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41 Brit. Y.B. Int'l L. 275 (1965-1966)
Multilateral Treaties as Evidence of Customary International Law

handle is hein.journals/byrint41 and id is 281 raw text is: MULTILATERAL TREATIES AS EVIDENCE OF
CUSTOMARY INTERNATIONAL LAW*
By R. R. BAXTER
Professor of Law, Harvard University
I
THE usual manner of advocating or proving the existence of a rule of inter-
national law grounded in a 'general practice accepted as law is to adduce
in an essentially undifferentiated way all of the evidence in support of the
rule that may be found in the practice of States. The evidence-the
'material sources'-may take a great variety of forms. In his recent treatise,
Dr. Brownlie lists, according to a conservative count, no less than fifteen
categories.2
This evidence, whether in the form of diplomatic correspondence, the
decision of a municipal court, a resolution of an international organization,
a decision of an arbitral tribunal, a press communiqu6 or a municipal
statute, is then sifted and synthesized in the mind of the advocate or
decision-maker and the existence of the rule thus established. The prac-
tice of five or ten States, not on its face wholly consistent, may be sufficient
to establish that the asserted rule constitutes a general practice creative of
legal rights and duties for States and individuals. If this is a fair description
of the process of proof of law, it must be of some importance to determine
the validity and probative force of various types of evidence and to deter-
mine the weight that a given category of evidence should carry, relative to
other forms of evidence. If this inquiry is not made, the proof of inter-
national law must inevitably be highly impressionistic or even non-rational,
being governed only by the presumed good judgment of him who asserts
the existence of the rule.
Both multilateral and bilateral treaties are not infrequently cited as evi-
dence of the state of customary international law. In the Nottebohm case3
the International Court of Justice found that State practice as reflected
in the Bancroft Treaties4 and in a Pan-American Convention of 19o6 on
*(D R. R. Baxter, 1967. This article forms part of a study of the evidence of customary inter-
national law, conducted under a fellowship provided by the John Simon Guggenheim Memorial
Foundation. The author desires to express his appreciation to the Foundation for its assistance.
Statute of the International Court of Justice, Article 38, paragraph i (b).
Principles of Public International Law (1966), p. 4.
3 LC.J. Reports, 1955, p. 4 at pp. 22 and 23.
4 See, e.g., Naturalization Convention between the United States of America and Baden,
signed at Carlsruhe, x9 July z868, Malloy, Treaties, Conventions, International Acts, Protocols

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