With a view to showing that courts do not have the power to validate native law and custom, this article highlights the different roles assigned to the assent of the people governed by native law and custom, and to the court called upon to determine its judicial enforceability. It argues that customary law is validated by the assent of the people and not by courts, and that the tests contained in different statutes by which courts are permitted to intervene in the regime of customary law are tests of enforceability and not tests of validity. As a result, it argues that the term “validity test” is misleading when used in relation to the power of courts to determine the enforceability of native law and custom, and should therefore be discarded.

This article is intended to be a report of the oral proceedings in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), detailing what took place in the Peace Palace and considering the arguments of the parties relating to the procedure adopted in the proceedings. These include the preliminary question of whether or not the International Court of Justice has jurisdiction in the case, a question which has been reopened by Serbia and Montenegro following the 2004 judgment in the Legality of the Use of Force cases; the question of the impact of the workings of the ICTY on the current proceedings; the issue of new documents which has arisen, given the very long gap between the written and oral proceedings; the burden and standard of proof adopted by the Court and what inferences it may draw; and the methodology for hearing witness testimony in the Court. Each of the parties addressed the Court on these procedural issues in some detail, in addition to their pleadings on the substance of the merits of the case.