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PIL STUDY GUIDE CARDS Flashcards

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1
Q

🌐 What is international law?

A
  • Rules, principles and norms between States
  • Governs international relations
  • Based on State consent
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2
Q

Classical international law is a _____ -centric system.

A
  • State-centric
  • Focuses on sovereign States
  • States are the main actors
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3
Q

⚖️ What principle is international law founded on?

A
  • Sovereign equality
  • All States are legally equal
  • Reflected in UN Charter Art 2(1)
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4
Q

Who is the classical subject of international law?

A
  • The State
  • Main bearer of rights and duties
  • Central legal actor
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5
Q

Who are traditionally the objects of international law?

A
  • Individuals
  • Corporations
  • NGOs and other non-State actors
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6
Q

📚 What is public international law?

A
  • Law between States
  • Concerns public power
  • Focus of PIL
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7
Q

📄 What is private international law?

A
  • Conflict of laws
  • Private disputes with foreign element
  • Deals with jurisdiction and choice of law
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8
Q

How is contemporary international law changing?

A
  • More influence from non-State actors
  • More role for international organisations
  • More complex global issues
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9
Q

Why does Jessup suggest the idea of transnational law?

A
  • Non-State actors now matter more
  • Classical IL is too State-focused
  • Cross-border issues go beyond States
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10
Q

What external forces help international law evolve?

A
  • Globalisation
  • Scientific change
  • Political change
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11
Q

🏛️ What is the nature of the international legal system?

A
  • Decentralised
  • Horizontal
  • Made up of independent States
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11
Q

How is the international legal system different from national law?

A
  • No global legislature
  • No global police/military
  • No compulsory dispute settlement
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12
Q

Why is the international system sometimes called underdeveloped?

A
  • Weak enforcement
  • No central authority
  • Relies heavily on State cooperation
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13
Q

Why do States comply with international law? Name one reason.

A
  • Self-preservation
  • Reciprocity
  • Necessity
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13
Q

🧠 What does compliance mean in international law?

A
  • Why States obey IL
  • Why they follow obligations
  • Why rules are generally observed
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13
Q

Where did modern international law originate?

A
  • Europe
  • 16th and 17th centuries
  • Originally focused on diplomacy
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14
Q

What does reciprocity mean in compliance?

A
  • Mutual benefits
  • States cooperate in return
  • Encourages long-term compliance
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15
Q

What does the theory of consensualism say?

A
  • Consent is the basis of IL
  • States are bound because they agree
  • Will of States creates law
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15
Q

Treaties bind States because of ______.

A
  • Consent
  • Agreement to be bound
  • VCLT Arts 11–17
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16
Q

What is the persistent objector rule?

A
  • State objects during custom’s development
  • Can avoid being bound
  • Applies to customary law
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17
Q

How is international law often enforced in practice?

A
  • Self-help by States
  • UN sanctions
  • Courts and tribunals
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17
Q

🚨 Why is enforcement seen as a weakness in international law?

A
  • No central authority
  • No universal police force
  • Enforcement is fragmented
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18
Q

What are countermeasures?

A
  • Normally unlawful acts
  • Allowed in response to prior wrong
  • Used to induce compliance
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19
Q

What is retorsion?

