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1 Index Pages in the original edition Note that the pages numbers below refer to the original published volume; the web pages may differ considerably in numbering. Abstention from action, 81-82, Acquiescence, 8-9, 68, 70, 188, Aer clausus, see Airspace, law of Airspace, law of, 19n, 38-39, 41, 58, 64, , 177, 217, 224, Allen, Carleton, 169, 172, Anglo-Norwegian Fisheries Case, see Fisheries Case Apartheid, 7, 30-31, 77 Articulation, see Custom, articulation of Asylum Case, 6n, 54, 77n, 117, 233, 235n, 246, , 263n Austin, John, 23-26, 2l8 Bancroft treaties, , 16 Basdevant, Jules, 60, Baxter, Richard, l08, , 123n,131n, 139n, , Bilder, Richard, 99n, 213 Bishop, William W., Jr., 65, 80n, 96n, 125n, 142n, , 151, 192 Blackstone, William, 57, , 250 Briggs, Herbert W., 6, l0n, 63n, l25,246 Burden of proof, 54, Charter of the United Nations, , 194 Cheng, Bin, 50, 66, 72n, 268 Claim-oriented view, Comity, 76, 78 Commitment, 90, 160, Common law, Complementary prescriptions, see Prescriptions, complementarity of Consensus of states, 33-42, 77, 87, 95,102n, 164, 170, 269 Consent theory of custom, 68-69, Continental shelf, 5n, 35-36, 81, , 161, Continental Shelf Cases, , Continuity of usage, see Custom continuity of Coplin, William, 28, 65 Custom articulation of, by protest, 101 by treaty, 116,
2 2 THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW continuity of, 59-62, 66 density of, 59 duration of, 56-61, 66 elements of according to Hudson, 7-9, 13, 19, 79,197 communication, 59 material (quantitative), 48-50, 56-66, psychological (qualitative) 40, "error" hypothesis, general, 68, l06, , generality of, repetition of, 60-64, 66, 78, 91, 94 special, 68, 77n, l06, proof of, 54, treaty-generation of, 70-71, see also Treaties, effect upon customary law D'Amato, Anthony, 14n, 24n, 27n, 28n, 72n, 1l4n, 14ln, 165n, 196n, 222n, 227n, 236n Decentralization, in forming custom, Dédoublement fonctionnel, 28, Density of usage, see Custom, density of Desuetude, 239 DeVisscher, Charles, 54, 64-65, 96n,178, 252 Duration of usage, see Custom, duration of Estoppel, Evidence of international law, see International law, evidence of Extradition, Falk, Richard, 3n, 195, 218, 233 Fisher, Roger, 25, Fisheries Case, , , 233, , 252, Fitzmaurice, Gerald, 14, 58n, , 182, , 194, , 236, 260, 265, 273 Force and law, see Sanctions and law Freedom of state action, 29, Freedom of the seas, see Seas, freedom of Fuller, Lon, 24-5,176n, 273 General Assembly resolutions, see Resolutions, General Assembly General principles of law, 95 Generality of usage, see Custom generality of Geneva Convention on the Continental Shelf, , 120, 208 Geneva conventions on the law of the sea, 137, 151, 217 Genocide, 7, 79, 158
3 INDEX 3 Gény, François, 48-49, 56, 67 Gihl, Torsten, 16-17, 51, 161n, 164 Griffin, William, , 162n Guggenheim, Paul, 52, 68n, Harmon doctrine , Hart, H. L. A., 11, 24n, 28, 41, 44, 169, 171n, 266 Henkin, Louis, 30, 32-33, 61, 81n Hudson, Manley O., 7-9, 13, 19, 44, n, 64n, 79, 139n, 197 I'm Alone Case, 63 International Commission of the Oder Case, 119, 178 International law evidences of, 40, meaning of, 18, 21, 27, 32-33, 197 sources of, 4, 19, 104, 153, , 269 International Law Commission, 7, 36-37, 51, 53, 76, 86, , 156 Jenks, Wilfred, 17, 150n, Jurisprudence