PART 1
would impact on the nature of the international
legal framework around trafficking.9 Custom
is also an important constitutive element of the
so-called “secondary rules” of international law –
those rules that concern the circumstances under
which a State is to be held responsible for a
particular violation of international law, and the
consequences of a finding of responsibility. It is
therefore of particular relevance to the discussion
of State responsibility as it relates to trafficking
(see part 2.1, sections 2.1-2.4, below).
2.4. GENERAL PRINCIPLES OF LAW
General principles of law are rules or principles
that are found across the major legal systems of
the world. Once recognized as such, general
principles operate to bind States, even if they
are not part of a treaty or customary law.
General principles are often of a procedural and
administrative kind that relate to international
law as a system of law. Examples include the
principle of “res judicata” (once a matter has
been definitely decided by a court, it cannot be
decided again); good faith; judicial impartiality;
and proportionality. General principles of law can
also exist at the regional, rather than universal,
level. For example, the right to remain silent when
charged with a crime may well be a general
principle of law in Europe and the Americas,
as most countries in both regions recognize it in
their legal system. However, it is unclear whether
it would constitute a general principle of law
internationally because many countries in other
parts of the world do not specifically recognize
it. Conversely, the principle that someone should
not be held responsible for a crime they were
compelled to commit is widely accepted. General
Principles of Law are occasionally relevant to the
issue of trafficking and are therefore referred to at
several points in this Commentary.
See further Anne Gallagher, International Law of Human
Trafficking (forthcoming), chap. 3.
9
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2.5. SUBSIDIARY SOURCE: THE DECISIONS
OF INTERNATIONAL COURTS AND
TRIBUNALS
The decisions of international courts and tribunals
are an increasingly important source of law (or
source of evidence of law) as a greater number of
such bodies are established to deal with a range
of issues – from international criminal law (the
International Criminal Court and the ad hoc and
hybrid tribunals that preceded or have followed
it) to the Law of the Sea (the International Tribunal
for the Law of the Sea); to matters related to
international trade (the World Trade Organization
and its Appellate Body); to regional and human
rights courts (the European Court of Human Rights).
The international law generating capacity of
a particular court or tribunal will depend on a
range of factors including the rules under which
it operates, its jurisdiction and composition. In
most cases, such bodies will have a less direct
role: their proceedings and judgements might
provide insight into or confirmation of the state
of a particular customary rule, the existence of
a general principle of law, or the substantive
content of a particular treaty-based norm.
National courts will often make use of
international law and their decisions can be
helpful in the task of identifying the substantive
content of particular rules. Such bodies can also
be useful in identifying State practice. However,
their determinations do not, of themselves,
constitute a source of international law or
binding international legal authority.
2.6. RELEVANT “SOFT LAW”
Not all international instruments relevant to
trafficking are legally enforceable treaties.
Declarations, guidelines, codes, memoranda of
understanding, “agreements”, United Nations
resolutions, interpretive texts, the pronouncements
RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING
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