Global Law and International Legal Order

Comprehensive practice flashcards covering fundamental concepts, subjects, sources, treaties, custom, and structural features of international law based on lecture notes.

What is private international law, and how does it differ from public international law?

Private international law is a branch of domestic law regulating private cross-border relations between individuals or companies (e.g., international contracts, foreign successions, cross-border marriages), whereas public international law regulates relations between sovereign States and other international subjects.

What is international comity, and what occurs if it is breached?

Comity is a non-binding practice of courtesy, tradition, and good neighbourliness between States based on convenience and reciprocity (common in Common Law systems). Breaching comity produces diplomatic or political consequences rather than legal responsibility.

How does international law differ in nature from international relations and politics?

Politics involves choices, strategies, ideologies, and power relations where multiple viewpoints are possible. International law provides an objective, neutral legal framework with rules and obligations that States must respect regardless of political preferences.

How does the structural authority of domestic law compare to international law?

Domestic law is vertical, with centralized governmental organs wielding effective power to make, determine, and enforce laws directly on citizens. International law is horizontal and decentralized, lacking a central authority; power is fragmented among sovereign, equal States.

What is the distinction between States acting 'uti singuli' versus 'uti universi'?

'Uti singuli' refers to States considered individually as sovereign, equal entities bound by legal rules. 'Uti universi' refers to States acting collectively as an international community to create, determine, and enforce rules, ensuring legal stability through checks and balances.

Which historical event marks the birth of modern international law, and why?

The Peace of Westphalia (1648), ending the Thirty Years' War via the Treaties of Münster and Osnabrück. It marked the decline of the Papacy as a supra-state authority, confirmed the disintegration of the Holy Roman Empire, and established a system of independent States recognizing no superior authority.

How did the post-colonial era transform the international community?

Decolonization doubled the number of sovereign States to approximately 200, creating a far more complex and heterogeneous international community with widely divergent needs, priorities, capacities, and legal stances.

What is the 'principle of effectiveness' demonstrating that international law is truly law?

Even the most powerful States acknowledge that international rules exist. In legal disputes, States dispute the interpretation or application of a rule rather than denying the existence of international legal obligations altogether.

What two elements of sovereignty are required for an entity to qualify as a State?

1. Internal sovereignty (effectivity): real, effective governmental control over a population in a defined territory. 2. External sovereignty (independence): an original legal order not derived from or subordinate to another State.

Why is international recognition not considered a legal prerequisite for statehood?

Statehood is grounded in fact (ex facto oritur jus). Recognition is a unilateral, fragmented political act demonstrating a State's willingness to enter diplomatic relations; an entity possessing effectivity and independence is a State regardless of recognition.

What key principle of State responsibility was established in the LaGrand Case (2001, Germany v. USA)?

The ICJ confirmed that international law treats the State as a single indivisible unit: actions of all internal organs (federal, central, or local, such as the state of Arizona) are attributable to the State internationally, making the federal government responsible.

What did the ICJ decide in the Bernadotte Case (Reparation for Injuries, 1949) concerning the legal personality of the UN?

The ICJ held that the United Nations possesses international legal personality with rights and duties of its own, meaning it can bring an international claim against a responsible State to protect its agents, even without an express treaty provision granting this power.

What are the two primary categories of subjects of international law?

1. States: original and basic subjects possessing territory and population. 2. Intergovernmental Organizations (IGOs): functional, derived subjects created by States to pursue specific collective objectives.

Why is the Holy See recognized as a sui generis subject of international law?

It is an original, non-derived subject recognized for its spiritual and diplomatic function rather than territory or population, possessing a unified central authority (the Pope) capable of attending conferences and concluding treaties (concordats).

What is the legal status of individuals in international law?

Individuals are generally considered objects or beneficiaries rather than full subjects, possessing limited locus standi. However, they exceptionally hold direct rights before human rights courts (e.g., ECtHR) and direct obligations under international criminal law (e.g., ICC).

How do Insurgents differ from National Liberation Movements (NLMs)?

Insurgents are rebels controlling territory with an operational structure, focusing primarily on overthrowing a government with limited recognition. NLMs represent an entire people fighting against colonial or foreign occupation for self-determination and enjoy limited international legal personality.

Why are NGOs and Transnational Corporations (TNCs) not subjects of international law?

NGOs and TNCs are created under domestic law and lack international public powers. While they influence public opinion or policy, they cannot create binding international rules or exercise sovereign rights on the international plane.

What are the primary and subsidiary sources of international law under Article 38 of the ICJ Statute?

Primary: (a) International conventions/treaties, (b) International custom as evidence of general practice accepted as law, and (c) General principles of law recognized by civilized nations. Subsidiary: Judicial decisions and teachings of highly qualified publicists.

What two elements must be proven to establish customary international law?

