A Glass Half Full?
Bordin, Fernando Lusa
International Community Law Review
Martinus Nijhoff Publishers
MetadataShow full item record
Bordin, F. L. (2019). A Glass Half Full?. International Community Law Review, 21 (3-4), 283-306. https://doi.org/10.1163/18719732-12341403
Much has been said about the shortcomings of the two-element test for customary international law, the traditional methodology on which the ILC has focused in its recently completed study on the identification of custom. But custom as a source of law is notoriously elusive and slippery, and the deficiencies of the traditional methodology, for which there is no easy fix, are a reflection of a decentralised international legal system lacking a legislature and a system of courts with compulsory jurisdiction. The article offers some thoughts on the character of the two-element approach as an evaluative test, and the functions that it performs in structuring and constraining international legal reasoning in a way that safeguards the equality of States. By reflecting on the methodology’s constructive role, the article cautions against overly alarmist predictions that customary international law is a dancefloor.
External DOI: https://doi.org/10.1163/18719732-12341403
This record's URL: https://www.repository.cam.ac.uk/handle/1810/294159
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