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  • 3 - Misinterpreting Customary International Law

  • from Part I - The Theory of Customary International Law
  • Edited by Panos Merkouris, Rijksuniversiteit Groningen, The Netherlands, Jörg Kammerhofer, Noora Arajärvi
  • Book:
    The Theory, Practice, and Interpretation of Customary International Law
    Published online:
    05 May 2022
    Print publication:
    26 May 2022, pp 40-61
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  • Summary

    With the inescapable constructive dimension of CIL, courts serve a key function in the development of CIL through their interpretations and their interpretative methodologies. Sometimes courts are mistaken in their interpretation of CIL. This contribution explores three main questions: (1) what is misinterpretation? (2) how and why do misinterpretations take place? and (3) what are the potential consequences of misinterpretation of CIL? These all converge in the underlying question of whether there are detectable objective standards for the determination of misinterpretation or whether such observation is always a subjective one – anchored on a disagreement on the values which lie at the core of international law. To preserve legal certainty and predictability in the interpretation of CIL, it is crucial to recognise that courts are not infallible, may lack the requisite methodological tools and occasionally just get CIL wrong. The indeterminacy of CIL renders futile the attempts to pin down precise conditions for its validity, and simultaneously, leaves open the definition of misinterpretation of CIL.