International Law by Prof.

Pierre dArgent
Week 3: Making International Law I

THE FORMAL SOURCES OF INTERNATIONAL LAW ................................................ 2

THE ADEQUACY OF THE WORD "SOURCES" ............................................................. 4
THE PROBLEM OF LAW-MAKING IN THE INTERNATIONAL COMMUNITY . 5
THE WIMBLEDON CASE ......................................................................................................... 7
THE LOTUS CASE ...................................................................................................................... 9
LOTUS OVERTURNED? ......................................................................................................... 11
THE ARREST WARRANT CASE ......................................................................................... 12
THE KOSOVO ADVISORY OPINION .............................................................................. 14
INTRODUCTION TO ARTICLE 38 OF THE ICJ STATUTE ................................... 15
ARTICLE 38 OF THE ICJ STATUTE ................................................................................ 17
ARTICLE 38 AGAIN ................................................................................................................ 18
THE NOTION OF CUSTOMARY INTERNATIONAL LAW ....................................... 20
NORTH SEA CONTINENTAL SHELF CASES ............................................................... 22
GERMANY V. ITALY ................................................................................................................ 24
SUMMING UP THE "TWO ELEMENTS THEORY" ...................................................... 25
THE INTERPLAY BETWEEN CONTRARY PRACTICE AND OPINIO JURIS .. 27
INCONSISTENT PRACTICE AND THE SURVIVAL OF CUSTOMARY RULES
........................................................................................................................................................... 29
PERSISTENT OBJECTOR, NEW STATES, REGIONAL CUSTOM AND THE
FOUNDATION OF CUSTOM ................................................................................................ 29
WHERE AND HOW TO FIND CUSTOM? ....................................................................... 32

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THE FORMAL SOURCES OF INTERNATIONAL LAW

After the first and the second weeks, you are now more familiar with the history of international law,
its fundamental structure and also its subjects.

This week is about making International law.

Of course, the topics of the first three weeks of this course are very much interrelated.

Indeed, law is always man-made and it is needed to understand who are the players and the subjects
in order to understand who can make law and how law is made.

This week is dedicated to the issue of law-making in the international community, that is: what are
the processes through which rules of international law come into existence.

It is not about law-making in general, but about making law that can be considered as having an
international law character.

Moreover, what will be of interest to us this week is not why such a rule of international law exists
and has such or such content.

Why there is such obligation, rather than another obligation.

It is of course always important to understand the political, the economic, historical or moral
contexts leading to the emergence of any specific rule.

But what can be called the "material" sources or reasons for the law is not what we are going to look
at.

Rather, we are going to study what most textbooks call the sources of international law, in the
formal, rather than material way.

Where does International law come from?How does it come into existence?

How is it made?

Identifying those formal processes through which rules of international law are created has of course
an immediate bearing on the issue of the subjects of international law.

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This is because the processes, that are accepted as processes through which new rules of
international law can be created, are processes that very much reveal who has the capacity and the
authority to make law.

In that sense, talking about the formal sources of international law is not much different from talking
about who is considered to have a full legal personality, that is a personality with the active capacity
to make law.

In that sense also, the issue of the sources of international law is deeply political.

Of course it does not look like that and as you will see, it is in many ways very technical and
somehow purely legal.

And it is important to learn about those legal technicalities and to master them as such because this
is what the added value of a professional lawyer is about.

However, this should not hide the bigger picture of what is at stake in the identification and
description of the processes through which international law is made.

Furthermore, it is also important to remember that by studying the various ways by which
international law comes into existence, we are actually studying what is international law.

Indeed, Hans Kelsen, the great Austrian-born jurist and legal philosopher who immigrated first to
Switzerland and then to the United States in the 1930's, Hans Kelsen wrote that: "International law
can be defined solely by the ways in which its norms are created".

So, by learning about the various ways in which international law norms are created, we not only
learn about those processes as legal-technical issues, but also we gain a better and deeper
understanding of what is international law and what can be expected from it.

In the first lesson of this week, we'll identify the reasons why law-making is a different problem in
international law, as compared to domestic law.

And after that we are going to survey the various sources of international law, the various techniques
that are used to create new rules of international law.

Hence, in the second lesson, we'll study what is international customary law.

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The third lesson will be about international treaties: what are treaties, how are they negotiated and
concluded, what are the conditions for their validity, etc.

After that, we'll see what are the general principles of law as a source of international law.

The fifth and sixth lessons will deal with unilateral acts, either unilateral acts of States or unilateral
acts of International organisations.

As far as the latter are concerned, resolutions of the United Nations Security Council will be more
specifically mentioned.

Finally, I'll address the issue of what is often called "soft-law" in international law, that is other acts
and other instruments that look like law, but that are not "hard-law" because they are not the result
of the above-mentioned usual processes.

In other words, the theory of the sources of international law has not only an inclusive aspect. It also
has an exclusive element by saying how law can come into existence, how it is created, it also says
what is not law, what does not count as law.

And this brings me back to a basic element about the function of any law, be it domestic or
international law: a theory of sources is deeply political not only because it tells you who has the
authority to make law and how law is made, but because the function of the law is always, and at the
same time, to limit power and to enable the exercise of power.

Law gives reasons for action, it helps to justify what is done, and at the same time, law limits what
can be done and de-legitimizes what would be done in contradiction of the law.

Law justifies and limits power.

Therefore, by identifying what counts as law and what does not, any theory of sources has an
immediate political dimension and impact.

THE ADEQUACY OF THE WORD "SOURCES"

There have been endless debates in legal doctrine about the adequacy of the word "sources" of
international law to encompass the problem of the emergence of legal norms in a decentralized legal
system. It is true that the word is somehow strange. It is often used in many domestic law contexts,
but it is also very largely referred to in international law textbooks. However, the concept is not only
academic, as it is for instance mentioned in the third recital of the preamble of the UN Charter:

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"We, the peoples of the United Nations,

Determined [...]

to establish conditions under which justice and respect for the obligations arising from treaties and
othersources of international law can be maintained [...]"

