Chapter 1 Outline

Chapter 1 - Introduction to International and Comparative Law

A. WHAT IS INTERNATIONAL LAW?1. Defined: The body of rules and norms that regulates

activities carried on outside the legal boundaries of nationsa. It regulates three international relationships:

1) Those between states and states.2) Those between states and persons.3) Those between persons and persons.

2. Is International Law Really Law?a. Because nations and individuals regard international law

as law, it is law.1) Distinguish: Comity.

a) Comity defined: The practice, or courtesy, 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 required to respect.

Case 1-1. Ignacio Sequihua v. Texaco Inc. et al.

3. What is Law?a. The dictionary defines law as:

1) A rule established by authority, society, or custom.2) The body or system of such rules.3) The control or authority imposed by such a system of

rules.

B. THE MAKING OF INTERNATIONAL LAW1. No Formal Law-making Machinery2. Basic Mechanism for Creating International Law:

Consensus of the international community.

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C. SOURCES OF INTERNATIONAL LAW1. Defined: Those things which international tribunals rely

upon in determining the content of international law.2. Authorized Sources: Article 38(1) of the Statute of the

International Court of Justice (ICJ) lists the sources which that court is permitted to use.a. ICJ looks to:

1) International conventions.2) International custom.3) General principles of law.

b. In interpreting these, the ICJ may also look to:1) Judicial decisions.2) Teachings of publicists.

3. Treaties and Conventionsa. Definitions:

1) Treaties are agreements between one or more nations.2) Conventions are agreements sponsored by international

organizations.b. 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.

c. Rules governing treaties:1) Traditionally customary.2) Now codified in the Vienna Convention on the Law of

Treaties (in force since 1980).4. Custom

a. Defined: Rules that have been around for a long time or which are generally accepted.1) Caveat: Customary rules are constantly changing.

b. Establishing the existence of a customary law: Must show two elements — one behavioral and one psychological:

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1) Usus (Latin for: usage): Is the consistent and recurring action (or lack of action if the custom is one of noninvolvement) by states.

2) Opinio juris et necessitatis (Latin for: Of the opinion that the rule is proper and required): The custom must be regarded by states observing it as one that they must obligatorily follow.

c. Exceptions to the application of custom:1) Persistent objector: A state that persistently objects to a

practice during its formative stages will never become a party to it.

2) A state allowed by the international community to deviate from a customary practice.

5. General Principlesa. Defined: General principles of law that are common to

both (or all) the state parties to a dispute.

D. THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE1. The Practice in International Tribunals

a. Municipal law is regarded as being 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 generally treated as correlative.1) Meaning: Once a court determines that a particular rule

of international law is applicable in a particular case, that law will be treated as law and not as a fact.

2) Consequence: The court must determine whether or not the international law has been received into the local jurisprudence.

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a) As for customary law:1] In most countries, customary international law is

received in accordance with the doctrine of incorporation.

b) As for treaties: Reception rules depend upon two factors: (i) The nature of the treaty; and (ii) The constitutional structure of the ratifying state.1] The nature of treaties — they may be:

a] Self-executing treaty: One that contains a provision that says the treaty will apply in the parties’ municipal courts without their having to adopt any domestic enabling legislation.

b] Non-self-executing treaty: One that has no such provision.

2] The structure of states — constitutions may assign to one or more state organs (or branches) the responsibility for entering into treaties.

Case 1-2. Sei Fujii v. State

E. INTERNATIONAL PERSONS1. States

a. Defined: Political entities which have all of the following:1) A territory.2) A population.3) A government capable of entering into international

relations.4) A government capable of controlling its territory and

peoples.b. Kinds of states:

1) Independent states are free from the political control of other states, and free to enter into agreements with other international persons.

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

3) Inchoate states lack some attribute required to be treated as a fully independent state; most commonly they lack territory or population.

c. Recognition: A unilateral declaration either explicit (express) or implicit (tacit) by other states.1) Effect: Implies that the recognized state or government

is entitled to the rights and privileges granted by international law.

2) Two kinds of recognition:a) Recognition of a state: Usually granted when an

identifiable government, people, and territory first come into existence.

b) Recognition of a government: May be denied even if recognition of the state continues.1] Theories about when governments should be

recognized:a] Declaratory doctrine: The legal existence of a

government happens automatically by operation of law whenever a government is capable of controlling a territory and its people.

b] Constitutive doctrine: A government does not truly come into existence until such time as it is recognized by other states and participates in the international arena.

Case 1-3. Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc.

2] Practical considerations concerning the recognition of governments.a] Estrada Doctrine: To avoid any possible

connotation that recognition also means approval, many governments have adopted a

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policy of never formally recognizing other governments.(1) This policy is named after the Mexican

Foreign Minister who first stated it.d. Territorial Sovereignty: The right to exercise the functions

of a state within a territory.1) Not an absolute right: Other states may obtain

servitudes.a) Positive servitude: The exercise of a right-of-way.b) Negative servitude: Prevents one state from doing

something within its territory that causes injury to a second state.

