1 of 26 lecture 1 introduction to international and comparative law topics covered: what is...

1 of 26

Lecture 1INTRODUCTION

to INTERNATIONAL and COMPARATIVE LAW

Topics covered: • What is International Law? • The Making of International Law • Sources of International Law • Scope of International Law • International Persons • Right of Individuals under International Law

JUDGE JUDY READY TO RULE--

Case: The Paquette Habana & The Lola: +Court +Facts +Legal Significance +Parties +Rational+Issue +Result

3 of 26

A. WHAT IS INTERNATIONAL LAW?

1.Defined: The body of rules and norms that regulates activities carried on outside the legal boundaries of nations.

a. Three international relationships are governed by international law:

1) Those between nations and nations.

2) Those between nations and persons.

3) Those between persons and persons.

4 of 26

A. WHAT IS INTERNATIONAL LAW?

2.Is International Law Really Law?

a. It is because nations regard it as something they are obligated to respect.

b. Distinguish: Comity 1) Comity is courtesy. It

is the practice between nations of treating each other with goodwill and civility.

2) Comity is NOT law because countries do not regard it as something they are obligated to respect.

5 of 26

B. THE MAKING OF INTERNATIONAL LAW

1. There is no formal international law-making machinery

2. The basic mechanism for creating international law is:

The consensus of the international community.

6 of 26

C. SOURCES OF INTERNATIONAL LAW

1. Sources listed in Article 38(1) of the Statute of the International Court of Justice

a. International conventions.

b. International custom.

c. General principles of law.

d. Judicial decisions.

e. Teachings of publicists.

7 of 26


2.Treaties and Conventions - The most important sources of international law.

a. Treaties are agreements between one or more nations.

b. Conventions are agreements sponsored by international organizations.

8 of 26


2. Treaties and Conventions (cont.)c. Reasons for binding effect:

1) Shared sense of commitment.

2) Because one country fears that if it does not respect its promises, other countries will not respect their promises.

d. Rules governing treaties: a) Traditionally customary.

b) Now codified in the Vienna Convention on the Law of Treaties (in force since 1980).


3. Custom a. Defined: Rules that have been around for a

long time or which are generally accepted.

b. To establish the existence of a customary law must show two things:

1) Usus: Consistent and recurring action (or lack of action if the custom is one of noninvolvement) by states.

2) Opinio juris et necessitatis: Belief by states observing a custom that it is as one that they must obligatorily follow.

10 of 26

C. SOURCES OF INTERNATIONAL LAW 3.Custom (cont.)

c. Exceptions to the application of customary practices:

1) If a state persistently refuses to observe a customary practice from the practice's beginning, it doesn't have to.

4.General Principles - those legal principles common to nation states.

5.Interpretation of treaties, customs, and general practice

a. Judicial decisions

b. Teachings of publicists.


Case: The Asylum Case: +Court +Facts +Legal Significance +Parties +Rational+Issue +Result

12 of 26

D. THE SCOPE OF INTERNATIONAL LAW

1. The Practice in International Tribunalsa. Municipal law is regarded as subservient to

international law.

b. States have a general obligation to bring their municipal law into compliance with international norms.

c. Procedurally municipal law is treated as "mere fact."


2. The Practice in Municipal Courts: a. International law is regarded as correlative.

1) Court determines if a particular international law has been received into the municipal jurisprudence.

2) If it has, the Court applies it as if it were a local law and not a mere fact.

14 of 26


2. The Practice in Municipal Courts: (cont.)b. Determining if International Law has been

Received Into the Local Jurisprudence1) Customary international law:

a) Doctrine of Incorporation: a custom is automatically part of a nation's laws as long as it is not inconsistent with those laws. (Majority rule)

b) Doctrine of Transformation: a custom is not part of a nation's laws until expressly adopted by legislative or judicial act, or by local usage. (Minority rule)


2. The Practice in Municipal Courts: (cont.)b. Determining if International Law has been

Received Into the Local Jurisprudence (cont.)2) Treaty law:

a) Look at nature of the treaty: i. Self-executing

ii. Non-self-executing

b) Look at structure of state adopting the treaty: i. Does the legislature have to ratify?


