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Par   •  21 Août 2018  •  1 671 Mots (7 Pages)  •  198 Vues

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There is 2 opinions in the customary law in present world :

- First that it's to slow it's difficult between the relations between the state change too fast and the customs change, so it's difficult to apply in international law

- second, they have a legitimity made by history that we have to respect the history and customs, customs have a landmark

Asylum Case : Columbia vs Peru 1950

IJC described custom as "a constant and uniform usage, accepted as law". Meaning: those areas of state practice which arise aq a result of a belief by states that they are obliged by law to act in the manner described.

IJC held that : "where a local or regional customs is alleged, it is the duty of the proponent to prove that this custom ...

3. General principles of law

The general principles of law are those principles which have got recognition from all the states and by all the legal systems of the world.

They provide a mechanism to address international issues not already subject either to treaty provisions or to bindin customary rules.

Treaties and customs are not sufficient to be able to treat all the issues, because sometimes there is no precise rules so we need general principles to judge.

The idea is that sometimes they can be a Non liquet, to prevent this situation, we have create the general principles so the judge can't they that there is no rules.

Why general principles of law are included in IL ?

The main reason why is because a situation may rise when there is absence of law relating exactly to the point.

International law has no methods of legislating to provide rules to regulate next situations. Neither it follows principle of past precedents but the JIT clamed that he is not using this to base in past evenments.

Principles refer to : - certain principles and procedures

- principles and good faith

- principles of res judicata (once there is a final judgement there is no possibility to appear to the decision)

Examples: pacta sunt servanda : you must respect your obligations one you are into an agreement, you are bound by the agreement.

Reparation must be made for damage caused by fault

For one's cause no one can be a judge it meens that you are not your own judge you have to go in front of a court.

The judge must hear both sides.

The most important general principles, inherent in international legal rules, is that of good faith.

Good faith is in the United Nation Charter Article 2 and it's adopted by the General Assembly in resolution 2625, 1970

Non liquiet : the possibility that he court or tribunal could not decide a case because of a "gap" in law.

Examples where the judgement refer on general principles. PPT 34 - 36

Secondary sources of law

4. Judicial decisions (subsidiary source)

Article 38 recognizes a judicial decision as a subsidiary of international law but not an actual source.

While the doctrine of precedent does not exist in international law, one still finds states in disputes and textbook writers quote judgements of the permanent court and the IJC as authoritative decisions.

Judicial decision

Article 59 of the statute of the IJC. This provisions shows that: a. decision of the ICJ has no binding authority

b. IJC does not make law. Only judge with customs, general principles, treaties...

Judicial decisions of the municipal courts:

The laws of a specific state and decisions of the municipal courts are not in general, source of international law, since, they do not create legally binding obligations for other states.

Some decisions are so important that hey settle precise rules for the future. It's a source of law by delivering a judgement, h will influence the view state have on international law.

Example of significant judicial decisions PPT 42

5. Writings of the publicists (subsidiary source)

Article 38 of statute of ICJ recognizes 'the teachings of the most highly qualified publicists of the various nations' as a subsidiary means for the determination of rules of IL.

Gentilli, Grotius, Vatted.

The various international judicial and arbitral bodies in considering their decisions consult and quote

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