1. Introduction to International Law

2. — Clarence Darrow, 1857–1938 (American lawyer)

3.   To understand the definition of international law;  To be familiar with the primary sources of international law;  To know the relationship between international law and national law;  To be familiar with important Intergovernmental organizations ;  To identify the major legal systems. Learning Objectives 3

4.   Public international law  Private international law  Convention  Treaty  Customary law  Intergovernmental Organizations (IGOs)  Legal system Terms 4

5.   Suppose that you are the president of NetSys, Inc., a company that creates and maintains computer network systems for other business firms, and also markets software for internal computer networks.  One day, an operations officer for Southwest Distribution Corporation (SDC), contacts you by e- mail about a possible contract involving SDC’s computer network.  In deciding whether to enter into a contract with SDC, you need to consider, among other things, the legal requirements for an enforceable contract. Lead-in 5

6.   In this case, you may need to consider many factors:  the requirements different for a contract for services and a contract for products;  if SDC breaches (breaks, or fails to perform) the contract;  if SDC pays with a check that is returned for insufficient funds;  A dispute may arise over the rights to NetSys’s software; …  How do you solve this problems?  What’s the relationship of laws and business activities? Lead-in 6

7.   Many different laws may affect a single business transaction.  Laws and government regulations affect all business activities;  To make good business decisions, a basic knowledge of the laws and regulations is beneficial and essential. Lead-in 7

8.   1.1 What is ‘Law’ ?  “a rule enacted or customary in a community and recognized as demanding or prohibiting certain actions and enforced by the imposition of penalties.”  The essential characteristics of a rule of law:  is applied in a certain community;  is recognized as having legal force;  results in certain consequences if it is contravened. 1. International Law 8

9.   1.2 International law  The body of rules and norms that regulates activities carried on outside the legal boundaries of nations.  It regulates three international relationships:  1) Those between states and states.  2) Those between states and persons.  3) Those between persons and persons.  Public international law resolves issues and legal relationships between and among nations.  Private international law governs the conduct between people (and corporations) from different states. 1. International Law 9

10.   1.3 Is International Law Really Law?  Nations and individuals regard international law as law, it is law.  Distinguish with Comity.  The practice, or courtesy, between nations of treating each other with goodwill and civility.  Comity is not law because countries do not regard it as something they are required to respect. 1. International Law 10

11.   1.4 What is International Business Law?  The body of rules and norms governing international business transactions and commercial organizations.  With the further progress of economic globalization, International Business Law has become the most important aspect of International Law.  1.5 Where does international law come from?  No Formal Law-making Machinery  Basic Mechanism for Creating International Law--- Consensus of the international community. 1. International Law 11

12.   Article 38(1) of the Statute of the International Court of Justice (ICJ):  ICJ looks to:  1) International treaties and conventions.  2) International custom.  3) General principles of law.  In interpreting these, the ICJ may also look to:  1) Judicial decisions.  2) Teachings of publicists.  This listing implies a hierarchy (or order) in these sources. 2. Sources of International Law 12

13.   2.1 Treaties and Conventions  Definitions:  Treaties are agreements between one or more nations.  Conventions are agreements sponsored by international organizations.  Reasons for binding effect:  Shared sense of commitment.  Because one country fears that if it does not respect its promises, other countries will not respect their promises.  Rules governing treaties:  Traditionally customary.  Now codified in the Vienna Convention on the Law of Treaties (in force since 1980). 2. Sources of International Law 13

14.   2.2 Custom  Defined: Rules that have been around for a long time or which are generally accepted.  Establishing the existence of a customary law:  the consistent and recurring action by states  must be regarded as obligations by states  2.3 General Principles  Defined: General principles of law that are common to both (or all) the state parties to a dispute.  e.g. fairness of contract, freedom of contract 2. Sources of International Law 14

15.   3.1 The Practice in International Tribunals  Municipal law is regarded as being subservient to international law.  States have a general obligation to bring their municipal law into compliance with international norms.  3.2 The Practice in Municipal Courts  International law is generally treated as correlative.  Once a court determines that a particular rule of international law is applicable in a particular case, that law will be treated as law.  The court must determine whether or not the international law has been received into the local jurisprudence. 3. International law in Actual Practice 15

