The International Court of Justice and the Concept of State Practice

State practice is an important element of international law, both as a key component of customary international law and as a crucial tool for interpreting treaties. In this Article, the Author seeks to show that there are important flaws in the International Court of Justice’s application of state practice. The Court has relied on actual practice to determine the content of customary rules surprisingly rarely, instead frequently basing its conclusions instead on non-binding actions by international bodies or on its own decisions. In some cases, it has reached decisions clearly inconsistent with significant and relevant state practice; in others, it has proclaimed doctrines unsupported by state behavior as rules of law. The Court has been inconsistent in its treatment of the practice of parties to treaties in cases presenting interpretation questions, sometimes proclaiming the necessity of relying on such practice while on other occasions failing even to acknowledge the existence of practice contrary to the result it reaches. This behavior by the Court is problematic for a number of reasons and, paradoxically, makes the Court itself an impediment to wider reliance on international law