Page 29 - Law of Peace, Volume ,

Pam 27-161-1

1:C.J. has consistently required that a party against whom identify and assert legal rules which have already acquired
a customary rule of law is invoked must both recognize this status, this point is often overlooked. As a result,
and accept this international concept. In support of this these "evidences" of existing international law are often
assertion, reference is made to I.C.J. decisions: viewed and cited as "law-making" authorities. 162 With
...when a custom satisfying the defmition in Article 38 is established, it this in mind, attention must be focused on the attitude of
constitutes a general rule of international law which, subject to one the evolving states toward both the I.C.J. and publicists.
reservation, applies to every state. The reservation concerns the case of (1) The International Court of Justice. 163 Of the
a state which, while the custom is in the process of formation unam- more than sixty Asian and African member states of the
biguously and persistently registers its objection to the recognition of the
United Nations, less than twenty have accepted the com-
practice as law. 157
pulsory jurisdiction of the I.C.J. under the optional clause
Drawing support from such decisions, the evolving states of its statute. 164 This would seemingly indicate a some-
are firm in their contention that they are not bound by what less than positive attitude toward the Court by these
customary rules of international law to which they had no
countries. Several reasons for this posture have been ar-
opportunity to object. 158 ticulated. Some have viewed it in terms of inadequate,
(3) General principles of law. The evolving states are evolving state representation on the Court. 165 Some wri-
united in their opposition to "general principles of law" as ters urge that emerging countries are simply not psy-
a legitimate source of international law. These countries chologically prepared to waive any of their newly won
contend that in addition to being vague and undefinable, sovereignty by an acceptance of the Court's jurisdic-
these principles of law cannot be reasonably distinguished tion. 166 Still other publicists attribute the evolving states'
from customary rules of law. A spokesman of this view attitude toward the I.C.J. to the existing status of substan-
urges:
tive international law, contending that these states reject
While conventions can be easily distinguished from the two other the Court's jurisdiction and authority because of the fact
sources of international law, the line of demarcation between custom
and general principles of law recognized by civilized nations is often not that this tribunal would merely apply "rules of law'' which
very clear, since international custom or customary international law, the former refuse to accept as either representative of their
understood in a broad sense, may include all that is unwritten in interna- interests or binding. In the words of a leading spokesman,
tional law, i.e., both custom and general principles of law. 159 ". .. without the progressive development and the clear
(4) In addition to their charge of ambiguity leveled statement of the rules of international law, it is extremely
against general principles of law, the evolving states difficult for the newly independent states to adhere to a
challenge this source of jurisprudence on several other system of compulsory jurisdiction." 167 In a reaffirmation
grounds. First, they contend that the utilization of these of this view, Jorge Castaneda writes:
"general principles" as a source of a universal system of . . . [Wlillingness to arbitrate controversies signifies a willingness to sub-
law vests constructive legislative power in a small number mit to the application of the intemational rules that govern the subject
of developed states. This argument is based on the fact matter of the dispute at any given time. It implies acceptance of the ap-
plicable substantive law. It would be valid to conclude the reason for
that the "general principles" spoken to in Article their refusal lies in the fact that such countries are not willing to accept
38(l) (c) of the Statute of the I.C.J. have generally been the application, in general, of a great many provisions of present interna-
interpreted as those municipal law concepts common to tional law, in the formulation of which their needs and interests were
the Anglo-American and continental European legal not taken into account, but rather on the contrary, were created by prac-
systems. 160 Secondly, the phrase "recognized by civilized tice and in response to the needs of their probable adversaries. 168
nations" contained in Article 38(l) (c) is uniformly re- (2) Publicists. Evolving states generally tend to
sented by evolving states because of the implication con- minimize the works of publicists as authoritative evi-
tained therein they are, in fact, "uncivilized." Apart from dences of international law. Initially, these countries point
the si&~cant psychological harm done, these countries
submit that this phrase discrirninatorily excludes many 162. G. Damte, The Attitude of Emergent States Toward The Exist-
sovereign states from full and effective participation in ing System of International Law 34 (1974) [unpublished thesis pre-
developing legal norms that will accommodate the in- sented to The Judge Advocate General's School, U.S. Army].
163. As noted in preceding pages, judicial decisions other than
terests of the entire international community. 161 those of the I.C.J. are to be considered as evidence of existing interna-
b. Evidences. The emerging countries contend that, tional law. Emerging countries, however, generally refer to only I.C.J.
though it would appear to be evident that the courts and decisions when speaking in terms of "Evidences" of international
publicists spoken to in Article 38(l) (d) of the Statute of norms.
the I.C.J. have no authority to make law but simply to '64. Anand, Role of New Asian-4frcan Countries in the Present In-
ternational Legal Order, 56 AM. J. INTZ L. 393 (1962). This refers to
- - the Court's "compulsory jurisdiction" spoken to in Article 38(2) of the
IS7. "Anglo-Nomegian Fisheries Case," [I9511 I.C.J. 131. STATUTE OF THE I.C.J. A discussion of this and other aspects of the
158. See supra, 8 1-6 c. I.C.J. is found in irlfra,chap. 9.
159. B. Chehg, General Principles of Law as Applied by Interna- 165. Id.
tional Courts and\.rTribunals 23 (1953). 166. Id. at 404.
160. Id. at 24. 167. Saab, supra note 149, at 116.
161. T.Elias, supra note 137, at 52. 168. Castaneda, supra note 146, at 39.