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Trashing Customary International Law

Published online by Cambridge University Press:  27 February 2017

Anthony D’Amato
Anthony D’Amato*
Affiliation:
Northwestern University
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Extract

Central to the World Court’s mission is the determination of international custom “as evidence of a general practice accepted as law.” Students of the Court’s jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States, little harm was done. For in the sharply contested cases prior to Nicaragua, the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court’s lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 101 - 105
Copyright
Copyright © American Society of International Law 1987

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References

1 Statute of the International Court of Justice, Art. 38.

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

3 D’Amato, Treaties as a Source of General Rules of International Law, 3 Harv. Int’l L.J. 1 (1962); A. D’Amato, The Concept of Custom in International Law (1971).

4 1986 ICJ Rep. at 98, para. 186.

5 Id. at 108, para. 206.

6 See, e.g., Lillich, Humanitarian Intervention: A Reply to Dr. Brownlie, in Law and Civil War in the Modern World 229 (J. N. Moore ed. 1974); Reisman & McDougal, Humanitarian Intervention to Protect the Ibos, in Humanitarian Intervention and the United Nations 197 (R. Lillich ed. 1973).

7 Consider the recent (1986) U.S. raid on Libya, or the frequent Israeli raids on Palestinian camps in neighboring Arab countries.

8 See, e.g., D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110 (1982).

9 See, e.g., D’Amato, Israel’s Air Strike upon the Iraqi Nuclear Reactor, 77 AJIL 584 (1983).

10 However, a narrow “core” rule may withstand scrutiny: that transboundary force is illegal when its purpose and result is the acquisition of territory.

11 Article 2(4) provides: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

12 1986 ICJ Rep. at 99, para. 187 (quoted by Court).

13 See D’Amato, supra note 8.

14 See Franck, Who Killed Article 2(4)?, 64 AJIL 809 (1970).

15 See text at notes 6–9 supra.