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Unpublished Paper
A Case for the Recognition of a Concept of Judge-made International Law
ExpressO (2014)
  • Theodor JR Schilling
Abstract
Judge-made international law (JMIL) based on a law of reason exists as well in some municipal court decisions setting a precedent as in ones building upon such a precedent. Such court decisions rely on the faculty of judicial borderline institutions to decide against normally binding customary international law (CIL). This implies for the first group that they may positivise a law of reason, and for the second group they may defer to thus positivised laws of reason, both irrespective of contrary CIL. Norms of JMIL and of CIL are determined according to different secondary rules. Therefore, court decisions which are plain wrong under CIL may be valid as JMIL and thus may still have an influence on the development of the former. Such a development presupposes that States acquiesce in a JMIL norm and thereby accept the State practice embodied in the court decisions underlying it as reflecting the state of the law. It does not result in supplanting a JMIL norm by a corresponding CIL norm but leads to a coexistence of both norms. Insofar as those norms diverge a court seised with the matter has the choice, not governed by any international law rule, of which norm to apply
Keywords
  • judge-made international law,
  • customary international law,
  • persuasive authority,
  • trans-border references,
  • State immunity
Publication Date
August 14, 2014
Citation Information
Theodor JR Schilling. "A Case for the Recognition of a Concept of Judge-made International Law" ExpressO (2014)
Available at: http://works.bepress.com/theodor_schilling/14/