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Law Exam - 60 PERCENT > International Law > Flashcards

International Law Flashcards

1
Q

Define: International Law

A

International law is the governing law over the nations of the world.

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2
Q

What are domestic legal systems influenced by?

A

Domestic legal systems are influenced by international law (but remains within national jurisdiction)

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3
Q

Other examples of domestic legal systems

A

Civil Law
Islamic Law
Chinese Law

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4
Q

What is the most widespread form of law?

A

Civil Law

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5
Q

Explain Civil Law

A

In Early modern Europe, they shift to codified law (As opposed to common law cases)

England resists these changes`

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6
Q

Why is common law widespread today?

A

Because England resisted these changes, sticking to common law, and had vast colonization.

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7
Q

What does Civil law stem from?

A

The Justinian code. Napoleon was a fan of the Justinian code and had big influence over countries like Spain and Italy.

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8
Q

Distinct groups of civil law

A

French, German (The German code had an influence on certain Asian countries like Japan)

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9
Q

What does the Civil Law system often rely on?

A

Often relies on legislation in large codes

A national system consists of various areas of law: Criminal, Commercial, Family

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10
Q

What is a source of Civil Law, that Common law does not share?

A

Scholarly writings

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11
Q

Judges role in Civil Law

A

Judges play a reduced law compared to Common law.

  • Comprehensive Civil Law leaves less room for judicial interpretation
  • Case decisions are based on other laws rather than other cases
  • More focussed on objectivity than fact
  • They are more like prosecutors than investigators
  • Judges are practitioners and a separate profession from lawyers
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12
Q

The role of binding precedents in Civil Law

A

Binding precedents do not play a crucial role

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13
Q

The differences of Common Law and Civil Law

A

The lawyers role in civil law is more restricted than common law jurisdictions.

Due to legislation playing a big role in civil law, not a lot of research had to be done behind the scenes (i.e. precedent)

Despite being different, Civil Law is the closest thing to common law.

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14
Q

What does it mean to say that the NZ legal system is secular?

A

The church an the state are separate

- Although Christianity influenced law, it does not play a large role in modern society

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15
Q

What is Islamic law derived from?

A

The religion of Islam

Islamic Law and Islam are virtually inseparable

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16
Q

Sharia

A

Islamic law followed by Muslims

  • Some nations are essentially Theocracies where the church and state are one.
  • In some Muslim nations Sharia law exists parallel of a secular governmental system
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17
Q

The four main sources of Islamic Law

A

The Koran
Sunna
Ijma
Qiyas

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18
Q

The Koran

A

The direct words of Allah
The principles of Islam are laid out in the Koran

Covers rules for divorce, Usury, appropriate punishment for criminal wrongdoing.

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19
Q

Sunna

A

The practices of the prophet Mohammed

- Clarifies details of the Koran for everyday life

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20
Q

Ijma

A

Consensus among scholars on contentious point of law

  • If something is not clear
  • Needs interpretation of Koran and Sunna
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21
Q

Qiyas

A

Legal precedents that can be applied to new fact situations by analogy

22
Q

What does Sharia cover?

A

All aspects of daily life; worship, commercial dealings, inheritance, family law, evidentiary procedure, welfare.

  • Here there is no division between law and morality (due to Theocratic nature of the state)
  • Sharia covers everything.
23
Q

Punishments under Sharia

A

More severe

  • Has brought the issues of human rights into question
  • Debate over ethnocentrism and human rights
24
Q

Sharia within NZ

A

Issues have arisen when common law and muslim law clash.

  • Burqas in court when witnesses are cross examined
25
Describe the Modern Chinese Legal system
A blend of Confucianism, communist regulation, and Western style law. Historically China has avoided Western legal systems.
26
What did Confucius say?
Said that formal law will not impact society and individuals. Law in essence has no effect
27
The role of Law
'Fa' ; legalism, usually reserved for criminal acts, government and the military
28
Confucianism
More relationship based - Proactive rather than reactive when dealing with disputes - If these strong internal social norms are creates there will be a lot of moral pressure, shame, and shaming, and people are more likely to comply with these rules.
29
Describe 'Li'
This is essentially Confucianism. The primary form of order in most social life.
30
Li over Fa; which should dominate?
Confucianism is replaces by socialist law after 1949 There have been recent reforms - Market economy, business and trade etc. In avoiding Western legal systems, instead a highly structured customary regime was created.
31
How was the transgression of social norms dealt with?
In a community context; this approach to dispute resolution is based on the teachings of Confucianism Under Confucianism public morality should form the basis of the legal system Society should not be dominated by law
32
Disadvantages of the Chinese legal system?
There is difficulty with enforcement There is a focus on one's place in the hierarchy Similar to a Marxist approach; instead the government did not wither away, but Communists became the new head of state and used law to support its regime.
33
How can the Chinese legal system be used to analyse NZ?
Shows that the law does not need to be Western structured to be effective In a globalised world it is hard to avoid formal and rules based systems Shows the importance of a legal system that focusses on the importance of relationships
34
Public International Law
International Law consists of 'rules' that govern relationships involving states and international organisations.
35
Private International Law
Concerned with the clash between laws from different jurisdictions and is sometimes referred to as a conflict of law.
36
What does Public International Law cover?
War, Human rights, refugee law, International trade, the law of the sea, environmental issues, global communications, outer space.
37
What is the flaw of International Law?
The flaw here is that international law requires nations to voluntarily sign up for treaties, rather than adhering to commands; this is due to few real sanctions and penalties existing to enforce these commands.
38
Is International Law proper law?
International Law is fundamentally different from domestic law. The principle influence of International law is military force followed by economic force.
39
What are the two main sources of International Law?
Treaties and Custom - Treaties have a higher profile than international customary law, but they both contribute significantly to the global legal system.
40
What is the heart of International Law?
International treaties. | - Treaties can be bilateral or multilateral
41
Multilateral Specialist Treaties
International Covenant on Civil and Political Rights | Convention on the Elimination of all forms of Discrimination of Women
42
In New Zealand who decides whether or not to enter into treaties?
The Executive (especially Cabinet) While the Executive can only bind NZ, the legislature plays a large influence also.
43
The International Treaty making process in NZ
1. Treaty is negotiated 2. Cabinet approves treaty text 3. At this stage some multi-lateral treaties can be signed (the signature is often non-binding) 4. Treaties go before Parliament for select committee analysis and possible debate in HOR 5. Legislation implementing the treaty into domestic law is made (this is neccessary before ratification)
44
The Judiciary's role in interpreting the place of International Treaties in NZ Law.
Judges can refer to the ICCPR when interpreting the NZ BORA
45
International legislation does not affect a nation unless...
it is incorporated into domestic law.
46
What is International customary law derived from?
The consistent practice of states, due to fundamental state behaviours; they consider it a legal obligation to act in this way.
47
How is international customary law like constitutional conventions?
They're flexible
48
International customary law is based on this
Natural Law; looking to a higher moral code of universal truths. These truths are not found in any religious doctrine.
49
The most inflexible law in International Customary law
Jus cogens
50
General principles of law that can be considered International Law
Basic Convention: states should act in good faith with one another. Free consent; this is with regards to treaties
51
Examples of International Legal Institutions
``` UN ICJ WB IMF WTO ```

Law Exam - 60 PERCENT (9 decks)

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