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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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