16. 4. International Persons  States  Independent states  Dependent states  Inchoate states  International Organizations  Intergovernmental organizations (IGO)  Nongovernmental organizations (NGO)

17.   4.1 State  political entity comprising a territory, a population, a government capable of entering into international relations, and a government capable of controlling its territory and peoples.  An independent state is sovereign and operates independently internationally.  A dependent state has formally surrendered some aspect of their political and governmental functions to another state.  An inchoate state lacks attributes of independent state, such as territory or population. 4.1 State 17

18.   Facts  A Hong Kong company, seeks to sue two New York corporations, in a US federal court.  Plaintiff seeks to invoke the federal court’s diversity jurisdiction in US Code, title 28, § 1332(a)(2) to hear civil disputes between “citizens of a State and citizens of a foreign state.”  The court dismissed plaintiff’s suit on the grounds that it was not the citizen of a foreign State, because Hong Kong was not at the time recognized as being a foreign state by the United States government.  Question: Do you agree with the court’s decision? Why? Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc.(1997) 18

19.   Explanation  Hong Kong is not recognized as a foreign state by the US State Department.  Matimak was created as a company according to Hong Kong law. Even though this law is based on a UK law, that is not enough of a connection with the UK to say that Matimak is a UK company.  Accordingly, The stateless persons are excluded from bringing suits in US federal courts under US Code  For state to exist in the international community, it must be recognized by other states. Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc.(1997) 19

20.   According to the United Nations Charter, there are two kinds of international organizations:  Intergovernmental organizations (IGO)  IGO is a permanent organization set up by two or more states to carry on activities of common interest.  Private or nongovernmental organizations (NGO)  NGO is an international organization made up of organizations other than states.  nonprofit NGO  for-profit multinational enterprise (MNE). 4.2 International organizations 20

21.  (1) Characteristics common to IGOs  They are created by two or more states.  They are meant to pursue interests common to their creators.  They function autonomously as independent international persons. (2) Creation  Created much in the fashion of a corporation.  Charter or constituent instrument are drafted by member states, and sets out its aims and objectives, internal structure, resources, and express powers. 4.2.1 Intergovernmental organizations 21

22.  (3) Legal capacity  IGOs have capacity to carry on diplomatic relations with a state or to sue or be sued in an international or municipal court.  Acquired by recognition. a)From its own state members: Automatically. b)From non-member states: Recognition must be specifically certified. 4.2.1 Intergovernmental organizations 22

23.   Go to research web sites. There you can perform to learn more about the topics covered in this chapter.  In the next lecture, you may be named to make a 3~5 minutes presentation about the research topics.  Topics: United Nation and European Union  Goals  Establishment  Development  Main Institutions (organs) and their functions Practical Internet Exercise 23

24.   UN Charter is a multilateral treaty, came into force October 24, 1945, and its goals:  the maintenance of peace and security in the world;  the promotion of economic and social cooperation;  the protection of human rights  UN Operates though its organs and agencies which carry on specific functions. Its main organs: 1.the General Assembly 2.the secretariat 3.the Security Council 4.the International court of Justice 5.the Trusteeship Council 6.the Economic and Social Council. United Nations (UN) 24

25.   General Assembly  A quasi-legislative body made up of representatives of all member states;  Discuss any matters within the scope of charter;  Secretariat  A secretary-general is selected by GA  The administrative arm of UN  Making reports and recommendations to GA and SC  Security Council  Made up of 15 member states, 5 of which are permanent member states  Maintain the international peace and security  The only UN organ with authority to use armed force United Nations (UN) 25

26.   International court of Justice  The UN’s principal judicial body  Trusteeship Council  To supervise the world non-self-governing territory  No longer has a function  Economic and Social Council  Comprises 54 member states elected by GA  Promotes economic, social, health, culture and educational progress as well as respect for human rights United Nations (UN) 26

