Acta Universitatis Danubius. Juridica, Vol 6, No 2 (2010)

Abstract

What is happening if the custom is founded on the coincidence of interests, or even worse, on error? If we rapport specific problems of international customary law to the principles of judicial interpretation it results that a common error (including opinio juris) does not disturb the process of legality proper to the principle error communis facit jus. According to the principle of equity, a common error operates only if the victim's interests are not affected in an irreparable manner. In this case, the error is insuperable and represents a vice for judicial nullity. Error cannot be accepted when it results from the actions of the state, realized with bad intention, as coercion is. Pacta sunt servanda as a jus cogens norm protects nor only good faith. Thus, through interpretation theories in the Anglo-American environment we will use the refinement of a traditional position in continental interpretation, arguing a general method of interpretation based on the recovery of the legislator's intentions, had at the moment of an edition of a juridical norm. We will use of this application the dialectics between meanings expressed by the text and those the interpret advances with the role of interpretative hypothesis in order to find its meaning.