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Home Archive for category "Sources of International Law" (Page 6)

Determining Customary International Law: The ICJ’s Methodology and the Idyllic World of the ILC

Published on December 3, 2015        Author: 

Editor’s Note: This is the author’s concluding post in the EJIL:Debate! regarding an article in the current issue of EJIL Vol. 26 (2015) No 2, by Stefan Talmon. The original post is here. See also the posts discussing the article by Omri Sender and Michael Wood, Harlan G. Cohen and Fernando Lusa Bordin.

I am very grateful to Sir Michael Wood and Omri Sender, as well as Harlan G. Cohen and Fernando Lusa Bordin, for their thoughtful comments on my EJIL article. Both Harlan and Fernando seem to agree with my main propositions and, in particular, with the proposition that the ICJ, in order to determine rules of customary international law, uses induction and deduction as well as assertion. They raise interesting questions that I did not address in my article, such as why the ICJ was not more interested in developing a clear methodology and why States might actually prefer ‘methodological mayhem’, or the flexibility of methodological uncertainty, over the strict application of the inductive method or a relaxation of the demands of that method. Their contribution takes the debate further and may be read as a complement to my article.

In the following, I will focus on the comments of Sir Michael Wood and Omri Sender, who are more critical of my propositions. I will only deal with their substantive comments and leave readers to decide for themselves how many eyebrows they would like to raise while considering what the authors identified as ‘some bold statements’ in my article without, however, specifying their concerns. Let me respond to their counter propositions one by one before offering some final remarks on the work of the ILC, and thus Sir Michael’s work as its Rapporteur, on the identification of customary international law. Read the rest of this entry…

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Induction, Assertion and the Limits of the Existing Methodologies to Identify Customary International Law

Published on December 2, 2015        Author: 

Professor Talmon’s article on the methodologies employed by the International Court of Justice to ascertain custom is as important as it is timely now that the International Law Commission is advancing with its study on the identification of customary international law. To contribute to the debate, I propose to elaborate on a crucial question that the piece raises. Why is it that the Court so often resorts to ‘asserting’ customary international law instead of providing more robust reasoning to back up the rules that it identifies? Though the precise reasons why the Court takes the approach it does are a matter for speculation, I suspect that this has to do with limitations that are inherent to the standard methodology to establish custom (the ‘inductive method’, to use Professor Talmon’s terminology), in the shaping of which the Court itself has played a large part.

As Professor Talmon suggests, systemic reasoning – argument by principle and argument by analogy – has been a major catalyst for development in international law, filling gaps that would be left behind if the inductive method were applied. Yet, the inductive method is the best accepted methodology to identify custom insofar as it encapsulates the prevailing view as to what is required by the ‘rule of recognition’ of international law.

The problem with that ‘rule of recognition’ is that it does not allow us to reach any firm conclusions as to the existence of particular rules of custom. That becomes clear when one dissects the inductive method as defined and applied by the International Court. Read the rest of this entry…

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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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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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International Migration Law: License to Discriminate?

Published on May 19, 2015        Author: 

The story of international law and migration commonly begins with the observation that states have the sovereign right to deny access to non-nationals. This statement is then qualified with the observation that there are some exceptions to this rule. Refugees and other people who may run serious risks if returned to their country, or are otherwise expelled, and in some cases people requesting admission on the basis of family reunification, should be allowed access. The sovereign right to exclude is presumed to be inherent and ‘age-old’. That impression is mistaken. Immigration control is a relatively recent phenomenon. Until late in the 19th century, political demographic conditions made population growth desirable, so immigration was welcomed. It was only with the desire to limit Chinese immigration into the US and Australia, a desire motivated by racist considerations, that immigration control and the passport regime became the new ‘normal’, and that the reference to the ‘age old’ sovereign right to control immigration began to gain force.

Recently, a number of countries have made headlines because of innovative immigration policies designed to attract investors and entrepreneurs. Spain, Chile, Canada, and others are now conceiving of immigration policies within the broader context of increasing their economic competitiveness. Many other countries already offer benefits to so-called ‘knowledge migrants’. What makes this new wave stand out is the overt effort to compete with other countries for talent and investment. One could almost forget that fear of immigrants has been the main driving force behind most immigration policies around the world. Although government officials in many countries experiencing immigration may be under pressure to implement policies that bring immigrant numbers down, immigration policies have typically also been made with an eye to economic sectors eager for access to certain workers, whether skilled or unskilled. In other words, immigration policies cater not only to those fearful of (large scale) immigration, but also to those in need of specific forms of labor.

