ABSTRACT
This chapter tests the strength of conclusion by interrogating further the determination by the International Court of Justice (ICJ) of rules of customary international law in the North Sea Continental Shelf Cases. In particular, it considers the effect on custom's legitimacy of the interplay between treaty making and custom. The chapter confirms the findings that, the legitimacy deficit complained of custom is strongly linked to the violence inflicted on article 38(1)(b) by international tribunals, what Lauterpacht has described as "judicial legislation" in customary international law. It recommends first acknowledgment and second understanding of the values that underpin the power dynamics unleashed by article 38(1)(b). The chapter shows that custom's legitimacy deficit is not predicated on just one thing, but several things. It shows that the ICJ's jurisprudence on customary international law is in real difficulty, because there is not sufficient account of the enormous force applied by international tribunals when they declare the emergence of new rules of international law.
