Sources of International Law

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The Recognition of a Customary Rule of International Law in NICOL II – A Redundant Exercise?

In Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (NICOL II), the International Court of Justice (ICJ) observed a general trend in which coastal States had “chosen not to assert” outer continental shelf entitlement “within 200 nautical miles of the baselines of another State” (para 77). The respondent argued that in 51 submissions of States, under Article 76 of UNCLOS, the proposed outer limits “stopped at the 200-nautical-mile zones of other States when, on technical grounds [..] they could have gone further”. The Court held that this practice reflected a rule of customary international law. The above determination has triggered criticism as to whether the practice identified by the Court as the basis for a rule of customary international law was accompanied by opinio juris. Judge Tomka noted in his dissenting opinion that the analysis of the ICJ “is incomplete” (para 44) for a number of reasons, including the lack…

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Iran’s Tryst With the Terrorism Exception and State Immunity

Introduction On June 27, 2023, Iran instituted proceedings against Canada before the International Court of Justice (“the Court/ICJ”), contending a violation of its jurisdictional immunity and immunity from measures of constraint. A detailed statement of the jurisdictional and substantive issues raised in the case can be found in a previous blog…

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Three Legal Questions Arising From Reported Practices of Enforced Disappearance in Russian-Occupied Ukrainian Territories

This week, on August 30, the international community observed the International Day of the Victims of Enforced Disappearance. Enforced disappearance places victims outside of the protection of the law in a state of complete vulnerability. It is a fundamental denial of human rights that directly victimises those disappeared, subjects their families to uncertainty…

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The United States’ Practical Approach to Identifying Customary Law of Armed Conflict

The following post is part of a symposium based on a conference panel that discussed issues of customary law of armed conflict, at the 4th Israel Defense Forces (IDF) Military Advocate General (MAG) Conference on the Law of Armed Conflict, held in Herzliya, Israel, during May 8-10, 2023. The post is based on the author’s presentation in the…

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The Legal Fiction of the Two-Element Approach: The Role of International Organizations in Customary IHL Identification

The following post is part of a symposium based on a conference panel that discussed issues of customary law of armed conflict, at the 4th Israel Defense Forces (IDF) Military Advocate General (MAG) Conference on the Law of Armed Conflict, held in Herzliya, Israel, during May 8-10, 2023. The post is based on the author’s presentation in the…

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