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Saturday, July 9, 2011

State judicial decisions

There are two ways in which the decisions of state courts may lead to the formation of rules of international law:
1- The decisions may be treated as weighty precedents or even as binding authorities according to Marshall CJ of the United States Supreme Court:- the decisions of the Courts of every country show how the law of nations in the given case is understood in that country and will be considered in adopting the rule which is to pervail in this-.
A votable example is furnished by the decisions of the British prize Court judge - Lord Stowell (1745-1836 ) who presided over the court during the Napoleonic Wars.Lord Stowell judgments received universal acknowledgment as authoritative declarations of the law and he became peculiary identified with the establishment of important doctrines such as that blockade to be binding must be effective that contraband of war is to be determined by probale destination and the doctrine of continous voyage.similary,both as exponent as agent for the development of international law,the Supreme Court of the United States has played an important role,for example,its judgments in the Paquete Habana and the Scotia did much to clarify the nature of international custom.
2- The decisions of state courts may,under the same principles as dictate the formation of custom lead directly to the growth of customary rules of international law.thus,for example,certain rules of extradition law and of state recognition were in the first instance derived from the uniform decisions of state courts.Aconcurrence of such decisions is usually necessary for this purpose, for if there be no uniformity,a customary rule of international law will not be inferred.Thus,in the Lotus Case the permanent Court of International Justice refused to deduce a customary rule where to use the Court expression.
State judicials decisions on the point were divided.

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