Document Type : Original Article
Author
Assistant Professor of Public International Law, Law Department, Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran
Abstract
In identifying the functions of analogy in international law, the role of analogy is often neglected in the process of law-making, codification and progressive development of international law. It is due to the historical origin of analogy in the process of decision-making in international tribunals. However, this practical aspect of analogy is one of the potentially important aspects in which analogy has been played an important role in the work of the International Law Commission, both as a general method of legal reasoning and as a gap filler. This paper provides an analytical framework to develop a comprehensive understanding of legal analogy in humanity scopes of international law.
The author is of the opinion that, in spite of significant limitations on the application of analogy in these areas and by considering the dynamics of international tribunal decisions and the absence of human rights law and IHL rules indicate that states, the international community, and other international institutions have a real need for analogy as one of the most important forms of legal reasoning. The emergence of analogy from the necessitatis in these fields shows that analogies have an accomplishment for achieving not only a coherent and up-to-date legal system but also for making the international legal system more efficient. The use of legal analogies by maintaining and observing the lege lata of international law can make the legal rules compatible with the current needs of the international community.
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