Definition Of A Customary Law Essay

1134 Words Apr 17th, 2016 null Page
Generally, there are two elements to define a rule if a customary law or not: the physical and the psychical. In the aspect of the physical element, a customary law has international usage, general practice or usus. Namely, a customary law has to be practiced worldwide, continuously, repeatedly, unanimously and analogously. In the aspect of the psychical element, a customary law has to be accepted by states in the international society, to get the opinion Juris.
The customary laws are usually unwritten. However, there is a trend that to transfer the customary law into the written law. For example, the contents of Principles of International Commercial Contracts were drawn by the UNIDROIT from commercial customary laws.
Thirdly, the general principle is seldom mentioned in legal practice. Principles are usually used to make up the mistakes of the treaties and customs on a certain case. The Article 38 (2) of the Statute of International Court of Justice introduced the ex aequo et bono principle to the judgement.
Subsidiary sources include the judicial decisions and the writings of the most highly qualified scholars. Judicial decisions include the national and the international; but the international is the primary one. International judicial decisions contain the decisions of International Court of Justice, of the other judicial organizations and of the international arbitral tribunal. Although the Article 59 of the Statute of International Court of Justice indicated that…

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