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4 Non-St. Actors & Int'l L. 1 (2004)

handle is hein.journals/nonstata4 and id is 1 raw text is: Non-StateActors and InternationalLaw 4: 1-2, 2004. 1 © 2004 Koninklijke Brill N. Printed in the Netherlands. The application of customary international law by national courts: Introduction The articles collected in this issue of Non-State Actors and International Law address the question of how national courts identify, construe and apply rules of customary international law. The inititiative to address a special issue to this question was induced by a number of recent cases, in which national courts were asked to address complex and contro- versial questions of customary international law. In the United Kingdom, the House of Lords, in the Pinochet Case, had to consider the existence and content of customary international law in relation to the crime of torture. In March 2001, the Scottish High Court of Justiciary was asked to consider the rules of customary international law per- taining to the possession of trident missiles (Lord Advocate's Reference No. I of 2000). In the Netherlands, the Appeals Court of Amsterdam considered the customary inter- national law on crimes against humanity and torture in the Bouterse case, which involved the question whether Bouterse, former army commander in Surinam, could be prosecuted for his role in the execution of fifteen people in Surinam in 1982. The application of customary international law by national courts is not a new phe- nomenon. National courts are regularly confronted with arguments based on custom- ary international law and apply customary international law rules routinely in such matters as jurisdiction and immunities. However, the aforementioned cases are dis- tinguishable because of the controversial substance of the claims in relation to the invo- cation of customary international norms. There is evidence that around the world, national courts are more and more con- fronted with complex claims based on customary international law. This is in large part due to the fact that customary law increasingly is invoked by non-state actors. Individuals and legal persons regularly invoke customary international law, for instance in the sphere of human rights law or humanitarian law. Customary interna- tional criminal law is also increasingly part of the prosecution of individuals in national courts. There thus exists a direct relationship between the increasing range of subjects in international law, the role of national courts as institutions where claims involving these subjects are litigated, and the application of customary international law. This development makes it relevant to revisit the question of how national courts apply customary international law and re-examine their proper role in doing so. How do courts 'find' custom? What is the role of attorneys in 'proving'the existence of cus- tomary law? How assertive should national courts be in defining customary inter- national law - particularly in light of their potential lack of expertise in public international law and the substantial work involved in determining relevant state prac- tice and opinio iuris? Do 'experts' have a role to play in assisting national courts with determining the content of customary international law? The volume starts with two overviews of the application of customary international

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