1 : PIL as a discipline - History & Nature

Question 1

Constitutive elements of legal system ? (4)

Answer 1

1/ social construct
2/ that consists of rules
3/ regulating behavior
4/ and which can be enforced

Question 2

Critical views against PIL as a legal system (4)

Answer 2

1/ no compulsory enforcement, hence no binding effect (Morgenthau)

2/ no obligatory international adjudication

3/ IL only a result of int politics

4/ IL as a Western/Eurocentric concept

Question 3

Possible arguments in favor of PIL as a legal system (5)

Answer 3

1/ States do feel bound (conscient choice between binding/non-binding instruments ; non-compliance usually justified in terms of the law)

2/ IL as underlying grammar of IR

3/ int interdependence (idea of reciprocity)

4/ net of rules constantly narrowing, separate orders inside PIL

5/ many forms of enforcement (courts ; sanctions ; countermeasures ; arbitration ; compliance proceedings & treaty monitoring bodies ; etc.)

Question 4

PIL compared to domestic legal orders (3)

Answer 4

1/ less clarity about rules (sometimes not codified, sometimes applied to certain States only)

2/ enforcement is decentralized and sometimes primitive

3/ no executive - horizontal relationship btwn States

Question 5

Natural vs. positivist approach

Answer 5

1/ natural : law above States (preexisting)

2/ positivist : law between States (State consent) - dominant approach today -

Question 6

Purposes of PIL as a legal system

Answer 6

1/ law of co-existence

2/ law of cooperation

3/ law of globalization

( ! ) This is an ongoing discussion