Furthermore, the word "sources" is adequately evocative: where does international law come from --
in the same way as: where does a stream of water come from? And if there are different ways for
international obligations to arise, how are they different?

As the preceding video made clear, there is a distinction to be made between the material sources of
the law and the formal sources.

The material sources are all the historical, moral, political, economic, psychological, etc. reasons that
explain the emergence of a specific rule of law. Material sources are context- and content-oriented.

By contrast, formal sources are only processes by which legal rules prescribing new obligations are
made. Formal sources are instrument-oriented.

This week and next week are devoted to the study of the sources of international law, in that formal
sense. It is essential to learn about those processes before turning to the obligations created under
them.

THE PROBLEM OF LAW-MAKING IN THE INTERNATIONAL

COMMUNITY

Welcome back.

In this first lesson, we'll try to understand why law-making is a different problem in international law
compared to what it is in domestic law.

In domestic law, the question of the sources is a fairly easy and straightforward problem: if you want
to know what counts as law in any municipal legal system, you usually turn to the Constitution of the

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State and more often than not will it list the various types of legal sources, together with the
procedures that must be followed to enact any of them.

Furthermore, the Constitution will identify the various powers and the authorities within the State
and allocate to each of them the specific sources and law-making processes.

The resulting picture is one of a pyramid, with the Constitution standing at the top, as the
Grundnorm in the theory of Hans Kelsen.

And as a result, there is a clear typology of domestic sources and also a clear hierarchy among the
various domestic sources of the law: not only must each domestic law, decree or decision be enacted
in conformity with the procedures described by the Constitution, but there must also be a substantial
conformity of each domestic source with the source standing above it in the legal pyramid.

The validity of each legal act is defined by its place in the pyramid, its relation with the other sources
and other higher rules contained in the pyramid.

As we have seen from the first weeks of this course, things are pretty different in international law
where the main subjects and creators of the law are States.

And States are said to be equal and sovereign, which means that each of them has the same legal
capacity and none of them stands above any other.

Of course, some are more powerful and more influential, but no State has by law any legal authority
or superiority over any other.

One State cannot make law on behalf of another State and for that other State.

The basic structure of international law resulting from the equal sovereignty of States is a horizontal
structure, as opposite to the idea of a pyramid.

International law is flat, not hierarchical.

In such a situation, the law cannot be created as a result of the will of a higher authority because
there is no such higher authority, all States being equally sovereign in law.

Therefore, law will have to result from some form of consent of the States concerned.

If law cannot be wanted and imposed by one authority over the subjects, it is then up to the subjects
to give law to themselves by creating law by themselves.

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But this raises two fundamental questions: First: How is it compatible with the notion of sovereignty?
How is it possible to reconcile the notion of sovereignty with the notion of law "tout court"? If
sovereignty means autonomy, the absence of any higher authority, how is it possible in any way to
limit sovereignty by law?

The second question is as follows: when it wants to do something, must a State find in a binding rule
of international law the justification and the limit for its action, or is it free to act as it pleases absent
any rule prohibiting what it intends to do?

To phrase the question in more theoretical terms: do States derive their powers and competences
from international law, or is it that because States are sovereign "by nature" as it were, that they are
just free to do what they want as long as they do not breach any rule of international law that they
are bound to respect? Is international law a prohibitive or permissive legal order?

Those two questions have been answered by the Permanent Court of International Justice, which is,
as you may recall from the second week, the Court established under the auspices of the League of
Nations in the 1920's and from which the International Court of Justice took over when the United
Nations was founded in 1945.

In the following lesson, by reading from the Wimbledon and from the Lotus cases, we will see what
are the answers of the Permanent Court of International Justice to those two questions.

THE WIMBLEDON CASE

Under the Treaty of Versailles, the Kiel Canal, in Northern Germany, was declared an international
waterway and it was to remain free and open to the vessels of commerce and of war of all nations
at peace with Germany on terms of entire equality (Articles 380 to 386).

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In 1921, an British steamship, the Wimbledon, that had been chartered by the French company Les
Affrteurs runis, presented itself at the entrance to the Kiel Canal. But Germany denied the right of
passage, basing its refusal upon the neutrality Orders issued by Germany.

The British, French, Italian, and Japanese Governments filed an application against the German
Government for refusing the free access to the Kiel Canal to the steamship Wimbledon, in violation
of Articles 380 to 386 of the Treaty of Versailles that regulate the exercise of this right of free
passage.

The question upon which the whole case depended was whether the German authorities were
entitled to refuse access to and passage through the Kiel Canal to the S.S. Wimbledon.

Germany argued that concluding a treaty could not be interpreted as giving up its sovereignty, which
was precisely what happened with the internationalization of the Kiel Canal.

The Court decided that German authorities were wrong in refusing access to the Kiel Canal to the S.S.
Wimbledon.

The Court disagreed with Germany, concluding that a treaty could place restrictions on the exercise
of sovereign rights, and therefore that sovereignty and international were not irreconcilable:

"The Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or
refrain from performing a particular act an abandonment of its sovereignty. No doubt any
convention creating an obligation of this kind places a restriction upon the exercise of the sovereign
rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of

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entering into international engagements is an attribute of State sovereignty."(Permanent Court of
International Justice, Wimbledon, 17 August 1923, Series A, n1, p. 25).

To answer the first question asked at the end of the previous video, it is thus possible to have law in a
system of sovereign states.

THE LOTUS CASE

A collision occurred on the high seas between the French vessel Lotus and the Turkish steamer Boz-
Kourt. TheBoz-Kourt sank, causing the death of eight Turkish sailors and passengers. The Turkish
authorities started criminal proceedings against Lieutenant Demons, first officer of the Lotus, and
against the captain of the Boz-Kourt. Both were found guilty by the Criminal Court of Istanbul and
sentenced to 80 days of imprisonment and a fine. The French government protested the lack of
required jurisdiction to prosecute a foreigner for acts committed outside of the Turkish territory,
demanding the release of M. Demons or the transfer of his case to the French Courts. Turkey and
France agreed to refer this dispute to the Permanent Court of International Justice which in 1927
rendered its famous decision.

