Introduction: What is IL?

Question 1

What is the modern definition of international law?

Answer 1

“International law … consists of rules and principles of general application dealing with the conduct of states and other international organizations ( such as the United Nations) and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical”.

Question 2

What is The Law of Nations (1963) definition of IL?

Answer 2

“Law of Nations”: law between States based on the common consent of the members. “The body of rules and principles of action which are binding upon civilized states in their relations with one another”

Suggest three conditions for the admission of new States into the family of nations:

(1) Colonies must be civilized States (uncivilized = Asia, Latin America, Africa)
(2) Consent to be bound by rules of International Law
(3) Recognition to the reception of New Members

Question 3

What is the civilized/uncivilized distinction under The Law of Nations (1963)

Answer 3

The Law of Nations (1963) says “the body of rules and principles of action which are binding upon civilized states in their relations with one another”.

Civilized v. Uncivilized (Barbarians) refers to

• Race, values, religion (Christian versus non-Christian distinction)
• Perpetual enmity between Christian states and the Buddhistic States

Question 4

What is comparative law?

Answer 4

Comparing legal systems of national different systems.

The study of differences, similarities, and interrelationships of different national legal systems. Focus: comparison of the private law codes/statutes of continental European countries with the purpose of legal harmonization and unification.

Question 5

What are the similarities and differences between international law and comparative law?

Answer 5

The main difference is that international law is A SET OF RULES that States have accepted and applied

Comparative law is THE STUDY of the differences, similarities, and interrelationships of different national legal systems.

Question 6

What is the difference between public international law and private international law?

Answer 6

Private IL (particular): focuses on activities of individuals, corporations, and other private entities when they cross national borders (deals with relationships between private individuals across state lines).

Public IL (general/conflict of law): focuses on activities of States in relation to other States (relationships between sovereign states); not simply an adjunct of domestic legal order like Private IL

Note: we focus on public law not private

Question 7

What is the difference between international law and international comity?

Answer 7

The difference between IL and comity is that comity is not binding, IL is.

Comity means courtesy; a reference to widespread practice or customs normally observed by States but which are not binding. For example, when President Biden lands somewhere and they roll out the Red Carpet= this is comity NOT international Law. There will always be a red carpet for a head of state done in comity.

Question 8

JULIAN ASSANGE AFFAIR
What happened?
What was the legal issue?
What rules were invoked by the parties? (treaties or agreements, customary law, regional law?)

Answer 8

Facts: WikiLeaks released 77,000 documents regarding Afghan war then 400,000 classified military docs (largest military leak in history).
Issue: Could the U.S. overcome its traditional reluctance and prosecute Assange under this principle?
Holding:
Rules invoked:

Question 9

How did the matter between Ecuador and the UK get resolved? Did the US receive Assange?

Question 10

Does the Asylum Case at the ICJ help or hinder Ecuador’s argument?

Question 11

Can you describe, according to the authors, the main “sea changes” in IL that occurred in the 20th century? What drove those changes?

Question 12

What are the two main scholarly views of the historical origins of international law?

Answer 12

(1) PREVAILING VIEW: the study of IL emerged in Europe after the Peace of Westphalia (1648), which concluded the Thirty Years War and coincided with the emergence of the Nation-State
(2) R.P. Anand: Challenges the Euro-centric conception of the origins of the discipline. Argues that Christian civilization did not have a monopoly on the development of prescriptive rules to govern inter-state conduct

Question 13

What is the division between the classical and modern periods of international law?

Question 14

Is there an alternate way to think about the origins of international law as argued by R. P. Anand?

Question 15

What about as explained by Prof. Antony Angie in the excerpt from his seminal book?

Question 16

What is the difference between positivism and naturalism?

Answer 16

IN SHORT: Positivism says law must be codifies by humans. Naturalism says law of nature creates law (natural law of order that all must respect).

Positivism is the theory that IL is no more nor less than the rules to which states have consented. Focuses on the importance of the existence of uncivilized states for the progress and development of the discipline itself.

Naturalism is the theory that IL is a product of Christian civilization (Says that this law is Christians interacting with each other and non-Christians are not in the circle of family of nations). Says that law ought to be secularized - something divine and above.

Question 17

Who had sovereignty and thus legal personality under IL? Who did not?

Question 18

What is the meaning of terra nullius?

Answer 18

Empty land.

Land not under the control of any state, subject to legal acquisition by states.

