The Development of Custom in Territorial Dispute Settlement

Abstract

Although the International Court of Justice is called upon to identify rules of customary international law, the broader effect of these pronouncements has long raised controversial questions. This article opens these queries to further discussion by analysing custom used in the settlement of territorial disputes. The relevant case law is contextualized geopolitically to highlight not only taxonomic, but also practical tensions arising between custom and jurisprudence. Given the links between territorial interests and state sovereignty (and the resulting sensitivity of these disputes), this approach sheds light on a fundamental question: how do courts and tribunals use custom to imbue international relations with greater stability? The author concludes that such bodies must serve this function by developing — rather than merely interpreting or applying — international customary norms.

Keywords: customary international law, territorial sovereignty, law of the sea, boundary disputes, international courts and tribunals, judicial law-making