A
  • Unfriendly but lawful act
  • Response to another State’s conduct
  • Not itself unlawful
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19
⚖️ What does the rule of law mean internationally?
* Law should govern international affairs * Not pure power politics * Supports peaceful coexistence
19
Why is the rule of law important internationally?
* Promotes peace * Supports cooperation * Limits arbitrary power
19
How can international law affect national legal systems?
* Can influence domestic courts * Can challenge parliamentary supremacy * Can shape national law
20
Why is the relationship between international and national law complex?
* Sovereignty concerns * Domestic politics matter * Interaction keeps evolving
21
📚 What does natural law say about international law?
* Based on reason and morality * Reflects divine or universal truths * Inherently binding
21
📖 What does positivism say about international law?
* Law comes from State will * Focus on consent and sources * Separates law from morality
21
⚖️ What are the sources of international law?
* Treaties * Customary international law * General principles of law
21
📜 Article 38(1) of the ICJ Statute lists the sources of international law. Name two.
* Treaties * Custom * General principles * Judicial decisions & writings
22
⚖️ What role does the International Court of Justice (ICJ) play?
* UN’s main judicial body * Settles disputes between States * Applies international law
22
International law is created primarily through State ______.
* Consent * States agree to rules * Basis of international law
22
📜 What is a treaty under the Vienna Convention on the Law of Treaties (VCLT)?
* Written agreement between States * Governed by international law * Can have many names
23
Treaties may also be called conventions, covenants, protocols or ______.
* Agreements * Accords * Charters
24
🧾 What are the two main types of treaties?
* Bilateral (two States) * Multilateral (many States) * Some aim for universal membership
25
✍️ What happens during treaty negotiation and drafting?
* States negotiate terms * Often long and complex * May involve international organisations
25
📄 What is adoption of treaty text?
* Agreement on final text * Usually unanimous consent * Conferences may use 2/3 majority
26
📅 What is entry into force of a treaty?
* Treaty becomes legally binding * Usually after required ratifications * Rules set in treaty text
26
🖊 What does signature of a treaty indicate?
* State intends to join treaty * Shows political commitment * Not yet legally binding
27
⚖️ Qatar v Bahrain (1994) — key rule?
* Unregistered treaty cannot be used before UN organs * But treaty still valid * Registration affects enforceability
27
📜 What is ratification?
* State confirms treaty commitment * Usually required after signature * Domestic approval process
27
🌐 Why must treaties be registered with the UN?
* Transparency * Public record * Required by UN Charter Art 102
28
What are acceptance and approval in treaty law?
* Alternative forms of consent * Same legal effect as ratification * Often used in domestic law
28
📜 What is accession?
* State joins treaty later * Did not sign originally * Becomes legally bound
29
📌 What is a reservation to a treaty?
* State modifies its obligations * Applies only to reserving State * Made when joining treaty
29
🚫 When are reservations not allowed?
* If treaty prohibits them * If incompatible with object/purpose * VCLT Art 19
29
What can other States do if a reservation is made?
* Accept it * Object to it * Reject treaty relations
30
What is an interpretative declaration?
* Explains treaty meaning * Does not change legal obligations * Different from reservation
31
⚖️ What is the main rule of treaty interpretation?
* Good faith interpretation * Ordinary meaning of words * In light of object and purpose
31
If meaning remains unclear, what may be used?
* Travaux préparatoires * Drafting history * VCLT Art 32
32
Treaties generally create obligations only for ______.
* Parties to the treaty * Third States not bound * VCLT Art 34
33
What happens if a treaty conflicts with jus cogens?
* Treaty becomes void * Norm overrides treaty * VCLT Art 53
33
⚠️ When can treaty consent be invalidated?
* Error * Fraud or corruption * Coercion
33
⚖️ What are the two elements of customary international law?
* State practice * Opinio juris * Both required
33
What are jus cogens norms?
* Peremptory rules * No derogation allowed * e.g. genocide, torture
34
⚖️ North Sea Continental Shelf Cases (1969) — key principle?
* Custom needs practice + opinio juris * Not just repeated behaviour * Must believe rule is legally required
34
⚖️ SS Lotus Case (1927) — key rule about custom?
* Practice alone not enough * Must show legal obligation * Explains opinio juris
34
⚖️ Fisheries Case (UK v Norway 1951) — key rule?
* Persistent objector principle * State can reject emerging custom * If it consistently objected
34
⚖️ What are the three approaches to the relationship between international and national law?
* Dualism * Monism * Harmonisation / contemporary approach
35
📚 What does the dualist approach say?
* International and national law are separate * International law needs transformation * Domestic act required before courts apply it
36
What is the weak dualist view?
* Courts may transform law themselves * No legislation always needed * More flexible than strong dualism
36
What is transformation in dualism?
* Converting international law into domestic law * Usually by legislation * Sometimes by common law development
36
What is the strong dualist view?
* Courts cannot apply IL directly * Parliament must enact it * Legislative step required
36
🌐 What does the monist approach say?
* International and national law form one system * International law is automatically part of domestic law * No transformation needed
37
What is incorporation in monism?
* International law enters domestic law automatically * Courts may apply it directly * No legislative act needed
38
What is the weak monist view?
* IL is incorporated automatically * But only if no conflict with statute * And no conflict with settled common law
38
What is the strong monist view?
* International law overrides old common law * New IL rules supersede old precedents * Domestic law must yield
38
⚖️ What does the harmonisation approach say?
* Each system is supreme in its own sphere * International law forms part of domestic law * Courts ask how far it has been implemented
39
⚖️ Nulyarimma v Thompson (1999) — key issue?
* Whether genocide under custom was a crime in Australia * No legislation had implemented it * Court split on incorporation
39
What is a State’s duty after taking on international obligations?
* Must comply in good faith * Must adapt national law if needed * Cannot rely on domestic law as excuse
39
⚖️ Nulyarimma v Thompson — majority view?
* Genocide not automatically a crime in Australia * Legislation was needed * Custom alone insufficient
40
⚖️ Nulyarimma v Thompson — Merkel J dissent?
* Customary IL forms part of common law * If not inconsistent with statute or authority * Favoured incorporation approach
41
Can a State use its Constitution or domestic law to avoid international responsibility?
