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Ps 230 And Ps 388 > Ps 388 EXAM 2 Version 2 > Flashcards

Ps 388 EXAM 2 Version 2 Flashcards

1
Q

Does Bull accept Kelsen’s argument?

A

No, Bull does not accept Kelsen’s argument.

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2
Q

What distinguishes the legal system according to Hart?

A

Not the presence of a sovereign able to back up rules with a force, but the union of primary and secondary rules.

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3
Q

With whom does Bull agree with?

A

Bull agrees with H.L.A Hart.

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4
Q

What is a body of rules?

A

Bind states and other agents in world politics. Considered to have the status of law.

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5
Q

How does Yale School of law define international law?

A

Law is a social process of authoritative and effective decision-making and does not consist simply of the application of a previously existing body of rules.

Shaped by social, moral, and political considerations as well.

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6
Q

What is Bull’s position on rules of international law?

A

Bull agrees with Yale that law is a social process. But to assert validity of a rule, of international law is to say that meets test laid down by another rule. Without reference to a body of rules. The idea of law is unintelligible.

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7
Q

What is the difference between primary and secondary rules?

A

Primary rules are those which require human beings to do or abstain from certain actions, such as keeping promises, or protecting property.

Secondary rules, rules about rules, confer powers on human beings to introduce new primary rules, extinguish or modify old ones, are legislative, excecutive, or judicial.

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8
Q

Do primitive societies have both primary and secondary rules?

A

No, primary societies only have primary rules.

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9
Q

What are the three defects of primary rules?

A
  1. ) defects of uncertainty
  2. ) defect of static character
  3. ) defect of inefficiency
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10
Q

What is the remedy for defect of uncertainty? Defect of static character? And defect of inefficiency?

A
  1. ) 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.
  2. ) rules of change which empower individuals or bodies to introduce new primary rules and eliminate old ones.
  3. ) rules of adjudication are necessary since there arise in societies disputes, whether or not a particular rule has been violated.
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11
Q

What are Bull’s assertions on the efficacy of international law?

A
  1. ) not neccessary to establish an identity between actual and prescribed behavior
  2. ) 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
  3. ) no doubt exists substantial degree of coincidence between actual behavior and the behavior prescribed by the rules of international law.
  4. ) state that is peace exchanges money, is involved constantly in obedience to rules of international law
  5. 1) when rules are violated, usually takes places agaisnt background of conformity and to other rules of international law
  6. 2) the distinction between violation of a rule and conformity to it is not always a sharp one.
  7. 3) even when violation takes place, state usually goes out of its way to be bound by the rules in question
  8. ) 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.
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12
Q

What are Bull’s States’ Obedience of International law?

A
  1. ) the international law of community
  2. ) result from coercion, or threat of it, by some superior power bent on enforcing the agreement.
  3. ) the international law of reciprocity.
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13
Q

The modern system of international law is the result of the…

A

Great political transformation marked from Midddle ages to modern History.

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14
Q

Who was Hugo Grotous?

A

Original genius, ability to synthesize arguments from other scholars, De tri Belli Act Paris.

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15
Q

Why does Bull argue International Law is primitive?

A

Because there are no secondary rules.

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16
Q

What does International Law regulate?

A
  1. ) treaties and decisions often regulate, in minute detail relations among interstate relations.
  2. ) Recall Bull, IL not as effective as municipal law
  3. ) IL= scrupulously observe
  4. ) to deny flies in the face of all evidence
  5. ) IL= not as effective in restraining the struggle for power.
  6. ) decentralized no supernational above distribution of power among them.
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17
Q

What helps International Law? Decentralization

A
  1. ) identical or complementary interests of indivual states
  2. ) the distribution of power among them
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18
Q

What is the Law of Nations says?

A

Can exist only if there be an equilibrium, a balance of power between Family of Nations. Powers need to keep each other in check.

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19
Q

What are the two consequences of decentralization for International Law?

A
  1. ) many matters bearing upon the international relations are not regulated by international law
  2. ) insecurity and confusion reign.
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20
Q

How does Cart define International law?

A
  1. ) International law differs from municipal law of modern states
  2. ) Law is underdeveloped and not fully integrated community
  3. ) Lacks three institutions; judicature, executive, and legislature
  4. ) Law regarded as binding =politics = meeting place for ethics and power.
  5. ) Legislation is not moral by itself, law is not more moral than politics
  6. ) law is essential based on politics, legal rules developed in a society. Reflect members who have the most influence.
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21
Q

What is source in international law?

A

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.

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22
Q

What are the sources of international law?

A
  1. ) International convention or another name for treaties. General or particular
  2. ) International customary law, incredibly important general practice accepted as law.
  3. ) general principles of law recognized by civilized nations
  4. ) judicial(domestic, tribunal) decisions and the teachings of the most qualified publicists of the various nationa, as subsidary means from determination of rules of law.
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23
Q

What does Bendetto Comforti argue? What gives any treaty an obligotary character?

