国际商法雷奥古斯特CHAPTER 1.ppt

1-1,Chapter 1,INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW,1-2,CHAPTER 1INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW,Topics for this chapter: Defining International Law Making International Law Sources of International law Scope of International Law in Practice International Persons Individual Rights Under International Law Comparison of Municipal Legal Systems,1-3,What is International Law?,Historically, dealt with the rules and norms regulating the relationships between states (countries) This law between nations is called public international law With growth of relationships between persons and corporations in different states, private international law developed to govern their conduct,1-4,Schools of Thought Defining The Basis of International Law (IL),Cosmopolitans argue that IL is based upon universal human rights. Positivists say that IL is based on the sovereign equality of all states and state consent to IL through treaties or custom. Hobbesians claim that states will make agreements and abide by IL only when it suits their self-interests.,1-5,Examples of Public andPrivate International Law,1-6,Goodwill and Civility Between States: Comity,Republic of the Philippines v. Westinghouse Elec. Corp. 43 F3d 65 (3rd Cir, 1994) U.S. trial court ordered the Philippine government to not harass witnesses involved in the case. Court of Appeals overturned the order. Held that a court could request compliance by a foreign sovereign as a matter of comity, but could not order compliance. Comity requires that we respect other countries sovereignty and law so that they will respect ours.,1-7,Case 1-1Ignacio Sequihua v. Texaco Inc.,Comity applied to private dispute. Court in Texas declined to exercise jurisdiction over activity and harm that occurred in Ecuador. Taking jurisdiction in U.S. would have interfered with Ecuadors sovereign right to control its own environment. Case dismissed under the doctrine of comity of nations.,1-8,U.S. Courts Apply Comity and Refuse to Take Jurisdiction When:,The defendant is a sovereign state Defendant has insufficient contacts with the U.S. Another judicial forum is more convenient Congress did not intend U.S. statute to apply extraterritorially Case concerns act of sovereign state on its own territory,1-9,The Making of International Law,Generally, IL comes into effect only when states consent to it. General consent found in state practice the conduct and practices of states in their dealings with each other. Evidence of general consent: Decisions of the International Court of Justice Resolutions passed by the UN General Assembly Multilateral treaties, conclusions of international conferences, and provisions repeated over and over again in bilateral treaties,1-10,Sources of International Law,Treaties or conventions International custom General principles of law recognized by civilized nations Judicial decisions and teachings of highly qualified legal writers,This list, as contained in Article 38(1) of the Statute of the International Court of Justice, implies a hierarchy, or order, in which these sources are to be relied on.,1-11,Treaties and Conventions,Equivalents of legislation in IL are: Treaties legally binding agreement between two or more states. Conventions legally binding agreement between states sponsored by an international organization. Customary rules that govern treaties are contained in the Vienna Convention on the Law of Treaties, ratified by 108 countries.,1-12,Custom As Source of International Law,Custom a long-established tradition or usage that becomes customary law if it is: Consistently and regularly observed, and (Evidence of this found in official statements of governments, opinions of legal advisors, executive decrees, orders to military forces, and court decisions.) Recognized by those states observing it as a practice that they must obligatorily follow.,1-13,General Principles of Law and Jus Cogens,Courts will often rely upon general principles of law that are common to the legal systems of the world to solve international disputes. Jus cogens is a peremptory norm of general international law, recognized by the international community as a norm from which no derogation is permitted. Jus cogens - states must respect certain fundamental principles. Treaties are void if they conflict with jus cogens. Ex: Treaty by two nations to use violence against a third nation violates higher standard of jus cogens.,1-14,Scope of International Law in Actual Practice,International tribunals regard municipal law as subservient to international law. States have obligation to bring their municipal law into compliance with international norms. Municipal courts often balk at this obligation based upon strong feelings of nationalism and belief in priority for the sovereign states own law.,1-15,Practice in Municipal Courts,In municipal courts, international law generally treated as correlative. If the international law is based on customary practice, it is received in accordance with the doctrine of incorporation. Customary IL is part of domestic law to the extent that it is not inconsistent. Minority of courts - doctrine of transformation Customary IL is applicable domestically only after adopted by legislation, court decision, or local usage.,1-16,Municipal Court Reception Rules Found in Treaties Two Factors,Nature of the treaty: Self-executing contains a provision stating that the treaty will apply to the parties without having to adopt domestic enabling legislation. Non-Self-Executing requires enabling legislation before effective domestically. Constitutional structure of the ratifying state: In U.S., President negotiates constitutional treaties that are then ratified by the Senate. Executive agreements - treaties entered into by the President, not ratified, not effective domestically.,1-17,Case 1-2Sei Fujii v. State,Examines whether provisions of UN Charter promoting fundamental freedoms without distinction as to race are self-executing or not. California appellate court ruled that land purchased by Fujii, a Japanese alien, violated alien land law and escheated to state. CA Supreme Court affirmed that UN Charter was not self-executing because language was not mandatory and required additional implementing legislation. However, law violated 14th Amend., Fujiis money returned.,1-18,International Persons,States Independent states Dependent states Inchoate states International Organizations Intergovernmental organizations (IGO) Nongovernmental organizations (NGO),1-19,International Persons - States,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 (Puerto Rico) 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.,1-20,Case 1-3Matimak Trading Co. v. Khalily and D.A.Y. Kids Sportswear Inc.,Matimak, a Hong Kong corporation, sued in federal court in NY under diversity jurisdiction as a citizen of foreign state. Though not formally recognized by executive branch, Matimak argued de facto recognition of Hong Kong. Ruling: Hong Kong not an independent state. Matimak not a citizen or subject of United