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القواعد العرفية في القانون الدولي == Customary Rules In International Law
Author name:
عبد الرسول كريم ابو صيبع
Supervisor name:
هادي نعيم المالكي | زينب احمد عوين
General topic:
Law
Specific topic:
Public International Law
Degree:
Doctorate
University:
Al-Nahrain University - Collage Of Law - Department Of Public Law
Language:
Arabic
University location:
Baghdad
First pages:
13T1541 - p.pdf
Abstract:
تتناول هذه الدراسة بالتحليل موضوع القواعد العرفية في القانون الدولي، وقد يبدو للوهلة الاولى للقارئ ان هكذا موضوع من الواضحات التي لا تحتاج الى عناء البحث ومشقة التحليل، اذ ان العرف الدولي يعد المصدر الثاني لقواعد القانون الدولي العام، من بعد الاتفاقيات | Customary international law is one of the most important subjects in public international law, because it is main source of rules of public international law according article 38, paragraph 1/b of statute of international court of justice, in addition to any jurisprudence resource in public international law contains custom in its main vocabularies. In fact, in spite of above, customary international rules is one of the most complex and disputatious subjects and thus, international law commission adopted identifying of customary international law in its studying program between 2010 - 2016. The special reporter Michael Wood wrote two reports about customary international law in 2013, 2014, and he will write the final report at 2016. My dissertation contains three chapters and conclusion. The first chapter topic is : ’’ the definition in customary international rule ’’, which contains four subtopics : meaning of customary international rule, distinction between it and some similar matters ( public principles of law, customary local rule and equity ) and its importance in many international law branches, obligatory basis of customary international rule, and obligation of customary international rule according to jus cogens rules. The second chapter topic is : ’’ formation of customary international rule ’’, in this chapter we treats in details essential elements of customary international rule and differentiations between international jurisprudence and judicature view on this important subject, whether what concerning in material element or psychology element ( opinio juris ), and treat international and local acts which create material element; legislatorial, executive and judicial organ acts, and in international scale contains; international treaties, international judicature decisions and international organizations resolutions. The third chapter topic is;’’ evidence of customary international rule and effect of unilateral legal acts on formation of customary international rule, which contain; protest, reservation and acquiescence. The conclusion contains many important results as follows;1. No certain criteria accepted from all, for evidence and formation of customary international rules.2. Opinio juris is result of the material element of customary international rule, and therefore it represents essence of customary international rule, or in other words, it becomes customary international rule itself. 3. Evidence of customary international rule links with formation of it, and this cause of instead topic of international law commission study from ’’ evidence and formation of customary international law ’’ to ’’ identifying of customary international law’’.4. Many legal acts cooperate in formation of material element, there are; legislatorial, executive and judicial organ acts; and in international scale; international treaties, international judicial decisions and international organizations resolutions.5. There is important effect of unilaterally legal acts on formation of customary international rule, such as; protest, reservation and acquiescence.6. Customary international rules is a second source according article 38 in statute of international court of justice, and then if there is an international principle must apply by international court, custom prevent application of public principles of law because the later contains local principles of law only.7. Equity according article 38 in statute of international court of justice is secondary source of public international rules in condition of clear acceptance of parties.8. The role of general multilateral treaties on formation of customary international rules is very effective because many provisions of it are customary international rules, for universal character of subjects which arranged by it, and a lot of states were parties in such treaties
