Int’l Law Fall 2002
Wednesday, December 11, 2002
Application of Int’l Law
Article 38 of the ICJ
––and this is
(a) Int’l conventions––meaning, treaties and contracts––whether general or particular, expressing
rules that are
expressly recognized by the contesting states.
(b) Int’l custom.
Does merely engaging in a practice constitute
? There are two
elements: (1) practice, over a period of time, and, (2) the belief that the state is acting out of a
Customary rules influence the interpretation of treaties.
The burden of proof is to be met by the party asserting custom and varies with
the subject matter; the more
the custom, the higher the burden. A nation
might seek to avoid being bound by a rule by asserting that its self-interest in
survival trumps int’l custom.
There is something known as
custom (how to draw water, etc.).
In Paquete Habana
the court noted that
jurists and commentators might be
more familiar with principals and customs of int’l law than any particular
court can be, so it is appropriate to rely on them to state what the law is.
An open question:
If a state is establishing a new custom, is it in violation of
int’l law as it does so [because it is not following existing custom]?
(c) General principals of law recognized by civilized nations.
Think in terms of process: the right
process––not necessarily a jury trial––to arrive at a judgment. One idea that every system
seems to recognize is that the process should be impartial.
: Fundamental principles. E.g., it is a principle of
enter into a treaty to commit genocide.
(d) Under Art. 59, judicial decisions and select teachings from various nations.
These are “a
subsidiary means,” although ICJ opinions are increasingly, in Europe, cited the way U.S.
Supreme Court cases are cited here.
Art. 38 does not prejudice the Court’s power to decide a case
ex aequo et bono
: according to
what is equitable and good.
is the idea that a nation must believe that its conduct is required by or consistent
with int’l law [rather than moral obligation, etc.].
When we ask if there is such a thing as int’l law, rather than asking, e.g., is there a legislature
that makes int’l law, we might instead ask,
is there a body that does what a legislature does
The U.N. General Assembly has no authority to do anything
; it is not a law-making
ICJ was established at the same time as the U.N. and states have to accept jurisdiction.
As far as states that accept its jurisdiction
, recently it was about one-third of all states.
The U.S.––under Truman––initially accepted its jurisdiction in advance, but withdrew this