English
 
Help Privacy Policy Disclaimer
  Advanced SearchBrowse

Item

ITEM ACTIONSEXPORT

Released

Journal Article

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

MPS-Authors
/persons/resource/persons183184

Petersen,  Niels
Max Planck Institute for Research on Collective Goods, Max Planck Society;

External Resource
Fulltext (restricted access)
There are currently no full texts shared for your IP range.
Fulltext (public)
There are no public fulltexts stored in PuRe
Supplementary Material (public)
There is no public supplementary material available
Citation

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.


Cite as: http://hdl.handle.net/11858/00-001M-0000-002C-0B2F-0
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.