A

Argues customary rules properly are placed at the top of the hierarchy of the international law.

The obligatory character of any treaty rests on a customary rule which is pacta sunt servanda = agreements must be kept.

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24
Q

When can we say/allow that a rule of customary international law has emerged?

A

It is a two-step process. The emergence of a rule of customary international law.

1.) There must be uniform, consistent, and long-standing state pratice, first in the objective element of customary rule of IL (international law)

What does state practice mean?

  1. ) Acts taken by states in their diplomatic relations with one another.
  2. ) acts taken internally (that is doomestically) by states through their legisltaures or courts
  3. ) acts take by states before international organizations
  4. ) and even inaction by states when they are confronted with a particular mean

The objective element is necessary, but Does not mean that a customary rule of international law has emerge.

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25
Q

What is the subjective element of customary rule of IL?

A

Opinio Juris sive necessitais ( an opinion of law or necessity) state recgonized legally binding and not just diplomatic customary. The state recognizing and delcaring that this law uniform state practice is legally binding.

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26
Q

What is ancient usage?

A

Long standing pratice beginning century ago gradually ripening(mature)

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27
Q

Why do states obey IL?

A

The international law of power.

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28
Q

Are states bound in IL if legal binding?

A

No, For as long as the state does not give its opinion juris it’s not bound. The state not bound by that rule.

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29
Q

Can a state object?

A
  1. ) Yes, the state must consistently unequivocally object. A state may be an objector, and not grant it’s consent. But state must repeat it’s objection as its required.
  2. ) objection has to be expressed.
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30
Q

When does POR(period of review?)applied?

A
  1. ) only when the customary rules in the process of emerging,
  2. ) and does not benefit States which came into excistence only after rule matured.
  3. ) or which became involved in the activity in question only at a later stage
  4. ) still less can it be invoked by those who existed at the time, but failed to object at that stage
  5. ) in other words, there is no subsequent objector rule

We have persistent objector rule.

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31
Q

How are international treaties like?

A

International treaties are very much like contracts in domestic law.

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32
Q

What is a person and how to enter into a legal relationship? What does every single contract do?

A
  1. ) Two persons wish to enter into a legal relationship typically conclude a contract.
  2. ) provides in writing the rights and obligations of the two parties. Create recipriocal rights and obligations.
  3. ) legal personality. Only entities with legal standing have the ability to negotiate and conclude a legal contract.
  4. ) contract can be concluded on a number of substantive issues.
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33
Q

What is included in the contract does not entire legal relationship?

A

There has to be background procedural and substantive rules.

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34
Q

What is the vienna convention law of treaties?

A

Treaties and agreement between states.

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35
Q

What is state1 opens a consulate in state2, and has property according to IL state law agreement, is it a treaty?

A

Not a treaty, but governed by international law.

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36
Q

Definition of the Vienna Convention Law of treaties? Six

A
  1. ) international agreement
  2. ) concluded between states
  3. ) written form
  4. ) governed by international law
  5. ) whether embodied in a single instrument or in two or more related instruments
  6. ) whatever its particular designation
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37
Q

What does pacta sunt servanda mean?

A

Agreements must be kept

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38
Q

What is colorable?

A

Its valid.

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39
Q

What is plenipotentiary?

A

Power given to authorize and negotiate on behalf of the state. Under IL every head of state and minister.

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40
Q

Lawmaking treaties v. Contractual treaties?

A

Lawmaking: creates new rules under IL, novel lawmaking provisions. Example UN law of the Sea Treaty governing jurisdiction over oceans.

Contractual: establishes rights and obligations that are already available under international law.
Sets forth terms of contract, and does not create novel provisisons that modify existing state practice.

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41
Q

What is bilateral v. multilateral?

A

Bilateral = mutual rights and obligations between two states as opposed to more than two state

Multilateral = states entering into this type of treaty do not intend to establish rules that contibute to the progressive development of IL.

42
Q

What was the prevealing distance of oceans before United Nations Convention on the Law of the Sea (UNCLOS)?

A

From 3 nortrinal miles to 12 nortrinal miles.

43
Q

Difference between declaration of intent v. Self-executing treaty?

A

Declaration of intent: general statement of principles. Follow up on any individual action before any parties incur legal as opposed to moral obligations under treaty.

Definition of self-executing treaty: expressly impose immediate obligation. Requires no further action to inpose binding obligations on its signatories. No need for additional executive or legislative action by state parties to create binding legal obligations.

44
Q

When does Customary rules emerge?

A

When there is longstanding practice.

45
Q

What are the 4 content of sources?

