国际法中的特别法优先原则

国际法中的特别法优先原则

Lex Specialis Rule in International Law

    期刊名称：《法学研究》
    期刊年份：
    作者：廖诗评
    单位：北京师范大学法学院
    中文关键词：特别法优先原则;国际法规则冲突;国际法不成体系;条约法
    英文关键词：lex specialis rule;norm conflict in international law;fragmentation of international law;law of treaties
    中文摘要：
    国际法规则的冲突是国际法不成体系的重要表现，特别法优先原则强调适用更特殊、更具体的特别法规则，是解决这种冲突的重要方法。冲突确实存在与规则属于同一事项构成了该原则适用的基本条件，而调整事项和规则所涉及的缔约方则构成确定一般法和特别法的参考因素。
    英文摘要：
    Norm conflicts constitute a vital aspect of the fragmentation of international law. The principle of lex specialis requires the more specific norm be applied when two or more international norms are in conflict. It is an important way to solve the norm conflicts in international law, and should be closely considered both in theory and practice. There exist indeed conflicts and the subject matters of general law and special law are the same are the two preconditions to apply the principle of lex specialis. If the application of one international norm will lead to the violation of another, or the party to the norms cannot satisfy the requirements of the two norms in the same time, it can be thought that the conflict really exits. Norm Conflict is mainly due to the lack of both legislative and judicial bodies in the highest level in contemporary international society. The criterion of the same subject matter should be interpreted in a broad way. If two different norms or sets of norms can be invoked in regard to a same problem, or as a result of interpretation, the relevant norms seem to point to different directions when they are applied by a party, such criterion has been satisfied. Besides, the application of the principle of lex specialis cannot violate the preemptory norm of international law, and there should be no special way provided by related norms to solve such conflict.As to the criterion to determine whether the law is general or special, if the subject matter of one norm is more specific than that of another, it can be said that the former is the lex specialis of the latter. The contracting parties to different norms can also help to determine general or special law. A special norm may be considered as an application of a general one in a given circumstance, or it may be considered as a modification, overruling or setting aside of the latter. Anyway, the application of a special norm does not necessarily mean the general one is no longer valid. It is generally held that international treaties are lex specialis while international customs are legi generali. The differentiation of lex specialis and legi generali exists both within one international treaty and among different treaties, which provides a broad space for the principle of lex specialis to be applied in international law.
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