* No * Domestic law is not an excuse * IL obligations still bind the State
42
⚖️ Polites v Commonwealth (1945) — key principle?
* Australia can legislate contrary to IL * Law stays valid domestically * But may cause international consequences
43
⚖️ Horta v Commonwealth (1994) — key principle?
* Legislation remains valid domestically * Even if treaty is unlawful internationally * External affairs validity not defeated
44
How can national law influence international law?
* Can be evidence of state practice * Can help establish custom * Can inform general principles
45
⚖️ Barcelona Traction (1970) — why important here?
* ICJ used domestic company law ideas * Recognised separate corporate personality * National law helped shape IL principle
46
How can international law influence national law?
* Through constitutional interpretation * Through legislation implementing treaties * Through development of common law
46
🇺🇸 What does the US Constitution say about treaties?
* Treaties are supreme law of the land * Judges are bound by them * Art VI para 2
46
⚖️ Foster v Neilson (1829) — key treaty rule in the US?
* Only self-executing treaties apply directly * Some treaties need legislation * Depends on treaty intention
46
What is a self-executing treaty?
* Operates without legislation * Directly enforceable in courts * Binding as domestic law
47
⚖️ Medellin v Texas (2008) — key principle?
* Vienna Convention not self-executing * State courts not bound without legislation * Congress needed to implement it
48
🇦🇺 Does signing or ratifying a treaty automatically make it domestic law in Australia?
* No * Legislation is needed * Australia follows dualism for treaties
49
⚖️ Teoh (1995) — key rule on unincorporated treaties?
* No direct source of rights * But can create legitimate expectation * Relevant in admin law
49
⚖️ Ex parte Lam (2003) — significance?
* Criticised legitimate expectation doctrine * Limited Teoh’s reach * Shows later judicial caution
50
How can unincorporated treaties still matter in Australia?
* Aid statutory interpretation * Influence common law development * Affect administrative fairness
50
⚖️ Teoh — what was the legitimate expectation?
* Decision-makers would act consistently with treaty * Unless told otherwise * Procedural fairness may require notice
51
🇦🇺 What is Australia’s general approach to customary international law?
* More incorporationist than for treaties * Custom may enter common law * But not if contrary to statute or final authority
52
⚖️ What is legal personality in international law?
* Capacity to hold rights and duties * Capacity to exercise powers/liabilities * Recognised status in a legal system
53
Why is the Montevideo test most important?
* Helps identify new States * Main legal definition of statehood * Widely accepted in IL
53
Who are the principal holders of international legal personality?
* States * Main subjects of international law * Hold the fullest rights and obligations
53
Can non-State actors have international legal personality?
* Yes, but usually limited * Depends on the entity * Often granted by States
53
📜 What is the main legal test for statehood?
* Montevideo Convention test * Usually treated as customary law * Four classic criteria
54
What are the four Montevideo criteria for statehood?
* Permanent population * Defined territory * Government * Capacity for foreign relations
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What does permanent population require?
* A stable population * Not merely temporary people * No minimum size required
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What does defined territory require?
* Some identifiable territory * Borders need not be perfect * Disputes do not destroy statehood
57
⚖️ Deutsche Continental Gas v Polish State (1929) — key point?
* Territory must be sufficiently consistent * Exact borders not essential * Some territorial stability required
57
⚖️ Western Sahara Advisory Opinion (1975) — key point on government?
* No specific form of government required * International law does not demand one model * What matters is functioning authorit
57
What does capacity to enter foreign relations mean?
* Ability to deal with other States * External independence * Capacity for international relations
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What does government require for statehood?
* Effective control * Over the territory * Independent from other States
58
⚖️ Aaland Islands Question (1920) — key principle?
* Statehood needs stable political organisation * Government must control territory * Must not depend on foreign troops
59
⚖️ Aaland Islands Question — why was Finland not yet fully a State at first?
* Civil war disrupted authority * Government lacked effective control * Foreign troops were still needed
59
What is recognition of a State?
* Acceptance by other States * May be express or implied * Can be de jure or de facto
60
What is the declarative theory of recognition?
* Recognition does not create statehood * It only confirms an existing fact * More widely accepted view
61
What is the constitutive theory of recognition?
* Recognition helps create statehood * Entity becomes State through recognition * Emphasises political reality
62
Which theory of recognition is more widely accepted?
* Declarative theory * Statehood depends on legal criteria * Recognition is not essential
63
Can recognition have preconditions?
* Yes * Human rights or legality may matter * Serious breaches may block recognition
64
How can self-determination affect recognition?
* It may support claims to statehood * States may be expected to recognise * Especially after lawful independence
65
What is sovereign equality?
* All States are legally equal * Basic UN principle * Applies regardless of power differences
65
⚖️ Nicaragua v United States (1986) — key sovereignty rule?
* Non-intervention is a customary rule * States must respect sovereignty * No unlawful interference in internal affairs
65
👑 What is sovereignty?
* Legal authority of the State * Capacity to govern itself * Core feature of statehood
65
What is territorial sovereignty?
* Authority over State territory * Includes jurisdiction within borders * Other States must respect it
66
⚖️ Corfu Channel (1949) — key principle?
* States must respect territorial sovereignty * Core rule of international law * Applies to conduct within another State’s territory
67
What are the two broad categories of jurisdiction?
* Prescriptive jurisdiction * Enforcement jurisdiction * Making law vs enforcing law
68
What is the territoriality principle?
* State has jurisdiction in its territory * Covers people, things and events there * Flows from sovereignty
68
What are the four principles of jurisdiction?
* Territoriality * Nationality * Protective principle * Universality
68
⚖️ Island of Palmas Arbitration (1928) — key point?
* Territorial sovereignty gives jurisdiction * Strong link between territory and authority * Supports territoriality principle
69
What is the nationality principle?
* State may regulate its nationals * Even for acts abroad * Often used in criminal law
70
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