METHODS FOR THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW IN THE INTERNATIONAL COURT OF JUSTICE'S JURISPRUDENCE: 2000–2009

Abstract

‘Sometimes the most important historical events are the non-events: the things that did not occur,’ says the British historian Niall Ferguson.1Such a statement may well describe in large measure the International Court of Justice's case-law regarding the methods for the identification of rules of customary international law during the period 2000–2009. The previous two decades had been marked by two milestones in this domain: the eighties by the judgment on the merits inNicaragua,2and the nineties by the Court's advisory opinion inNuclear Weapons.3There was, though, no single decision by the Court of comparative significance regarding methods of customary international law during the first decade of the new millennium. Further, some of the most important determinations in this domain were those in which the Court did not declare the existence of a customary international rule. However, this is not to say that the above-mentioned conclusion applies to all of the Court's jurisprudence related to customary international law. The conclusion is limited to the Court's decisions regarding the methods for the recognition of norms of this character. In fact, the Court made very important pronouncements as to the content of customary international law in many domains, such as the use of force, territorial occupation, diplomatic protection, and international humanitarian law.