Case 1-4. The Trail Smelter Arbitration

2) Acquiring territory: This is done either by:a) Occupying land not claimed by another sovereign.b) The transfer of territory from one sovereign to

another.e. Changes in Territorial Sovereignty.

1) Consequences as to treaty rights and obligations: Successor states must observe:a) Treaties which implement general rules of

international law.b) “Dispositive” treaties: Treaties concerned with

rights over territory, such as boundaries and servitudes.

c) Nationals of a territory that is acquired by a successor state will keep the nationality of the predecessor state unless a different result is agreed to in a treaty of cession or by municipal legislation.

d) Public property located within a territory becomes the property of the successor state, while property located in third states belongs to whichever government the third state recognizes.

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e) Private property rights of individuals do not lapse because of a change in government.

f) A successor state is bound by the private contractual obligations of its predecessors.

g) A successor that acquires part or all of a territory is proportionately responsible for the territory’s national debt.

2. International Organizationsa. Intergovernmental Organizations (IGOs).

1) Defined: Permanent organizations set up by two or more states to carry on activities of common interest.

2) Characteristics common to IGOs:a) They are created by two or more states.b) They are meant to pursue interests common to their

creators.c) They function autonomously as independent

international persons. 3) Creation: Created much in the fashion of a corporation.

a) Charter or constituent instrument, sets out its aims and objectives, internal structure, resources, and express powers.1] Example: United Nations Charter.

4) Legal capacity: Includes the capacity to carry on diplomatic relations with a state or to sue or be sued in an international or municipal court.a) Acquired by recognition.

1] From its own state members: Automatically.2] From non-member states: Recognition must be

specifically certified.

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5) Examples:a) The United Nations (UN).b) The European Union (EU).

1] Supranational powers: Within its scope of applicability, community law is superior to the laws of the member states.a] Member states are required to bring their

internal laws into compliance with EU laws.b] EU law is directly effective within the member

states.

Case 1-5. Commission of the European Communities v. Federal Republic of Germany

2] EU institutions:a] European Commission: Administrative and

executive arm.b] Council of the European Union: Main policy

and rule making institution.(1) European Council: Name for meeting held

by member state heads of government and foreign ministers every 6 months to establish general policies and goals for the EU.

c] European Parliament: Main deliberative and supervisory institution.

d] European Economic and Social Council: Consultative body made up of special interest groups.

e] Committee of regions: Consultative body made up of representatives of regional and local governments.

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f] European Court of First Instance: Trial court that hears cases brought by private individuals against EU institutions and employment disputes between EU institutions and their employees.

g] European Court of Justice: The EU’s highest tribunal.

h] European Central Bank.i] European Court of Auditors: oversees the EU

budget.c) Other Intergovernmental Organizations

1] General Intergovernmental Organizationsa] African Unionb] Council of Europec] Organization of American States

2] Specialized Intergovernmental Organizationsa] Customs Unions — e.g., European Unionb] Free Trade Areas — e.g., North American Free

Trade Area (NAFTA)c] Economic Consultative Associations — e.g.,

Organization for Economic Cooperation and Development (OECD)

b. Nongovernmental Organizations (NGOs).1) Nonprofit NGOs serve as coordinating agencies for

private national groups in international affairs.2) For-profit NGOs (transnational corporations (TNCs) or

multinational enterprises (MNEs)) are businesses operating branches or subsidiaries or joint ventures in two or more countries (see Chapter 4).

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F. THE RIGHTS OF INDIVIDUALS UNDER INTERNATIONAL LAW1. Traditional view: Individuals traditionally have no rights —

only duties — under international law.a. Law of State Responsibility (see Chapter 2) allows a state

to seek compensation for one of its injured nationals.

Case 1-6. DeSanchez v. Banco Central de Nicaragua

2. A contemporary — and still evolving — view: Individuals do have the ability to exercise the rights of an international person.a. Individuals have basic human rights.b. Individuals may sue states in some international tribunals

(see Chapter 3).

G. COMPARISON OF MUNICIPAL LEGAL SYSTEMS1. Comparative Law: The study and analysis of the different

municipal law systems.a. Legal “families”:

1) Romano-Germanic Civil Law.2) Anglo-American Common Law.3) Islamic Law.

b. These are divided into subfamilies.c. There are also hybrids.d. There are also some practices that are unique to a

particular country.2. The Romano-Germanic Civil Law System

a. Oldest and most influential of the legal families.b. Sources include:

1) Corpus Juris Civilis (“The Body of Civil Law”) of Roman Emperor Justinian completed around 534 AD.

2) Canon law: The church law of the medieval Roman Catholic Church.

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3) Jus commune: (“The Common Law”) of late medieval Europe that was used in towns, fairs, and markets.

4) Renaissance philosophies:a) French Humanists.b) Dutch Naturalists.

