The Dominance of the International Court of Justice in the Creation of Customary International Law
| Author | Loretta Chan |
| Position | UCLA |
| Pages | 44-71 |
S.S.L.R The Dominance of the International Court of Justice Vol.6!
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The Dominance of the International Court of Justice in
the Creation of Customary International Law
Loretta Chan
University of California, Los Angeles
Abstract
In this Article, I seek to challenge the rationale and justification for the ICJ’s undue
influence over the identification of customary law. Although the Court is prescribed a
subsidiary role for the determination of law in Article 38 (1)(d) of the ICJ Statute, it
is apparent that the ICJ’s influence has manifested beyond its envisioned subsidiary
role and instead encompassing a dominant role in creating custom. The Court, which
no longer content to determine the substance of customary law, has expanded its role
by entering the realms of law creation. This is problematic as the ICJ seems to create
customary law without reference to state practice or state consent. Without these two
fundamental elements to ground custom with legal basis, the ICJ seems to invent
custom at its own convenience. In doing so, the Court is creating a legal fiction,
declaring customary law where there is no custom to be found.
Introduction
ustomary international law is enshrined as a source of law under Article
38(1)(b) ICJ Statute,1 where it is defined as “evidence of a general practice
accepted as law.”2 Yet, the clarity of this text is questionable when the drafters
of the statute themselves, “had no very clear idea as to what constituted international
custom.”3 The issue in seeking to define customary law, as Kammerhofer states, is
that there is “no ‘authoritative text’, which has an inherent ‘thereness’ and whose
meaning need only be ‘extracted.’”4 The unwritten nature of customary law has made
its content inherently insecure.5 This absence of an authoritative text has resulted in
a reliance on the International Court of Justice’s (ICJ) interpretation of Article 38 of
the ICJ Statute. 6 As Cassese asserts, “given the rudimentary character of
international law… many decisions of the most authoritative courts, in particular the
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1 Statute of the International Court of Justice (1945) 3 Bevans 1179; 59 Stat. 1031; T.S. 993; 39 AJIL
Supp. 215
2 Ibid., at Article 38 (1)(b)
3 International Law Commission, Yearbook of the International Law Commission 1950, vol. I, p. 6, at
para. 45. (quoting Manley O. Hudson)
4 J. Kammerhofer, ‘Uncertainty in the Formal Sources of International Law: Customary International
Law and Some of its Problems’ (2004) 15 EJIL, p. 524.
5 A. Roberts, 'Traditional and Modern Approaches to Customary International Law' (2001) 95 AJIL
757, p. 767.
6 ICJ Statute [n1] at Article 38
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International Court of Justice, are bound to have crucial importance in establishing
the existence of customary rules, or in defining their scope and content.”7 However, I
would question whether this reliance on the ICJ is justified given that international
law lacks a central law-making body. Indeed, in referring to international law as
“rudimentary” in character, Cassese notes that the international legal system lacks a
“central judicial institution endowed with compulsory jurisdiction.”8
Hence, this Article seeks to argue that the lack of certainty in the creation of
customary law has allowed the Court an unprecedented degree of influence in
creating customary international law. 9 The jurisprudence of the ICJ provides
evidence that the Court has entered the realms of law creation, when “it is not the
court’s role to develop law.” 10 Given that Article 38 (1)(d) of the ICJ Statute
prescribes to the Court a limited scope to serve as a “subsidiary means for the
determination of rules of law,” it would appear that the ICJ is acting outside its
ambit. 11 Thus, I submit that the legitimacy of customary international law is
questioned when the ICJ jurisprudence demonstrates “a marked tendency to assert
the existence of a customary rule more than to prove it.”12 Without grounding custom
in legal foundations, issues of credibility and compliance arise, since custom is meant
to develop through the practice of states, with the consent of states. As Lord Hoffman
describes, international law “is based upon the common consent of nations.”13
Without such consensus, custom cannot function within the broader architecture of
international law.
In order to question the actions of the ICJ, the article begins with outlining the
function of the Court and its influence in finding customary international law.
Secondly, in needing to ground custom with legitimacy and compliance, the necessity
of state practice is emphasised for custom to be found. Thirdly, given the ICJ’s
detraction from the requirement of state practice, it is discussed that the Court seems
no longer content to merely identify custom, but rather creates judge-driven
customs. Lastly, the justifications underlying this reinvention of customary law
under the ICJ’s direction is examined. This article concludes that the ICJ has moved
too far away from the original conception of customary law, acting with too much
leniency regardless of legal basis.
I. The Function and Influence of the ICJ
A. Subsidiary role
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7 A. Cassese, International Law (OUP, 2005) p. 194-5.
8 Ibid
9 A. Alvarez-Jiménez, “Methods for the identification of Customary International Law in the
International Court of Justice’s Jurisprudence: 2000–2009” (2011) 60 ICLQ, p. 685.
10 M. Wood, Special Rapporteur, First Report on Identification of Customary International law,
International Law Commission, Sixty-sixth session, A/CN.4/672, May 2014, p. 21.
11 ICJ Statute [n1] at Article 38 (1)(d)
12 A. Pellet, “Shaping the Future of International Law: The Role of the World Court in Law Making”, in
M. H. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W.
Michael Reisman (Martinus Nijhoff Publishers, 2011), 1065, p. 1076.
13 Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya; Mitchell and others v. Al-Dali
and others and Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya [2006] UKHL 26, at para.
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