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china and int'l law > midterm > Flashcards

midterm Flashcards

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1
Q

week 2

describe the characteristics of natural law

A

-“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

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2
Q

week 2

what are the beliefs of positivists?

A

-a state-centric approach that believes “law is made by the states.”
-laws should be detached from moralistic considerations

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3
Q

week 2

what are the sources of int’l law?

A

-treaties
-general principles of law
-international customs
-expertly writings and judicial decisions

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4
Q

week 2

how do treaties work as a source of international law?

A

-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

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5
Q

week 2

how do international customs work as a source of international law?

A

-dynamic source of international law
-diminishing role because it’s too “flimsy”
-reflects contemporary concerns
-consists of two parts: actual practice and opinio juris

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6
Q

week 2

how do general practices of law work as a source of international law?

A
  • 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.
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7
Q

week 2

how do expert scholarly writings and judicial decisions work as a source of international law?

A

-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

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8
Q

week 2

what is opinio juris?

A
  • 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
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9
Q

week 2

general (customs)

A

-consistent and uniform, established by repeated actions over time
-evidence derived from national laws, political statements, etc.

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10
Q

week 2

what are soft laws? give some examples

A

-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

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11
Q

week 2

what is the third-world perspective of customary international law?

A
  • 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
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12
Q

week 2

what is the importance of sovereign equality?

A

-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

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13
Q

week 1

what are some criticisms of int’l law, both generally and for china?

A

-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

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14
Q

week 2

what article is the most authoritative for determining sources of int’l law?

A

Article 38(1) from the International Court of Justice (ICJ)

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15
Q

what are some notable treaties?

A
  • charter of the united nations
  • geneva convention
  • vienna convention on diplomatic relations of 1961
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16
Q

what are some notable law-making treaties:

A

-genocide convention
-antarctic treaty

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17
Q

what is the notion of good faith?

A

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.

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18
Q

which UN Charter permits the right to self defense?

A

UN Charter Article 51

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19
Q

which UN Charter Articles talk about use of force?

A

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.

20
Q

which UN Charter Article discusses non-intervention?

A

Article 2(7): nothing contained in the charter shall authorize the UN to influence any domestic jurisdiction of any state.

21
Q

what are forms of intervention that are prohibited? give an example of intervention

A

economic, political, and anything that coerces another state
example: banning products can be a form of economic coercion

22
Q

what is the responsibility to protect?

A

a form of humanitarian intervention and an international norm that affirms each state has a duty to protect its people from genocide

23
Q

what is state responsibility?

A

it is the act of taking responsibility for any breech in international obligations and requiring reparation.

24
Q

what are the three steps to finding an internationally wrongful act?

A
  1. establish the existence of an int’l legal obligation
  2. establish proof of a breech of int’l obligation
  3. be able to attribute it to the state
25
Q

what is state immunity?

A
  • the practice, based on sovereign equality, that sovereign states cannot be sued in foreign courts
  • two types of state immunity:
    1. absolute immunity, which is what China uses
    2. relative immunity: commercial activities are not included
26
Q

what are the subsets of sovereign equality?

A
  1. use of force
  2. non-interference
  3. state immunity
  4. state responsibility
27
Q

what is legal personality?

A

legal personality refers to the capacity of an entity to have rights and obligations under the legal system
- it is relative to circumstances

28
Q

what makes up international legal personality?

A

participation and community acceptance

29
Q

what constitutes being a legal subject?

A

having legal personality is required for being a subject

30
Q

what are objects of international law?

A

-territories, rivers, oceans, etc
- int’l commerce, diplomatic relations, cyberspace, etc.

31
Q

are actors and subjects of international law the same?

A

No!! Not all actors are subjects of international law

32
Q

what are the requirements of statehood?

A

there are four requirements:
1. defined territory
2. permanent population
3. effective government
4. the capacity to enter into relations with other states

33
Q

what are some non-state actors?

A

-individuals
-armed groups
-IGOs (IMF, UNESCO, WHO)
-corporations
-international economic institutions (WTO)
-regional institutions (EU)
- the arab league
-ASEAN

34
Q

what are the concepts unequal treaties are based on?

A
  • a dichotomy between “civilized” and “uncivilized” countries
  • linked to imperialism, colonialism, and feelings of injustice
35
Q

what are the characteristics of unequal treaties?

A
  1. unequal content: lack of reciprocity with severe limitations on sovereignty
  2. unequal procedures: signed under duress from military, economic, or political pressures
35
Q

what is China’s relation with unequal treaties?

A
  • China signed over 1,000 unequal treaties
  • it limited sovereignty and hindered economic development
  • it was a result of losing the first opium war
  • these treaties weren’t a concern at first because of the differences in ideas of sovereignty between China and Western countries
36
Q

what were some of the benefits foreign power received from unequal treaties?

A
  • trade concessions in specific ports
  • extraterritoriality
  • low tariffs on imported good
  • territorial cessions
  • foreign control over specific regions
37
Q

give three examples of unequal treaties

A
  1. treaty of nanjing: opened the trade ports and ceded Hong Kong to Britain
  2. treaty of shimonoseki: gave Taiwan and Korea to Japan at the end of the Sino-Japanese war
  3. Twenty- One demands: Japan’s influence over China’s internal affairs and resources
38
Q

why were unequal treaties hard to terminate or revise?

A
  • most treaties did not have any revision or termination clauses
    -the “most-favored nation” clause linked all treaties, making individual revision difficult
39
Q

what were the western aims of unequal treaties?

A
  • break down asian dominance in trade and diplomacy
  • protecting merchants from local violence and unfair legal proceedings
  • trade advantages
40
Q

what are the chinese perspectives and priorities with unequal treaties?

A
  • prioritization of minimizing foreign presence in specific cities
  • treaty elements weren’t an initial concern because of the differences in sovereignty and trade
  • seen as unfair and became resented over time
41
Q

how did china terminate unequal treaties?

A

after becoming an ally in world war 2, they were able to terminate or make strides to end the unequal treaties.

42
Q

what was needed to terminate the treaties?

A

a “standard of civilization”

43
Q

what were the characteristics of “standards of civilization?”

A

-observance of int’l law
-establishment of diplomatic relations
-establishment of a constitutional government
-abolition of traditional institutions

44
Q

what is the open-door policy and why is it significant?

A

a policy attempt at securing equal trade privileges for all countries trading with China
-it was preferred over colonization
- the US policy wanted to maintain a unified China as a trading partner and protect their own sphere of influence

45
Q

what is legalized orientalism?

A

-the belief that china’s legal system is failing the people
- one-sided extraterritorial-ism is based on legal oreintalism

china and int'l law (1 decks)

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