Final Exam Flashcards
(89 cards)
1
Q
Who are the main actors in international law?
A
States, international organizations, groups of people (common cultural, ethnic, national, or racial community), individuals, non-governmental organizations
2
Q
What is communitarian law?
A
rules collectively made by the international community whose interest and values trump those of individual states
3
Q
What is natural law?
A
universal laws bind all humans together regardless of social context or explicit consent.
4
Q
What is voluntary law?
A
man-made rules that political leaders have consented to, either explicitly or implicitly.
5
Q
What is the contractual perspective?
A
international law is the result of mutually beneficial cooperation between states. generally, international law improves outcomes for all states because of their ability to consent to laws. if it didn’t benefit them, they wouldn’t consent to the laws.
6
Q
What is the collaboration problem?
A
states jointly benefit from choosing the same action but each state is tempted to unilaterally deviate to a different action.
7
Q
What is the coordination problem?
A
all states have a shared incentive to use a common rule but states disagree about what that rule should be.
8
Q
What is the commitment problem?
A
sequential decision making in which a plan that is initially optimal becomes less optimal as time passes.
9
Q
What is the screening problem?
A
when a state has a hard time credibly communicating its preferences to others.
10
Q
What is the critical perspective?
A
argues that international law has little impact on state behavior because states can choose which laws to follow. international law is ambiguous and easily taken advantage of. international law is a reflection of economic and political power.
11
Q
What is the sociological perspective?
A
state preferences are malleable and international law can help to change these preferences over time. persuasion and socialization as important causal pathways for changing individual preferences. states are not unitary actors, they are comprised of diverse people with different preferences.
12
Q
What is the enforcement perspective?
A
states are rational actors, therefore, policy decisions are based on cost-benefit assessment, calling into questions international law’s ability to change state behavior. if the costs of failure to comply, punishment, is high and more likely, then a state is more likely to comply, therefore consequences should be high.
13
Q
What is the flexibility perspective?
A
emphasizes punishment but also believes that states have real reasons for not complying. economic and political pressures to comply with international law can change unexpectedly. states should be allowed to break their commitments sometimes without severe punishment so that states continue to join treaties in the future.
14
Q
What is the managerial perspective?
A
states are predisposed to comply with international law because they select agreements that are easy to follow, because of normative force, and because it is more efficient to follow rules. if a state does happen to break a rule it might be because of legal ambiguity, they lack the capacity to comply, or because they haven’t had enough time to change their policies to comply. believes that punishments are ineffective.
15
Q
What are the conditions precluding wrongfulness?
A
actions of injured state (injured state consents to breach, self defense, countermeasure); external forces (force majeure, distress, necessity)
16
Q
What are countermeasures?
A
legal violation taken in response to a prior wrongful act by another state.
17
Q
How can states prevent the abuse of flexibility under international law?
A
compensation, but putting a price on noncompliance can be problematic because then rich states can just pay to escape from having to follow the law. appeals to exception, which is where states define circumstances in which they can break the law without punishment.
18
Q
What is judicial economy?
A
judicial body should not make rulings when they are unnecessary to resolve a dispute.
19
Q
What is judicial propriety?
A
there is no need for a judicial ruling because it serves no judicial function
20
Q
What is reparation and what are the different forms of reparation?
A
reparation is when a state that broke international law repairs the damage to injured states. there is restitution, compensation, and satisfaction.
21
Q
What is restitution?
A
seeks to return the injured state to the condition it was in before the breach. however, not always feasible.
22
Q
What is compensation?
A
a sum corresponding to the value which a restitution in kind would bear
23
Q
What is satisfaction?
A
verbal/written statement that acknowledges or apologizes for a legal breach.
24
Q
What is retorsion?
A
a lawful act used to punish a state.
25
What is scorecard diplomacy?
public grading of states to influence behavior.
26
Why do international judicial institutions sometimes decide that a case is inadmissible?
inadmissible if some 3rd party states are involved, actor filing the case does not have standing (legal interest in dispute), state has not followed proper procedure in challenging violation, not done in timeliness
27
Who was Francisco de Vitoria?
Spanish monk that believed in divine/natural law. He formulated ideas on Spanish rights/obligations in the Americas. His idea of Law of war (conflict with non-Europeans): indigenous people have as many rights as the Europeans. Their rights should not be deprived of.
28
Who was Hugo Grotius?
