PS 388 EXAM 2 REAL Flashcards
What is jus Cogens vs opinion juris?
Jus Cogens refers to legal status of international crimes.
And opinio juris is to distinguish between customary international law from everyday customs of states followed out of courtesy or habit.
What are international crimes in jus cogens?
- ) agression
- ) genocide
- ) crimes against humanity
- ) war crimes
- ) piracy
- ) slavery and slave-related practices and
- ) torture
When is a crime considered a Jus Cogens?
- ) When it threatens the peace and security of mankind
2. ) they shock the conscience of humanity.
Can anybody be prosecuted for a Jus Cogens crime? Hint 6
Yes, no matter the following
- ) Universal jurisdiction
- ) Prosecute and extradite
- ) no state limitations
- ) does not matter by where
- ) by whom
- ) category of victim.
What is opinion juris?
Its the distinguishing customary international law from everyday custom of states followed out of courtesy or habit.
What is Martin Rochester quote?
Law is essentially based on politics.
That is legal rules by a society. Although they might have some utilitarian values for all members.
Tend to reflect especially the interests of those members of society who have the most resources with which to influence the rule-making
How does Bull defined law?
A body of rules which binds states in world politics. In their relations. With one another. Considered status of law.
What is Bull’s Position vs. Yale?
Bull rules of international law actually influence behavior in world politics part of reality.
Yale international lawyers and others that law is a social process is the correct view.
What is Bull’s position vs John Austin?
Bull: a body of rules which binds states and other agents in world of politics in relations to one another. Have the status of law
Austin: since there exists no sovereign international law. International law is not ‘law’ properly so-called but is merely positive international morality.
What is Bull’s position vs Hans Kelsen?
Bull: considered to have the status of law
Kelsen: is does have the status of law. But resets on decentralized sanctions rather than centralized ones.
What is H.L.A Hart position in law?
Hart argues with that what distinguishes a legal system is not the presence of a sovereign able to back up rules with force, but ‘the union of primary and secondary rules.
What is the remedy for defect of uncertainty? Defect of static character? And defect of inefficiency?
- ) remedy for what Hart calls rules of recognition, which specifies some feature or features, possession of which by a suggested rule is taken as a conclusive, indication that a rule of the group supported by the social pressure it exerts.
- ) rules of change which empower individuals or bodies to introduce new primary rules and eliminate old ones.
- ) rules of adjudication are necessary since there arise in societies disputes, whether or not a particular rule has been violated.
What are Bull’s assertions on the efficacy of international law?
- ) not neccessary to establish an identity between actual and prescribed behavior
- ) question is whether the rules of international law are observed to a sufficient degree. Justify treating them as a substantial factor at work in international politics
- ) no doubt exists substantial degree of coincidence between actual behavior and the behavior prescribed by the rules of international law.
- ) state that is peace exchanges money, is involved constantly in obedience to rules of international law
- 1) when rules are violated, usually takes places agaisnt background of conformity and to other rules of international law
- 2) the distinction between violation of a rule and conformity to it is not always a sharp one.
- 3) even when violation takes place, state usually goes out of its way to be bound by the rules in question
- ) Finally activity of those concern with international law private and public, carried out in dealing that rules of law. Fact that these rules are believed to have status of law, whatever theoretical difficulties it might involved. Makes it possible for international activity, important working of international society.
What are the three on States’ Obedience of International law?
- ) valuable, mandatory, or obligatory apart from being legally required, either as an end of itself or as pasty if means to some wider set of values
- ) obedience may result from coercion, threat of it, by some superior bent on enforcing the agreement
- ) obedience may result from the interest a state perceives in reciprocal action by another state or states.
What are rules that are carried out as valuable, and mandatory or obligatory means to end for wider values called?
1.) the international law of community
What are the agreements that are for coercion, threat, of superior power bent on enforcing them called?
The international law of power.
Agreements and principles resting on this sense of mutual interests is sometimes called?
The international law of reciprocity.
According to Moregentau, what does international law owe its existence to?
- ) identical or complementary interests of individual states
- ) the distribution of power among them
When and why, and how did International law emerge according to Morgentau?
International law is the result of the great political transformation that marked the transition from Middle Ages to modern period of history.
There must be certain rules of conduct defined beforehand, whose violations. Would normally call for certain sanctions.
In the 15th and 16th centuries
What are the 2 functions of international law to international order?
- ) first function is to identity supreme normative principle. A society of sovereign states
- ) state the basic rules of coexistence among states and other actors in international society.
According to E.H. Carr what three institutions does international law lack? From municipal
- ) judicature
- ) executive
- ) legislature
What is source mean in international law?
Source does not refer to the actual language of the releveant text. We are not discussing the content of the rule.
Rather we are asking: the forensic process involving where a decision maker or researcher looks to ascertain substative legal rule which governs a legal dispute or academic discourse.
What is the Hierarchy of Sources according to Benedetto Conforti?
Customary rules properly are placed at the top of the hierarchy of international law. Treaties are second ranking. Because of pacts sunt servanda
What is first according to Rudolfo Bernhardt in hierarchy of sources?
Customary law can be superseded and replaced in power, authority, and effectiveness/acceptance by regional and universal treaties.