Abstract
Although Article 38 (1) (b) of the Statute of the International Court of Justice (ICJ) provides for customary international law as a source of international law and defines it as ‘evidence of a general practice accepted as law’, the clarity of the text and the entire statute have remained questionable. Attempts have been made to box international custom into state practice and opinio juris, yet it is argued that ascertainment of these elements is paradoxical. There is no clear idea on what constitutes
customary international law, no authoritative text, and its unwritten nature renders it insecure, elusive, scattered, unstable, unsystematic as well as hegemonic. These obstacles are no excuses for international judges to fail in their adjudicative duties when questions of customary international law are before them. In response to these challenges by the international courts, this paper investigates whether international judges go beyond its primary interpretative role to custom-making. Following the
examination of cases before the ICJ and ad hoc tribunals, this paper argues that through judicial creativity, international judges are contributing to the making and development of customary international law. Therefore, making international custom a continually relevant primary source of international law despite its challenges.
Keywords: Customary, International, Law, Fluidity, Court, Tribunals