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The International Court of Justice and the Concept of State Practice

Arthur Mark Weisburd

University of North Carolina (UNC) at Chapel Hill - School of Law

UNC Legal Studies Research Paper No. 1282684

State practice is an important element of international law, both as a key component of customary international law and as a crucial tool for interpreting treaties. In this paper, Professor Weisburd seeks to show that there are important flaws in the application of state practice by the International Court of Justice. The Court has relied on actual practice to determine the content of customary rules surprisingly rarely, frequently basing its conclusions instead on non-binding actions by international bodies or on its own decisions. It has reached decisions in some cases clearly inconsistent with significant and relevant state practice and in others proclaimed as rules of law formulations unsupported by state behavior. The Court has been inconsistent in its treatment of the practice of parties to treaties in cases presenting interpretation questions, sometimes proclaiming the necessity of relying on such practice while on other occasions failing even to acknowledge the existence of practice contrary to the result it reaches. This behavior by the Court is problematic for a number of reasons and, paradoxically, makes the Court itself an impediment to wider reliance on international law.

Number of Pages in PDF File: 91

Keywords: International Court of Justice, state practice, customary international law, treaties

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Date posted: October 12, 2008  

Suggested Citation

Weisburd, Mark, The International Court of Justice and the Concept of State Practice. UNC Legal Studies Research Paper No. 1282684. Available at SSRN: http://ssrn.com/abstract=1282684 or http://dx.doi.org/10.2139/ssrn.1282684

Contact Information

Arthur Mark Weisburd (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-8515 (Phone)

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