What is International Law? Flashcards
What is international law, and can you have it without a world government?
You can have IL without a world government. IL involves global actors (state and non-state) which make or enforce law. The laws are not always binding since there is no global legislature or global court, but these laws can shape how situations such as arbitration cases are decided and thus are still relevant.
Compare and contrast private and public IL
Public: body of rules and principles which bind states (Westphalian System) and, since 1945, international organizations
Private: Also binds the states and international organizations (in that it defines and governs them), but more than that, private law focuses on individuals, corporations, and private entities. With these various actors, private law can say what can or cannot be done in war, what is the territory of a state, what are human rights, etc. In addition, this type of law provides framework for states, so they know how to interact with each other.
Article 38(1) importance and relevance
Important as it identifies where international law comes from. This can include treaties, customs, general principles of law, judicial decisions, or writings and teachings of legal scholars.
Define bilateral, multilateral, and plurilateral treaties
Bilateral: the most common among the treaties. It occurs between two states or IGO’s.
Multilateral: Occurs between 3 or more states or IGO’s (with the goal of making the treaty universal). These treaties can be regional as well.
Plurilateral: These are limited in purpose, geography, or both. The purpose can be economic success, environmental concerns, humanitarian aid, etc.
What does it mean to have international legal personality?
Actors or states have rights and obligations under international law. In addition, they also the capacity to enter into treaties with other states/actors.
Does the UN have legal personality?
Ch-yeah.
What are customs?
Defines what actions a state may take and why they are doing it. Part of customary international law includes the idea that if there’s a consistent pattern of behavior, more and more states will join in the behavior. The practice of customary international law is strengthened by the number of participants and by the amount of time it’s been practiced.
List the general principles of law
Prohibition against ex post facto: law that takes place retroactively
Liability – if you cause harm, you’re liable for damages
Res judicata: once a court has decided a case, you can’t take is elsewhere
Humanitarian: do not harm
Good faith: expected to fulfill responsibilities
Cannot be a judge in your own case
Why are General principles declining?
Because they are already codified in treaties or adjudicated in law.
How does the ICJ 38 affect judicial decisions? What about article 59?
It says judicial decisions are sources of IL. But article 59 says those decisions are only binding to parties involved.
Compare and Contrast Code Law and Common Law. What does US have? What does EU have? How do these effect cases?
Common Law is based in tradition, past practices and legal precedents. It’s interpreted through past decisions of higher courts. It’s guided through practice or judicial interpretation. It includes, “judge made law” (developed through interpretation) or “cases must live” (cases are adversarial). Criminal cases are tried as whoever tells the best story wins. Difficulty here being, the greatest crime is against the innocent, so ten guilty men would go free before one innocent man will suffer. This type of law is a liberal oriented. The US has this.
Code Law is based around an all-inclusive system of written rules or codes. These include commercial, civil or criminal. So, if an act is not written down, it’s legal! There is tradition as well, but that’s inquisitional tradition, not adversarial. For inquisitional, in order to find the truth, lawyers and judges must look to the truth to find out what happened. Difficulty here being, if you are before the law, you must’ve done something wrong, which is not always true. The Majority of the EU has this.
