midterm Flashcards
prepare to ace the midterm! (46 cards)
week 2
describe the characteristics of natural law
-“the will of god;” regards law as absolute and innate moralistic values
-tend to be universal values separate from political values
-individualistic concepts of natural rights
week 2
what are the beliefs of positivists?
-a state-centric approach that believes “law is made by the states.”
-laws should be detached from moralistic considerations
week 2
what are the sources of int’l law?
-treaties
-general principles of law
-international customs
-expertly writings and judicial decisions
week 2
how do treaties work as a source of international law?
-written agreements that legally bind participating states to act a certain way
-requires the express consent of contracting parties
-“law-making” treaties are universal or have general relevance
-“treaty-contracts” apply to select states
week 2
how do international customs work as a source of international law?
-dynamic source of international law
-diminishing role because it’s too “flimsy”
-reflects contemporary concerns
-consists of two parts: actual practice and opinio juris
week 2
how do general practices of law work as a source of international law?
- used when there is no law covering “exactly that point”
- invokes the notion of “res judicata;” the notion is binding and without appeal
- the notion of good faith is the most important general principle.
week 2
how do expert scholarly writings and judicial decisions work as a source of international law?
-used as a subsidiary means rather than a source of law
-judiciary decisions are followed such that they set a precedent
-writing importance has decreased
-the teachings of the most highly qualified publicists
week 2
what is opinio juris?
- the custom/practice in question must be undertaken with a sense of legal right or obligation.
- the ICJ has adopted and maintained a high threshold for overt proof of opinio juris
week 2
general (customs)
-consistent and uniform, established by repeated actions over time
-evidence derived from national laws, political statements, etc.
week 2
what are soft laws? give some examples
-do not have legal binding obligations but have legal implications
-examples include: int’l org resolutions, declarations of high-level meetings, and international norms/standards
week 2
what is the third-world perspective of customary international law?
- the evolution of customary international law (CIL) is closely linked to the rise of capitalism in europe
- CIL played a crucial role in the creation of colonial projects, especially in regards to the sea
- third world states play a marginalized role in the formation of CIL and new states do not have the opportunity to consent to prior CIL
- CIL was invented through domination and hegemony
week 2
what is the importance of sovereign equality?
-provides the basis of many rights
-orthodox theories from Westphalia
-states are treated as equal before international courts
-existential sovereign equality: right to territory, independence from interference
-legislative: consent, equally weighted vote
week 1
what are some criticisms of int’l law, both generally and for china?
-China’s victim mentality
- only a one-way street instead of a give and take with China
-incredibly euro-centric; non-european countries are passive
week 2
what article is the most authoritative for determining sources of int’l law?
Article 38(1) from the International Court of Justice (ICJ)
what are some notable treaties?
- charter of the united nations
- geneva convention
- vienna convention on diplomatic relations of 1961
what are some notable law-making treaties:
-genocide convention
-antarctic treaty
what is the notion of good faith?
the notion of good faith is the most important general principle that is found in UN Charter Article 2(2)
- it is only to the fulfillment of existing obligations.
which UN Charter permits the right to self defense?
UN Charter Article 51
which UN Charter Articles talk about use of force?
UN Charter Article 2(4): all members should refrain from using threat or force against others
UN Charter Articel 2(2): Members shall settle disputes by peaceful means; security and peace are not endangered.
which UN Charter Article discusses non-intervention?
Article 2(7): nothing contained in the charter shall authorize the UN to influence any domestic jurisdiction of any state.
what are forms of intervention that are prohibited? give an example of intervention
economic, political, and anything that coerces another state
example: banning products can be a form of economic coercion
what is the responsibility to protect?
a form of humanitarian intervention and an international norm that affirms each state has a duty to protect its people from genocide
what is state responsibility?
it is the act of taking responsibility for any breech in international obligations and requiring reparation.
what are the three steps to finding an internationally wrongful act?
- establish the existence of an int’l legal obligation
- establish proof of a breech of int’l obligation
- be able to attribute it to the state
