1 - Is International Law Really 'Law'? Flashcards
What is the enforcement argument used by critics of international law?
The enforcement argument is when critics of international law claim “But international law is not enforceable, you cannot force states to do anything”.
What would your response be to someone who uses the ‘enforcement argument’?
- Municipal law also cannot be totally enforceable (Think of person v state domestic cases) so does that mean it isn’t law? Is “enforcement” really a factor into if law is law? Those that lose the case comply because they want to.
What is the Louis Henkin quote?
“Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”.
Elaborate on this point: “Law is not a system of “might makes right””.
Those in power do not decide how people behave and comply with the law. For example, if we consider what law is not, we soon realise that it is not a rationale for the application of force. The UK does not have guns at people’s heads telling them how to comply with the law.
What does D’Amato describe as “an even more fatal point to this view of extreme enforcement…”
The state would need many rules to police themselves. And somebody to police the police. And then somebody to police the police policing the police - and so on and so forth. The system would collapse in on itself.
What’s the most noteworthy characteristic of international law?
Lacks a single sovereign power. IE no overarching legislator.
Why do states have little reason to break the rules?
They create them so have no reason to break them. If they do other states may not trade with them and because states can’t escape each other they want to keep a good reputation.
What is the role of reciprocity in international law?
Reciprocity - important role because if a state mistreats another state then another state can just do the same back.
What is the role of legitimacy in international law?
Legitimacy - important role because if a rule is useful and created in the proper manner then states would want to adhere to it as its the right thing to do.
What’s the constructivist role in international law?
It makes international politics and without that there would be no states. By doing this, it helps construct society which is the purpose of law in the first place. This legitimises international law.
What does the lotus case show?
It deemed that international law is a permissive system, states can behave however they like unless there is a rule prohibiting it
