Quiz 1

Question 1

In international relations, the term anarchy refers to:

Answer 1

the fact that there is no world government

Question 2

What differenciates the international legal system form the municipal legal system according to legal positivism?

Answer 2

According to legal positivism, the international legal system (as opposed to municipal legal systems) is a consent-based system of law.

Question 3

What does natural law tradition say about states and IL?

Answer 3

In the natural law tradition, States should not make international law but find out what the law (which is externally given to them) is and apply it.

Question 4

What are the key characteristics of international law, its primary actors, and the sources of its legal framework?
(international legal system)

Answer 4

By far, most of the creators, enforcers and violators of international law are sovereign States.

It is horizontal because there is no centralized mechanism of legislation or enforcement.

All makers of international law have international legal personality.

The main sources of international law are made explicit in the Statute of the International Court of Justice.

Question 5

What is a subject in IL and how do they acquire intl legal personality?

Answer 5

The subjects of international law are the actors with legal personality in that system of law.

Individuals acquired international legal personality through international human rights law and international criminal law.

Question 6

True or false: A State is a State as a matter of fact, not as a matter of law. Statehood, however, has legal implications (in terms of rights, obligations, memberships, etc.).

Answer 6

True

Question 7

What is the difference between declaratory and constitute theory of recognition?

Answer 7

According to the constitutve theory of recognition, a putative State does not exist as such until it is recognized by the international community; consequently, the international community determines who is and who is not a State.

According to the declaratory theory, recognition presupposes the existence of a State, it does not create statehood.

In any case, recognition is a political act with legal consequences.

Question 8

What are the basic duties and rights inherent in the legal personality of every state?

Answer 8

An obligation to respect international law.

A right to attack other states in self-defense.

A right to maintain its teritorial integrity.

An obligation not to hold other states’ officials personally accountable for “normal” acts of state.

An obligation not to interfere in the internal affairs of other states.

Question 9

What does the constitutive theory of recognition say about Palestine?

Answer 9

From the perspective of the constitutive theory of recognition, it could be said that in December 2012 Palestine became a State with the adotopn of Res. 67/19 by the UNGA in December 2012, and Palestine acceded to the Rome Statute of the International Criminal Court.

Question 10

What is one consequence of UNGA Res 67/19 of Dec 2012 reg intergovenrmnetal organisations?

Answer 10

As a consequence of the UNGA Res. 67/19 of December 2012, it will be harder for intergovernmental organizations to deny Palestine access to them.

Question 11

What did the 1990 Rainbow Warrior case establish?

Answer 11

A breach of international law can be justified on grounds of distress only under life-threatening circumstances.

A justification of a breach of international law on grounds of force majeure must show that it was impossible to comply with the violated international obligation.

Question 12

Is consent needed for customary intl law?

Answer 12

Customary international law need not be codified nor explicitly consented to, and thus tends to be less precise than other sources of international law. While typically implicit, consent is still required for a international custom to emerge.

Question 13

What did the 1969 Continental shelf case establish?

Answer 13

that provisions in treaties can sometimes generate new norms as customary law that are, therefore, binding for all states, signatories or not.

that the equidistance principle established by Article 6 of the 1958 Geneva Convention on the Continental Shelf is not a rule of customary international law because any State can make reservations to said article.

Question 14

The 1900 Paquete Habana and Lola cases established that:

Answer 14

a practice of “civilized” nations observed in the last one hundred years must be regarded, prima facie, as a rule of international law.

U.S. courts should look for evidence of customary international law in the works of renowned jurists and commentators.

U.S. courts must turn to international customary law where there is no treaty, domestic legislation or judicial decision sufficient to solve a legal case.

Question 15

Jus cogens constitutes a special category of international norms for the following reasons

Answer 15

They are legally binding for all States, independently of States’ consent or objection to them.

Question 16

Explain the relationship between customary and treaty law, and which one prevails when.

Answer 16

In practice, the two primary sources of international law are treaties and international customs.

There is no formal hierarchy between customary law and treaty law.

When customary law and treaty law conflict, and neither the “time-rule” nor the “lex specialis” principle shed any light, treaties are often regarded as more authoritative due to their greater precision and explicit consent

When two rules of international law conflict, and the “time-rule” sheds no light, the more specific rule trumps the more general one.

Question 17

Explain what reservations are and how they work

Answer 17

Reservations allow a State to “customize” or qualify the contents of a treaty it is consenting to.

Signing a treaty implies that the State is giving its preliminary consent to the treaty provisions.

In 1951, the ICJ established the invalidation of reservations that vitiate the fundamental purpose of a treaty.

Reservations make more sense in multilateral than in bilateral treaties.

Question 18

What is a material breach?

Answer 18

An impermissible repudiation of a treaty or a violation of a provision essential to the treaty’s object or purpose. The injured party of a bilateral treaty may invoke a material breach as a ground for terminating or suspending the treaty.

