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Difficulty: Very hardPoints of Disagreement

Passage A
Customary international law, formed by the consistent practice of states out of a sense of legal obligation (opinio juris), is often criticized for its ambiguity. However, this fluidity is its greatest asset. Unlike codified treaties, which freeze legal principles at the moment of signing and often reflect the asymmetric power dynamics of that specific historical juncture, customary law evolves organically. It allows the international legal order to adapt to changing moral landscapes and technological advancements without the cumbersome process of renegotiation. Treaties, by attempting to lock in precise definitions, inevitably become outdated, whereas the iterative nature of state practice ensures that customary law remains persistently relevant. Thus, the foundation of a truly responsive global legal framework must rely primarily on customary norms rather than the brittle rigidity of treaty law.

Passage B
The assertion that customary international law is inherently more adaptable or equitable than treaty law fundamentally misapprehends the nature of democratic legitimacy in the international sphere. True, treaties are static texts, but they are the product of explicit state consent, debated and ratified through established domestic constitutional processes. Customary law, by contrast, is a notoriously opaque mechanism where the actions of a few powerful states can prematurely crystallize into binding norms for the entire international community, often bypassing domestic democratic scrutiny. The "fluidity" of customary law is merely a euphemism for legal uncertainty, which disproportionately disadvantages smaller states that lack the geopolitical influence to shape state practice. Therefore, while treaties require periodic, sometimes arduous, renegotiation, this process of explicit consent is the only mechanism that confers genuine legitimacy on international legal obligations.

Which one of the following most accurately describes a point of disagreement between the authors of the two passages?

  1. The relative susceptibility of customary international law and treaty law to the disproportionate influence of geopolitically powerful states.Answer
  2. B
    Whether the fluidity of customary international law allows it to adapt to changing circumstances more rapidly than formal treaty law.
  3. C
    Whether customary international law is fundamentally defined as the consistent practice of states out of a sense of legal obligation.
  4. D
    Whether smaller nations generally advocate for the expansion of treaty law to protect themselves from the uncertainty of customary norms.
  5. E
    Whether the text of a codified treaty is entirely incapable of accommodating subsequent technological and moral advancements.

Answer

The authors disagree on the relative susceptibility of customary international law and treaty law to the disproportionate influence of geopolitically powerful states.
The correct answer accurately identifies a central point of conflict regarding power dynamics. The author of Passage A argues that treaties 'reflect the asymmetric power dynamics' of their signing, implying customary law's organic evolution is preferable. Conversely, the author of Passage B argues that customary law allows 'a few powerful states' to bypass scrutiny, which 'disproportionately disadvantages smaller states,' whereas treaties require explicit, equitable consent. They fundamentally disagree on which system is more susceptible to exploitation by powerful nations.

Step-by-Step Solution

1
Analyze Passage A's stance on power dynamics and legal frameworks.
Passage A states that treaties 'reflect the asymmetric power dynamics' of their signing, while customary law 'evolves organically,' suggesting customary law is less constrained by entrenched power disparities.
Understanding the first author's perspective is necessary to find a point of contrast.
2
Analyze Passage B's stance on power dynamics and legal frameworks.
Passage B states that in customary law, 'the actions of a few powerful states' dictate norms, which 'disproportionately disadvantages smaller states.' Treaties, conversely, require explicit consent, conferring legitimacy.
Understanding the second author's perspective allows for comparison against Passage A.
3
Identify the direct conflict.
Passage A views treaties as tools of asymmetric power and customary law as responsive. Passage B views customary law as a tool of the powerful and treaties as an equitable mechanism of consent.
A true point of disagreement requires one author to affirm a proposition that the other rejects.
4
Evaluate the options against the identified conflict.
Only the option regarding the relative susceptibility of both frameworks to the influence of powerful states captures this reciprocal disagreement.
Distractors often present points where authors actually agree, overstate an author's position, or introduce outside information.

Key Concept

Identifying implicit textual conflicts regarding the foundational assumptions or consequences of abstract systems.
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Points of Disagreement

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