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Ps 230 And Ps 388 > PS 388 EXAM 2 REAL > Flashcards

PS 388 EXAM 2 REAL Flashcards

1
Q

What is jus Cogens vs opinion juris?

A

Jus Cogens refers to legal status of international crimes.

And opinio juris is to distinguish between customary international law from everyday customs of states followed out of courtesy or habit.

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2
Q

What are international crimes in jus cogens?

A
  1. ) agression
  2. ) genocide
  3. ) crimes against humanity
  4. ) war crimes
  5. ) piracy
  6. ) slavery and slave-related practices and
  7. ) torture
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3
Q

When is a crime considered a Jus Cogens?

A
  1. ) When it threatens the peace and security of mankind

2. ) they shock the conscience of humanity.

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4
Q

Can anybody be prosecuted for a Jus Cogens crime? Hint 6

A

Yes, no matter the following

  1. ) Universal jurisdiction
  2. ) Prosecute and extradite
  3. ) no state limitations
  4. ) does not matter by where
  5. ) by whom
  6. ) category of victim.
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5
Q

What is opinion juris?

A

Its the distinguishing customary international law from everyday custom of states followed out of courtesy or habit.

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6
Q

What is Martin Rochester quote?

A

Law is essentially based on politics.

That is legal rules by a society. Although they might have some utilitarian values for all members.

Tend to reflect especially the interests of those members of society who have the most resources with which to influence the rule-making

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7
Q

How does Bull defined law?

A

A body of rules which binds states in world politics. In their relations. With one another. Considered status of law.

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8
Q

What is Bull’s Position vs. Yale?

A

Bull rules of international law actually influence behavior in world politics part of reality.

Yale international lawyers and others that law is a social process is the correct view.

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9
Q

What is Bull’s position vs John Austin?

A

Bull: a body of rules which binds states and other agents in world of politics in relations to one another. Have the status of law

Austin: since there exists no sovereign international law. International law is not ‘law’ properly so-called but is merely positive international morality.

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10
Q

What is Bull’s position vs Hans Kelsen?

A

Bull: considered to have the status of law

Kelsen: is does have the status of law. But resets on decentralized sanctions rather than centralized ones.

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11
Q

What is H.L.A Hart position in law?

A

Hart argues with that what distinguishes a legal system is not the presence of a sovereign able to back up rules with force, but ‘the union of primary and secondary rules.

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12
Q

What is the remedy for defect of uncertainty? Defect of static character? And defect of inefficiency?

A
  1. ) remedy for what Hart calls rules of recognition, which specifies some feature or features, possession of which by a suggested rule is taken as a conclusive, indication that a rule of the group supported by the social pressure it exerts.
  2. ) rules of change which empower individuals or bodies to introduce new primary rules and eliminate old ones.
  3. ) rules of adjudication are necessary since there arise in societies disputes, whether or not a particular rule has been violated.
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13
Q

What are Bull’s assertions on the efficacy of international law?

A
  1. ) not neccessary to establish an identity between actual and prescribed behavior
  2. ) question is whether the rules of international law are observed to a sufficient degree. Justify treating them as a substantial factor at work in international politics
  3. ) no doubt exists substantial degree of coincidence between actual behavior and the behavior prescribed by the rules of international law.
  4. ) state that is peace exchanges money, is involved constantly in obedience to rules of international law
  5. 1) when rules are violated, usually takes places agaisnt background of conformity and to other rules of international law
  6. 2) the distinction between violation of a rule and conformity to it is not always a sharp one.
  7. 3) even when violation takes place, state usually goes out of its way to be bound by the rules in question
  8. ) Finally activity of those concern with international law private and public, carried out in dealing that rules of law. Fact that these rules are believed to have status of law, whatever theoretical difficulties it might involved. Makes it possible for international activity, important working of international society.
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14
Q

What are the three on States’ Obedience of International law?

A
  1. ) valuable, mandatory, or obligatory apart from being legally required, either as an end of itself or as pasty if means to some wider set of values
  2. ) obedience may result from coercion, threat of it, by some superior bent on enforcing the agreement
  3. ) obedience may result from the interest a state perceives in reciprocal action by another state or states.
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15
Q

What are rules that are carried out as valuable, and mandatory or obligatory means to end for wider values called?

A

1.) the international law of community

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16
Q

What are the agreements that are for coercion, threat, of superior power bent on enforcing them called?

A

The international law of power.

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17
Q

Agreements and principles resting on this sense of mutual interests is sometimes called?

A

The international law of reciprocity.

