports that the Libyan Air Force was ordered to bomb anti-government protesters in the city of Benghazi and the capital Tripoli. On 23 February 2011, UN Secretary-General Ban Ki-moon condemned Libyan President Muammar Al-Qadhafi’s actions against protesters as possible crimes against humanity. Others have gone further, referring to the events unfolding in Libya as ‘genocide’. Ibrahim Dabbashi, Libya’s deputy envoy to the United Nations, told the BBC that the crackdown on protesters in his country was ‘a real genocide.’ The Secretary-General of the Gulf Cooperation Council (GCC) Abdurrahman bin Hamad al-Attiyah said in a statement that the Libyan people are being subject to ‘an act of genocide.’ A view shared by the Foreign Minister of Luxembourg, Jean Asselborn, who commented on Qadhafi’s TV address to the nation, in which he said that he was going to fight to the last bullet: ‘He started genocide against his own nation.’

French President Nicholas Sarkozy and others have called for a NATO-imposed no-fly zone to be enforced over Libya to ‘prevent the use of that country’s warplanes against [its] population’. Such a measure could also prevent mercenaries, weapons and other supplies from reaching Qadhafi and his security forces. Others, including the British Government, are however, concerned that Russia and China could veto a no-fly zone at the United Nations Security Council.

Any action without express Security Council backing would be of questionable legality under international law. The two no-fly zones over Iraq, which were imposed by the United States, the United Kingdom and France after the second Gulf War in 1991 in order to protect the Shi’a Muslims in the south and Kurds in the north against repressive measures by the Iraqi Government, were based on the doctrines of ‘implicit authorization’ (United States) and ‘humanitarian intervention’ (United Kingdom). Neither of those doctrines has gained general, or even widespread, acceptance in international law. Any unilateral action byNATO  or another ‘coalition of the willing’ would thus head for a 1999 Kosovo-style scenario which might at best be described as ‘illegal but legitimate’ – the ultimate admission of defeat for any international lawyer.

Assuming the Security Council was deadlocked over the question of a no-fly zone over Libya (or parts of it), could States willing to take such action rely on any other legal basis? In particular, could States rely on a provisional measures order of the ICJ indicating a no-fly zone?

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