A
  1. ) international conventions whether general or particular. Establish rules expressely recognized by the contesting states. Treaties
  2. ) international custom as general practice accepted as law
  3. ) general principles of law recognized by civilized nations
  4. ) judicial decisions and the teachings of most highly qualified publicists.
46
Q

Are customary rules first or second in terms of international law?

A
  1. ) customary rules are properly place at the top of the hierarchy of the international law
  2. ) treaties are second in ranking
47
Q

What is opinio juris?

A

Its the distinguishing customary international law from everyday custom of states followed out of courtesy or habit.

48
Q

What is the persistent objector rule?

A

Means that if a state refuses to consent to the new norm of customary international law, then the state will not be bound by it.

Must be repeated everytime it comes up the rule. Otherwise it will not be persistent.

49
Q

What is the self-executing treaty?

A
  1. ) expressely imposes immediate obligation
  2. ) requires no further action to impose binding obligations on its signatories
  3. ) no need for additional executive or legislative action.

Becomes immediate to binding upon signature.

50
Q

What is declaration of intent? Treaty

A

requires follow-up individual state action before any of the parties incur actual legal as opposed to moral obligations under a treaty.

51
Q

What is the first function of international law?

A
  1. ) the first function of international law has been to identify supreme normative principle of the political organization of mankind the idea of a society of sovereign states.
  2. ) Second function of international law has been to state the basic rules if coexistence among states and other actors in international society.
52
Q

Why is International law primitive?

A

Because it is almost completely decentralized

53
Q

How to become a aplenipontarie?

A

Receive delegate authority

54
Q

What is GATT?

A

General Agreement on Tariffs and Trade.

55
Q

Why does a treaty go through ratification? Hint three reasons

A
  1. ) A treaty is complicated, need to be scrupulously examine
  2. ) democratic states must consult public opinion
  3. ) states need time to effect changes in domestic law necessary for implementation of the treaty.
56
Q

What is accession refer to a treaty?

A

The act to which a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.

57
Q

What does a signature commits us to?

A

Commits us to interval between signature and ratification. Commitement by the state to pursue whatever measures are necessary to ratify the treaty.

58
Q

What does a treaty indicate?

A

Depends on the treaty whether intent or self-executing treaty. Most demoratic states have constitutional time to effect. Noncompliance cannot be excused.

59
Q

What is the river example in terms of a treaty?

A

Means that a state must not in any way to enrage the other state for example cutting water. Supply also known as interm period.

60
Q

What are the steps of treaty formation? Hint 4

A
  1. ) Negotiations
  2. ) Signature
  3. ) Ratification
  4. ) Entry into force
61
Q

What does entry into force assure?

A
  1. ) agreed upon minimum number of States. Ultimately ratify the treaty.
  2. ) enabling the characterization of the treaty as representing content of International Law.
62
Q

What is Reservation?

A

A reservation is a unilateral variation. Submitted at the time of acceptance of the treaty. Exclude or modify the legal effect of certain porvisions as applied to that State.

State nornally agrees with the text generally. But does not wish to become a party to the treaty on all terms.

63
Q

If a state a the time of signature did not file a reservation? Can it still ratify a treaty?

A

Yes. If they don’t ratify has to be time of acceptance. Signature could indicate.

64
Q

Is it always the case that a state has the right to submit a reservation? Hint 3

A

No. Reservations are permitted unless:

  1. ) the treaty prohibits reservation
  2. ) the treaty permits reservation but prohibits the reservation in question
  3. ) reservation is incompatible with the purpose of the treaty.
65
Q

What is article 102?

A

The article is a UN charter. In which the parties may not invoke that treaty agreement before any organ of the United Nations. This does not void the treaty.

However the parties may not invoke a non-resister treaty in front of the UN.

66
Q

What are international crimes in jus cogens?

A
  1. ) agression
  2. ) genocide
  3. ) crimes against humanity
  4. ) war crimes
  5. ) piracy
  6. ) slavery and slave-related practices and
  7. ) torture
67
Q

What is lex specialis derogat legi geneali?

A

1.) the specific rule should prevail over the general rule.

68
Q

What is a contrario?

A

If a particular right or obligations exists only in one part of a treaty. Then by a contrario principle. The right or obligation does not exist where it is not mentioned.

69
Q

What is lex posterior derogat legi priori?

A

If there are two possible rules that would apply to the same issue. The later time should prevail.

70
Q

What is examine of preparatory of work?

A 
Legislative history(travaux preparatories)
Generally understood to include successive drafts of a treaty and other records from negotiations.
71
Q

What should account also be taken if?

A

Subsequent agreements reached by the parties of interpretation.

Any subsequent practice of the parties regarding its interpretation

Relevant rules of international law.

72
Q

When can a state exit a treaty?

A
  1. ) when there is a material breach of noncompliance
  2. ) the state cannot executive it’s provisions
  3. ) rebus sic stantibus: fundamental change in circumstances has occurred
73
Q

What is considered the fish example of a river between two states, and the fish move to A instead of B?