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18
Q

According to Moregentau, what does international law owe its existence to?

A
  1. ) identical or complementary interests of individual states
  2. ) the distribution of power among them
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19
Q

When and why, and how did International law emerge according to Morgentau?

A

International law is the result of the great political transformation that marked the transition from Middle Ages to modern period of history.

There must be certain rules of conduct defined beforehand, whose violations. Would normally call for certain sanctions.

In the 15th and 16th centuries

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20
Q

What are the 2 functions of international law to international order?

A
  1. ) first function is to identity supreme normative principle. A society of sovereign states
  2. ) state the basic rules of coexistence among states and other actors in international society.
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21
Q

According to E.H. Carr what three institutions does international law lack? From municipal

A
  1. ) judicature
  2. ) executive
  3. ) legislature
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22
Q

What is source mean in international law?

A

Source does not refer to the actual language of the releveant text. We are not discussing the content of the rule.

Rather we are asking: the forensic process involving where a decision maker or researcher looks to ascertain substative legal rule which governs a legal dispute or academic discourse.

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23
Q

What is the Hierarchy of Sources according to Benedetto Conforti?

A

Customary rules properly are placed at the top of the hierarchy of international law. Treaties are second ranking. Because of pacts sunt servanda

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24
Q

What is first according to Rudolfo Bernhardt in hierarchy of sources?

A

Customary law can be superseded and replaced in power, authority, and effectiveness/acceptance by regional and universal treaties.

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25
Q

When does the persistent objector rule apply?

A
  1. ) applied only when the customary rules is in the process of emerging
  2. ) does not benefit States which came into existence at only after that rule matured
  3. ) which became involved in the activity in question only after a later star.
  4. ) Less can it be invoked by those who existed at the time by failed to object at that stage
  5. ) no subsequent objector rule.
26
Q

What is the persistent objector rule?

A

Means that if a state refuses to consent to the new norm of customary international law, then the state will not be bound by it.

Must be repeated everytime it comes up the rule. Otherwise it will not be persistent.

27
Q

What is the 1969 Vienna Convention. On the law of treaties?

A
  1. ) international agreement
  2. ) concluded between states
  3. ) written form
  4. ) governed by international law
  5. ) whether embodied in a single instrument or in two. Or more related instruments
28
Q

Characteristic of treaties? Hint 6

A
  1. ) wide variety of issues
  2. ) can be short or lengthy
  3. ) limited or unlimited time
  4. ) dispute settlement, provisions
  5. ) background rules exist International law itself
  6. ) Vienna
29
Q

Treaties, written vs oral?

A

Denmark and Norway. Record conversation in 1919. Not as formal as a written treaty. Still binding. Two diplomats can orally solved question.

30
Q

Difference between bilateral vs multilateral in treaties?

A

Bilateral = mutual rights and obligations between two states as opposed to more than two state

Multilateral = states entering into this type of treaty do not intend to establish rules that contibute to the progressive development of IL.

31
Q

Lawmaking vs contractual treaties?

A

Lawmaking: creates new rules under IL modifying existing state practice, novel lawmaking provisions. Example UN law of the Sea Treaty governing jurisdiction over oceans.

Contractual: establishes rights and obligations that are already available under international law. Does not create model provisions
Sets forth terms of contract, and does not create novel provisisons that modify existing state practice.

32
Q

What is the difference between declaration of intent vs self-executing treaty?

A

Declaration of intent: general statement of principles. Follow up on any individual action before any parties incur legal as opposed to moral obligations under treaty.

Definition of self-executing treaty: expressly impose immediate obligation. Requires no further action to inpose binding obligations on its signatories. No need for additional executive or legislative action by state parties to create binding legal obligations.

33
Q

What are the steps for treaty formation? Hint 4

A
  1. ) Negotiations
  2. ) Signature
  3. ) Ratification
  4. ) Entry into force
34
Q

Why does a treaty go through ratification? Hint 3

A
  1. ) A treaty is complicated, need to be scrupulously examine
  2. ) democratic states must consult public opinion
  3. ) states need time to effect changes in domestic law necessary for implementation of the treaty.
35
Q

What is a reservation?

A

A reservation is a unilateral variation. Submitted at time of acceptance of a treaty. Exclude, modify, certain legal provisions applied to that state.

The state normally agrees with text generally, but doesn’t want to become agree to all terms.

States provisional acceptance defying does not preclude it from tendering subsequent reservation

36
Q

Are reservations always permitted?

