1. Chapter 8 International and Comparative Law

2. International Law Law that governs affairs between nations.
Law that regulates transactions between individuals and businesses of different countries.
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3. Features of International Law
No single legislative source of international law.
All countries of the world (and numerous international organizations) are responsible for enacting international laws.
No single world court responsible for interpreting international law.
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4. Features of International Law (continued)
Several courts or tribunals hear and decide international legal disputes of parties that agree to appear before them.
No world executive branch that can enforce international laws.
Nations do not have to obey international law enacted by other countries or international organizations.
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5. The United States and Foreign Affairs
The Constitution gives the federal government most of the power to deal with foreign affairs of this country.
Foreign Commerce Clause
Treaty Clause
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6. Foreign Commerce Clause
Article I, Section 8, Clause 3 vests Congress with the power “to regulate commerce with foreign nations.”
Any state or local law that unduly burdens foreign commerce is unconstitutional under the Commerce Clause.
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7. Treaty Clause
Article II, Section 2, clause 2 states that the president “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.”
The president is the agent of the United States in dealing with foreign countries.
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8. Treaty Clause (continued)
Under the Treaty Clause, only the federal government may enter into treaties with foreign nations.
Under the Supremacy Clause of the Constitution:
Treaties become part of the “law of the land”
Conflicting state or local law is void
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9. Sources of International Law
Sources of international law – those things that international tribunals rely on in deciding international disputes.
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10. Sources of International Law (continued)
Article 38(1) of the Statute of the International Court of Justice lists four sources of international law:
Treaties and conventions
Custom
General principles of law
Judicial decisions and teachings
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11. Treaties and Conventions
The first source of international law.
They are the equivalents of legislation at the international level.
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12. Treaties and Conventions (continued)
Treaty – an agreement or contract between two or more nations.
Formally signed by an authorized representative
Ratified by the supreme power of each nation
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13. Treaties and Conventions (continued)
Convention – treaty that is sponsored by an international organization.
Treaties and conventions address:
Human rights
Foreign aid
Navigation
Commerce
Settlement of disputes
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14. Example: World Intellectual Property Organization (WIPO) Internet Treaties
In 1996, WIPO issued two new conventions collectively called the Internet Treaties.
Copyright Treaty
Phonogram Treaty
These treaties create new intellectual property rights and grant protection to copyright holders over the Internet.
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15. Custom The second source of international law.
Custom describes a practice followed by two or more nations when dealing with each other.
It may be found in:
Official government statements
Diplomatic correspondence
Policy statements
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16. Custom (continued)
Two elements must be established to show that a practice has become a custom:
Consistent and recurring action by two or more nations over a considerable period of time.
Recognition that the custom is binding because of legal obligation.
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17. General Principles of Law
The third source of international law.
Consist of principles of law recognized by civilized nations.
These are principles of law that are common to the national law of the parties to the dispute.
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18. General Principles of Law (continued)
The general principles of law may be derived from:
Constitutions
Statutes
Regulations
Common Law
Other Sources of National Law
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19. Judicial Decisions and Teachings
The fourth source of international law.
Consist of judicial decisions and teachings of the most qualified legal scholars of the various nations involved in the dispute.
International courts are not bound by the doctrine of stare decisis.
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20. United Nations
International organization created by multinational treaty in 1945.
Goals of the United Nations (U.N.):
Maintain peace and security in the world.
Promote economic and social cooperation.
Protect human rights.
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21. Governance of the United Nations
The United Nations is governed by:
The General Assembly
Composed of all member nations.
The legislative body of the U.N.
Adopts resolutions which have limited force.
Resolutions are usually enforced through persuasion and sanctions.
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22. Governance of the United Nations (continued)
The Security Council
Composed of 15 member nations.
Five are permanent members
Ten are chosen for two-year terms
Primarily responsible for maintaining international peace and security.
Has authority to use armed forces.
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23. Governance of the United Nations (continued)
The Secretariat
Administers the day-to-day operations of the United Nations.
Headed by the Secretary-General, who is elected by the General Assembly.
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24. Governance of the United Nations (continued)
The U.N. is also composed of various autonomous agencies:
UNESCO
UNICEF
IMF
World Bank
International Monetary Fund
IFAD
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25. International Court of Justice
The judicial branch of the United Nations.
Also called the World Court.
Located in The Hague, the Netherlands.
Only nations may have cases decided by this court.
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26. International Regional Organizations
The European Union (EU)
Comprises many countries of Western Europe.
Created to promote
Peace and security
Economic, social, and cultural development
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27. International Regional Organizations (continued)
The European Union (EU) (continued)
The EU treaty creates open borders for trade between members.
The EURO is the single monetary unit.
European Court of Justice – the judicial branch of the EU.
European Court of First Instance (CFI)
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28. International Regional Organizations (continued)
The North American Free Trade Agreement (NAFTA)
Free-trade zone formed by the United States, Canada, and Mexico.
Eliminates or reduces most of the duties, tariffs, quotas, and other trade barriers between the members.
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29. International Regional Organizations (continued)
Latin, Central, and South American Economic Communities
Central American Common Market
MERCOSUR Common Market
Caribbean Community
Andean Common Market
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30. International Regional Organizations (continued)
African Economic Communities
Economic Community of West African States
Economic and Customs Union of Central Africa
East African Community
Organization of African Unity
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31. International Regional Organizations (continued)
Asian Economic Communities
Association of South East Asian Nations (ASEAN)
Middle Eastern Economic Communities
Organization of Petroleum Exporting Countries (OPEC)
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32. World Trade Organization (WTO)
International organization of more than 130 member nations.
Created to promote and enforce trade agreements among member nations.
One of the primary functions of the WTO is to hear and decide trade disputes between member nations.
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33. Jurisdiction of National Courts to Decide International Disputes
The majority of commercial litigation involving international business transactions are heard by national courts.
The courts of individual nations.
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34. Jurisdiction of National Courts to Decide International Disputes (continued)
Judicial Procedure
Choice of forum clause – designates the judicial or arbitral forum that hear and decide the case.
Choice of law clause – designates the law to be applied by the court or arbitrator in deciding the case.
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35. Jurisdiction of National Courts to Decide International Disputes (continued)
Act of State Doctrine
Judges of one country cannot question the validity of an act committed by another country within that other country’s borders.
Based on the principle that a country has absolute authority over what transpires within its own territory.
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36. Jurisdiction of National Courts to Decide International Disputes (continued)
The Doctrine of Sovereign Immunity
Act of a government in a foreign country is not subject to suit in the foreign country.
Some countries provide absolute immunity.
Some countries provide limited immunity.
The U.S. provides limited immunity
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37. International Arbitration
A non-judicial method of dispute resolution.
A neutral third party decides the case.
The parties agree to be bound by the arbitrator’s decision.
Faster, less expensive, less formal, and more private than litigation.
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38. International Arbitration (continued)
Arbitration Clause
A clause contained in many international contracts.
Stipulates that any dispute between the parties concerning the performance of the contract will be submitted to an arbitrator or arbitration panel for resolution.
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39. Extradition Extradition
Sending a person back to a country for criminal prosecution
The United States has entered into extradition treaties with many countries
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