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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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