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  The International Court of Justice and the Judicial Politics of Identifying Customary International Law

Petersen, N. (2017). The International Court of Justice and the Judicial Politics of Identifying Customary International Law. European Journal of International Law, 28(2), 357-385.

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https://doi.org/10.1093/ejil/chx024 (Any fulltext)
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Petersen, Niels1, Author           
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1Max Planck Institute for Research on Collective Goods, Max Planck Society, ou_2173688              

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 Abstract: It is often observed in the literature on customary international law that the identification practice of the International Court of Justice for customary norms deviates from the traditional definition of customary law in Art. 38 (1) lit. b of the ICJ Statute. However, while there are many normative and descriptive accounts on customary law and the Court’s practice, few studies try to explain the jurisprudence of the ICJ. This study aims at closing this gap. I argue that the ICJ’s argumentation pattern is due to the institutional constraints that the Court faces. In order for its decisions to be accepted, it has to signal impartiality through its reasoning. However, the analysis of state practice necessarily entails the selection of particular instances of practice, which could tarnish the image of an impartial court. In contrast, if the Court resorts to the consent of the parties or widely accepted international documents, it signals impartiality.

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 Dates: 20162017
 Publication Status: Published in print
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 Rev. Type: Peer
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Title: European Journal of International Law
Source Genre: Journal
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Pages: - Volume / Issue: 28 (2) Sequence Number: - Start / End Page: 357 - 385 Identifier: -