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Custom and the International Court of Justice

Custom and the International Court of Justice I. Introduction Speaking in 1920, Baron Descamps remarked that “[c]ustom has always played an important part in, and been especially applicable to the law of nations, because in the absence of legislation and in view of the limited development of conventional law between States, the development and establishment of the law of nations has taken this form”. 1 The context was a meeting of the Committee of Jurists tasked with drafting a statute for the Permanent Court of International Justice, and the Baron, who presided over that Committee, had just submitted the proposed text of an article on the “rules [. . .] to be applied by the judge in the solution of international disputes”. 2 The inclusion of custom on this list was not controversial, and the minutes record no debate concerning Baron Descamps’ definition of custom, 3 although the final draft that now exists as Article 38 (1) (b) of the ICJ Statute is slightly different than the original proposal. 4 What was emphasized in the Committee’s passing references to custom was, firstly, that it was a source of positive law in force, 5 and, secondly, that it “constitutes in the main international law”. 6 As http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Law & Practice of International Courts and Tribunals Brill

Custom and the International Court of Justice

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Publisher
Brill
Copyright
© 2013 Council of Europe
ISSN
1569-1853
eISSN
1571-8034
DOI
10.1163/15718034-12341253
Publisher site
See Article on Publisher Site

Abstract

I. Introduction Speaking in 1920, Baron Descamps remarked that “[c]ustom has always played an important part in, and been especially applicable to the law of nations, because in the absence of legislation and in view of the limited development of conventional law between States, the development and establishment of the law of nations has taken this form”. 1 The context was a meeting of the Committee of Jurists tasked with drafting a statute for the Permanent Court of International Justice, and the Baron, who presided over that Committee, had just submitted the proposed text of an article on the “rules [. . .] to be applied by the judge in the solution of international disputes”. 2 The inclusion of custom on this list was not controversial, and the minutes record no debate concerning Baron Descamps’ definition of custom, 3 although the final draft that now exists as Article 38 (1) (b) of the ICJ Statute is slightly different than the original proposal. 4 What was emphasized in the Committee’s passing references to custom was, firstly, that it was a source of positive law in force, 5 and, secondly, that it “constitutes in the main international law”. 6 As

Journal

The Law & Practice of International Courts and TribunalsBrill

Published: Jan 1, 2013

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