A

1.) Rebus sic stantibus

This is because the essential condition for the treaty is no longer anymore. Fish move.

74
Q

When is a crime Jus Cogens? Hint 2

A
  1. ) When it threatens the peace and security of mankind

2. ) they shock the conscience of humanity.

75
Q

Can two states signed a treaty for torture?

A

No. Goes against CAT

76
Q

Can anybody be prosecuted for Jus Cogens crimes? Hint 6

A

Yes, no matter the following

  1. ) Universal jurisdiction
  2. ) Prosecute and extradite
  3. ) no state limitations
  4. ) does not matter by where
  5. ) by whom
  6. ) category of victim.
77
Q

Characteristics of a state?

A
  1. ) population
  2. ) territory
  3. ) government
  4. ) ability to enter into international relations.
78
Q

When can we say the necessary condition is for what state practice?

A

When it’s long-standing uniform. But alone not sufficient however a necessary component.

79
Q

Does Bull definition of international law only include states?

A

No but other agents in international politics.

80
Q

What does Hart argue distinguishes a legal system?

A

The union of primary and secondary rules.

81
Q

What are examples of primary rules?

A
  1. ) restricting violence
  2. ) requiring to keep promises
  3. ) protecting property
82
Q

What are example of secondary rules?

A

Legislative, executive, and judicial powers

83
Q

What is international law sequence?

A

Law=primary rules=requiring states and other actors to refrain from doing certain things

84
Q

What are the 3 functions of International law?

A
  1. ) supreme normative principle of the political organization of mankind, the idea of a society of sovereign states
  2. ) state the basic rules of coexistence among states and other actors in international society.
  3. ) third function of international law is to help mobilize compliance
85
Q

Is international law primitive?

A

Yes, because it’s completely decentralized.

86
Q

According to E.H. Carr what three institutions does international law lack?

A
  1. ) judicature
  2. ) executive
  3. ) legislature
87
Q

What does Rudolf Bernhardt argue?

A

Says treaties superseded customary law.

88
Q

What is opinion juris et necessitais?

A

International consensus, about and recognition of, the particular custom as binding.

89
Q

What constitutes as state practice?

A
  1. ) acts taken by states in their diplomatic relations with one another
  2. ) acts taken internally by states legislatures or courts
  3. ) acts taken by states before international organizations
  4. ) even inaction when they are confronted
90
Q

What is the principal idea of opinio juris?

A

Distinguishes customary and international law, from everyday customs of states followed out of courtesy, or habit.

91
Q

What is the persistent objector rule?

A
  1. ) even if both requirements are met to establish international law. States not bound to it
  2. ) state can refused consent to new norm in customary international law. State not be bound by it
  3. ) even if most states agree objectors will not be bound by it
  4. ) objections by states must be expressed not entertained purely privately. But be repeated as often as circumstance require
  5. ) Verbal protests are sufficient there is no rule have to take physical action
92
Q

What are the assumptions of a persistent and objector rule in international law?

A
  1. ) applies only when customary rule is in the process of emerging
  2. ) does not benefit States which came into existence only after the rule matured
  3. ) which became involved in the activity in question only at a later stage
  4. ) less can it be invoked by those who existed at the time. But failed to object at that stage.
  5. ) so subsequent objector rule. Rule exists and is available to only those who object before rule has fully emerged.
93
Q

What does every contact create? Hint 2

A

Rights and obligations

94
Q

If Masadonian opens an office in Chicago is it subject to international law?

A

Depends if the office was made with US or domestic law of Illinois.

95
Q

What does Travaux Preparatories mean?

A

General term referring to the published record of diplomatic proceedings leading up to the adoption of a treaty text

96
Q

What are the steps to create a treaty?

A
  1. ) Negotiations
  2. ) Signature
  3. ) Ratification
  4. ) Reservation
97
Q

How can a state withdraw from a treaty? Hint 2

A
  1. ) material breach. Especially by material breach

2. ) inability to execute provisions: impossibility of performance arises.

98
Q

What are additional things to consider if a crime reach jus Cogens status? Hint 3

A
  1. ) the historical legal evolution of the crime
  2. ) number of states that have incorporated the given proscription of their IL laws
  3. ) number of international and national prosecutions of the crime
99
Q

What is obligation Erga onmes?

A

Legal implications arising out of the jus Cogens crime. Obligations of states to international community

100
Q

What are the non-applicability statues of limitations for such crimes if Jus Cogens and universal jurisdiction? Hint 4

A
  1. ) does matter where they are committed
  2. ) by whom (including heads of state)
  3. ) against what category of victims
  4. ) and irrespective of the context of occurrence( peace or war)

Ps 230 And Ps 388 (22 decks)

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