TY - JOUR

T1 - Meta-custom and the court

T2 - A study in judicial law-making

AU - Tams, Christian J.

PY - 2015/4/10

Y1 - 2015/4/10

N2 - Customary international law is one of the two main sources of international law. Yet there remains considerable uncertainty about the process through which rules of custom emerge or subsist - the â € meta-law of customâ €™, which is now under consideration within the un International Law Commission (ilc). This article does not rehearse arguments about these uncertainties nor indeed engage with the current work of the ilc. Instead, it focuses on areas of certainty, viz. aspects of the law of meta-custom that are generally agreed and on which the ilc can draw. It argues that this certainty is the product of decades of jurisprudence, first of the Permanent Court and then of the International Court of Justice. In highlighting four crucial contributions and situating them in the debate about judicial law-making, this article seeks to raise awareness for the World Court's (often unacknowledged) role in shaping the meta-law of custom.

AB - Customary international law is one of the two main sources of international law. Yet there remains considerable uncertainty about the process through which rules of custom emerge or subsist - the â € meta-law of customâ €™, which is now under consideration within the un International Law Commission (ilc). This article does not rehearse arguments about these uncertainties nor indeed engage with the current work of the ilc. Instead, it focuses on areas of certainty, viz. aspects of the law of meta-custom that are generally agreed and on which the ilc can draw. It argues that this certainty is the product of decades of jurisprudence, first of the Permanent Court and then of the International Court of Justice. In highlighting four crucial contributions and situating them in the debate about judicial law-making, this article seeks to raise awareness for the World Court's (often unacknowledged) role in shaping the meta-law of custom.

KW - custom and treaties

KW - customary international law

KW - development of international law

KW - evidence of custom

KW - International Court of Justice

KW - judicial law-making

KW - Permanent Court of International Justice

KW - sources of international law

KW - Law

UR - http://www.scopus.com/inward/record.url?scp=84930906460&partnerID=8YFLogxK

U2 - 10.1163/15718034-12341285

DO - 10.1163/15718034-12341285

M3 - Journal articles

AN - SCOPUS:84930906460

VL - 14

SP - 51

EP - 79

JO - Law and Practice of International Courts and Tribunals

JF - Law and Practice of International Courts and Tribunals

SN - 1569-1853

IS - 1

ER -