The main question before the Court was whether Turkey had acted contrary to the principles of
international law -- and if so, what principles -- when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey.

In other words, could Turkey exercise its jurisdiction over the French national under international
law?

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The Court based its finding on the sovereign will of States and the permissive nature of international
law:

International law governs relations between independent States. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed.

Now the first and foremost restriction imposed by international law upon a State is that -- failing the
existence of a permissive rule to the contrary -- it may not exercise its power in any form in the
territory of another State. In this sense jurisdiction is certainly territorial ; it cannot be exercised by a
State outside its territory except by virtue of a permissive rule derived from international custom or
from a convention.

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its
own territory, in respect of any case which relates to acts which have taken place abroad, and in
which it cannot rely on some permissive rule of international law. Such a view would only be tenable

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if international law contained a general prohibition to States to extend the application of their laws
and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an
exception to this general prohibition, it allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at present. Far from laying down a general
prohibition to the effect that States may not extend the application of their laws and the jurisdiction
of their courts to persons, property and acts outside their territory, it leaves them in this respect a
wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other
cases, every State remains free to adopt the principles which it regards as best and most suitable."

(Permanent Court of International Justice, Lotus, 7 Sept. 1927, Series A, n10, pp. 19-20).

Since no prohibition could be found in international law, the Court (by the President's -- at the time,
Max Huber -- casting vote, the votes being equally divided) decided that Turkey did not violate
international law. There was no rule prohibiting Turkey from prosecuting Lieutenant Demons,
therefore the Turkish authorities did nothing wrong.

The Lotus principle, usually considered as a conceptual foundation of international law, lays down
the idea of a permissive international legal order: a behaviour is considered lawful unless a rule
specifically prohibits it. This is because sovereignty entails that rules can only be made on the basis of
the consent of the states. This case is considered the high mark of a strict positivist vision of
international law.

LOTUS OVERTURNED?

The legacy of the Lotus finding is still very much present with us.

However, the underlying understanding of international law that it conveyed was very much
controversial from the start: the 12 judges making the Court in that case were equally divided 6 to 6
and the case was only decided because of the casting vote of the president of the Court at the time,
Max Huber from Switzerland.

The more international law developed over time and the rules multiplied, the less the permissive
nature of the international legal order seemed convincing.

The doctrinal debate on the subject has been going on for years and it will very likely continue.

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Is there an urgent need to revisit and to reconsider the Lotus finding or to overturn it and opt for a
prohibitive understanding of international law?

Well probably not as the abundance of rules in contemporary international law renders the debate
even more theoretical today than what it was back in 1927.

Indeed, because treaties and rules abound, it will almost always be possible to connect any State
action with one rule or another so that the States will usually act and give legal justification for their
action, out of abundance of caution.

They will not just say: there is no rule and I just do what I like.

This being said, it is interesting to see if the Lotus understanding of international law as a permissive
legal order has survived in the case-law of the International Court of Justice.

In that regard, a close reading of contrasting excerpts from two more recent cases is interesting.

Please take a look at them after this video.

THE ARREST WARRANT CASE

The Arrest Warrant case is very similar to the Lotus case, since it also concerned the issue of a State
exercising extraterritorial jurisdiction.

On 11 April 2000, an investigating judge of the Brussels Tribunal of First Instance issued an arrest
warrant against the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo
(DRC), Abdulaye Yerodia Ndombasi. Allegedly, he had incited racial hatred in various speeches in the
DRC in 1998, which had contributed to the massacre of several hundred persons. The arrest warrant
was transmitted to the DRC and simultaneously internationally circulated through Interpol. At this
time, Mr Yerodia was not on Belgian territory and none of the victims of the massacres were Belgian
nationals. Belgian authorities initiated proceedings under the Belgian law which provided for (at the
time) unfettered universal jurisdiction in respect of the crimes for which Mr Yerodia was sought. The
law further provided that immunity attached to the official capacity of a person should not prevent
the application of the law.

The DRC filed an application with the International Court of Justice, requesting the Court to declare
that Belgium should annul the arrest warrant. The claim was based on two different legal grounds:
first, the DRC claimed that a State may not exercise its authority on the territory of another State;

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second, the DRC argued that the arrest warrant disregarded the immunity of the incumbent
Congolese Foreign Minister under customary international law.

In its Judgment of 14 February 2002, the International Court of Justice found that the issuance
against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international
circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the
Democratic Republic of the Congo, in that those acts failed to respect the immunity from criminal
jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic
Republic of the Congo enjoyed under international law. Therefore, it found that Belgium must, by
means of its own choosing, cancel the arrest warrant of 11 April 2000.

In its reasoning, the Court did not address the first claim of the DRC about the alleged incompatibility
with international law of the unfettered universal jurisdiction exercised by Belgium. This is because
the DRC finally decided not to press that argument. In light of the Lotus finding, it was indeed difficult
to argue that the Belgian law on universal jurisdiction was contrary to international law, as there was
no clear rule prohibiting Belgium to extend, as it did, its jurisdiction outside its territory absent any
connecting factor.

However, the Court addressed the second claim of the DRC, about the violation of the immunity of
its Foreign Affairs Minister. The Court mentioned en passant certain situations in which immunity
would not bar the exercise of jurisdiction. While doing so, the Court seemed to subordinate the
existence of jurisdiction to international law (see below: "Provided that it has jurisdiction under
international law..."), which can be interpreted as a way to overturn the Lotus finding.

However, the Court did not make any reference to the Lotus case in its judgment:

Accordingly, the immunities enjoyed under international law by an incumbent or former Minister
for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.

First, such persons enjoy no criminal immunity under international law in their own countries, and
may thus be tried by those countries' courts in accordance with the relevant rules of domestic law.

Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they
represent or have represented decides to waive that immunity.

Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no
longer enjoy all of the immunities accorded by international law in other States. Provided that it has
jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs

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of another State in respect of acts committed prior or subsequent to his or her period of office, as
well as in respect of acts committed during that period of office in a private capacity.

Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings
before certain international criminal courts, where they have jurisdiction. Examples include the
International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for
Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations
Charter, and the future International Criminal Court created by the 1998 Rome Convention. The
latter's Statute expressly provides, in Article 27, paragraph 2, that [i]mmunities or special procedural
rules which may attach to the official capacity of a person, whether under national or international
law, shall not bar the Court from exercising its jurisdiction over such a person

(ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14 Feb.
2002, ICJ Reports, p.3, para. 61).

THE KOSOVO ADVISORY OPINION

As we have seen last week, following Kosovo's declaration of independence, the General Assembly of
the United Nations requested an advisory opinion from the International Court of Justice. The
question submitted to the Court read as follows:

Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of

Kosovo in accordance with international law?

The Court took a position that can be understood as an endorsement of the Lotus principle. In the
Courts view, it was not asked to decide whether Kosovo had a right to declare independence, but
rather whether international law contained a prohibition to declare independence.

In its Advisory Opinion, the Court noted, without explicitly referring to the Lotus judgment, that the
answer to the General Assembly's question:

turns on whether or not the applicable international law prohibited the declaration of
independence. If the Court concludes that it did, then it must answer the question put by saying that
the declaration of independence was not in accordance with international law. It follows that the
task which the Court is called upon to perform is to determine whether or not the declaration of
independence was adopted in violation of international law. The Court observes that it is not
required by the question it has been asked to take a position on whether international law conferred
a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether

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international law generally confers an entitlement on entities situated within a State unilaterally to
break away from it. Indeed, it is entirely possible for a particular act -- such as a unilateral declaration
of independence -- not to be in violation of international law without necessarily constituting the
exercise of a right conferred by it. The Court notes that it has been asked for an opinion on the first
point, not the second.

(ICJ, Accordance with international law of the unilateral declaration of independence in

respect of Kosovo, advisory opinion, 22 July 2010, pp. 425-426, para. 56)

In other words, the Court framed the question not in terms of entitlement of a possible right to
secession or self-determination, but in terms of the existence of a prohibitive rule against
declarations of independence in international law.

The Court concluded that the applicable international law did not prohibit the unilateral declaration
of independence and decided that the adoption of the declaration of independence of Kosovo
adopted on 17 February 2008 did not violate international law. Please read the opinion to find out
about the full reasoning of the Court.

INTRODUCTION TO ARTICLE 38 OF THE ICJ STATUTE

Welcome back.

In order to identify the various sources of international law, most textbook usually refer to one treaty
provision, namely Article 38 of the Statute of the International Court of Justice.

Now, as we have seen before, the ICJ is the principal judicial organ of the United Nations and was
preceded by the Permanent Court of International Justice, at the time of the League of Nations.

The Statute of the ICJ is very much a cut-and-paste of the Statute of the PCIJ, which was drafted in
1920 by an advisory committee of jurists chaired by a Belgian senator and professor, Baron Edouard
Descamps, who by the way was teaching at Louvain.

Before reading Article 38, it is important to remember the historical context of its drafting.

In 1920, for the first time in the history of mankind, it was agreed to establish a permanent court
entrusted with the task of settling international disputes between States.

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Of course, various arbitrations had taken place before, on a case by case basis.

And each time, or at least very often, when agreeing to go to arbitration, the disputing States
indicated to the arbitrators what law, which treaty, they had to apply in order to reach a binding
decision.

And by the same token, it was felt necessary to point out the various sources of international law to
the future Court.

But a standing, institutionalized court represented a real novelty at the time and, somehow, it was a
bit frightening to States.

The risk was to see the Court deciding cases on the basis of certain sense of justice.

The fear was the issue of judge-made law, at a time when international law was not so much
developed and was rather rudimentary.

In order to reassure potential disputing States and to make the findings of the Court more or less
predictable, it was felt necessary to rather strictly define the straightjacket within the parameters of
which the Court was entitled to function and to base its judgments.

With that in mind, let us turn to Article 38.

Article 38 is the last provision of the second chapter of the ICJ Statute, which is entitled "Competence
of the Court".

So defining the law that the Court must apply in order to settle disputes is a matter of competence,
of jurisdiction.

In other words, and strictly speaking, the Court has no competence to settle disputes by the
application of other rules than the ones enumerated by Article 38.

As we shall see in week 7 when addressing the settlement of international disputes, this is probably a
little bit far-fetched, but the general idea that the Court is not entitled to settle disputes by the
application of rules that are not rules of international law is, generally speaking, essential.

Well, please now turn to the text of Article 38.

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ARTICLE 38 OF THE ICJ STATUTE

Please take your Reading Material at page 26.

Article 38 of the ICJ Statute reads as follows:

"1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized

by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto."

During this week and the following one, we will study the sources mentioned under points a), b) and
c) of paragraph 1, namely international conventions, international custom and general principles.

It is important to stress that the order of this listing does not establish any hierarchical order
between the various sources of international law to be applied by the Court: international
conventions (a) do not take precedence over international custom (b), while the latter does not take
precedence over general principles (c). There is no primacy of one source over another one: they are
all equally binding as a matter of principle. Article 38 contains an enumeration of sources and it
should not be read as a conflict rule. This being said, there is nevertheless a logical order of
application of each of the type of sources listed, in the sense that it is absent any international
convention binding on the disputing states that the Court will likely turn to international custom,
while the absence of customary rules will lead to the need to identify and apply general principles.

Point d) of paragraph 1 of Article 38 does not refer to formal sources of international law as such that
the Court shall apply, but it refers to two "subsidiary means for the determination of rules of law",
i.e. for finding which treaty, custom or general principle exists.

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The first of those two means are judicial decisions, subject to the provisions of Article 59 of the
Statute. According to Article 59: "The decision of the Court has no binding force except between the
parties and in respect of that particular case".

