Chapter 8 International and Comparative Law

International Law Law that governs affairs between nations. Law that regulates transactions between individuals and businesses of different countries. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

Sources of International Law Sources of international law – those things that international tribunals rely on in deciding international disputes. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

Treaties and Conventions The first source of international law. They are the equivalents of legislation at the international level. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

General Principles of Law (continued) The general principles of law may be derived from: Constitutions Statutes Regulations Common Law Other Sources of National Law Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

International Regional Organizations The European Union (EU) Comprises many countries of Western Europe. Created to promote Peace and security Economic, social, and cultural development Copyright © 2004 by Prentice-Hall. All rights reserved.

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) Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

International Regional Organizations (continued) Latin, Central, and South American Economic Communities Central American Common Market MERCOSUR Common Market Caribbean Community Andean Common Market Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

International Regional Organizations (continued) Asian Economic Communities Association of South East Asian Nations (ASEAN) Middle Eastern Economic Communities Organization of Petroleum Exporting Countries (OPEC) Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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 Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

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. Copyright © 2004 by Prentice-Hall. All rights reserved.

Extradition Extradition Sending a person back to a country for criminal prosecution The United States has entered into extradition treaties with many countries Copyright © 2004 by Prentice-Hall. All rights reserved.