The Application of Logic and Reason in the Identification and Interpretation of Customary International Law

Abstract

The process of identifying and interpreting norms of customary international law, while appearing to be primarily based on an inductive analysis of state practice and opinio juris, is sometimes a deductive exercise based on logic and reason. Logic permeates every decision in international law. Illogic might also be present as well, of course, but in terms of identifying, interpreting and applying law, we tend to claim that we do it logically and, perhaps even, scientifically.

Logic manifests itself inherently throughout the process and can be identified in all steps of reasoning in identifying, interpreting and applying customary international law. Logic, however, can constitute the application of either an inductive or deductive inference.

This paper will focus on situations in which the International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ) applied a deductive approach, identifying or interpreting norms of customary international law without seeming to consult state practice and opinio juris. Specifically, it will consider whether norms that can be reasonably inferred or deduced from existing rules, or that are simply logical for the operation of the international legal system, can be identified as norms of customary international law under a complementary, supplementary or distinctive interpretive approach.

Keywords: logic, reason, customary international law, deduction, induction, Gulf of Maine, state practice, opinio juris, methodology

JEL Classification: K00, K10, K19, K30, K33, K39, K40, K49