This means that ICJ decisions are not binding for future cases. There is no obligation to rule according
to what has been decided before in another case. However, if there is, strictly speaking, no principle
of stare decisis in international law, precedents will nevertheless play a very important role in the
pleadings of counsels in international proceedings and in the reasoning of the ICJ and of other
international courts and tribunals. But according to Article 38, paragraph 1, d), precedents are not
rules of law as such; they are just a means to help identify those rules because they have been
previously applied in those past cases.

When the PCIJ Statute was drafted, the list of Article 38 was probably supposed to be exhaustive.
However, and as we shall see later in the course, other sources of international law need to be added
today, most notably: unilateral acts of States and unilateral acts of international organizations.

ARTICLE 38 AGAIN

Let me add a few comments about Article 38.

According to point d) of paragraph 1, the second subsidiary means for the determination of the rules
of law are "The teachings of the most highly qualified publicists of the various nations."

By this, Article 38 refers to the writings of international law scholars, or at least the writings of the
most renowned of them.

Who are they?

We do not exactly know, as the Court never quotes nor refers to specific writings, even if counsels
and judges in their opinions very often refer to scholarly works.

For the rest, and as Judge Greenwood, who is currently a member of the ICJ, as Judge Greenwood
used to tell his students, recalling what he was himself told: "Who is the most highly qualified
publicist of the various nations?

Whoever is marking your paper!"

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But let us be serious again: this reference to the teachings, 'la doctrine' in French, is quite unique.

You will not find many legal systems taking the writings of academics so seriously.

And indeed, scholars of international law spend much of their days trying to decipher international
practice, trying to put some order within the fuzziness of international law and trying to identify from
the practice emerging rules.

International law is also, and to a large extent, an intellectual enterprise and a construction.

And it is not by chance that this MOOC exists.

So, ideas about what is international law, what it should be, have a bearing on its understanding and
development.

Let me finally turn to paragraph 2 of Article 38.

It says that paragraph 1 which lists the sources applicable by the Court is "without prejudice to the
power of the Court to decide a case ex aequo et bono, if the parties agree thereto."

This is very interesting: as a matter of principle, the Court must apply existing rules of international
law in order to settle the cases submitted to it, but as an exception to that principle and only if both
parties to the pending dispute specifically agree, it may decide a case on the basis of equity (ex
aequo et bono).

To my knowledge, no State party to any dispute before the ICJ has ever agreed that the Court
renders a judgment based on its own understanding of equity and justice, rather than on the basis of
pre-existing rules of international law.

So, if the provision has never been applied, why is it so important and interesting?

Well, precisely because of what it tells us about the fear of States to have to face a Court deciding
cases without referring to the legal principles and rules that the States themselves have taken part in
creating.

Paragraph 2 of Article 38 stands in contrast to paragraph 1 and reinforces the nature of the sources
listed in paragraph 1: on the basis of a very positivistic understanding of international law being the
result of the will and consent of States, those various sources are the result of processes which
somehow and ultimately are controlled by States themselves.

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Or at least that is what States like to believe.

THE NOTION OF CUSTOMARY INTERNATIONAL LAW

This lesson is about customary international law, i.e. the second source of international law listed by
Article 38, paragraph 1, of the ICJ Statute.

Let me explain why I start the study of the sources of international law with customary international
law, rather than with treaties and conventions which are mentioned first in Article 38.

There are two reasons for this: First, it is because, to a large extent, the making of treaties and
conventions is itself regulated by rules of customary international law.

Therefore, it is important to understand what is customary international law before turning to

treaties.

Second, it is because customary international law is, except in certain cases that will be mentioned,
general in scope:

international custom is, as a matter of principle, binding on all States and also on international
organizations.

So, customary international law is also called "general international law".

This stands in contrast to treaties because treaties, as treaties, are only binding on their contracting
parties, i.e. on the States or international organizations that have explicitly consented to them.

Also in contrast to treaties which are written documents, custom is, as such, not contained in any
specific legal document.

Both in domestic law and in international law, custom floats in the air as it were.

It is there, but it is nowhere.

We say it exists, but how do we know it exists when it is not the result of the exchange of
agreements over a written text?

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Of course, one may decide to write down custom, to make it explicit in a document, using words and
sentences.

But writing down custom would not make custom; it would simply make it explicit while it was there
-- and nowhere -- before being written down.

So, in this lesson about customary international law, the first thing to do is to understand how the
formation of rules of customary international law is generally explained.

And you see how careful I am: I am not saying that we are going to study the process by which
custom is created; I said that we'll try to understand the explanations that are usually given in order
to rationalize that process.

That issue remains hotly debated and largely mysterious because custom is fundamentally the result
of an informal, unregulated, spontaneous and decentralized process.

And it could not be otherwise.

At the same time, everybody intuitively understands what is a custom.

Custom is something that is usually done and that should be done.

The explanation that is generally provided in international law is not much different.

And indeed, the International Court of Justice has developed what has been called the "theory of the
two elements" which, when they meet, result in the making of rules that can be said to exist as rules
of customary international law.

The two elements are expressed by Article 38: "international custom, as evidence of a general
practice accepted as law".

Two elements: general practice and general practice accepted as law.

Let us turn now to some ICJ judgments in order to see the theory of the two elements at play.

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NORTH SEA CONTINENTAL SHELF CASES

A dispute arose between the Federal Republic of Germany and Denmark, on the one hand, and the
Federal Republic of Germany and the Netherlands, on the other hand, over the delimitation of the
North Sea continental shelf.
The Parties disagreed over the delimination of their respective parts of the continental shelf,
essentially because they were unable to agree on the rule of international law that had to be applied.
Therefore, they asked the International Court of Justice to state the principles and rules of
international law applicable to such delimitation, but they did not request that the Court apply those
rules and principles in order to delimit between them the continental shelf. Denmark and the
Netherlands argued that the disputed delimitations had to be carried out in accordance with the
principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental
Shelf.

However, Germany had not ratified that Convention, and was therefore not legally bound by the
provisions of Article 6. Denmark and the Netherlands claimed that Article 6 of the 1958 Convention,
dealing with equidistance, applied also to non-parties to the 1958 Convention by virtue of having
become a rule of customary international law. Germany rejected this argument and argued that
Article 6 of the 1958 Convention had no customary nature.