As such, migration law is not just about putting up barriers to migrants but also about selecting among potential or prospective migrants. In the Dutch political context the term of art is kansarm (poor in prospect) or more broadly in public opinion debates kansloos (prospectless). Kansarm even made it into the 2010 coalition agreement, which also exempted so-called knowledge-migrants (kennismigranten) from various measures deemed to make immigration more difficult; the factor used to determine whether someone is a knowledge-migrant is a minimum level of income. Blunt as Dutch political discourse may be, public discourse on immigration in most immigration countries often takes such distinctions for granted. Read the rest of this entry…

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The International Court of Justice and the Judicial Function: Responses

Published on August 29, 2014        Author: 

I am very appreciative to Yuval Shany, Mary Ellen O’Connell, and Iain Scobbie for taking the time to engage so thoroughly with the arguments contained in my book; it has been a privilege to see my words and ideas through their own reactions, and to see the first public reactions to my writing.  The blog forum discussion makes it a challenge to respond fully to the many incisive points raised in their responses. However, with this brief reply, I wish to address some of the comments made, and in particular, to develop further a few arguments drawn from the book, in the hope of eliciting wider discussion. I will try to add address their points in turn.

Response to Yuval Shany

Yuval has chosen to engage primarily with the processual Part of the book (Chapters IV-VI, but also to a point the discussion on the Court’s exercise of certain powers in Chapter III). In that Part, I engaged with the Court’s deliberative process, its commitment to impartiality (and the particular form that such a commitment takes, given its institutional structure), and the justificatory reasoning the Court deploys in support of its conclusions, particularly its fairly strict adherence to its previous judgments. Yuval has pointed out my attempt to discern, if possible, a collective intent on behalf of the Court in drafting its judgments, and has rightly pointed out the ‘relatively low levels of doctrinal coherence’ in the Court’s judgments when taken as a whole, which make such a characterisation difficult.

He is correct that I emphasise the aspiration towards collective authority: it is an aspiration of the Court itself, which controls its own deliberative and drafting procedure, and which is found in its Resolution concerning the Internal Judicial Practice of the Court. The focus of my scrutiny over this particular question is not, however, merely a question of effectiveness: what I have sought to establish has been how the Court’s procedures, composition, and justificatory reasoning have together been tailored to secure the maximum possible authority for the Court qua institution. Given the fragility of certain of the Court’s institutional realities (raised by Mary Ellen, and to which I will turn shortly below), and the Court’s emphasis on its collective, universal and general character within the United Nations framework (and the international legal order, more broadly understood), such a claim represents the abandonment of the idea of the Court as a limited, bilateral dispute settlement organ. And it is precisely the fact that the Court has constructed formal, procedural authority for itself—and has been successful in cultivating support for this vision amongst other international actors!—which is of heightened relevance.

For the Court to make a legitimate claim to such authority requires, equally, a clear vision of the international legal order and the political community to which this legal order belongs. Thus, in the last chapters of the book, I argue that the Court’s interpretation of substantive international law has not kept pace with its claim to institutional authority. Yuval is perhaps correct that some of the tensions in the Court on questions such as the role of judicial precedent, the completeness of international law, and the legal effect of obligations erga omnes and norms of jus cogens may be due less to a complex doctrinal debate than the retention of ideas ‘selected for [their] ability to justify the preferred outcome’, and that the preservation of the Court’s influence depended on the outcome rather than on the reasoning. That is precisely my point: that one cannot parse the Court’s judgments carefully without a heightened understanding of the context in which it operates. Read the rest of this entry…

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The Killer Whales of The Hague

Published on August 28, 2014        Author: 

It was a pleasure to read Gleider’s thoughtful monograph The International Court of Justice and the Judicial Function, which presents a constructivist account of the operation of the International Court and the role of its judges. There is much to commend in this work, which starts squarely from the position that the analysis of international courts should not be based on constitutional expectations drawn from domestic systems. I particularly appreciated the attention he paid to the Court’s deliberative process: like him, I think that this is too often ignored in the analysis of the Court’s jurisprudence. I am, however, less sanguine than he is about the implications of this process for the normative consequences of the Court’s jurisprudence.

Gleider has a robust view of the Court’s role in the development of international law:

Once a general statement on a legal principle or rule has been elucidated by the Court, channelled into the judicial form and given the imprimatur of judicial authority that accompanies the Court, both parties before it and non-parties cannot in good faith contest that principle. The existence of that principle itself becomes part of international legal argument, offering a body of evidence an materials that can be relied on by States, and thus stabilizing their ‘normative expectations’. (p. 90: notes omitted)

While it cannot be denied that the Court refers to its own jurisprudence continuously and is, to say the least, loathe to depart from its earlier rulings, I wonder whether it might not be more appropriate to view the Court’s role as more transactional in nature, as I have argued before. Gleider dismisses this approach as inappropriate, arguing that this would reduce adjudication “to a private function, where the Court is an instrument of the parties before it” (p. 93). But isn’t this the point? In contentious cases, the issues are defined by the arguments of the parties which, in terms of argumentation theory, sets the field of discourse for the Court. But this field of discourse is necessarily incomplete as constraints of time and length are inherent in all pleadings – if nothing else, the Court’s attention cannot be prolonged indefinitely. Not all the relevant material might be placed before the Court, but only those aspects that the parties wish to present and emphasise. In contrast, given the (generally) wider participation in advisory proceedings, should the rulings these contain be seen as more “authoritative” than those in contentious cases? Gleider comments that the Court’s apparent insistence on the essentially inter partes nature of contentious cases is a “fiction” which “sits uneasily with the Court’s robust assertion of its powers in the exercise of its advisory function, where it has seemed prepared to assume functions of a more public character” (p. 93). Increased participation might be a reason for that.

