Abstract:
Custom, alongside treaties and general principles of law, is one of the important sources of international law. One of the reasons for the significance of custom is that it is unwritten and always dynamic. This advantage has led to an increase in reliance on custom. International law requires states to recognize and implement the customary international rules within their legal systems. For a national judge to refer to custom, it is necessary to clarify the position of this source within the domestic legal structure. Given that custom cannot be proposed and enacted in legislative bodies, the role of courts becomes even more crucial. In this context, examining the pracrice of countries with a common law legal system will provide useful insights. The main question of this article is what position judges in England assign to international custom and in what contexts do they they utilize it? This research shows that international custom has a significant role in the English judicial system.
Machine summary:
It should be noted that, from the point of view of an English judge ٣, not every treaty is able to create customary rules is considered (٣٧٤:٢٠٠٦, Thomas; ٤٧٦:٢٠٠٩, Sloss), unless it conflicts with the laws of the country or the opinion of a higher court (٣٠٢:١٩٩٩, Khalastchi).
In this regard, and according to the view of English judges ٢, the legislator of this country has so far, in some cases, included some international customs in positive laws, although they believe that the rule in question loses its customary fluidity in these cases (٤١٢:٢٠٠٥, Fatima).
Furthermore, the judges believed that if the courts had the authority to give domestic effect to rules relating to customary international law in the present matter, this would clearly lead to a violation of the separation of powers and interference in the powers of Parliament (٤٦١:٢٠٠٧, Capps).
3. The performance of national courts in determining the freedom of the will of the state Most English judges ١ believe that customary international law, per se, cannot create a right or obligation for the executive branch or judicial institutions (226: 2013, Haljan).
( ,Francioni 594: 2001) In this regard, in the case related to Kuwait ٢, the English courts, based on the concept of “public policy” ٣ and referring to the resolutions of the Security Council, peremptory norms and customary international law, recognized Iraq's invasion of Kuwait as illegal and ineffective (373: 2006, Thomas), but this practice is still young.
International Law in Domestic Courts and The Jurisdictional Immunities of The State Case.
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