Henriksen

12 important questions on Henriksen

What is the primary legal source?

The primary legal sourde is  the treaty, because a treaty is the only way two or more states can form a legal relationship.

Is customary law only limited to physical actions?

No, verbal actions too, but these must be public.

Can a state avoid being bound by customary law?

Yes, by persistently objecting to it. The states can then develop further without having to wait for everyone to comply.
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What is the difference in the binding effect between Treaties and customary law?

Treaties are only binding to the parties which are involved, while customary law counts for everyone.

What is the crystallising effect of Treaties?

That it takes so much after customary law, that it changes into exactly that.

What if Treaties and customary law conflict?

Then they are interpreted. If this does not work, the law is based on two criteria:

- Lex posterior: the law that came last is superior
- Lex specialis: the law which is more specific is superior

What is the function of General Principles as a source of international law?

To fill up the gaps in international law if Treaties or customary law are not capable of resolving an issue.

What is considered to be the most important General Principle within international law?

Equity. Other principles which are prominent are the principle of good faith and res judicata: a decision is final and binding for 
parties.

What scholarly contributions are mostly noticed?

Those of the ILC, the International Law Commission.

Is there a hierarchy between the sources of international law? Are there exceptions?

Not really. All sources are looked at as equal: normative equality. However, some sources are always superior:
Peremptory norms - Erga Omnes norms - UN Charter obligations

What are Erga Omnes obligations?

Erga Omnes obligations are not owed to only one state, they are owed to every state. Breach of a norm can therefore be invoked by any state.

What is the function of non-binding committments?

To reflect on state practice, demonstrate opinio juris and by the formation of customary law by the crystallization of Treaties.

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