Jonathan I. Charney: an appreciation.

AuthorReisman, W. Michael
PositionInternational law teacher

Jonathan Charney was one of the leading international legal scholars of his generation. He was the authority on the Law of the Sea and his magisterial four-volume work on international maritime boundaries quickly became the vade mecum for anyone involved in virtually any aspect of the Law of the Sea. But Law of the Sea was only a part of his awesome oeuvre. He wrote authoritatively on the use of force and humanitarian intervention; self-determination; customary international law and, in particular, soft law; international environmental law, international tribunals and jurisdiction, technology, and constitutional law. All of his work was marked by a concern for theoretical issues, extraordinary attention to detail and a commitment to the question of the contribution that law might make to the resolution of whatever problem he was addressing.

I would like to focus on five aspects of Jon's work in and impact on international law: his interest in customary international law; his distinctive methodology; his work on the Law of the Sea; his work on the American Journal of International Law; and his influence on colleagues worldwide. I apologize if, in doing this, my remarks become substantive. You cannot talk about Jonathan Charney or his work without being substantive.

Most of international law is customary and customary international law is the proverbial legal iceberg: nine-tenths of it is below the surface. Custom is identified by an examination of the practice of states in particular areas, but not all practice generates law. In order for the practice to contribute to the formation or consolidation of international law, it must be accompanied by a certain subjective sense on the part of the state concerned that what it is doing is being done because it is legally right but is not being done out of any constraint: the classic texts refer to this state of mind as the opinio juris sive necessitates. I warn my students that if they confront something in Latin, it is usually a signal that jurists are unsure of what they are talking about and are trying to conceal their confusion behind a solemn and pretentious Latin phrase. The very obscurity of the Latinism should give you a sense of how daunting a task the research into customary international law is. Practice is continuous and there is an enormous amount of it. As for determining which state practice arises out of the sense that it is required by law and which arises out of a sense that more powerful states are demanding it or it is simply expedient at that moment--suffice it to say that the intellectual task of determining customary international law is very challenging.

The determination of custom is, perforce, the distinctive responsibility of the international legal scholar. Indeed, the Statute of the International Court of Justice stipulates in Article 38 that the work of scholars is a subsidiary source of law upon which the Court is to rely. The responsibility of the scholar here has a significant moral dimension as well. International law is based on consent, which is a healthy and democratic feature. Actors are not bound by law unless they agree to it. They can agree explicitly through treaties and conventions or implicitly--through practice. Just as it would be intellectually dishonest and profoundly immoral to try to impose a contract on a party that had never agreed to it, it is intellectually dishonest and immoral to try to reach the same result by pretending that a customary international rule has been formed, without systematically determining that state practice accompanied by the...

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