Textbook on international law

by (6. ed.)
ISBN-10 0199208182 ISBN-13 9780199208180
187 Flashcards & Notes
9 Students

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Samenvatting - Textbook on international law

  • 1 The nature of international law and the international system

  • What is meant by positivism and naturalism and to what extent have these philosophies influenced the development and contents of international law? 

    Positivism is law made by men, the main thing is the procedures. The procedures have to be followed and then there are rules. It’s mainly done by states ( treaties ). 

    Naturalism is custom (habit) everybody does it so it’s normal. Naturalism is the opposite of positivism. It’s not about the procedures but about what’s fair and normal ( human rights ). It’s about persons / individuals.

  • What is there to question when looking at international law?
    • the existence of any set of rules governing interstate relations
    • its entitlement to be called 'law'
    • its effectiveness in controlling states and other international actors in 'real life' situations
  • Hugo de Groot : By just thinking logically, we know we have to treat each other nice and fair. This idea came back after WOII. Everything was destroyed, people were afraid and focused on human rights so it wouldn’t happen again.


  • Name one of the primary purposes of international law.
    The maintenance of an ordered community where the weak are protected from arbitrary action by the strong.
  • Humanitarian law : just law used in times of war.

  • What is the main responsibility of the International Criminal Court?
    Prosecuting individuals for violation of fundamental international human rights.
  • To what extent does the nature of international law differs from national law? 

    National law

    International law

     

    Individuals / persons

     States

    Authority / superior ( government )

    Equal, Agreements

    Government enforcement ( deurwaarder )

    Overleg, international court

     

    No international police

  • What is national law primarily concerned with?
    The legal rights and duties of legal persons within a body politic - the state or simular entity.
  • What are the strengths and weaknesses of international law system?

    Strengths of International law:

    -          It cares for a stable and orderly society

    -          It’s flexible

    -          Easier for states to interact

    -          Enhances international relations

     

    Weakness of International law:

    -          Lack of formal enforcement, no actions

    -          Flexibility brings uncertainty

    -          Treaties are slow and difficult to adapt

    -          General and not specific, treaties are open and vague

    -          Very much linked to politics ( also a strength ) 

  • Where is national 'law' commonly derived from?
    A legal superior, recognised as competent by the society to whom the law is addressed (e.g. in a constitution), and having both the authority and practical competence to make and enforce that law.
  • How did international law develop and what is meant by horizontal and vertical expansion?

    Development: 400 years ago trade law and sea law was very important. After WOII human rights came up. In the last decades it’s impossible for states to isolate. They are forced to give up a part of their sovereignty. 

  • What is international law primarily concerned with?
    The rights and duties of states themselves.
  • Horizontal expansion : Every state is at an equal level. We started with a few states, more and more states are doing treaties ( UN 51 à 193 ).

    Vertical expansion : More subjects than just states have to listen to international law. First there were just states, now also organizations, companies and individuals have to listen to it. 

  • An international legal system must facilitate the interaction of the legally equal states rather than control or compel them in imitation of the control and compulsion that national law exerts over its subjects.
  • Monism : When a state sees international law as a part of the national law system ( naturism ). You can put it with positivism as well ( Kelson ) ; all law origins from 1 big rule, one system.

    Dualism : A state first have to translate and transform international law before it’s a part of national law. International law is not automatically seen as a part of national law ( positivism ).

  •  International law only bounds if you agree to.

    Super national law: New rules in the EU union, organization will make the rules. States give away their sovereignty in this fields to the organization. 

  • 1.1 The role of international law

  • What kind of system does international law comprise?
    A system of rules and principles that govern the international relations between sovereign states and other institutional subjects of international law such as the United Nations and the African Union.
  • what does international law comprises (omvatten)?

    A  system of rules and principles that govern (regeert) the international relations between sovereign states and other institutional subject of international law (e.g. UN).


  • International law is a primary tool for...
    ... the conduct of international trade.
  • What is the (most cogent (meest overtuigend)) argument for the existence of international law?

    Member of the international community recognise that there exists a body of rules binding upon them.

  • It was seen as 'unlawfull' that Iraq invaded Kuwait, it wasn't seen merely as unacceptable or immoral.

  • What is there to question about international law? (3)

    • the existence of any set of rules governing inter-state relations
    • its entitlement to be called law
    • its effectiveness in controlling states and other international actors
  • States are subjects of international law.

  • How do we know states know there's international law?

    - States are dealing with international law on a daily bases. Questioning the impact on national law;

    - States do not claim they're above the law; they know when they are wrong. E.g. When Iraq invaded Kuwait, they knew the law also applied to them.

    - the most convincing evidence of the existence of international law is that states obey the mojarity of international rules.

  • What is a frequent argument used agianst international law?

    It is not generally enforcable.

  • Why might even suggest that when the UN acts, it's more to restore or keep the peace than of enforcing the law.

  • Forceful sanctions can be taken by the UN. The SC may take enforcement action. It's done by a SC resolution.

  • where are the powers of the sc designed for?

    primarily to preserve the peace rather than to enforce law.

  • Another method of enforcing law is the loss of corresponding legal rights and privileges. They can be economic, or breaking diplomatic relations, freezing assets.

  • Enforcing law:

    - SC;

    - Loss of privileges etc.

    - Judicial enforcement.

  • A state can not be compelled (gedwongen) to use the ICJ (international court of justice) for the resolution of a legal dispute. If a matter is refered to it, it's award is binding and must be carried out.

  • Why is international law needed?

    It's needed in order to ensure a stable and orderly international society.

  • Development of international law can be achieved only by states themselves.

  • positivic law; meansno international law can be created without the consent (toestemming/ goedkeuring) of the state wich is to be bound.

  • natural law is the opposite of positivic law. It's founded on the nature of man as a reasonable being. Rules of law are derived from the dictates of nature as a matter of human reason.

  • Natural law finds little support in international law.

  • jus cogens = dwingend recht

  • Natural law does not explain why international law is binding.

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Example questions in this summary

What is meant by positivism and naturalism and to what extent have these philosophies influenced the development and contents of international law? 
2
To what extent does the nature of international law differs from national law? 
2
What are the strengths and weaknesses of international law system?
2
How did international law develop and what is meant by horizontal and vertical expansion?
2
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