Classical era thinker that believed in freedom of the seas, laws of war, rights of multinational corporation (Dutch East Company has the right to wage wars against others)
29
Who was John Austin?
positivist thinker that defined law as a system of rules that were created and enforced by a supreme sovereign using sanctions. He believes in voluntary law. He viewed natural law as a destructive force that threatened the stability of man-made law.
30
Who was Raphael Lemkin?
invented the word genocide and created World Movement to Outlaw Genocide.
31
Who was Thomas Aquinas?
theorist in the Middle Ages that argued for natural law comes from human reasons (e.g. we can reason toward what is a “just war”).
32
What is the significance of WWII in the development of international law and international legal institutions?
Before WWII, individuals were excluded as a subject of international law. States were responsible, not humans. However, after WWII, human rights law was developed to protect individuals and created political, civil, cultural, and other rights. WWII shifted principles for treating POW from reciprocity to unconditionality. Legally, countries used courts to prosecute war criminals. intellectual separation of a state and a leader, individuals can be punished for breaking law, challenges conceptions of official immunity (German commanders were responsible for war crimes, not the state itself)
33
What is the significance of the 1991 Gulf War in environmental law?
US-led coalition fought to expel Iraqi troops from Kuwait. As Iraqi troops retreated, they set over 600 Kuwaiti oil wells on fire, causing massive air pollution. Iraqi troops also released four to six million barrels of oil from a Kuwaiti facility into the Persian Gulf. These behaviors are not militarily necessary and polluted the environment thus condemned by UN General Assembly. Environmental concerns can thus affect the legality of targets and methods.
34
What is the significance of 9/11 on law on armed conflict?
Before 2001, states were not allowed to attack non-state actors that reside in other countries, but states did it anyway even if the states did not effectively control the group. After 9/11, states gained the right to self-defense against terrorism. US attacked Taliban Regime in Afghanistan for harboring al-Qaeda terrorists, opening door to similar attacks. US is not in AP/I, and are able to count plain-clothed ISIL fighters as terrorists instead of combatants.
35
What is command responsibility?
commanders are criminally responsible if they fail to prevent or punish crimes committed by the troops under their effective control.
36
According to Simmons, why do governments commit to treaties?
they support the goals and want to implement them, there is social and political pressure to commit, and for private interests like trade.
37
What are crimes against humanity?
no treaty defined the term, however, the Rome Statute says that crimes against humanity are acts committed as part of a widespread or systematic attack directed against any civilian population during peace or armed conflict, like ethnic cleansing, extermination, persecution, sexual violence, enforced disappearance, enslavement, apartheid, torture, etc. ICC has state policy requirement (state must have a common and preconceived policy for committing an attack) but ICTY and ICTR did not require it - allowing them to prosecute non-state actors, like paramilitary groups.
38
What are crimes of aggressions?
Rome Statute: aggression is a severe violation of international law on the use of force.
39
What is direct expropriation?
to take full value of the investment.
40
What is ethnic cleansing?
compelled removal of an ethnic group using intimidation and violence
41
What is genocide?
“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, including: killing; “causing serious bodily or mental harm”; “inflicting on the group conditions of life calculated to bring about its physical destruction”; preventing births; and “forcibly transferring children of the group to another group”
42
What is indirect expropriation?
government violates pre-existing contracts and substantially reduce the value of a foreign property
43
What the rights of combatants?
Hague Convention of 1907: To be commanded by a person responsible for his subordinates, To have a fixed distinctive emblem recognizable at a distance; To carry arms openly; To follow laws of war
44
What are the duties of combatants?
AP/I: combatants are subject to an internal disciplinary system which enforces compliance with the international law applicable in armed conflict; combatants must distinguish themselves from the civilian population during attacks
45
What protections do combatants have?
1. cannot be prosecuted for their legal acts during a conflict (murder, assault, property damage); can be prosecuted for theft, sexual violence, and war crimes
2. Geneva Conventions protect combatants who are wounded, sick, or shipwrecked and they may not be killed and are entitled to medical care; AP/I: must treat enemies as soon as possible
3. Prisoners of war can be compelled to work but only in industries that are not related to war, are entitled to food, medical assistance and supplies, and after the war, they must be released and returned to their home state; Geneva Convention: shields them from hunger, but not physical discomfort; AP/I: no mental/physical pain is allowed whatsoever
46
What are voluntary restrictions on exports?
agreements that would voluntarily limit export.
47
What is superior responsibility?
the understanding that civilian leaders have the capability to be responsible for military actions as well.
48
What are treaty reservations?
a unilateral statement made by a state that purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state.