5) Seventeenth century nationalism: Led to the writing of national legal codes in Europe.

c. Most influential national codes:1) French Civil Code (Code Napoleon) of 1804.

a) First modern code.b) Underlying principles taken from the French

Revolution:1] The right to possess private property.2] The freedom to contract.3] The autonomy of the patriarchal family.

c) Organized structurally in much the same fashion as the Justinian Code.1] Many of its provisions were taken from:

a] Jus commune.b] French royal ordinances.c] Academic writings.d] Customary law.

d) Differences from the German Code:1] Written in a short period of time.2] Its style and form are one that is straightforward,

easy to read, and understandable to everyone.e) Differences from the English common law: It

contains flexible general rules rather than detailed provisions.

2) German Civil Code of 1896.a) Reason it was not enacted until 1896:

1] Germany first had to become a nation.2] Scholars known as “Pandectists” spent years

doing preliminary studies and drafting the code.

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b) Characteristics of the German Code:1] Incredibly precise and technical.

b] Special terminology is used.c) Differences from the French Code: It is meant

exclusively for the use of trained experts (not lay readers).

d) Countries with Civil Law systems distinguish between the civil law and public law.1] Public law evolved separately from the movement

for codification of civil or private law.a] Civil law (for civilian lawyers) is only the law

contained in the codes and its auxiliary statutes (that is, the law of persons, family law, property law, succession law, the law of obligations, commercial law, labor law, and criminal law).

b] Public law is constitutional and administrative law.

2] Public law is treated in a variety of ways in the civil law countries.a] Many civilian lawyers regard constitutional

law as a form of political science. b] Germany has a branch of administrative courts

to review the acts of its government agencies. c] France created a Council of State to protect

individual rights and supervise the administrative processes of government.

e) Changes in the twentieth century.1] A movement away from relying only on the civil

code.2] Special legislation and judicial interpretations

have become more influential.

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3. The Anglo-American Common Law Systema. Historical origins:

1) In 1066, the Normans conquered England and William the Conqueror began to centralize the governmental administration of his new kingdom.

2) The name “common law” is derived from the theory that the king’s courts represented the common custom of the realm, as opposed to the local customary law practiced in the county and manorial courts.

3) The development of the principles of the common law were largely the product of three courts created by Henry II (1133-1189):a) Court of Exchequer, which settled tax disputes.b) Court of Common Pleas, which dealt with matters

that did not involve a direct interest of the king, such as title to land, enforcement of promises, and payment of debts.

c) Court of King’s Bench which handled cases of a direct royal interest, such as the issuance of “writs” (written decrees) to control unruly public officials.1] Eventually, the jurisdiction of the King’s Bench

was used to control abuses of power by the king himself, establishing a fundamental doctrine of the common law: the supremacy of the law.

4) These courts were important in developing case law — the common law practice of using the decisions of courts (precedents) as a source of law.a) This is the principal factor that distinguishes the

common law from the Romano-Germanic civil law.

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b. The “common law” must be distinguished from the law which evolved out of:1) Equity: A principle of justice developed by the king’s

chaplain, or chancellor, to provide parties with a remedy when none was available in the king’s courts.

2) Admiralty (the laws governing sailors) and other specialized jurisdictions.

c. The common law’s distribution around the world is different from the way in which the civil law was distributed.1) The principal nations that use the common law

(Australia, Canada, India, Ireland, New Zealand, and the United States) have a direct political and historical linkage to England.a) The common law is not easily received by other

countries because:1] It is based on a matrix of case law and statutes.2] It uses the jury system and the doctrine of

supremacy to limit the actions of the government.3] It uses a complex terminology.

2) The civil law countries (most of the rest of the World) are not connected by any political or historical connection.a) The civil law is widespread because it is the easier of

the two legal traditions for a country to receive.1] It is encapsulated in convenient codes.2] It deals primarily with private law that is of little

threat to the local political system.

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4. The Islamic Law Systema. Known as Shari’a.b. Sources in the order of their importance:

1) The Koran.2) The Sunnah or decisions and sayings of the Prophet

Muhammad.3) The writings of Islamic scholars who derived rules by

analogy from the principles established in the Koran and the Sunnah.

4) The consensus of the legal community.c. History.

1) In the tenth century AD (third century H), the Islamic legal community decided that further improvement of the scholars’ analysis of divine law was impossible.a) The legal community “closed the door of ijtihad”

(independent reasoning).1] This froze the evolution of Islamic law in time.2] Shari’a judges and scholars may only apply the

law as it was set down by the early writers.2) Recently some have advocated reopening the door of

ijtihad, but this has been vehemently opposed by Islamic fundamentalists.

d. Note that the Shari’a is primarily a moral code.1) It is principally concerned with ethics.

a) In this respect, it contains many principles in common with the civil law and the common law.

2) It is much less concerned with promoting commerce and international relations than the secular legal systems.

Case 1-7. Libyan American Oil Company (LIAMCO) v. Government of the Libyan Arab Republic

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