Practice question
A memorandum cites a domestic court's conclusion that a custom exists, but omits the court's reasoning and all discussion of practice and acceptance as law. It declares the custom proven solely because a court said so. A second memorandum examines the judgment's reasoning alongside relevant State practice and opinio juris. Which is preferable?
- The first, because the label 'judgment' ends inquiry.
- The second, because subsidiary judicial material assists rather than dispenses with identification of the customary rule.
- Neither, because national courts are always irrelevant.
- The first, because custom requires no practice.
- The first, because judges may legislate custom for all States.
Legal references
- ICJ Statute, Articles 38(1)(d) and 59: https://www.un.org/en/about-us/un-charter/statute-of-the-international-court-of-justice
- ILC, Conclusions on Identification of Customary International Law (2018), Conclusions 2 and 12–14: https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_13_2018.pdf
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