1Statute of the International Courts of Justice, art. 38(b), 59 U.S. Stat. 1055.
2 North Sea Continental Shelf ( F.R.G. v. Den); ( F.R.G. v. Neth.), 1969 I.C.J. 29.
3 S.S. Lotus ( Fr. v. Turk.), 1927 P.C.I.J. (Ser. A) No. 10, at 18.
4Military and Paramilitary Activities in and Against Nicaragua (Merits)
( Nicar. v. U.S.), 1986 I.C.J. 135.
5It is important to note that both the USSR and the U.S. adhered to the consensualist view of the formation of international law. The USSR expressed this
approach on many occasions, in particular during the Vienna Conference on the
Law of Treaties, where the Soviet representative stated, among other things, that
in the view of the Soviet Union norms of customary international law could "not
become binding on a State which did not recognize those norms as having
become binding on it." ( U.N. Conference on the Law of Treaties, Official Records,
First Session at 201.) The U.S. stated during the Third U.N. Conference on the Law
of the Sea that "the United States could not accept the suggestion that, without its
consent, other States would be able, by resolutions or statements, to deny or alter
its rights under international law." 9 UNCLOS III, Official Records at 104.
6 TUNKIN, TEORIYA MEZHDUNARODNOGO PRAVA (Theory of International Law)
( 1970);
Tunkin, Co-Existence and International Law, 95 RECUEIL DES COURS DE
L'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.I.] 1, 19 ( 1958).
7See Tunkin, Remarks on the Juridical Nature of Customary Norms of International
Law, 49 CAL. L. REV. 419, 422, 423, 429 ( 1961); Tunkin, Co-Existence and International
Law, supra note 6, at 12-14; LUKIN, ISTOCHNIKI MEZHDUNARODNOGO PRAVA
(Sources of International Law) 58 ( 1960). See generally LUKASHUK, MEKHANISM
MEZHDUNARODNO-PRAVOVOGO REGULIROVANIYA (The Mechanism of International
Legal Regulation) ( 1980).
8See Lukashuk, Customary Norms in Contemporary International Law, 1978
SOVIET Y.B. INT'L L. 86-100; DANILENKO, OBYCHAY V SOVREMENNOM MEZHDUNARODNOM PRAVE (Custom in Modern International Law) ( 1988). See also Danilenko, The Theory of Custom in International Law, 30 GERMAN Y.B. INT'L L. 9 ( 1989) [hereinafter Theory of Custom].
9 Alexidze, Legal Nature of Jus Cogens in Contemporary International Law, 172
R.C. A.D.I. 21 9-70 ( 1981) [hereinafter Legal Nature].
10Perhaps the strongest contemporary United States writer supporting the
consent requirement is Louis Henkin, who bases his views on the interests of state
autonomy. Louis Henkin, International Law: Politics, Values and Functions, 216
R.C. A.D. I. 1 ( 1989).
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