Complying with Custom before the World Court: Towards a Relational Normativity

Abstract

Abstract Traditionally, institutional constraints informed the International Court of Justice’s ascertainment of the (non-) existence of customary norms in its decisions as it signals impartiality to uphold its legitimacy. Its reliance on (non-)legal elements underpinning the sources of the normativity of existing and future customary norms upon which it rules goes beyond the mutual acceptance of treaties and customs by the conflicting parties as well as shared (nascent) moral values of the international community. Its denial of the application of customary international law based on functional and equitable arguments gives further evidence of the Court’s relational and contextual approach towards the peaceful resolution of disputes. In addition to its rule-based governance function, the Court is actively pursuing relational governance. It seeks to reconcile competing relationships and interests inside and outside the courtroom and anticipates if a fertile soil is present in which existing and future customary norms can gain root.