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PIL (Leiden) > Week 1 - History and Nature of PIL > Flashcards

Week 1 - History and Nature of PIL Flashcards

1
Q

What Event is the Start of Modern PIL?

A

Peace of Westphalia (1648)

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2
Q

What terminated in the Peace of Westphalia?

A

The Thirty Years’ War (1618-48); sparked by Protestant Reformation

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3
Q

What were the results (2) of the Peace of Westphalia?

A

1) The pope lost secular power over States’ internal affairs

2) move away from IL rooted in Christianity (Nussbaum)

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4
Q

Problems (2) with ‘Westphalia Thesis’ (as origin of IL)

A

1) Westphalia Thesis focus too much on conceptual basis, rather than function of IL (treaties, jurisdiction, immunities) which goes back millenia (Lowe)
2) Eurocentric

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5
Q

De Vattel (1714-67) proponed what doctrines (2)?

A

1) Equality of states irrespective of relative power (rebuttal of Wolff)
2) Positivism

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6
Q

Wolff (1679-1754) proponed what doctrine?

A

One overarching ‘supreme state’ bringing together all nations in ‘following the leadership of nature’

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7
Q

When was Congress of Vienna established?

A

1815

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8
Q

Significances (3) of Congress of Vienna?

A

1) First time ‘Great Powers’ could intervene for peace
2) States now had responsibilities under IL
3) based on presumption that values needed safeguarding through IL (peace and balance of power)

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9
Q

What is Positivism in IL?

A

only laws consented to by states were valid (only states could create IL)

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10
Q

When and why did positivism dominate IL thinking?

A

1) 19th century

2) Vitoria, Grotius, Vattel and Enlightenment ideas

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11
Q

Consequences (3) of positivist thinking in IL?

A

1) abandonment of natural law based in Christian universalism (less focus on morality and ethics)
2) IL became instrument to achieve political goals (rather than the source of them)
3) increased state cooperation (International Telegraphic Union, Geneva Convention, Hague Peace Conferences)

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12
Q

How did EUR lawyers advance IL (Koskenniemi) in 19th cent (3)?

A

1) depoliticised and professionalised themselves (politically/diplomatically neutral)
2) IR particpation limited to Christian states
3) USA + S.AMER only participate as EUR off-shoot

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13
Q

Positive Role of IL in Colonialism (4)?

A

1) Vitoria: claim to limit SPA colonisation in S.AMER
2) Grotius: some resources cannot be appropriated (sea)
3) 1807: GB abolish slave trade and intervened on foreign ships
4) 1884: Congress of Berlin: standards of treatment of native pops

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14
Q

Negative Role of IL in Colonialism (5)?

A

1) Terra Nullius: non-christian inhabitants did not posses land
2) end 19th: indigenous pops not sovereign but capable of unfavourable trade deals
3) Grotius: freedom of sea facilitated colonisation
4) slave trade explicitly lawful until Brussels Conference 1890
5) 1884 Berlin Conference: facilitate scramble for AFR

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15
Q

What is Charlesworth’s argument?

A

IL’s history should not only be told through crises and conflicts as it justifies status quo

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16
Q

How did WWI shift dominance of International Order?

A

Now USA play larger role (not just EUR)

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17
Q

When was Covenant of LoN signed?

A

1919

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18
Q

Weaknesses of LoN (2)?

A

1) Lack of Support from crucial powers

2) Failed to prevent WWII

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19
Q

From which states did LoN lack support (4)?

A

1) USA (not member to avoid ‘foreign entanglements’)
2) USSR only join 1934 (communism) and expelled 1939 (invade FIN)
3) GER (only admitted 1926 and withdrew 1933)
4) JAP (withdrew to invade MAN)
5) ITA (withdrew to invade ABY)

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20
Q

When was Charter of UN signed

A

1945

21
Q

Permanent Members of UNSC (5)?

A

1) CHI
2) FRA
3) UK
4) USA
5) RUS

22
Q

What are the Three Pillars of the UN?

A

1) Prohibition on Use of Force (Art 2(4))
2) Promotion of International Cooperation
3) Self-determination and Sovereignty of Former colonies

23
Q

How did international order revitalise after fall of USSR (4)?

