The International Court of Justice and the Concept of State Practice

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

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Part III The Major Cases and Controversies: A Survey of State Practice, 6 The Major Cases

The Law of International Watercourses ◽

10.1093/law/9780198736929.003.0006 ◽

2019 ◽

Author(s):

McCaffrey Stephen C

Keyword(s):

Dispute Resolution ◽

The Other ◽

Third Party ◽

International Court Of Justice ◽

Court Of Justice ◽

Other Hand ◽

International Court ◽

State Practice ◽

The World ◽

International Profile

This chapter explores cases bearing on the field of international watercourses that have been decided by the International Court of Justice or its predecessor. States have submitted only a few disputes concerning international watercourses to the International Court of Justice or its predecessor, though the pace is clearly picking up. There are doubtless many factors that explain this phenomenon, including reluctance to give a dispute a high international profile, reluctance to trust dispute resolution to a third party over whom states have no control, hesitancy about submitting a dispute to a tribunal composed of judges, the expense of litigating before the World Court, and the like. On the other hand, states are bringing an increasing number of cases of all kinds, including those concerning international watercourses, to the Court, indicating that it is becoming a more popular forum for the resolution of disputes.

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The Resilience of the Restrictive Rules on Self-Defence

10.1093/law/9780199673049.003.0028 ◽

2016 ◽

Cited By ~ 1

Author(s):

Joerg Kammerhofer

Keyword(s):

International Law ◽

Customary Law ◽

International Court Of Justice ◽

Institutional Practice ◽

Jus Ad Bellum ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

The Law ◽

Self Defence

This chapter examines the resilience of the treaty, and perhaps also customary, law on self-defence since 2001. It first considers ‘resilience’ in the context of the jus ad bellum and how law can be resilient vis-à-vis changing circumstance, opinions, interpretation, and state practice. It then looks at the indicators for and against resilience by analysing post-2001 developments, paying particular attention to three areas: jurisprudence, scholarly literature in international law, and state and institutional practice. The chapter also explains what ‘resilience’ can and cannot be, and how the law and its perceptions change—or remain the same. Two avenues on the question of what is resilient are evaluated: either the norm or its interpretation (perception) change. Finally, the chapter considers a number of cases in which the International Court of Justice has made pronouncements on and partial clarifications of important aspects of the law on self-defence since 2001.

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Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

International Organizations Law Review ◽

10.1163/15723747-2017002 ◽

2017 ◽

Vol 14 (2) ◽

pp. 227-253 ◽

Cited By ~ 1

Author(s):

Rossana Deplano, PhD

Keyword(s):

International Law ◽

International Organizations ◽

International Court Of Justice ◽

Customary International Law ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

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The Emergence of “Universal Jurisdiction” in Response to Somali Piracy: An Empirically Informed Critique of International Law’s “Paradigmatic” Universal Jurisdiction Crime

Chinese Journal of International Law ◽

10.1093/chinesejil/jmz025 ◽

2019 ◽

Vol 18 (3) ◽

pp. 551-643

Author(s):

Matthew Garrod

Keyword(s):

World War Ii ◽

International Law ◽

Universal Jurisdiction ◽

World War ◽

International Court Of Justice ◽

Customary International Law ◽

International Crimes ◽

Court Of Justice ◽

International Court ◽

State Practice

Abstract Since the 1980s, the idea that piracy is the “original” and “paradigmatic” universal jurisdiction crime in customary international law has been increasingly supported by weighty scholarship. In the wake of the unprecedented surge in Somali piracy, this view is gaining ground among various powerful actors in international law. Yet, remarkably little empirically grounded scholarship exists in support of universal jurisdiction. This Article provides the first comprehensive empirical analysis of state practice in response to Somali piracy in a ten-year period since 2006. Additionally, the data on Somali piracy are compared with the empirical findings of state practice regarding international crimes, which are more “heinous” than piracy, since the end of World War II to 2016. In so doing, this Article brings new insight and the first thorough critique of what most scholars, governments, the UN and even the International Court of Justice have said on universal jurisdiction, its purpose and the basis for it in international law. In view of inter-state tensions and conflict caused by universal jurisdiction and a move towards law codification, there is now a pressing need for a paradigm shift in the concept of universal jurisdiction for both piracy and international crimes, a step away from conventional scholarly accounts, and the grand narratives from which they proceed, to a position that has a solid basis in the actual practice of states. Empirically and historically informed, it is proposed that “universal jurisdiction” for both categories of crime provides a basis in international law permitting the exercise of national criminal jurisdiction over offences involving foreign nationals abroad that have a close nexus between the case over which jurisdiction is asserted and the state asserting jurisdiction. Common and traditionally held assumptions that universal jurisdiction is based solely on the grave nature of crimes and is applied by states absent any nexus to offences and in the interest of the international community are unfounded.

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Necessity

Necessity and Proportionality and the Right of Self-Defence in International Law ◽

10.1093/oso/9780198863403.003.0002 ◽

2021 ◽

pp. 25-96

Author(s):

Chris O'Meara

Keyword(s):

International Humanitarian Law ◽

Military Force ◽

Humanitarian Law ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

Different Types ◽

First Time

Chapter 2 focuses on the meaning and content of necessity. It argues for the first time that there are two different ‘types’ of necessity. In so doing, this author proposes a novel taxonomy to distinguish between them. This distinction addresses, and better explains, the two principal and distinct concerns of necessity that are reflected in state practice, International Court of Justice jurisprudence and scholarship: (a) is military force required at all in the circumstances (an issue of ‘general necessity’), and (b) if so, where must such force be directed (an issue of ‘specific necessity’)? Without general necessity, the applicability of both specific necessity and proportionality is moot. Drawing on core principles of international humanitarian law, Chapter 2 provides a clearer and more workable understanding of necessity that highlights both the weaknesses in, and opportunities for, its operation.