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In order to respond to the opposite claims made by the Parties about the existence or non-existence
of a rule of customary international law, the Court had to make clear what customary rules were
made of, how they come into existence. The Court referred to State practice and to opinio juris:
74. [...] Although the passage of only a short period of time is not necessarily, or of itself, a bar to
the formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of States whose interests are specially
affected, should have been both extensive and virtually uniform in the sense of the provision
invoked; -- and should moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved.
[...]
77. [...] Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory
by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a
subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States
concerned must therefore feel that they are conforming to what amounts to a legal obligation. The
frequency, or even habitual character of the acts is not in itself enough. There are many international
acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of
legal duty.
(ICJ, North Sea Continental Shelf (Federal Republic of Germany/Netherlands), 20 February
1969, ICJ Reports, pp. 43-44, paras. 74 & 77).
The Court concluded that equidistance did not apply as a customary rule to the delimitation of parts
of the continental shelf, but rather that the applicable rule was that "delimitation is to be effected by
agreement in accordance with equitable principles, and taking account of all the relevant
circumstances" (Ibid., p. 53, para. 101). The rule is now reflected in Article 83, paragraph 1, of
the UN Convention on the Law of the Sea:
"The delimitation of the continental shelf between States with opposite or adjacent coasts shall be
effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of
the International Court of Justice, in order to achieve an equitable solution".

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GERMANY V. ITALY

Italian and Greek plaintiffs sought to obtain compensation before domestic civil courts for harms
suffered at the hands of German occupation forces during World War II. Although bilateral
agreements were concluded for the compensation of war damages, these individuals did not obtain
any form of redress.
Italian courts decided that Germany did not enjoy immunity from jurisdiction for these acts (on
immunities, see Week 7), and condemned Germany to pay compensation to the claimants.
Furthermore, Italian courts agreed to give effect to Greek judgments of similar effect.
There was no dispute between the parties regarding the facts of the case (World War II events), and
the wrongfulness of the acts of the German Reich was also not contested. Therefore, the Court
was not asked to determine whether the acts of Germany were illegal, a point which was not
contested even by Germany.
The Court was only faced with the question of the denial of Germanys jurisdictional immunity by
Italian judicial decisions and by measures of constraint applied to property owned by Germany in
Italy. Through its judicial practice, and notably by allowing civil claims to be brought against
Germany, declaring enforceable in Italy decisions by Greek courts based on violations committed by
the German Reich, and taking measures of constraint against German property in Italy, did Italy
violate its obligation to respect the immunity which Germany claimed to enjoy under customary
international law?
The only question before the Court was the issue of immunity. Between the Parties, the entitlement
to immunity can be derived only from customary international law, since the European Convention
on State Immunity (1972) had not been ratified by both States, while the UN Convention on the
Jurisdictional Immunities of States and their Property (2004) is not yet in force:
It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the
existence of 'international custom, as evidence of a general practice accepted as law' conferring
immunity on States and, if so, what is the scope and extent of that immunity. To do so, it must apply
the criteria which it has repeatedly laid down for identifying a rule of customary international law. In
particular, as the Court made clear in the North Sea Continental Shelf cases, the existence of a rule of
customary international law requires that there be 'a settled practice' together with opinio juris
(ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), 3 February
2012, ICJ Reports, p. 122, para. 55).
The Court had to determine whether States were entitled to immunity from jurisdiction under
customary international law, even when their acts consisted in grave breaches of international law.

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In other words, the Court sought to determine whether a rule of customary international law exists
by assessing general state practice and opinio juris:
State practice of particular significance is to be found in the judgments of national courts faced with
the question whether a foreign State is immune, the legislation of those States which have enacted
statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and
the statements made by States [...] Opinio juris in this context is reflected in particular in the
assertion by States claiming immunity that international law accords them a right to such immunity
from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that
international law imposes upon them an obligation to do so; and, conversely, in the assertion by
States in other cases of a right to exercise jurisdiction over foreign States. (Ibid., para. 55).
In conclusion, the Court found that the absence of a State practice precluded the need to assess
whetheropinio juris existed. In contrast, in the Continental Shelf cases, there was evidence of state
practice about equidistance, but an opinio juris could not be inferred.

SUMMING UP THE "TWO ELEMENTS THEORY"

Welcome back.

Let me sum up the two elements theory in the formation of customary international law.

The first element is said to be the objective element.

It is about what is usually done.

In international law, what is usually done is referred to as the practice of States.

Practice can be made of actions or even abstentions, inactions.

This is because the fact of abstaining from doing something is already doing something.

Practice can be found in domestic legislation, in decrees, in the behavior of governmental agencies,
of the armed forces, in judgements of domestic courts, etc.

As long as the factual or legal behavior can be said to be the behavior of States, rather than the
behavior of individuals or corporations, we have practice that can count as far as the creation of
custom is concerned.

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But the behavior of States about individuals and about corporations, or about other non-State actors,
that behavior of States may also count as practice.

However, one instance of practice is not enough.

Practice needs to be recurrent, both in time and over space.

Practice must be general: remember the words of Article 38, paragraph 1, b): "international custom,
as evidence of a general practice accepted as law".

This means that the behavior taken into account must be regular and consistent over time.

It must be repeated.

There must be a pattern of similar acts.

Repetition, consistency, is at the heart of notion of custom.

Therefore, the idea that custom can be instantaneous is very much alien to it.

Furthermore, the settled practice must not only exist in time but also over space, that is it must not
only be repeated by one or two States, but it must be shared by a real plurality of States.

Not necessarily a plurality comprising all States, but at least a plurality comprising States that are
most likely to be specially affected by the rule emerging from the practice.

To take a straightforward example: for the delimitation of maritime zones, the practice of land-
locked States, States without a coast, that practice can be disregarded all the more so that it is
unlikely to exist.

But this is precisely the point: it does not matter that land-locked States, despite being numerous,
have no practice about maritime delimitation for a customary rule about that subject to emerge.

