国际公法期末复习资料

第一章：国际法与国内法的关系；

1. IL VS. Municipal Law: Theoretical

Theoretical issue：Two main schools of thought

1）Monism: considers IL and municipal law are both part of same body of law. If there is a conflict, international law prevails.

2）Dualism: IL and municipal law to be two separate legal orders operating and existing independently of one another.

IL is applicable btw sovereign states, and dependent on the common will of states

Municipal law applies within state regulating conducts of citizens.

Neither systems has the power to create or alter the rules of the other.

2. Practical Municipal law before international tribunals

RULE: State cannot rely upon the provisions or deficiencies of its municipal law to avoid its obligations under international law.(Pacta sunt servanda) IL before municipal tribunals

Transformation: International law have to be express and specific transformed into municipal law by use of the appropriate constitutional machinery.

Incorporation: international law automatically become part of municipal law.

国际法的性质

The nature of international view is that international law is exclusively concerned with govering the relations betweent states.

第二章：什么是渊源

The source is from where the authority of a legal system originates. Also the sources articulate what law is & where it can be found.

什么是国际法的渊源

（1）International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;（2）International custom, as evidence of a general practice accepted

as law;

（3）The general principles of law recognized by civilized nations;（4）S ubject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. （5）什么是国际习惯（Definitions of international custom）Custom in IL is a practice followed by those states involved because they feel legally obliged to behave in such a way.

它是怎么形成的，它要符合哪些标准？（summary）

（1）Material element :

the behavior and practice of states.

（2）Psychological element: opinio juris 法律确信

subjective conviction held by state that the behavior is

compulsory and not discretionary.

什么是国际强行法的定义？

A treaty is void, if at the time of its conclusion, it conflicts with a preemptory norm of general international law, which is a norm accepted and recognized by the international community of States as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 第三章：什么是条约的保留及法律效果（Definition of Reservation:Legal effects of reservation）