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General principles of law recognised by civilized nations

 

Compared with domestic law, international law is relatively under-developed and patchy, though in the last fifty years it has developed several important new specialised areas. International courts and tribunals have always borrowed concepts from domestic law if they can be applied to relations between states, and by this means have developed international law by filling gaps and strengthening weak points. Such concepts are chiefly legal reasoning and analogies drawn from private law, such as good faith and estoppel.

Good faith

The obligation to act in good faith is a fundamental principle of international law, and includes equity. Article 2(2) of the UN Charter requires all Members to fulfil their Charter obligations in good faith. Similarly, the Vienna Convention on the Law of Treaties 1969 requires parties to a treaty to perform the treaty (Article 26), and to interpret it (Article 31(1)), in good faith. The principle is not restricted to treaties but applies to all international obligations.

Estoppel

Known as preclusion in civil law systems, estoppel has two aspects. A state that has taken a particular position may be under an obligation to act consistently with it on another occasion. And when a state has acted to its detriment in relying on a formal declaration by another state, the latter may be estopped from denying its responsibility for any adverse consequences.

Norms

Sir Robert Jennings, a former President of the International Court of Justice, once famously said that he would not recognise a norm if he met one in the street. But, some international lawyers speak of norms of international law. In English, norm means a standard. Use of the word seems to have been popularised by Professor Hans Kelsen, who saw international law as at the top of the hierarchy of law. The term is used more by civil lawyers than common lawyers. It may be useful in theoretical analysis of certain international law issues.34 Unfortunately, it is also used loosely to cover not only principles and rules but also lex ferenda (see below), but without a clear distinction being made between established law and aspirations. The term is very rarely found in treaties.

Judicial decisions

Although, formally, judgments of courts and tribunals, international and domestic, are a subsidiary source of international law, in practice they may have considerable influence. Because judgments result from careful consideration of particular facts and legal arguments, they carry persuasive authority. There are relatively few international courts and tribunals, but thousands of domestic ones; and most cases involving international law come before domestic courts, often final courts of appeal. The cumulative effect of such decisions on a particular legal point can be evidence of custom, though domestic courts sometimes get international law wrong.

Teachings of the most highly qualified publicists The role played by writers on international law is also subsidiary. In the formative days of international law their views may have been more influential than they are today. Now their main value depends on the extent to which the books and articles are works of scholarship, that is to say, based on thorough research into what the law is (lex lata), or may be, rather than comparing the views of other writers as to what the law ought to be (lex ferenda). A work of rigorous scholarship will inevitably have more influence on a court, whether domestic or international.




Date: 2016-03-03; view: 1505


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Customary international law | General international law
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