27.   (2) European Union (EU)  The European Union is a 27-member IGO created by the founding states (Belgium, France, Germany, Italy, Luxembourg, and Netherlands in 1951) in order to integrate their economies and political institutions.  Supranational powers: Within its scope of applicability, community law is superior to the laws of the member states.  Member states are required to bring their internal laws into compliance with EU laws.  EU law is directly effective within the member states. European Union (EU) 27

28.   Germany prohibited the importation and marketing of meat products from other member states that did not comply with its Meat Regulation law.  National rules restricting imports are compatible with the EEC Treaty only as necessary for the effective protection of human life and health and employ the least restrictive means to accomplish this. The imported meat was not injurious to health.  Held: Germany must conform to EU law and the principle of free movement of goods between member states. Commission of the European Communities v. Fed. Rep. of Germany 28

29.   European Commission  Represents the EU internationally  EU’s executive branch as well as some legislative function:  Drafts legislation for submission to the Council and the Parliament.  The implementation of legislations European Union (EU) 29

30.   Council of the European Union  Made up of ministers of member states;  Decision-making body of EU;  Adopt legislations and annual budget in conjunction with the Parliament;  Adopt international agreement;  Coordinate the economic policies of member states; European Union (EU) 30

31.  European Parliament  Has 786 members elected every five years;  Main deliberative and supervisory institution:  Has Oversight authority over all EU institutions;  Shares legislative power with the Council of EU;  Determines the EU’s annual budget in conjunction with the Council of EU. European Union (EU) 31

32.  European Court of Justice  The EU’s highest tribunal, only hears 4 types of cases:  Appeals from the Court of First Instance;  Complains brought by the Commission or by one MS against another MS for failure of obligation under EU law;  Complaints brought by a MS against EU institutions;  Actions brought by MS, the Council, the Commission and the Parliament seeking annulment ( 废止 ) of EU legal measures. European Union (EU) 32

33.  Power Flow of EU Institutions 33

34.   The three major legal systems of the world today consist of:  Civil law system  Common law system  Islamic law system  Each country often develops variations on each system or incorporates many other features into the system. 5. Major Legal Systems 34

35.   5.1 Civil Law system  Civil law set out in national law codes.  Civil law deals only with rights of private citizens as opposed to public law that deals with constitutional and administrative issues.  Guidance for decisions comes only from the civil code, not court decisions.  Developed from many sources, including the jus commune (common law of Europe) and the lex mercatoria (merchant law) of the Renaissance.  Led to development of the French Civil Code of 1804 and the German Civil Code of 1896 which are followed by many countries today. 5. Major Legal Systems 35

36.   5.2 Common law  Common law is based primarily on court-made rules of precedent.  Developed fundamental doctrine of supremacy of the law. All persons, including the sovereign, are subordinate to the rule of law.  Precedent used prior acts or instances as a model for deciding later similar cases.  Equity courts based upon being just, impartial, and fair in circumstances not covered by rules of law have now merged with law courts. 5. Major Legal Systems 36

37.   5.3 The Islamic legal system  The Islamic legal system is known as Sharia.  Sharia is derived from the following sources and are listed in order of importance:  The Koran  The teachings and practices of the Prophet Mohammad  The writings of Islamic scholars  Consensus of the legal community 5. Major Legal Systems 37

38.   International law regulates relationships between__________.  The sources of international law which Article 38(1) of the Statute of the International Court of Justice states that the court is permitted to use in settling disputes are __________.  Treaties and conventions have binding effect because __________.  A state is an international person with __________.  A state that lacks some attribute (i.e., territory, population, or government) required for it to be treated as a fully independent state is known as a/an __________.  The characteristic common to intergovernmental organizations __________. Exercises 38

39.   __________ is the only organ of the United Nations may authorize the use of armed force.  __________ is the organ of the United Nations is primarily responsible for promoting respect for human rights.  __________ has/have the legislative power in the European Union.  __________ can represent EU internationally.  __________ can adopt international agreement in EU.  __________ has Oversight authority over all EU institutions. Exercise 39

40.   Go to research web sites. There you can perform to learn more about the topics covered in this chapter.  In the next lecture, you may be named to make a 3~5 minutes presentation about the research topics.  Topics: dispute settlement in WTO Practical Internet Exercise 40