100 Am. Soc'y Int'l L. Proc. 44 (2006)
International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism. Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. It seems to me, however, that we need a law of evidence in international law, especially for the international law on the use of force. Rules regulating force need to be as clear as possible and so do the rules that support the substantive principles, such as the law of state responsibility and the law on evidence-the clearer the rules, the less discretion available to states, and the greater the chance of actually restraining the use of force in international law.
Mary E. O'Connell,
Rules of Evidence for the Use of Force in International Law's New Era,
100 Am. Soc'y Int'l L. Proc. 44 (2006).
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