Case: Sei Fjujii v. State: +Court +Facts +Legal Significance +Parties +Rational+Issue +Result

17 of 26

E. INTERNATIONAL PERSONS

1.States

2.Intergovernmental organizations (IGOs)

3.Nongovernmental organizations (NGOs)

4.Individuals

18 of 26


1. States a. Defined: Political entities that have

all of the following characteristics – 1) A territory.2) A population.3) A government capable of entering into

International relations.4) A government capable of controlling

its territory and people.

19 of 26


1.States (cont.)b. Kinds of states:

1) Independent: free from political control of other states.

2) Dependent: have formally surrendered some of the their political and governmental functions to another state.

3) Inchoate: lack some attribute required to be a state.

20 of 26


1. States (cont.)c. Recognition of States and Governments

1) Recognition is a unilateral decision by another state

a) Effect: implies that the recognized state or government is entitled to all the rights and privileges granted by international law.

2) Recognition of state: usually automatic when an independent state comes into existence.


1. States (cont.)c. Recognition of States and Governments

3) Recognition of government: a) Declaratory doctrine: recognition happens automatically

whenever a government is capable of controlling a territory and a people.

b) Constituitive doctrine: recognition must be formally granted by another state.

4) Problem: How to avoid the implication that recognitionalso means approval of a particular government?

a) Estrada Doctrine: One government should never explicitly recognize any other government.

22 of 26


1. States (cont.)d. Territorial Sovereignty: the right to

exercise the functions of a state within a territory

1) Not an absolute right - for example:

a) Positive servitude: the right to do something within another state.

b) Negative servitude: the right to prohibit another state from doing something within its territory.


Case: The Trial Smelter Arbitration: +Court +Facts +Legal Significance +Parties +Rational+Issue +Result

24 of 26


1. States (cont.)e. Changes in Territorial Sovereignty

1) Things not effected by a change of sovereigns: a) Treaties implementing general rules of

international law.

b) Dispositive treaties: treaties concerned with rights over territory, such as boundaries and servitudes.

c) Individuals: keep the nationality of their original state (unless another arrangement is made in a treaty of cession or by municipal law).Private property rights of individuals.

d) Contractual rights of individuals.

25 of 26


1. States (cont.)e. Changes in Territorial Sovereignty

2) Things effected by a change of sovereigns: a) Public property:

i. If the property is located in territory that has been transferred: it is the property of the state that controls that territory

ii. If the property is in the territory of a third state (such as an embassy): it is the property of whichever state the third state recognizes.


2. International Organizations a. Characteristics:

1) Permanent.

2) Set up by two or more states.

3) Pursue matters of common interest to the creators.

4) Function autonomously as independent international persons.

27 of 26


2. International Organizations (cont.)b. Examples:

1) European Union

2) United Nations

c. Creation: essentially in the same fashion as a corporation.

28 of 26


2. International Organizations (cont.)d. Legal capacity: the right to carry on

diplomatic relations with states and to sue and be sued in international tribunals.

1) Acquired by recognition. a) Automatically from its own state members.

b) When specifically granted by other states.

29 of 26


3. Nongovernmental Organizationsa. Non-profit NGOs: serve as

coordinating agencies for private national groups in international affairs

b. For-profit NGOs: businesses operating internationally

1) Other names: i. Multinational Enterprises (MNEs)ii. Transnational Corporations (TNCs)

30 of 26

F. RIGHTS OF INDIVIDUALS UNDER INTERNATIONAL LAW

1.Traditional view: no rights, only duties. 2.Evolving view:

a. Individuals have basic human rights

b. Individuals may sue states in some international tribunals


Case: De Sanchez v. Banco Central de Nicaragua: +Court +Facts +Legal Significance +Parties +Rational+Issue +Result


Case: Libyan American Oil Company (Liamoc) v. Gov. of Libyan Arab Republic: +Court +Facts +Legal Significance +Parties +Rational+Issue +Result

Guaranty Clause

1 of 26 lecture 1 introduction to international and comparative law topics covered: what is...

Documents

international custom

law of treaties

customary law

international organizations

international relationships

international community

general principles of

comparative law topics