Midterm 1

Question 1

How many countries make up the international system?

Answer 1

193 Countries

Question 2

What is international law?

Answer 2

take international law to mean the body of rules and regulations that govern relations between states

Question 3

What is the characteristic of international law?

Answer 3

• But international law is more than just a set of rules that guide the globa community
  o It helps create and sustain a global community
  o It regulates how individual memebrs that global community i.E. how states should behave with one another.

Question 4

What is the purpose of international law?

Answer 4

To contribute to the development of all states and to reflect the ideals of the majority of people

Question 5

But why do laws create stability?

Answer 5

o In certain situations and operating under the same rules will result in most people within society to behave in the same way (abide by the laws)

Question 6

International law is based on christain beliefs/western cultuer so what values does this provide?

Answer 6

1. Freedom = the freedom to choose our freedom, to express ourselves etc.
2. Justice = there should be equal justice for all be it economic, social or legal.
3. Liberty = being free from captive control and the ability to go where you want when you want but also the right and freedom of self determination (both as people and as sovereign states
4. Peace = To live in a state free from external threats and to live in a community that keeps us relatively safe from internal threats

Question 7

Treaty of Westphalia provisions

Answer 7

There are 4 basic principles of Westphalia

 1. Principle of state sovreignty
• The fundemental right of political self determination
• All states are sovreign and the sovreign possess absolute power to guide and develop its society as it sees fit without forgein intervention
 2. Principle of (legal) equality between states
• This garunteed that the smaller and weaker states through legal strucutre were protected from the powers of the larger states
• They are legally equal
 3. Principle of non-internvention
• One state cannot interven on another state
 4. Principle of seperation of church and state*
• Having just ended a centrury of voilence based on religion, states were eager to put religion in its ‘place’. This place was to be under the authority of those who ruled (the sovreign)
• However, not all states bought into this concept, event states today consider themselevs to be seculare in nature.

Question 8

What is the historical context of Westphalia?

Answer 8

It was created at a time of turmoil, in in the 1568 the 80 year war between the dutch and the Spanish begins In 1588, catholic Spain tried to invade Protestant England, 1618 thirty year war begins over religious and political differences across Europe 1642 there is the civil war in England.

It is from all this conflict that their emerged a realization that endless conflict is a dead end.

In 1648, the leaders of the civilized world decided that they were tired of war and in may and October of that year, 2 treaties were signed to end the bloodshed which is now known as the peace treaties of westphalia. This event is what formally started the modern era.

It not only wanted to create political and military truce but also build the idea of religious tolerance and also that religion should be separate from state.

Question 9

What is the Ausrinian handicap?

Answer 9

It is a theory created by an english theorist by the name of Jon Austin. The Austinian handicap speaks on how international law by nature is and must be restrained by sovereign states therefore it should be limited.

In essence, this creates a ‘handicap’ for international law since it has certain built in disadvantages

Question 10

What does it mean by a common social consciousness?

Answer 10

This is linked to why we follow laws in the first place. Most people obey most laws bc they believe in the underlying moral values that are associated with that law.

Therefore laws are fine and necessary but if people don’t believe in the underlying morals and values reflected in those laws then the laws are without a soul and therefore are worthless.

Question 11

Positive Vs Natural Law

Answer 11

Positive law (Lex lata): is human made law, law that exists outside of moral and ethical argument. Often considered to be the black letter of the law since it is often written down and codified.

This doesn’t mean that the law doesn’t reflect morals but once they have become positive law morals and ethical considerations are limited

Natural law (lex ferenda): exists as a apart of the activities of humans. It is what the law ought to be. They are typically universal and think that morals are a primary component of the nations legal system.

Question 12

Naturalist and positivist prospect of judge made rule of law

Answer 12

Positivist/realist see most attempts to objected judicial decisions as a reflection of judges who wish to make the law and be in sync with society even though they are not mandated to do so, it is the legislative who have the authority to make law

Naturalist may make the argument that in order to correctly apply the law it requires moral judgement and consideration, the basic principle of all law are derived from principle of justice that have a universal principle of validity.

