Analogy As Applied By International Courts And Tribunals

Different issues of international law arise in different times.At the beginning of the last century,Sir Hersch Lauterpacht noted the development of international law was not so sufficient,and he argued that international tribunals may resort to private law by analogy,because at that time,international law is not always developed enough to supply a solution itself.In his view,analogy from private law is considered as the application,in Article 38(1)(c)of the Statute of the Permanent Court of International Justice,of “general principles of law recognised by civilised States”.By now,international law has been fully developed,which even lead to the contemporary trends of fragmentation and diversification.However,there may be often few rules that exist in the emerging fields of international law.Given that the scope of applying domestic analogy is limited,and the “cross-fertilization” of international law is becoming possible,it is necessary to shift the gaze from the analogy based on private law to those on international law.In this sense,it is interesting to examine how particular rules of international law are applied by analogy by international courts and tribunals.This thesis is divided into three main parts.Chapter 1 sets a basic background and context for conducting and presenting the sequence analysis.First,it absorbs the ideas of analogical reasoning in the fields of legal philosophy and logic,and it provides a broad concept of analogy.Then the author proposes the idea that this concept can be divided into three types of analogies,i.e.“argument by analogy”,“generalization by analogy” and “interpretation by analogy”.Subsequently,this chapter specifically analyzes different sources of analogy,and proposes that analogy from private law does have significant limitations due to the differences between the normative environment in which private law and international law situated respectively.Therefore,the analogy from rules of other branches of international law would be a more suitable approach that we can use.Part Two,including Chapters 2–4,then proceeds to an examination of the issues related to the three types of analogies.Chapter 2 deals with“ argument by analogy”(the first type of analogies),examining the preconditions and exceptions to use analogy.Chapter 3 explains the distinction between stare decisis in common law jurisdictions and use of precedent by analogy in international adjudication(the second type of analogies),and the author argue that “ generalization by analogy”,in nature,is the application of “judicial decisions as subsidiary mean for the determination of rules of law” in Article 38(1)(d)of the ICJ Statute.Chapter 4 proposes that “interpretation by analogy”(the third type of analogies)reflects the application of “any relevant rules of international law applicable in the relations between the parties” in Article 31(3)(c)of and “the circumstances of conclusion” in Article 32 of the VCLT.The Concluding Remarks summarize the whole thesis from descriptive,normative,functional perspectives,and point out that analogy from other branches of international law is an effective tool to harmonize different rules of international law,and lead to a more consistent and coherent international law order.