Question 19

What is Rebus sic stantibus, and cite a case where is was argued/

Answer 19

According to the principle of rebus sic stantibus, a fundamental change in the conditions on which the consent to a treaty was originally founded may justify the suspension or termination of the treaty.

In the 1973 Fisheries jurisdiction case, Iceland used rebus sic stantibus to justify its unilateral termination of an international agreement; the ICJ, however, did not find Iceland’s argument valid

Question 20

Explain the 1997 Gabcikovo-Nagymaros project case

Answer 20

The ICJ rejected that the treaty could be terminated due to rebus sic stantibus, because the circumstances invoked by Hungary were not essentially linked to Hungary’s original consent to the treaty.

The ICJ established that a “state of necessity” may be invoked to exonerate from its responsibility a State which has failed to implement a treaty, but can be no ground for the termination of treaty obligations.

Hungary argued that the treaty was terminated as a result of the disappearance of one of the parties to the treaty in 1993; the ICJ, however, established that treaties of a territorial character, like the one in question, are usually unaffected by the succession of States.

Question 21

What are subsidiary sources of IL?

Answer 21

Subsidiary sources of international law are sources of a second order in the sense that they are typically applied when there are gaps or ambiguities left by customary and treaty law.

Question 22

what does the principle of equity in subsidiary sources of IL mean?

Answer 22

The principle of equity, which is derived from natural law philosophy, calls for a fair settlement and seeks to ensure that the strict application of a technicality does not justify injustice in the implementation of a treaty.

Question 23

What does article 38 of the ICJ statute allow?

Answer 23

Article 38 of the Statute of the ICJ allows the court to decide a case ex aequo et bono if the parties agree thereto.

Question 24

What is the role of the International Law Commission and the Legal Committee of the UN General Assembly in the development and codification of international law?

Answer 24

Drafts prepared by the International Law Commission, such as that of the UN Convention on the Law of the Sea, do not become law until States sign and ratify them.

The International Law Commission is engaged in both the codification of existing international customs and the progressive development of international law.

One of the main functions of the Legal Committee of the UN General Assembly and the International Law Commission is to prepare proposals for international law.

Question 25

What does arbitration mean?

Answer 25

Arbitration implies the solution of disputes by an ad hoc judicial authority.

Question 26

what was the League of nations equivalent to the ICJ?

Answer 26

The Permanent Court of International Justice was to the League of Nations what the International Court of Justice is to the United Nations.

Question 27

Which of the following conditions must be met for the ICJ to be able to hear a contentious case?

Answer 27

The dispute is between States

The dispute is of a legal nature.

The States in the dispute have consented to the Court’s jurisdiction over the case.

Question 28

Whate are some limits of the ICJ jurisdiction?

Answer 28

A State’s ratification of the ICJ Statute does not imply that the State grants the Court juridsiction over its actions.

By accepting the “optional clause” of article 36 of the ICJ Statute, a State is granting the Court unconditional jurisdiction over all its future international disputes with other parties to the ICJ Statute. However, The optional clause requires reciprocity, so it only covers disputes with other states that have also accepted the optional clause in the Statute.

Question 29

What was the basis of jurisdiction of the ICJ in the East Timor case of 1995?

Answer 29

The basis of jurisdiction was the “optional clause” adhered to by both Portugal and Australia. However, the Court determined that it lacked jurisdiction over this case because the analysis of the legal dispute would inevitably involve passing judgment over Indonesia’s behaviour, whose consent of jurisdiction was lacking.

Question 30

What is the International Criminal Court (ICC)?

Answer 30

a court established to try individuals accused of committing certain international crimes.

Question 31

What happened in the 2011 ICJ case on the Application of the CERD?

Answer 31

Georgia filed the case in the ICJ in the context of an armed conflict with Russia and alleging that Russia had violated the CERD in the territory of Abkhazia and South Ossetia.

The only basis of ICJ jurisdiction invoked by Georgia was Article 22 of the CERD.

The Court upheld Russia’s preliminary objection that the preconditions required by Article 22 of the CERD (to have recourse to the Court) had not been fulfilled; it therefore concluded that it lacked jurisdiction to assess the merits of the case.

Question 32

Explain the relationship between domestic and international law in Canada and the US

Answer 32

Canada:
- In Canada, the capacity to bind the State internationally through the conclusion of a treaty is a prerogative of the executive branch of the federal government.

• In Canada, treaties, unlike international customs, require implementing legislation to become a part of domestic law.
• the treaty’s legal footing is that of the domestic legislation that incorporates it (which is usually, but not necessarily, a federal law).

US:
- In the United States, with the exception of non-self-executing treaties, international law is directly incorporated - i.e. it becomes part of U.S. law without the requirement of passing domestic legislation to that effect.

• If a treaty ratified by the United States in 2001 is inconsistent with U.S. federal legislation passed in 1984, the time rule implies that, to the extent they contradict each other, the treaty, and not the federal legislation, will be enforced in the United States.
• The excutive branch of the federal government must give its approval for a treaty to be effectively ratified.

Both:
- In both the Canadian and the American legal systems, constitutional norms are superior to international law.