Question 13

Concept of legal personality

Answer 13

When a lawyer says that an entity has a legal personality they mean that such an entity has the compact to enter into legal relations with other legal recognized entities, to have legal rights and duties

In international law the first doctrine of legal personal based on positivism declared only states as legal personalities.

This absolute personality has been challenged over time by universal human rights which gives individuals access to the international sphere especially when it comes to international tribunals that now allow individual claims

However individuals themselves cannot make treaties which leaves them dependent to the state.

Question 14

What is the statute with the 4 sources of international law?

Answer 14

It is article 38 of the International Court Justice

Question 15

What are the 4 sources of international law?

Answer 15

1. International Convention: whether general and particular establishing rules expressly recognized by the contesting states
2. International Customs: as evidence of a general practice accepted as law
3. The general principles of law: recognized by civilized nations
4. Judicial decisions and teachings of the most highly qualified publicist of various nations as subsidiary means for the determination of rules of law (not law itself)

Question 16

what is the general principle of law? Article 38 (c)

Answer 16

A subplimental but a crucual source of law is the general principles of law which means those principles that are recognized and followed in most independent sovreign nations. In this sense, the general principles of international law are similar to those universal truths talks about in last class and arguably can be called natrual law. They are however still rooted in positive law.

For example, A fair and timely trial, availability fo an interpreter etc.

Question 17

What is stare Decisis?

Answer 17

Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way.

Question 18

How has Article 38 (c) expanded in recent years?

Answer 18

o Law commissions,
 This commission was intrumental in creating the international criminal couurt
o Travaux preparatoires
 Official records of negotations that occure when states get together to create a new law or treaty. They provide the black letter of the law be holding records of the orginal purpose of treaties and agreements which a court can use.
o Soft law
Traditionally soft law contains written instruments that spells out rules of conduct which are not intended to be legally bindings I.E. the Universal declaration on human rights is not legally binding
 It is meant to more so serve as a guide for how states ought to behave

o Unilateral acts of states
A unilateral act is a act done by only one state, it is done alone.
o Un-GA resolutions
A general assembly resolution is simply a resolution for an act that is voted on.
 None of these catgories are recognized as having the capacity to make law but they are recognized to contribute to the development of international law and influence the thinking of international law.

Question 19

What are two characteristics of customs?

Answer 19

• Practice – ‘custom’ speaks to actual behaviour of states rather than their stated behaviour
  o the practice of states can be more important legally than that of their claims of their behaviour.
• Opinio Juris – customs demand recognitition by states that they are legally if not morally bound to the practice in question
  o This awareness is referred to as opinion juris meaning that a state understands that the behaviour or practice it is engaging in may carry with it an expectation, certain legal obligations will be placed on the state similar to the principle of mens rea.

Question 20

Unilateral acts examples

Answer 20

• Making or renouncing claims (I.E. a state’s claim to territory)
  o Russia recognizing crimea
• Acts of recognition (I.E. by the UN)
  o Recognizing palestine as a state
• Acts of protest (I.E. the public refusal to recognize the action of other states)
  o The US protesting syrian treatment of civilians
  o UN protesting north korean nuclear tests
• The idea is that if enough states join in a legal practice, the legal consequences in which they are aware of then eventually such practice can lend weight to the creation of black letter international law (positive law)

Question 21

What are the three elements of Customs?

Answer 21

o	Practice (must be uniform)
o	Time (it must be continuously practiced over time)
o	Opinio Juris

All three elements must exist at the same time.

Question 22

What are the three ways a treaty (provision) can relate to customs?

Answer 22

1. It may be declaratory of custom at the time the provision is adopted
2. It may crystallise existing custom and its parameters
3. It may anticipate custom

Question 23

What is a peremptory norm?

Answer 23

• Article 53
  o Peremptory norm of general international law is norm accepted and recognized by the international community of states (opinion juris) as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
   It is a norm that is peremptory meaning it is part of an hierarchy of norms embedded in laws that are meant to be more important than other norms embedded in other laws.

