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6 Customary International Law

From: Foreign Affairs in English Courts

F. A. Mann

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 04 July 2022

Customary international law — Stare decisis — Evidence — Immunity from jurisdiction, absolute

If the status of customary international law corresponded to that of conventional international law (or treaties), the courts might, to some extent consider and have regard to it, but they could not apply or give effect to it as law except after incorporation by Act of Parliament. The application of customary international law is not dependent upon previous parliamentary sanction. No doctrine of transformation applies to customary international law. Such law is, however, dependent upon judicial sanction. This cannot be given and international law, therefore, cannot be applied where it would conflict with legal rules binding upon the court, whether they be statutory or judge-made. But where there is no such restraint, where the court is free to find and form the law, it may and probably must apply international law which in such a case becomes directly applicable and thus incorporated into and adopted by English law.

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