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Customary International Law

Oxford Research Encyclopedia of International Studies ◽

10.1093/acrefore/9780190846626.013.531 ◽

2020 ◽

Author(s):

Kathleen Barrett

Keyword(s):

General Practice ◽

International Law ◽

Legal Requirements ◽

International Court Of Justice ◽

Customary International Law ◽

Court Of Justice ◽

International Court ◽

Official Statement ◽

State Practice ◽

State Consent

Article 38 of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as the second source of law to be used by the Court. In other words, customary international law (CIL) requires state practice and opinio juris, the belief that the practice is legally required. A basic principle of international law is that sovereign states must consent to be bound by international legal requirements. Therefore, for a norm to become CIL, a widespread group of states must consistently follow the norm and indicate, either explicitly or implicitly, that they consent to the norm. Consistent action is important in two ways: consistent state practice following the norm indicates state consent to be bound by the norm and consistent objection to the norm indicates that the state does not consent to the norm. To avoid being bound by a rule of CIL, a state must persistently object to the rule during and after its formation. Changing CIL requires new state practice and evidence that opinio juris supports the new, not the old, state practice. Debates surrounding state practice include the number of states required to demonstrate “widespread” action, whether the states must be representative of the community of states, and how long consistent practice must occur before CIL is formed. Opinio juris is debated because it is subjective unless there is a specific, official statement that there is a belief that the practice is legally required. Once a state consents, implicitly or explicitly, to a CIL rule, it cannot withdraw that consent. States that gain independence after a CIL rule is established are bound by that rule if the former government was not a persistent objector. This is problematic, particularly for former colonies that were not able to object during the formation of existing CIL rules because they were not considered “sovereign states.” Scholars supporting this perspective argue that, prior to decolonization, CIL was used to control the colonies and, since their independence, it is used by the colonizers to maintain their power and perpetuate inequality.

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Necessity

10.1093/law/9780199673049.003.0040 ◽

2016 ◽

Author(s):

Olivier Corten

Keyword(s):

International Law ◽

Use Of Force ◽

Subsidiary Condition ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

Methodological Problems ◽

International Law Commission ◽

Self Defence

This chapter examines the doctrine of necessity as an element of the prohibition of the use of force and as a subsidiary condition of the legality of self-defence. It begins by discussing the thesis of necessity as a general justification of the use of force within the context of the international law of responsibility. It then analyses necessity as a condition enshrined in self-defence and in the United Nations collective security system. The chapter also considers the methodological problems that arise from any interpretation of the concept of necessity, especially with respect to the use of force. It highlights the fact that the International Law Commission, the International Court of Justice, and state practice have never recognized necessity as a general justification to use force.

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The International Court of Justice as a “Shortcut” to Identifying Custom

The Law and Practice of International Courts and Tribunals ◽

10.1163/15718034-12341456 ◽

2021 ◽

Vol 20 (3) ◽

pp. 490-518

Author(s):

Rowan Nicholson

Keyword(s):

International Law ◽

Genocide Convention ◽

International Court Of Justice ◽

Customary International Law ◽

Judicial Decisions ◽

Court Of Justice ◽

International Court ◽

State Practice ◽

The Subject

Abstract A frequently used shortcut to identifying rules of customary international law is to rely on statements by the International Court of Justice instead of conducting a more cumbersome investigation of state practice and opinio iuris. The purpose of this article is to consider when the Court’s statements align or may come to align with customary rules and, consequently, to what extent this shortcut is justified. Its value is in systematically exploring ideas that international lawyers may already have internalised; it may also help students of the subject to understand why reliance is placed on judicial decisions. Often, the Court simply elucidates pre-existing customary rules. But examples such as Factory at Chorzów, Fisheries, and Reservations to the Genocide Convention suggest that an additional or alternative justification for the shortcut may be stronger. This is the tendency of states to endorse or “ratify” statements by the Court through subsequent practice and opinio iuris.

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The objects and effects of non-party intervention before the International Court of Justice

Leiden Journal of International Law ◽

10.1017/s0922156521000583 ◽

2021 ◽

pp. 1-21

Author(s):

Zeno Crespi Reghizzi

Keyword(s):

Present Article ◽

Case Law ◽

International Court Of Justice ◽

Binding Effect ◽

Court Of Justice ◽

International Court ◽

Potential Binding ◽

Legal Nature ◽

State Practice ◽

Traditional Construction

Abstract The International Court of Justice recognized the legitimacy of ‘non-party intervention’ under Article 62 of the Statute in its 1990 landmark decision on Nicaragua’s intervention in the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras). Such form of intervention ‘is not intended to enable a third State to tack on a new case, to become a new party, and so have its own claims adjudicated by the Court’. Its purpose is ‘protecting a State’s “interest of a legal nature” that might be affected by a decision in an existing case’. Whereas non-party intervention under Article 62 now forms part of the law in action within the Court’s system, its precise features and regime remain uncertain. Doubts concern the identification of its precise objects and the potential binding effects for a non-party intervener of the judgment issued between the original parties. The present article explores these issues in the light of the Court’s case law and state practice. It demonstrates that non-party intervention can have various potential objects, depending on how the intervener intends to influence the future judgment between the original parties. Building on the identification of these objects, it then questions the traditional construction denying any binding effect of the decision for a non-party intervener and argues that a judgment issued following intervention is binding as between the original parties and the intervener in so far as this judgment, whether expressly or by implication, decides issues related to the object of intervention.

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