Such a norm cannot be undermined it has to stand as it is though to exsist it can only be modified by a subsequent norm, the emergence of an equal norm in the general international law in character.

Question 24

How can a peremptory norm be modified?

Answer 24

• Article 64
  o Emergence of a new peremptory norm of general international law (‘jus cogens’)
  o If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates

There is no definitive list of jus cogens norms nor is there any legislation that shows how a regular international law can become a Peremptory Norm, that said it is general accepted that just cogens norms do exist and that they include prohibitions against genocide, piracy, slavery, and torture.

Question 25

Creating a hierarchy of international law

Answer 25

• Jus cogens:
  o Creating a hierarchy of norms and legal obligations
  o It is peremptory, which means no state can violate a jus cogens norm
• Erga Omnes:
  o Law or legal act that applies to every individual, ‘person’, or state without distinction (universal). A law with erga status is thought to posses universality.
   I.E. if you get divorced the status of that marriage is thought to be Erga Omnes since it is not only accepted in that country but also around the world.
   Even if there is not treaty, this was put into place since jus cogens use to be thought as simply customs or sometimes less since it use to need treaty accompaniment but erga omnes was used to detach the need for a treaty stating that some jus cogens transcend a treaty and should be universally accepted I.E. genocides are denounced around the world
• It is a frequently claim then that in international law, whatever is claimed to be used jus cogens may also be considered erga omnes character and therefore such a law must be considered to be superior to all other laws and treaties

This raises issues of sovereignty

Question 26

What does Article 71 say from the Vienna Convention of the Law of Treaties about Peremptory Norms?

Answer 26

Article 71 – consequences of the invalidity of a treaty which conflicts with a peremptory norm as provided for in article 53 and 64

1. In the case of a treaty which is void under article 53 (which provides, Inter Alia, that ‘A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’), the parties shall:
    A) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm; and
    B) bring their mutual relations into conformity with the peremptory norm

o 2. In the case of a treaty which becomes void and terminates under the article 64, the termination of the treaty:
 A) Relases the parties from any further obligation to perform the treaty

One reason for the consequence is the belief that the norms embedded in jus cogens reflect the values of the international public.

Question 27

When does a treaty come in to force?

Answer 27

• Article 24 VCLT
  o 1. A treaty enters into force is such a manner and upon such a date as it may provide or as the negotiating states may agree
   States get to decide when the article comes into force
  o 2. Failing any such provisions or agreements, a treaty enetes into force as soon as consent to be bound by the treaty has been established for all the negotiating states

Article 84 -
1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the thirty-firth instrument of ratification of accession
o 2. For each state ratifying or acceding to the Convention after the deposit of thirty-fifth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit by such state of its instrument or ratification or accession.

However we only focus on ratification which is article 11

Question 28

What is the ratification process?

Answer 28

 Ratification is a process that begings when the state or its official repersentative signs a treaty, the signing indicates intent or opinion juris
 Once this happens, the head of state that signed the treaty is then requred to take the document back home and present it to the legislative body of that nation
 At this point, the faith of the treaty depends on the vote of that body on whether or not to accept the treaty that the head of state has already signed
• I.E. the paris climate occord failed once it was brought home in the state. In effect it dies at that point
 If the vote is yes then the treaty enters into he next phase of ratification, in this phase all the provisions of the treaty must be converted into domestic law
• I.E. the rome statue which recognizes and signs on to the ICC, 139 states have signed on to it but only 122 have started to ratified it and only 107 have fully rattified all the provisions of the treaty meaning that close to have of the world is not signed onto the ICC and their provisions.

Question 29

What are reservations for treaties?

Answer 29

• Article 2 – for the purpose of the present Convention: (d) ‘reservation’ means a unilateral statement, however phrased or named, made by a state, when siging, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state;

Under article 19 of the VCLT, the only things that can restrict a reservation is
A) The reservation is prohibited by the treaty
C) …the reservation is incompatible with the object and purpose of the treaty