constante, 57 Jus cogens, 111, 132, 250 Kaplan, Morton, , 266 Katzenbach, Nicholas, , 266 Kelsen, Hans, 17, 25, 51-52, 66-67, 70, 80n, 151n, , 193, 239 Kunz, Josef, 5, 59n, 64n, 115n Lasswell, Harold D., 35n, 75n, 218, 219 Lauterpacht, Hersch, 17, 53, 64n,65n, 98n, gon, 100n, 128n, , 150n, , , 191n, Law, meaning of, 11, 13, 21-23, 32,176-77; see also International law Lissitzyn, Oliver J., 10, 109, 150n, 188, , 234 Local custom, see Custom, special Lotus Case, 14, 52, 54, 64n, 75, 79, 82-85, , , , 252 MacGibbon, I. C., 14n, 68-69, 98, 188, , 201 Manifest intent, , 120 Mare liberum, see Seas, freedom of Mavrommatis Case, 119 McDougal, Myres, 11-12, 22, 26, 28, 31-32, 35-36, 38, 60, 67-68, 75, 94n, 99n, 173, 176, , 234 Morality and law, 22, 26-27, 33, 67 Most-favored-nation clause,
4 4 THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW National interest, 33, Nationals in Morocco Case, 252, , 258 Natural law, 26-27, 68, 80 Negative practice, Norm of law definition, 31 "pressure" on behavior, North Sea Continental Shelf Cases, see Continental Shelf Cases Nottebohm Case, , 157, 159, 252 Nuremberg Cases, 5n, 14, 79, , 159, 227n Opinio juris, see Custom, elements of, psychological Outer Space Convention, 107 Pacta sunt servanda, 41, 130 Pacta tertiis, see Treaties, effect upon third-party states Paquete Habana Case, 78, Parry, Clive, l0n, 173, 244, Phenomenological perspective, 34, 37 Policy and law, Positivism, 23-27, Prescriptions acquisitive, 235 complementarity of, defined, 36, 75, 216 Primary rules, see Rules of law Protest against Britain in World War I, 100, effect on custom, 9, 68-70, 84-85, , 188, , 200, , Publicists, writings of, Puchta, Georg, 47-48, 56n, 57, 72,172 Raman, K. Venkata, 71 Reasonableness, Reciprocity, 27-28, 33 Reisman, William, 35n, 75n Repetition of usage, see Custom, repetition of Resolutions of the General Assembly, 3, 8, 34, 36-37, 44, 50, 76, 78-79, 86, 95, 192 Right of Passage Case, , 233, 252, Rivers, laws relating to, Roman law, Ross, Alf, 17, 163, 169 Rule of law, Rules of law
5 primary rules, 41-44, 198 secondary rules, 41-44, 87, 162,164, 270 INDEX 5 Sanctions and law, 22, 24-27, 33, 170 Savigny, Friedrich von, 47-48, 57, 72, 172 Scelle, Georges, 28, 53 Schwarzenberger, Georg, 14, , 132n, 137n, 139n Seas, freedom of, 26, 30 32, 41, 58, 62-63, 130, 176, 211, 217, , 269 Secondary rules of law, see Rules of law, secondary rules Shihata Ibrahim, 125n, 163 Singer, David, 16n, 34n Slouka, Zdenek, 12, 59, , 258 Sørensen, Max, 15n, 17, 54, 59, 71, l37n Sources of international law, see International law, sources of South West Africa Cases, 77, Sovereignty, Statute of the World Court, 43, 75, l08, Subjectivities of law, 40, 67 Suy, Eric, 53, 70-71, 9ln Tacit treaty, 50-51, 188 Treaties bilateral, l04-06,114,136,164 compared to contracts, definition, 103 effect upon customary law, 70-71, 90, l04-66, effect upon third-party states, l06-09 interpretation of, 118 see also Manifest intent Truman Proclamation of 1945, ,207n, 210, 214 Tunkin, G. I., 50, 58n, 59-61, 68, 76n,140,160,188, Unilateral declarations, , Usage, see Custom, elements of, material Waldock, Humphrey, 58-59, 106n, 141,162,183-85, , 258n Williams, Glanville 23-24,26 Wimbledon Case, ,252 Wolfke, Karol, 53n, 54, 59-60, 70, 98, 234n, 256
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