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Chapter Five: The Emerging World Order

Section 3: Customary International Law


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 Russian dance by Russian dancer, 1998.



We are used to thinking of political orders symbolized by formal institutions. However, order precedes its institutionalization. The earliest bartering between groups, supplanting thievery and battle was a small beginning of an order. These emerged into bilateral trade customs and usages -- to which two sovereigns submitted to their mutual benefit.



Every mutual recognition of a national boundary is an aspect of world order. These examples are minor, but their number is so great that they weave an order of substantial fiber.



According to Fisher, the best way to make or sustain a rule is to follow it. Consequently, domestic courts have recognized and reinforced customary international law (The Paquete Habana, The Lola, 175 US 677, 20 S.Ct 290; West Rand Central Gold Mining Co. v. The King, Eng. KB 1905, 2 K.B. 391). Customary international law has been explicitly incorporated by some national constitutions -- e.g., Ireland, The Philippines, Austria, and the German Republic. While clear domestic law prevails over customary international law, ambiguities in the domestic law will be construed to uphold clear international law:



unless it unmistakably appears that a congressional act was intended to be in disregard of a principle of international comity, the presumption is that it was intended to be in conformity with it (The Over the Top, Schroeder v. Bissell, USDC, 1925, 5 F.2nd 838).



Furthermore, there are many domestic laws, not usually considered part of the international law system that when applied to international transactions operate as part of the international system. Where domestic laws are compatible, they contribute a measure of uniformity to the international legal system.



The decline in the courts of the principle of sovereignty and the act of state doctrine mark a rise in the importance of international and domestic laws applied to international dealings. Since this decline probably represents a willingness on the part of the host country to diminish its sovereign immunity in the courts of other lands, Fisher's thesis that countries are becoming more willing to make the sacrifices required by a world order is supported.







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