Question 19

What do the authors mean when they talk about new actors, new issues, and new processes in IL today?

Answer 19

(1) International Law is currently being supplemented by a new legal process characterized by new actors, issues, and modalities of prescription and enforcement.
(2) International Law is evolving in some areas and static in other areas.
(3) New actors include international institutions and Non-State actors (NGOs and individuals).

Question 20

What are the non-traditional forms of a) law-making, and b) enforcement?

Answer 20

a) Lawmaking: Custom (regulation of international activities) and soft law (used to supplement treaties)
b) Enforcement: Economic sanctions and the embarrassment a state through reporting.

Question 21

What are the key conceptual challenges for IL?

Question 22

Why do States, including the US and major powers, comply with international law almost all of the time?

Answer 22

(a) Bilateral reciprocity: The precedential effect of particular acts and not merely with whether the actor that was somehow harmed by the conduct at issue might respond in kind.
(b) Reputation: Because any outrageous or illegal claims or acts governmental officials make or take will erode a legal norm and create precedents that another state might in the future use against their state or its allies, governments will restrain their behavior to conform to international law.
(c) Liberalism: states comply with international law because they want other states to cooperate with them.
(d) Realist vieq: states comply with international law because states are selfish actors who comply when it is within their best interest.
(e) Constructivist view: states comply because there are normative standards that must be followed.

Question 23

Have you heard of “American exceptionalism” in IL discussions involving US foreign policy? Is that a good thing? Or a bad thing?

Question 24

What are the different theories or schools of international law?

Answer 24

• Positivist
• Policy-oriented jurisprudence
• New Haven
• New Stream
• Global Administrative Law
• Global Legal Pluralism

Question 25

Are the views of other States and peoples equally important to achieve a) compliance; b) universality and c) legitimacy of international law?

Answer 25

Yes, the views of other States are important to achieve all of the aforementioned goals because the international system relies on cooperation to be effective.

a) Compliance:
b) Universality
c) Legitimacy of international law

Question 26

What is the difference between public international law and private international law?

Answer 26

Public IL: Focuses on the activities of States in relation to other States; not simply an adjunct of the domestic legal order like Private IL

Private IL: Focuses on the activities of individuals, corporations, and other private entities when they cross national borders

Question 27

What is the difference between international law and international comity?

Answer 27

The main difference: IL is binding. Comity is not.

International LAW: Rules and principles that BIND states. International COMITY: a widespread practice or customs normally observed by States but which are not binding (literally means courtesy).

Question 28

General IL versus Particular IL

Answer 28

General IL: Refers to rules and principles that bind ALL State or practically all of them - depending upon the nature of the rule, which can be customary law or be treaty-based.

Particular IL: Rules binding upon 2 or a few States only.

Question 29

Positivist view of IL

Answer 29

IL are the rules to which the states have consented; argue that law is created by humans for definite conditions and purposes rather than by some supreme being for all eternity.

Question 30

Policy-oriented jurisprudence view of IL

Answer 30

Not a set of rules BUT a process of authority decisions making by which various actors (not just states) clarify and implement their interests in accordance with their expectations.

In this view, the ability to control behavior—raw power—does not by itself create international law. International law requires instead the combination of material efficacy with some source of authority, which is established through the participants’ shared expectations and processes.

Question 31

New Haven theory of IL

Answer 31

Emphasizes the distinction between rules and operations, or between law as written down and law as actually observed.

This so-called New Haven School remains influential in both the United States and abroad.

Question 32

New Stream theory of IL

Answer 32

Focused on the contradictions, hypocrisies, and failings not only of the rules themselves but of the ways actors invoke and talk about international law. The New Stream places great emphasis on the use and misuse of language and culture in international legal discourse.

Question 33

Global Administrative Law theory of IL

Answer 33

Argue that much global governance takes the form of regulation and administration that is not created in high-profile meetings but in less visible settings.

Question 34

Global Legal Pluralism theory of IL

Answer 34

Highlight the multiplicity of legal norms that can apply to events or persons and suggest a highly decentralized approach to the management of legal diversity.

Drawing on earlier anthropological traditions, global legal pluralists highlight the multiplicity of legal norms that can apply to an event or person and suggest a highly decentralized approach to the management of legal diversity.

Question 35

Is there a limit to the legalization of international law?

Question 36

Can you describe the concept of fragmentation of IL?