Quiz 1 - Int. Law

Sovereignty

no higher authority than the state

International Law

is the set of rules that states consider binding in their mutual relations. It aims to provide order, accountability, security, and predictability to international relations.

Treaties

Formal agreements between states that create binding obligations

Customary International Law

Practices that become binding over time and are considered legal obligations, not always requiring explicit consent

International Organizations

These bodies also create rules and norms that apply to member states

Monism

international law and national law form a single legal system

Dualism

international law and national legal systems are distinct, international law has limited power within a state's borders unless incorporated into its legal system

International law initially defined

the body of rules and principles of action that states consider binding in their mutual relations.

Original scope of international law

was limited to governing relations between independent states. It was concerned with how states interacted with one another. This included their conduct, agreements, and the establishment of norms that would regulate their behavior.

international law

has evolved from its original focus on the relations between states to encompass a broader range of actors, including international organizations, multinational corporations, and individuals.

Public International Law

governs the relationships between states and international organizations, as well as some of their relationships with persons. It is usually expressed in treaties or customs.

Private International Law

deals with the activities of individuals, corporations, and other private entities when they cross national borders.

Agreements

PIL involves agreements between states, while private international law does not.

Consent

In PIL, states can be held liable and this is needed through treaties, customs, and international organizations. In private international law, consent is not needed.

Scope

PIL has a broader scope, including the conduct of states and international organizations. Private international law deals with activities of private entities that cross borders.

Enforcement

PIL has an enforcement system that includes domestic enforcement systems, sanctions, and monetary remedies.

Opinio Juris

This refers to the belief that a state practice is legally binding. It's the idea that a state acts a certain way because it feels legally obligated to do so.

Consent

States are generally bound by the norms of IL through their express or implicit consent.

Horizontal Approach

This is the traditional approach where sovereign states interact as equals. It emphasizes consent, as no state can impose its will on another. Trade is often addressed in this way, where states agree on rules that apply to all.

Vertical Approach

This approach relates to individuals and human rights. States create human rights treaties, but individuals do not participate in the process of treaty creation. Therefore, consent from the individuals is not required.

Domestic System

Enforcement mechanisms are generally stronger, with a clear hierarchy of authority and means of compelling compliance.

International System

Enforcement is complex and relatively weak. It relies on domestic enforcement systems, sanctions, monetary remedies, international law is enforced through "outsourcing" and "outcasting"

Outsourcing

when international organizations give work to countries in order to maintain the international system

Outcasting

occurs when countries have been disobedient and lose certain benefits

Francisco de Vitoria

Argued that the Spanish did not have a right to the places and people they found in the Americas, since they were not conquered, and only conquest gives rights. He advocated for a single law to apply to both the Spanish and the native people.

Hugo Grotius

Shifted the basis of law from religion to natural law and reason14. He believed that principles for treaty-making could be derived from reason, and natural law is binding on all regardless of religion.

Emer de Vattel

Rationalized colonization by arguing that communities that did not engage in agriculture did not have ownership over the land.

Monism

International law and national law form a unified legal system. International law is directly integrated into the laws of each state.

Dualism

International law and national law are distinct legal orders. International law requires incorporation into domestic law to have effect.

Material Source of Law

This refers to where you would find a particular legal text, such as a treaty or code. The sources indicate that this is not a main focus.

Formal Source of Law

This refers to the processes by which legal rules come into existence in the international system. It's about how the rules are created.

Primary Sources

According to the sources, the main places to look for international law are treaties, customs, and general principles of law. These are the primary ways to adjudicate an international dispute.

Subsidiary Sources

Judicial decisions and scholarly writings are considered subsidiary sources.

Express hierarchy

1. Treaties 2. Customary international law (CIL) 3. General principles of law

Customary law

is an established state practice that is accepted by many countries. It is a primary source for determining the content of a legal rule. It applies to everyone regardless of whether states consented to it.

Prof. Brownlie's Four Conditions

1. Duration/Time 2. Consistency/Uniformity 3. Generality 4. Opinio Juris

1Duration/Time

The practice must have been in place for a long time.

Consistency/Uniformity

States must have acted consistently over time.

Generality

Enough states must have acted consistently over time. This includes both regional and general custom.

Opinio Juris

This is the belief that states have an obligation to act a certain way, fulfilling a legal obligation. It's a psychological condition where states feel obligated.

Paquete Habana and the Lola

whether fishing vessels could be seized as prizes of war, even though they were not engaged in combat, The owners of the fishing vessels argued that there was a custom exempting peaceful fishing vessels from seizure during war

General principles of law

are identified in many states as a natural law and tenets of legal logic. They can be used as a gap filler when there is no treaty or customary law.

AM&S case

whether attorney-client privilege applied in international law, The principle of attorney-client privilege was invoked, as many states recognized this in their domestic systems

Jus cogens norms

are norms of international law from which no exemption is permitted. They are considered to be of a higher status and rank than ordinary rules. These norms bind every state, regardless of treaties or customs (slavery)