49
What are war crimes?
attacks against civilians, those providing humanitarian assistance, or peacekeeping forces, killing protected persons, sexual violence, torture and the use of child soldiers and prohibited weapons. must occur during armed conflict. must have a nexus/link to the armed conflict.
50
What is the General Agreement on Tariffs and Trade (GATT)?
multilateral treaty created in 1947 to promote trade liberalization. eventually turned into WTO because it became too complicated and large. however it had no separate entity to oversee GATT compliance. bans quantitative restrictions (quotas)
51
What is the World Trade Organization (WTO)?
international organization created in 1995 to promote international trade, retained basic rules form GATT but also addressed new issues like foreign investment, intellectual property, and services. bans voluntary export restrictions. has a dispute settlement system that functions like a court with a 1. legal stage with formal negotiations and a panel where each side presents legal arguments and 2. an enforcement stage.
52
What is most-favored nations treatment?
regulates how imported goods from one state are treated relative to imported goods from another state.
53
What is national treatment?
regulates how imported goods are treated relative to domestic goods
54
What are the Geneva Conventions?
four 1949 treaties that focus on protected people, including civilians and combatants who are captured, sick, or wounded. Regarded as unconditional obligations that bind states regardless of how others behave. considered CIL, however, weak because it has no mechanism to ensure compliance.
55
What is the International Covenant on Civil and Political Rights (ICCPR)?
protects freedom of Expression, Assembly, and Association, religion, and others. Western states like it while autocracies dislike it.
56
What is the International Covenant on Economic, Social, and Cultural Rights (ICESCR)?
preferred by USSR and allies. It emphasized labor rights (right to work, favorable work conditions, unionize) and social assistance programs (social security, right to food).
57
What is the Rome Statute?
created the ICC, addresses crimes of aggression, crimes against humanity, genocide, and war crimes.
58
What the UN Charter Article 2(4)?
prohibits threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
59
What the UN Charter Article 39?
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken … , to maintain or restore international peace and security.
60
What the UN Charter Article 42?
gives UN Security Council authority to authorize use of force.
61
What the UN Charter Article 51?
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
62
What is the United Nations Convention on the Law of the Sea (UNCLOS)?
Created in 1982, unified Geneva Conventions and created multiple water and seabed zones, and included rules for environmental protection and seabed mining. So many members that most of its rules are customary international law. fundamentally changes interstate behavior by reducing likelihood that maritime claims exist and that interstate conflict occurs, encouraging use of peaceful strategies for managing maritime claims, and incentivizing states to avoid the very courts whose jurisdiction they accept.
63
What are the rights of coastal states?
a coastal states territorial seas are up to 12 nautical miles closest to the state's coastline. they have a contiguous zone which is 12 nautical miles past the territorial seas where states have special law enforcement rights. the exclusive economic zone begins at the edge of the territorial sea and extends for up to 200 n.m. coastal states have limited authority but can regulate natural resource conservation and exploitation. except for piracy no states have jurisdiction over high seas. Under UNCLOS, coastal state has the exclusive right to explore and exploit its continental shelf (0-200 nm).
64
What is the Human Rights Committee?
body created by ICCPR that provides expertise to interpret treaty law. Although it does not have rule-making power, it can issue non-binding opinions
65
What is the Committee on Economic, Social, and Cultural Rights (CESCR)?
special treaty body created by ICESCR. It declared that ICESCR creates a minimum core obligation to ensure the satisfaction of minimum essential levels of each of the rights. It states that states cannot withhold ICESCR rights on the basis of race, sex, and religion
66
What is the International Court of Justice (ICJ)?
created in 1946 as part of the UN system. 15 judges. has no subject matter restrictions. successor to permanent court of international justice. settles disputes between states.
67
What is International Centre for Settlement of Investment Disputes (ICSID)?
cases are heard by three-person panels of arbitrators that are selected ad hoc, on a case-by-case basis. Each side is allowed to appoint a single arbitrator, with the third person chosen jointly by the two appointees.
68
What is criticism of international investment law?
On the left, activists often see it as an assault on legitimate government regulations on issues like the environment and labor rights. On the right, some fiscal conservatives argue that ISDS distorts economic decision-making by giving firms more incentive to make risky decisions. Additionally, by making it easier for companies to produce goods and services abroad, ISDS encourages large corporations to outsource their activities, potentially reducing employment at home. Also, treaty-shopping by large multinational companies, the behavior of foreign investors may use international law to file nuisance cases with little legal merit yet still can have a silencing effect
69
What is the International Criminal Court (ICC)?
a permanent court that prosecutes international crimes like aggression, crimes against humanity,
genocide, and war crimes. meant to deter and prosecute future international crimes. individual person can't bring individuals to the Court. states can send referrals. prosecutor conducts preliminary investigation and eventually issue arrest warrants.