Kingdom or any foreign state. Suit dismissed for lack of jurisdiction.,1-21,Case 1-4The Trail Smelter Arbitration,State with territorial sovereignty still subject to negative servitudes, preventing it from causing injury to a second state. Smelting plant in Canada was polluting air and water in State of Washington. “A state owes at all times a duty to protect other states against injurious acts by individuals from within its jurisdiction.”,1-22,Territorial Sovereignty After The Rio de Janeiro Conference - 1992,Modernly, states have adopted negative servitude as formal part of international law.,1-23,Changes in Territorial Sovereignty,With a change in sovereignty over territory, several legal consequences arise and we apply the following rules: Successor states are bound by dispositive treaties treaties concerned with rights over territory (boundaries & servitudes.) Merger Rule treaties in effect in a former state remain in effect in its territory when it becomes part of a new state. Ex: Treaties of both Egypt and Syria remained in effect when they merged into the United Arab Republic Moving Boundaries Rule treaties of state absorbing new territory become effective within absorbed territory.,1-24,Changes in Territorial Sovereignty (continued),Ex: Frances treaties displaced German treaties in annexed territory of Alsace-Lorraine at end of WWI. Clean Slate Doctrine new state created from colony not bound by treaties of its former colonial power. Succession of States when two states agree to join and form single state or when a state dissolves into two or more states, the new states are bound by the predecessors treaties. Ex: When the Soviet Union split in 1991, the 12 republics were bound by the existing treaties of the Soviet Union.,1-25,International Persons - International Organizations,According to the United Nations Charter, there are two kinds of international organizations: Intergovernmental organizations (IGO) Private or nongovernmental organizations (NGO) IGO is a permanent organization set up by two or more states to carry on activities of common interest. NGO is an international organization made up of organizations other than states. May be nonprofit NGO or for-profit multinational enterprise (MNE).,1-26,International Persons - IGOs,IGO charter (Ex: UN Charter) sets out its Aims Objectives Internal structure Resources Express powers IGO must be recognized to have legal capacity the qualification or authority to deal with other international persons,1-27,International Persons - IGOs - The United Nations,Most important IGO Its charter is a multilateral treaty Operates though its organs- an agency that carries on specific functions within a larger organizations. UN organs are the General Assembly, the Security Council, the International court of Justice, the Trusteeship Council, and the Economic and Social Council.,1-28,United Nations System,Name given to various autonomous organizations (also IGOs) that have entered into agreements with the UN to be UN agencies.,1-29,International Persons - IGOs - The European Union,The European Union is a 25-member IGO created by the founding states in order to integrate their economies and political institutions. The European Treaty in 1992 established a: political union common citizenship for nationals of member states Social Charter monetary union Central Bank, and common currency (the euro).,1-30,EU Powers,EU has supranational powers. Supranational powers are powers surrendered by member states to an IGO. EU law is superior to the laws of member states. This means: The member states are required to bring their internal laws into compliance with EU law, and Ex: Commission v. Belgium held that Belgium must change its laws to prevent discrimination against lumber produced in other states The EU law is directly effective within member states Ex: Costa v. ENEL held that individual is entitled to invoke the EU Treaty in the courts of EU member states.,1-31,Case 1-5Commission of the European Communities v. Fed. Rep. of Germany,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.,1-32,Institutions of the EU - The European Commission,The main institutions of the EU are the: European Commission EUs executive branch with some legislative function comprised 27 individuals appointed by Parliament. Duties are to: Ensure that EU rules are respected Propose measures to the European Council Implement EU policies Manage the funds that make up the EU budget See http:/ec.europa.eu/index_en.htm,1-33,Institutions of the EU - Council of the European Union,Main decision-making body of the EU. Exercises co-decisions with Parliament. Role is to: Adopt legislation (with Parliament) Adopt annual budget (with Parliament) Adopt international agreements Coordinate the economic policies of the member states See http:/www.consilium.europa.eu,1-34,Institutions of the EU - European Parliament,Co-legislative body and main supervisory institution of the EU. 786 members elected every five years. Arranged by political parties, not by nationality. Three main roles: Oversight authority over all EU institutions Shares legislative power with Council of the EU Determines the EUs annual budget with Council,1-35,Institutions of the EU - European Court of Justice,Is the supreme tribunal of the EU. Comprised of 27 judges and 8 advocates general. Advocate general briefs case for judges and suggest how case should be decided. Sits in chambers of three to five judges. Hears four kinds of cases: appeals from the Court of First Instance complaints brought by the commission or by one member against another member complaints brought by member against EU institution complaints to annul EU legal measure,1-36,International Persons - other IGOs,General IGOs that are devoted to political cooperation, security, & promotion of economic, social, and cultural development include: Council of Europe, African Union, Arab League, Organization of American States, Commonwealth of Independent States (former republics of the Soviet Union). Specialized IGOs deal with issues of mutual interest such as European Space Agency and International Criminal Police Agency (INTERPOL). Free Trade Areas are cooperative economic IGOs. These include the North American FTA (NAFTA).,1-37,International Persons- Nongovernmental Organizations (NGOs),Nonprofit NGOs serve as coordinating agencies for private national groups. Include International Bar Assoc., Amnesty International, and the International Committee of the Red Cross. For-profit NGOs, known as transnational corporations or multinational enterprises (MNEs), are businesses operating joint ventures in multiple countries. These joint ventures by states have included space and oil exploration.,1-38,Rights of Individuals Under International Law,Individuals have no direct rights under traditional view of IL. State allowed to seek compensation for injury to its nationals under the law of state responsibility. Individual may assert claim for violation of basic human rights intended to protect all people from cruel and inhuman treatment, threats to their lives, and pe