@article{Haggenmacher:299604,
      recid = {299604},
      author = {Haggenmacher, Peter},
      title = {An archaeological look at 'international custom as  evidence of a general practice accepted as law' and Article  38 of the World Court's Statute},
      address = {2021},
      number = {ARTICLE},
      abstract = {Article 38, paragraph 1(b), of the Statute of the  International Court of Justice (ICJ) is universally  considered to be an authentic definition of custom as a  principal source of international law, not least by the  International Law Commission (ILC) in its recently  completed work on the identification of international  customary law. At the same time, though, the formula has  constantly met with severe strictures concerning its very  formulation. Given the text as it stands, this paradoxical  dissonance cannot be satisfactorily resolved, but it can at  least be tentatively explained by retracing the genesis of  the clause a century ago, at the price, however, of a  complete reappraisal of the whole of Article 38.  Notoriously, Article 38 originated in a proposal of Baron  Descamps, the president of the Advisory Committee of  Jurists in charge of devising the Statute of the Permanent  Court of International Justice (PCIJ). Yet the ambivalent  but crucial role of the Descamps Proposal in drafting the  article has not hitherto been realized. In fact, owing to  the debates it aroused and to its misapprehension as a  draft article instead of a merely exploratory basis of  discussion, it has directly led to the shortcomings of  Article 38 and especially of its clause on customary law.},
      url = {http://repository.graduateinstitute.ch/record/299604},
      doi = {https://doi.org/10.1017/S092215652100011X},
}