Principles governing treaties / consent to be bound / customary international law (1) S4

Question 1

Name the principles governing treaties

Answer 1

Principles governing treaties:
1) Lex specialis

2) Lex posterior

3) Lex superior

Question 2

Explain what is meant by ‘lex specialis’

Answer 2

Lex specialis: the more specific rule prevails: A specific law takes precedence over a general one when both apply to the same issue

Question 3

Explain what is meant by ‘lex posterior’

Answer 3

Lex posterior: the newer rule prevails: A later law overrides an earlier one on the same subject

Question 4

Explain what is meant by ‘lex superior’

Answer 4

Lex superior: the higher-ranking rule prevails: A superior legal norm (e.g., a constitutional or jus cogens norm) overrides a lower-ranking one

Question 5

Name and explain characteristics of consent to be bound

Answer 5

Characteristics consent to be bound:
1) A State must explicitly consent to be bound by a treaty

2) States are sovereign and equal, so they can only be legally bound if they agree voluntarily

Question 6

Explain an exception about consent to be bound

Answer 6

Exception: some rules are binding on all States, regardless of consent. Jus cogens norms are peremptory rules that cannot be violated or overridden (e.g. prohibition of genocide, torture and slavery)

Question 7

Defenition customary international law?

Answer 7

Customary international law: law formed through the consistent behaviour of States and their belief that this behaviour is legally required

Question 8

Name and explain the elements of customary international law

Answer 8

Elements of customary international law:
1) State practice (objective): widespread, consistent, and uniform behaviour by States

2) Opinio juris (subjective): States must believe they are legally obligated to follow the behaviour

Question 9

Explain what is meant by ‘instant customary international law’

Answer 9

Instant customary international law: form of customary international law that arises quickly and is recognized as binding, without requiring the usual long period of systematic practice

Question 10

Explain the binding nature of customary international law

Answer 10

Binding nature of customary international law: once established, it binds all states, even non-participants