Sarthak Sahoo
The two-element approach to identifying customary international law is now the mainstay in international law scholarship and practice. However, while this legible and demanding test makes the identification process more predictable, neither the International Court of Justice nor municipal courts have been as principled—or predictable—as one would hope.
The long-standing perspectives on ‘inductive’ and ‘deductive’ approaches to the formation of legal norms have attained far greater relevance, as the ICJ seeks to increase its focus on indirect, silence-based, and norms-based derivation of customary international law.
To be clear, debates on these approaches rose up soon after the ICJ’s establishment, the literature of which is indispensable to understanding the evolution of the Court’s thinking on this point. These include works like Georg Schwarzenberger (1947), Anthea Roberts (2001), Enzo Cannizzaro (2005), and William Thomas Worster (2013).
However, with the proliferation of advisory opinions, proactive litigation, and rise of international law interest in the Indian academy, these debates on methodology must be taken centre-stage for a robust and first-principles-based adjudication regime. Stefan Talmon’s 2015 article on the matter reinvigorated that debate, and thus must be the starting point of the latest analysis.
Nota Bene: In keeping with previous Readers of this blog (Populism, New Materialism and Obituary of International Law), as well as scholarly coherence, the following literature is placed in chronological order since 2015.
Stefan Talmon, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) European Journal of International Law
Harlan G. Cohen, ‘Methodology and Misdirection: Custom and the ICJ’ (EJIL:Talk! 1 December 2015)
Fernando Lusa Bordin, ‘Induction, Assertion and the Limits of the Existing Methodologies to Identify Customary International Law’ (EJIL:Talk! 2 December 2015)
Ryan M. Scoville, ‘Finding Customary International Law’ (2016) Iowa Law Review
Niels Petersen, ‘The International Court of Justice and the Judicial Politics of Identifying Customary International Law’ (2017) European Journal of International Law
Panos Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (2017) International Community Law Review
Christian Marxsen, ‘What Do Different Theories of Customary International Law Have to Say About the Individual Right to Reparation Under International Humanitarian Law?’ (2018) Heidelberg Journal of International Law
International Law Commission, ‘Draft Conclusions on Identification of Customary International Law, with Commentaries’ (2018)
Cedric M. J. Ryngaert & Duco W. Hora Siccama, ‘Ascertaining Customary International Law: An Inquiry into the Methods Used by Domestic Courts’ (2018) Netherlands International Law Review
Katie A Johnston, ‘The Nature and Context of Rules and the Identification of Customary International Law’ (2021) European Journal of International Law
Janet Adewumi Bamigbose, ‘An Examination of the International Court of Justice’s Approach to Customary International Law’ (2013) The University of Western Ontario (LLM Thesis) ch 3
Massimo Fabio Lando, ‘The Limits of Deduction in the Identification of Customary International Law’ (2024) Asian Journal of International Law
Discover more from Indian Blog of International Law
Subscribe to get the latest posts sent to your email.