1. State practice (diuturnitas): consistent, general objective behaviour over time by States concerned. 2. Opinio juris sive necessitatis: subjective psychological conviction that the practice is required as a legal obligation.

What is the 'persistent objector' doctrine, and what is its status in international law?

The claim that a State is not bound by an emerging customary rule if it consistently opposed it from the start. It is largely rejected because customary law is universally binding (erga omnes); allowing persistent objection would reduce custom to a tacit treaty.

What is 'instant custom', and what are historical examples of its occurrence?

Customary rules that form rapidly due to intense diuturnitas and widespread, immediate opinio juris among key States. Examples include the emergence of jus cogens norms after WWII and the 200-nautical-mile Exclusive Economic Zone (EEZ) during UNCLOS negotiations.

What is 'jus cogens', and what is the legal effect of a treaty conflicting with it?

Jus cogens comprises peremptory, superior norms protecting universal public values that bind all States (erga omnes) and permit no derogation. Under Articles 53 and 64 of the VCLT, any treaty conflicting with a jus cogens norm is void.

What are three classic examples of 'jus cogens' norms?

1. Prohibition of the use of aggressive force (protecting peace). 2. Prohibition of gross human rights violations like genocide, slavery, and torture (protecting human dignity). 3. Prohibition of impeding external self-determination of peoples.

What does the Latin principle 'pacta sunt servanda' mean in treaty law?

Agreements must be kept. Once a State gives its valid consent to be bound by a treaty, it is legally obligated to perform its treaty commitments in good faith.

What does the rule 'pacta tertiis nec nocent nec prosunt' establish?

Treaties bind only the parties that have consented to them; they do not create legal obligations or rights for third States without their explicit consent.

Under what conditions does the doctrine of 'rebus sic stantibus' apply under Article 62.1 VCLT?

A party may terminate or withdraw from a treaty if an unforeseen, fundamental change of circumstances occurs, provided those circumstances formed an essential basis of consent and the change radically transforms the remaining obligations to be performed.

How does State succession affect territorial treaties compared to political treaties?

Political treaties (alliances, ideological pacts) terminate because they depend on the regime's identity, whereas territorial or localized treaties (demilitarized zones, transit rights, border regimes) attach to the land and remain in force.

What is the difference between concluding a treaty in solemn form versus simplified form?

Solemn form involves a formal process: negotiation, signature (authenticating text), formal ratification by the head of State/parliament, and exchange/deposit of ratification. Simplified form (executive agreements) expresses binding consent upon signature alone.

When can a breach of domestic constitutional rules invalidate a treaty under Article 46 VCLT?

Only when the violation of internal law regarding competence to conclude treaties is manifest (objectively evident to any State acting in good faith) and concerns a rule of internal law of fundamental importance.

What is a treaty reservation, and what is its legal limit under the 1951 Genocide Convention opinion and Article 19 VCLT?

A unilateral statement excluding or modifying the legal effect of certain treaty provisions for that State. It is invalid if prohibited by the treaty, outside permitted reservations, or incompatible with the object and purpose of the treaty.

Who is competent to verify the validity of a treaty reservation?

The depositary lacks competence to verify substantive compatibility; other contracting States individually assess the reservation, objecting if they believe it violates the treaty's object and purpose.

What are three intergovernmental organizations empowered to adopt binding acts, and what are their acts called?

1. UN Security Council (binding Resolutions under Chapter VII). 2. European Union (Regulations, Directives, and Decisions). 3. International Civil Aviation Organization (ICAO Annexes and Procedures for Air Navigation Services).

How do EU Regulations, Directives, and Decisions differ in their legal effect?

Regulations have direct applicability and general application across all member states without domestic transposition. Directives bind member states to achieving specific results while leaving the choice of form and methods to national authorities. Decisions are binding in their entirety upon specific addressees.

What are general principles of law under Article 38(1)(c) of the ICJ Statute, and what are two examples?

Core legal tenets common to major domestic legal systems applied internationally to fill gaps. Examples: nemo iudex in re sua (no one should be a judge in their own cause) and inadimplenti non est adimplendum (a party cannot demand performance if it breaches its own duty).

What is 'soft law', and what constitutes the 'liceity effect' of recommendations?

Soft law consists of formally non-binding instruments (recommendations, declarations of principles). Under the liceity effect, acting in accordance with an IO recommendation creates a presumption of legality, grounded in good faith cooperation and estoppel.

How does the monistic theory of international law differ from the dualistic theory?

Monism posits a single, unified legal system where international law and domestic law are hierarchically integrated (international rules apply automatically). Dualism views international and domestic law as distinct, independent systems requiring national incorporation.

What rule does Article 27 of the Vienna Convention on the Law of Treaties establish regarding internal law?

A State cannot invoke the provisions of its internal or domestic law as justification for its failure to perform an international treaty obligation.