The practice must not only be general.

It must also be "accepted as law", as Article 38 puts it.

This is the second element in the two elements theory of international custom and it is said to be the
subjective element of custom.

In Latin, it is referred to as the "opinio juris sive necessitatis".

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Using Latin sounds serious, but it makes things even more mysterious, so what does this actually
mean?

The point is really the difference between, on the one hand, a pattern of practice which makes a
usage, a habit, a tradition: things are done because they are usually done that way; and, on the other
hand, a pattern of practice which makes a legal obligation enshrined in a custom: things are done
because they ought to be done that way.

What makes the difference between the two is this subjective element.

As you have seen from the North Sea Continental Shelf case, the ICJ says that "the States concerned
must feel that they are conforming to what amounts to a legal obligation".

Now, this is quite peculiar for two reasons. First, it is strange to say that States, who, after all, are
only abstract legal entities, have feelings, as if they were human beings. But the idea is that States
must have somehow expressed themselves about the legal dimension and meaning of their practice.

Second, there is a logical trap in saying that the second constitutive element of custom is the sense of
a legal duty to conform with the practice.

Indeed, how could one have the sense that the practice is obligatory when the issue is precisely the
emergence of an obligation?

Is it not putting the cart before the horse to say that States must be of the opinion that what they do
is compulsory when what is actually at stake is the creation, through the combination of practice and
opinio juris, of a binding obligation in the form of a rule of customary international law?

To get out of this logical trap at the stage of the emergence of custom, let me submit that it is better
to consider that the opinio juris is not so much the feeling of complying with what the law
requires,which would be impossible since the law is in the process of emerging, but rather the opinio
juris should be understood as the intent to make a custom.

THE INTERPLAY BETWEEN CONTRARY PRACTICE AND

OPINIO JURIS
If customary international law is made of practice, what happens when the practice of States is in
breach of custom?

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Are breaches of a customary rule to be considered as wrongful acts or as amounting to a new
practice which displaces and changes the former customary rule into a new, different, one?

This question relates to the normativity of customary rules.

If customary rules only reflect practice, they are not much different from reality and they change
according to reality.

Translated in the field of international relations, this would mean that law and power are identical.

Law would just be an apology for power.

But if law and reality are the same, there is not really any law, law is not normative.

On the other hand, if rules are completely disconnected from reality, they would be very normative
but they would lack any effectiveness.

Law would be purely utopian and just words.

According to Martti Koskenniemi, who is professor at the University of Helsinki and a leading scholar
of international law, this tension between apology and utopia is inherent in international law and
always present in arguments about international law.

The tension between how things are (apology) and how things should be (utopia) is indeed reflected
in the balance between the two ingredients of customary law, i.e. practice and opinio juris.

This balance is difficult to strike in order to assess the emergence of a customary rule, but it is even
more at play when the question is the one I started this video with:

What happens when the practice of States is in breach of an existing custom?

Is the customary rule changed and displaced according to the new practice?

The issue of the survival of a customary rule despite a pattern of practice which contradicts it has
been addressed by the International Court of Justice in a famous case between Nicaragua and the
United States of America.

Please turn to the next reading to find out more about it.

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INCONSISTENT PRACTICE AND THE SURVIVAL OF
CUSTOMARY RULES

In the Nicaragua v. United States of America case, Nicaragua claimed that the USA had violated
international law by supporting the contras in their rebellion against the Nicaraguan government and
by mining Nicaragua's harbors. According to Nicaragua, the US had notably breached customary rules
relating to the non-use of force and to non-intervention in the domestic affairs of States. However, it
is undisputable that those rules are far from being respected in practice. So, the Court had to
examine what was the effect of inconsistent practice on the survival of customary rules: is
inconsistent practice to be treated as a new practice that displaces the old rule and creates a new
rule? Here is the Court's answer:
"186. It is not to be expected that in the practice of States the application of the rules in question
should have been perfect, in the sense that States should have refrained, with complete consistency,
from the use of force or from intervention in each other's internal affairs. The Court does
not consider that, for a rule to be established as customary, the corresponding practice must be in
absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the
Court deems it sufficient that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule should generally have been
treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a
way prima facie incompatible with a recognized rule, but defends its conduct by appealing
to exceptions or justifications contained within the rule itself, then whether or not the State's
conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to
weaken the rule."
(ICJ, Military and paramilitary activities in and against Nicaragua (Nicaragua v. USA), 27
June 1986, ICJ Reports, p. 98, para. 186)

PERSISTENT OBJECTOR, NEW STATES, REGIONAL

CUSTOM AND THE FOUNDATION OF CUSTOM

In this video, I would like to add a few points in relation to the creation of customary international
law.

All those points relate to the generality of practice, and hence to the personal scope of custom.

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We have seen that the practice of States must be general:

it must both be settled and shared by the States that are specially affected by the emerging rule.

In that sense, because it is based on what States actually do and on their opinio juris about it,
customary international law is somehow based on a form of tacit consent by the practicing States,
and also on acquiescence by the other States.

This raises difficult theoretical debates which I do not want to enter into here, but let us admit for a
moment the idea of custom being ultimately explained by a form of consent.

If that is the case, then three problems may arise.

The first problem is as follows: is it possible for a customary rule to emerge if one State objects to the
practice by the other States?

In order to answer that question, two situations must be distinguished.

In the first situation, the objecting State is powerful and influential enough to induce the other States
to stop behaving as they once or twice did.

The practice will quickly stop, the opinio juris will not be expressed and, as a result, no customary
rule will emerge.

In the second situation, the objecting State is not in a position to stop the practice of the other
States.

But it constantly objects to such practice.

Each time the other States act, it reacts and objects to that practice.

The practice will lack a certain generality because the persistent objector does not share it, but it will
nevertheless be general enough, when sustained by corresponding general opinio juris, to result in
the creation of a new rule of customary international law.

However, because that State has all along expressed its disagreement with the settled practice of the
other States, it is admitted that it will not be bound by the new custom.