A

1) UNSC authorised interventions in KUW, SOM, BOS-HER, YUG and HAI
2) ICJ decide more cases 1990’s-2000’s than entire lifespan + PICJ
3) ECHR was created
4) ICC, ICTY, ICTR were created

24
Q

UNC provision recognising sovereign equality

A

Art 2(1) UN Charter

25
Q

2 Dimensions of Sovereignty

A

1) Inwards-facing: exclusive power over subjects in territory
2) outwards-facing: freedom from interference from other states

26
Q

What are the 2 types of state-consent and who describes them?

A

1) Express consent
2) Tacit consent (implied)

Described by Lauterpacht

27
Q

Verdross and Simma’s challenge to consent-based view of IL

A

a ‘shapeless consensus’ binds states. IL goes beyond state consent and includes ‘original norms’ required for law-creation

28
Q

Anne Peters’ challenge to consent-based view of IL

A

IL has undergone ‘humanization’. Thus, turned into sustem focused on interests of individuals

29
Q

Who rejects Anne Peters ‘humanization’ theory

A

Combacau: IL is only the acts of the state without any overarching structure.

30
Q

Example of Natural law notions in IL

A

Marten’s clause in IHL: if no rules governing the situation people must be treated according to public conscience

31
Q

Is IL a legal system according to Austin?

A

No, since there is no sovereign

32
Q

Critical views (5) of IL as Legal System

A

1) No compulsory enforcement (Morgenthau)
2) No courts with compulsory jurisdiction
3) Limited number of rules
4) IR: IL is the result of international politics
5) IL is western/eurocentric

33
Q

Arguments in favour of IL as legal system (5)

A

1) States feel bound by IL
2) IL is not just vocabulary but the grammar of IR
3) International interdependence creates reciprocity (as enforcement mechanism)
4) IL might have gaps but is also highly developed and increasingly fragmentised
5) Courts are not the only enforcement mechanism (monitoring bodies under treaties, and UNSC)

34
Q

What is TWAIL?

A

Third World Approaches to IL.

It focuses on IL’s colonial history and how this has shaped current society

35
Q

What is the Feminist Critique of IL?

A

Focus on how IL is a vehicle for male freedom to the exclusion of female decision-making and involvement

36
Q

What is the Marxist approach to IL?

A

It challenges the capitalist foundations of IL

37
Q

What are the IR perspectives on IL?

A

1) Realism
2) Institutionalism
3) Network Theories of Transnational Communication
4) Constructivism

38
Q

What is Realism and who propones it (1)?

A

1) Sees law as secondary. Focus on states’ struggle for power
2) Guzmán

39
Q

What is Institutionalism and who propones it (1)?

A

1) institutions compel states to respect the law

2) Keohane

40
Q

What is Network Theories of Transnational Communication and who propones it (1)?

A

1) individuals are primary actors in IOs and society

2) Slaughter

41
Q

What is Constructivism and who propones it?

A

1) IL is simply a vocabulary used to justify behaviour

2) Toope

42
Q

What is Dualism and who propones it (1)?

A

1) Focus on sovereignty and distinctiveness of municipal law

2) Triepel

43
Q

What is a problem with dualism (1)?

A

Better fit historically when IL and ML did not overlap. Now (e.g.) HR makes the formalism inconvenient.

44
Q

What is Monism and who propones it?

A

1) coherent and unified relationship between IL and ML

2) Kelsen

45
Q

Who criticises the monism-dualism dichotomy and how?

A

1) Crawford

2) neither accommodates the practice of international and national courts

46
Q

Does monism-dualism tell us anything about IL’s nature?

A

Arguably not since it is more about how the individual state understands it relation to IL

47
Q

Who debates whether a third alternative to dualism-monism exists (2)?

A

1) Kelsen: no middle way is possible

2) Fitzmaurice: IL and ML are distinct systems. Breaches of IL through ML simply creates state liability

48
Q

Which case supports Fitzmaurice’s middle-way theory

A

Nottebohm - ICJ only look at international effect of LIEC’s naturalisation (not domestic validity)

49
Q

What happens when ML breaches IL (and which case informs us)?

A

1) LaGrand

2) ML is not invalidated but state is liable under StateRes

PIL (Leiden) (9 decks)

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