A

No. Permitted unless

  1. ) treaty prohibits reservation
  2. ) treaty permits reservation but not one in question
  3. ) reservation is incompatible with the purpose of a treaty. Such as any Jucogens crimes. Genocide
37
Q

What is obligatory erga omnes?

A

Legal implications arise out of a certain crime in Jus Cogens. Obligations of a state towards the international community as a whole.

38
Q

Does Bull accept Kelsen’s argument?

A

No he does not.

39
Q

With whom does Bull agree with?

A

Bull agrees with H.L.A Hart.

40
Q

Bull’s position on law in contrast to Yale?

A

Bull agrees with Yale that law is a social process. But to assert validity of a rule, of international law is to say that meets test laid down by another rule. Without reference to a body of rules. The idea of law is unintelligible.

41
Q

What is the difference between primary and secondary rules?

A

Primary rules are those which require human beings to do or abstain from certain actions, such as keeping promises, or protecting property.

Secondary rules, rules about rules, confer powers on human beings to introduce new primary rules, extinguish or modify old ones, are legislative, excecutive, or judicial.

42
Q

What are the 3 defects of primary rules?

A
  1. ) defects of uncertainty
  2. ) defect of static character
  3. ) defect of inefficiency
43
Q

The modern system of international law is the result of…

A

Great political transformation marked from Midddle ages to modern History.

44
Q

What are the sources of international law? Hint 4

A
  1. ) International convention or another name for treaties. General or particular
  2. ) International customary law, incredibly important general practice accepted
  3. ) general principles of law recognized by civilized nations
  4. ) judicial(domestic, tribunal) decisions and the teachings of the most qualified publicists of the various nationa,
45
Q

What is POR(period of review)? Hint 5

A
  1. ) only when the customary rules in the process of emerging,
  2. ) and does not benefit States which came into excistence only after rule matured.
  3. ) or which became involved in the activity in question only at a later stage
  4. ) still less can it be invoked by those who existed at the time, but failed to object at that stage
  5. ) in other words, there is no subsequent objector rule

We have persistent objector rule.

46
Q

What if state1 opens a consulate in state2, and has property according to IL state law agreement, is it a treaty?

A

Not a treaty but governed by international law.

47
Q

What was the prevealing distance of oceans before United Nations Convention on the Law of the Sea (UNCLOS)?

A

From 3 notrinal miles to 12

48
Q

What is the persistent objector rule?

A

Means that if a state refuses to consent to the new norm of customary international law, then the state will not be bound by it.

Must be repeated everytime it comes up the rule. Otherwise it will not be persistent.

49
Q

What does GATT stand for?

A

General Agreement on Tariffs and Trade.

50
Q

What does accession refer to a treaty?

A

The act to which a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.

51
Q

What is the river example of?

A

Means that a state must not in any way to enrage the other state for example cutting water. Supply also known as interm period.

52
Q

If a state a the time of signature did not file a reservation? Can it still ratify a treaty?

A

Yes. If they don’t ratify has to be time of acceptance. Signature could indicate.

53
Q

When can a state exit a treaty?

A
  1. ) when there is a material breach of noncompliance
  2. ) the state cannot executive it’s provisions
  3. ) rebus sic stantibus: fundamental change in circumstances has occurred
54
Q

What is considered the fish example of a river between two states, and the fish move to A instead of B?

A

1.) Rebus sic stantibus

This is because the essential condition for the treaty is no longer anymore. Fish move.

55
Q

Can anybody be prosecuted for a Jus Cogens crime? Hint 6

A

Yes, no matter the following

  1. ) Universal jurisdiction
  2. ) Prosecute and extradite
  3. ) no state limitations
  4. ) does not matter by where
  5. ) by whom
  6. ) category of victim.
56
Q

What does Hart argue distinguishes a legal system?

A

The union of primary and secondary rules.

57
Q

Sequence of international law?

A

Law=primary rules=requiring states and other actors to refrain from doing certain things

58
Q

What does every contract create? Hint 2

A

Rights and obligations

59
Q

If masadonia opens office in Chicago subject to international law?

A

Depends if the office was made with US or domestic law of Illinois.

60
Q

When can a state withdraw from a treaty?

A
  1. ) material breach. Especially by material breach

2. ) inability to execute provisions: impossibility of performance arises.

61
Q

What constitutes as state practice?

A
  1. ) acts taken by states in their diplomatic relations with one another
  2. ) acts taken internally by states legislatures or courts
  3. ) acts taken by states before international organizations
  4. ) even inaction when they are confronted

Ps 230 And Ps 388 (22 decks)

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