But to turn to the Court’s collegiate deliberative practice, which Gleider argues was “designed precisely to bestow a heightened authority on the collective judgment of the Court”. Read the rest of this entry…

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On Judging v. Legislating in the International Legal System

Published on August 27, 2014        Author: 

Gleider Hernández’s impressive book updates Hersch Lauterpacht’s 1933 classic, The Function of Law in the International Community.  Despite Lauterpacht’s more general title, his focus, like Gleider’s, was on adjudication of international law in the international community.  Lauterpacht makes a case for courts as critical institutions of international law.  He responds to concerns of his day challenging the very possibility of courts of law delivering judgments binding on sovereign states.

The International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), have now been in existence for over 90 years.  This long history might suggest that the importance of a world court is now accepted. To a certain extent this is true.  Comparing the topics Lauterpacht dealt with and those chosen by Hernández indicates real progress.  Yet, major issues relative to the ICJ’s existence and its claim to be a true court of law remain. General and compulsory jurisdiction were goals of the world’s mass peace movements in the late 19th and early 20th centuries.  Today, the interest in expanding the ICJ’s compulsory jurisdiction has nearly vanished. (See Mary Ellen O’Connell and Lenore VanderZee, “The History of International Adjudication,” The Oxford Handbook of International Adjudication (C.P.R. Romano, K.J. Alter, and Y. Shany, eds. 2013).)

Moreover, the feature that separates the ICJ from the formal ideal of a court more than any other may well be the requirements respecting judges and nationality.  Guaranteeing five states judges of their nationality and allowing for a judge ad hoc when no judge of a party’s nationality is already on the court is a vestige of the party arbitrator.

Gleider does not discuss compulsory jurisdiction or the P-5 judges.  He accepts almost without critique the judge ad hoc. (pp. 136, 145-46) Instead, his book seems aimed not at the international community and its attitude toward the ICJ, but at the ICJ itself, which he conceives of in corporate form, rather than as a collectivity of judges.  He is interested in the “ICJ’s” view of judicial function.  He wants the ICJ to adopt an activist stance, arguing throughout the book for “progressive development of the law.”  (See, e.g, pp. 280-293.) Judge Tomka in a foreword comments on the “significant risks in demanding too much of [the court] in terms of progressive development.” (p. viii)

Tempting as it is to consider the risks of progressive development, in these brief comments, I will instead look at an assumption underlying Gleider’s call to activism.  Read the rest of this entry…

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The International Court of Justice and the Judicial Function: Introduction

Published on August 25, 2014        Author: 

GHernandezsmlGleider I Hernández is (from 1st October) Senior Lecturer in Law at Durham University.

I am much obliged to the editors of EJIL:Talk! for hosting the online discussion of my recently-published book, The International Court of Justice and the Judicial Function. I am also grateful to Professors Mary Ellen O’Connell, Iain Scobbie and Yuval Shany for taking the time to engage with the book and its arguments in their capacity of discussants. Their reactions will be posted later this week; for now, I wish in the following paragraphs to lay out the principal arguments developed in the book, and to set the stage for the discussion that will follow.

Writing this book, and of course the doctoral thesis on which its foundation rests, was inspired by the desire to explore and better theorise the role of judicial institutions within the actual practice of international law. Certainly, formal sources theory maintains the subsidiary character for judicial decisions as a source of international law, and for doctrinal and policy reasons, this is an important point to retain. However, that legal fiction sits uneasily with the powerful normative role that international lawyers ascribe in practice to judicial decisions of certain international courts, and foremost of all of these, the ICJ (‘the Court’). One may observe such reliance in the practices of States, international legal practitioners, international organisations, and non-governmental actors; and it is perhaps most evident in the textbooks and teaching materials we legal scholars use to teach international law. Rather than up-end sources theory in favour of a purely sociological description of the importance of judicial decisions, I have chosen instead to focus on the normative force of judicial decisions. By applying concretely a legal rule or norm to a given set of facts in an authoritative fashion, judicial institutions can possess a centrifugal character, contributing to the normative content of a legal rule, foreclosing competing interpretations, and influencing future practice. Even if not formally legal sources, the effects described are law-creative under all but the most restrictive definitions of lawmaking.

The book thus proceeds to analyse the Court as a case study of sorts, a heuristic device through which to analyse and consider the manner in which a judicial institution perceives of its own function within the international legal system, and the manner in which it constructs its claim to authority within that system. A part of understanding that claim is to understand how the Court situates itself. The Court finds itself constrained by a number of factors: the United Nations Charter of which its Statute is an annexe; its limited, optional jurisdiction ratione personae over States (and only States); the selection procedures and elections conducted under the aegis of the General Assembly and the Security Council. Rather than conduct a thought experiment over what reforms would engender greater accountability or effectiveness, however, I chose to focus on how these various constraints come to define the Court’s understanding of its role. Read the rest of this entry…

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