This is called the persistent objector principle in the formation of customary rules and, as a
possibility, it has been accepted by the ICJ back in 1951, in the Anglo-Norwegian Fisheries case.

30
It reflects a voluntary and consent-based conception of the formation of international law, even of
customary international law.

In contrast to that consent-based approach, the second problem I would like to quickly address is the
one relating to new States.

When a new State comes into existence, it is usually admitted and assumed that it is immediately
bound by all existing rules of customary international law.

The new State does not need to express any consent in that regard.

But neither can it start to object to those existing rules:

the persistent objector principle only applies if the objection is made from the inception of custom,
not after the custom has been established.

So, the new State is not born in a legal vacuum:

it is at least bound by existing customary rules, that is to say rules that did not emerge through its
practice and its opinio juris -- not even by its acquiescence.

And the new State cannot escape or opt-out from existing customary rules.

That situation proves that the consent-based approach cannot explain everything and is not
absolute.

Therefore, one must admit that the binding character of customary law rests also on some
sociological necessities, rather than on pure voluntarism.

The third problem I would like to mention is perfectly compatible both with a consent-based
foundation of customary law and a more sociological approach to it.

It is the phenomenon of regional or local customs.

In derogation to the idea that international customs are binding on all States, it is accepted that
some customs may be binding only for a certain group of States, in a specific region of the world, or
even, locally, on two or three States.

In 1950, in a case between Colombia and Peru about diplomatic asylum, the Court did not rule out
the idea of a regional custom, but it considered that Colombia had not sufficiently proved that there
existed a Latin-American custom on granting diplomatic asylum.

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Ten years later, in 1960, in the case of the Right of Passage over Indian Territory, the Court ruled that
there was a local custom allowing for the existence of such a right of passage in favour of Portuguese
enclaves in India.

There is no need to delve into those cases, but I cannot fail to bring a certain paradox to your
attention.

The paradox is as follows: the more local or regional an alleged customary rule is, the higher the
standard of proof will be required, in the sense that the practice and opinio juris of the concerned
States will be closely scrutinised so as to be sure that the practice has been duly accepted as law by
them.

In contrast to this, the standard of proof required when an alleged general custom is at stake will be
paradoxically not as high and demanding.

Most of the time, it will be sufficient to refer to the practice and opinio juris of some States, the
practice of which will be more apparent, while some acquiescence on the part of the other States will
be deduced, absent any objection from them.

WHERE AND HOW TO FIND CUSTOM?

To find out about the practice of States, scholars and sometimes courts turn to what is called
"digests" of practice, which are reports published by foreign affairs ministries or academics about the
various things that the government of one State has done in international relations over a certain
period of time.

Many Western States have been publishing their practice relating to international law in books and in
periodicals for many years, but more and more States do likewise today.

Of course, the more accessible the practice of one State is, the more influential it will be in the
formation of custom. And it is quite obvious that if the practice of a State is only known to a few of its
civil servants, it will not bear much influence on the crystallisation of customary rules.

Hence, very often, the theoretical question about who's practice will, concretely, end up as being a
question about who's practice is accessible and has been made public both in a searchable form and
in a language which is internationally used.

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State practice is not only scrutinized by individual scholars.

It is also closely studied by two bodies I would like to mention here.

Each of them is tasked with the study, the codification and the progressive development of
international law.

Taking them in the chronological order, I'll start with the International Law Institute (Institut de droit
international, in French). The Institut is a learned society.

It is a private body founded in 1873 and composed of 132 members, elected by their peers.

The Institut has been very influencial in the late 19th century and during a good part of the 20th
century and it was awarded the Nobel Peace Prize in 1904.

The Institut meets every second year in order to adopt resolutions on various issues of private and
public international law. Those resolutions very often codify, write down, customary rules, and also,
de lege ferenda, suggest some improvements.

The other body I would like to mention is the International Law Commission or "ILC".

The ICL is an official body established by the General Assembly of the United Nations.

It is today composed of 34 members. Those members are elected by the General Assembly upon the
suggestion of the various governments And as it is usual at the UN, each region of the world is
allocated a certain number of members within a Commission.

The members of the ILC sit in their individual capacity, not as national delegates.

They are not only international law professors, but they are drawn from the various segments of the
international legal community, so they may include former diplomats, former state officials and
former international civil servants.

Like the Institut, the ILC is tasked with the codification and the progressive development of
international law. It appoints special rapporteurs on certain topics, those rapporteurs write down
reports and suggest draft articles, draft articles that will be discussed by the ILC.

The interesting part is that, unlike the Institut, the ILC interacts with the member States of the UN by
putting questions to their governments, collecting their answers and listening to their comments on
its work.

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The Commission meets every year and its work is later discussed every year at the sixth committee of
the General Assembly, which is the legal committee of the UN.

And the end-product of the ILC's often serves as a basis for a diplomatic conference that will result in
a treaty -- like, as we shall see, the Vienna Convention of 1969 on the Law of treaties, or more
recently, the 2005 New York Convention on jurisdictional immunities of States and their property.

In other cases, the ILC draft articles are adopted by the UN General Assembly in a resolution and its
content will very largely reflect existing customary law -- this is for instance the case with the ILC
draft articles on the responsibility of States for internationally wrongful acts that we are going to
study.

To find out more about the Institut and the ILC, feel free to click on the links that you will find on this
page below this video.

However, the safest way to identify customary rules is to read case-law by international courts and
tribunals. After all, as the Latin maxim puts it: jura novit curia -- the judge knows the law.

So, if the International Court of Justice considers that such a customary rule exists or does not exist,
it is safe to assume that this pronouncement is correct.

Or rather, from a positivist point of view, that finding has certainly more weight and more authority
than the writings of a scholar.

It is interesting to note that, depending on the content of the rule at stake, the ICJ takes more or less
pain in giving reasons for the conclusions it reaches as to the existence or non-existence of the said
rule. This does not come as a surprise and should not be the cause for criticism because, simply put,
some rules are more obvious than others, and raise less political tensions than others.

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