70
What is the International Tribunal for the Law of the Sea (ITLOS)?
a specialized body that hears disputes between UNCLOS members. this tribunal is used to seek quick resolutions of an urgent problem, rather than complex findings of fact/legal interpretation.
71
What is UN Security Council (UNSC)?
asserts expansion authority: intervene in civil conflicts, uphold democratic elections, human rights and other values. does not make legally principle decisions about whether and how to intervene: it frequently refuses to become involved. authorization is most likely to happen when it is least needed: peacekeepers can only be sent if the receiving state agrees, which means the situation is still relatively under control, so the Council may only be a powerful political signal. because of politics, its instructions are ambiguous
72
What is force authorization?
UNSC has no clear ability to authorize force, but is now its force authorization abilities are accepted as "evolutionary" interpretation of its authority.
73
What is WTO Appellate Body?
part of WTO's dispute settlement system, the first part (legal part). if either party disagrees with the panel report, then it can request review by the Appellate Body, which is a group of trade law experts who review the legal arguments and then issue their own appellate body report, which is legally binding.
74
What is the Eichmann trial?
Universal jurisdiction case where Israeli agents kidnapped him from Argentina and tried him in Israel, even though Israel was not a nation during the time of crime.
75
What is the North Sea case?
Denmark, the Netherlands, West Germany had adjacent coastlines along the North Sea. Denmark and the Netherlands wanted to use the equidistance methods set in the Geneva Convention to set the boundaries but Germany did not agree because that method would yield less territory, and also it did not need to follow the Geneva Convention as it did not ratify it. Seeing the facts, ICJ argues it is important to consider relevant circumstances to pursue equitable outcomes. This case is important because it shows state practice is important for a practice to become customary international law
76
What is the Pinochet case?
Pinochet committed crimes against people in Chile, including Spanish citizens. So Spain started an investigation, because Chile granted Pinochet amnesty. When Pinochet was visiting the UK, Spain asked the UK to hand over Pinochet. This shows the appeal of universal jurisdiction
77
What is Seals case?
Animal advocates wanted to ban seals productions but fishermen relied on seals products to survive in European countries and Canada. In 2009, to please everyone, EU had a compromise: banning all seal products, but granting exceptions to Indigenous communities in EU states and Marine resource management (MRM) , which allowed EU-sponsored hunting in Finland and Sweden because the seals threatened fish stocks. But Norway and Canada were unhappy about it because (1) there were non-indigenous Canadian fishermen that had to rely on seal hunting and they also had stringent standards on how to kill seals humanely ; (2) Norway also had too many seals that threatened fish stocks but was not qualified in MRM because of its non-EU status. So they sued EU in WTO.
78
According to Simmons, what are domestic tools?
ability of a treaty to effect elite-initiated agendas, to support ligitation, and to spark political mobilization
79
According to Simmons, what are sincere ratifiers?
countries ratify to improve human rights
80
According to Simmons, what are strategic ratifiers?
countries ratify to improve its international standing
81
According to Simmons, what are false negatives?
countries that respect human rights but fail to ratify
82
According to Simmons, why do governments comply with treaties?
treaties are pre-screened by governments, so they won't join if they cannot comply.
83
What is Additional Protocol I (AP/I)?
1977 AP/I expands prior rules about military conduct and protected people. expands civilians protections and shifts the burden of compliance to attacking states. prohibits indiscriminate attacks (have no military objective). prohibits attacks on objects indispensable to survival of civilians. requires that states take precautions to minimize harm to civilians (creating safety zones).
84
What is Additional Protocol II (AP/II)?
1977 treaty that contains rules for non-international armed conflicts.
85
what is explicit force authorization?
determination of the existence of threat to the peace/breach/act of aggression
86
what is implicit force authorization?
using force without explicit authorization, commonly citing previous authorization. can be abused (NATO bombing of Kosovo)
87
what is force majeure?
unforeseen event that makes it impossible to perform the obligation. standard for invoking it is very high so usually does not work.
88
what is distress?
situation in which life threatening conditions force a state to break the law (distress landings with planes)
89
what is necessity?
actions that break the law but are taken in order to survive
