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. …show more content…
Using teachings of publicists as a source of law is not common enough but can be seen in some national legislations, like the Article 1 of Swiss Civil Code1907, which indicates that ‘the court shall follow established doctrine’. Those teachings of publicists have their influences on the judgements because of the scientific value, the impartiality and the principles they created. Actually, the principles inside these teachings are perhaps the reason why they can become the sources of international law. For example, the Freedom of the Seas principle was a theory, which Hugo Grotius
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. …show more content…
Using teachings of publicists as a source of law is not common enough but can be seen in some national legislations, like the Article 1 of Swiss Civil Code1907, which indicates that ‘the court shall follow established doctrine’. Those teachings of publicists have their influences on the judgements because of the scientific value, the impartiality and the principles they created. Actually, the principles inside these teachings are perhaps the reason why they can become the sources of international law. For example, the Freedom of the Seas principle was a theory, which Hugo Grotius