Practice question
Two highly qualified scholars disagree about a proposed customary rule. One analyzes widespread consistent conduct and official legal positions; the other expressly advocates a desirable future rule while acknowledging that States do not yet accept it as law. Counsel treats the second work's proposal as existing custom simply because its author is famous. Which assessment is sound?
- Both works automatically create competing binding rules.
- The proposal's scholarly status does not establish existing custom; the distinction between current law and desired development matters.
- The first work is inadmissible because it discusses State conduct.
- All scholarship must be discarded whenever authors disagree.
- The more recently printed book automatically controls.
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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