Answer to Question #201417 in Law for Shan

Question

Define the indirect approach of the courts (2 marks)

Answer 1

Indirect approach is where an external judicial decision is concerned with establishing a rule of customary international law on the basis of a review of state practice and opinion juris or identifying a general principle of law on the basis of a survey of national jurisdictions (the ‘review or survey’), instead of borrowing directly the legal notions or findings from a given decision, a referring court or tribunal may borrow the external judicial decision’s review or survey. This approach is characterized as indirect because the external judicial decision is not primarily used for its legal notions or findings, but indirectly for the review or survey.