International Law
Critical Thinking Frameworks in International Law
Gleider Hernández, International Law (2nd edition, Oxford University Press, 2022)
Responding to ‘problem questions’ in exams
Problem questions usually consist of a hypothetical or real factual scenario that
engages various international legal issues. These often involve the application of
international legal rules, principles and theories to the given set of facts. ‘Problem
questions’ resemble what international law might look like in practice. Can you see
how the abstract principles explained in the learning materials are applied in
concrete scenarios? Problem questions, or ‘fact-patterns’ as they are known in
North America, invite student reflection about how the law can apply to real-world
scenarios.
There is an important caveat for students. Do not treat problem questions as an
opportunity to demonstrate abstract knowledge of all the possible applicable law! The point
of a problem question is to go beyond demonstrating knowledge of the law, and
apply that knowledge concretely to the facts at hand. Focus is thus important. Too
often, a student will describe all the possible legal issues that might be raised, even
if tangential or even irrelevant, and then only apply it to the facts in a superficial
manner, sometimes even with a yes/no response. This is not ideal, as it does not
give a student a chance to demonstrate their analytical capacities and does not get
to the core of the question being posed. You do not need to describe a whole legal
regime to set out the two or three main legal rules in play.
A step-by-step guide of how to tackle a problem question in an exam
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Step 1. Read the facts carefully. Try to read the problem carefully and
identify the facts as comprehensively and precisely as possible. This will help
you to determine the relevant applicable legal norms or principles. In
particular, think about the parties and what their legal positions might be.
Step 2. Don’t presume or infer facts. A problem question is drafted carefully.
Sometimes facts may be fanciful or seem unlikely; but assume these are
unlikely. Any silence or ambiguities are there for a reason: don’t fill in the
blanks and assume facts beyond those which are given, and do not offer
answers that depend on assumptions.
Step 3. Identify the legal issues. The nature of legal problem questions is that
they aim to raise various relevant legal principles and questions that you will
have studied. Try to narrow down which legal rules might be relevant how
they frame the issue; and consider what structure will be best to address them
all. For example, at times the relevance of a legal principle depends on the
applicability of another legal principle. Try to address them in logical order.
Step 4. Apply the law to the facts. It is here that students sometimes struggle,
but a response to a problem question needs to be tailored to the actual facts at
hand, not merely an enumeration of legal issues raised. Be careful, then, to
apply the relevant law (identified in Step 3) to the most relevant facts (Steps 1
and 2), and to make sure that your answer is not merely a generic answer that
could be applied to any legal question in the general area, but responds to the
actual facts in the problem question, including grey zones, possible
ambiguities, and competing claims.
Step 5. Offer a conclusion. The point of a problem question is to use the law
to offer potential solutions to the problem. Think about how this would play
out in the real world: what course of action might your client take, or what
sort of judgment would you write? You need not take a strong or one-sided
© Oxford University Press 2022.
position, but you would usually offer a recommendation or take a position
based on the facts at hand. Above all, take the time to justify your conclusion
on the basis of the key legal issues and facts that you have identified.
© Oxford University Press 2022.
