International Law and the World’s Legal SystemsBULW 5380 Chapter Two

What is International Law?

• Defined as 1) rules applicable to the conduct of nations in their relationships to other nations and individuals; 2) rules for international organizations; 3) rules that have been accepted by the international community; and 4) criminal laws applicable to genocide and other crimes against humanity.

It Is Largely Consensual• It is not one neat organized thing:• 1) At least as long ago as 1625 when Dutch

jurist Hugo Grotius wrote “On the Law of War and Peace” there has been a recognized body of international agreements, consensus, and accepted practice (or custom). The text’s view, p. 47 His “law of nations” was renamed “international law” by English philosopher Jeremy Bentham in 1789.

• 2) From “International Law” by M.W. Janis: The “process [of international law] displays a complexity that may verge on anarchy” and “although international law . . . is not always respected, the fact is that there is more [of it] than ever before.

• 3) Enforcement mechanisms are “soft.”

Public and Private Int’l Law

Public international law deals with the rules affecting the conduct of nations with one another and with individuals.

Private international law deals with the rights and responsibilities of individuals and companies operating in an international environment.

See text page 48.

Primary and Secondary Sources of Int’l Law• Primary sources include treaties,

conventions, customs, and general principles recognized by civilized nations.

• Secondary sources include everything else including decisions and teachings of the most highly qualified jurists of the various nations.

• The leading authority on this is the UN’s Statute of the Int’l Court of Justice.

Custom & Usage

• Non-US• English common

law, the law merchant, American Indian tribal law, etc.

• US• The 1900

“Paquette Habana” case, the law of sales (UCC Art. 2)

Treaties• Terms to know: bilateral vs. multilateral;

conventions; protocols; self-executing vs. non-self-executing.

• The Vienna Convention on the Law of Treaties (1980) codified many of the customary rules governing the interpretation of treaties. The US has signed but not ratified it.

• The US Senate must ratify treaties by a 2/3rd vote.

International Humanitarian & Human Rights Laws

• Humanitarian law deals with treatment of military and civilians during war or civil conflict (i.e. the Geneva Conventions).

• Int’l Human Rights laws are numerous, but not particularly effective. They come principally from three sources: the U.N., the Council of Europe, and the International Labour Organization.

International Criminal Court

• “The ICC is an independent international organisation, and is not part of the United Nations system. Its seat is at The Hague in the Netherlands. Although the Court’s expenses are funded primarily by States Parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities.” see http://www.icc-cpi.int/Menus/ICC/About+the+Court/

• The U.S., China, India, and Russia have not ratified the Rome Statute that created this court.

International Criminal Law

• To adjudicate a case a nation’s courts must have subject matter and personal jurisdiction (over the defendant)

• Defendants can be your own citizens, even outside your country, or foreigners inside or outside your country.

• Five basic principles of jurisdiction: territoriality, nationality, the protective principle, passive personality, and universality (see pp. 60-61).

Extraterritoriality

• Defined as a nation projecting its laws beyond its borders.

• Based on treaty, international agreements, or on one or more of the 5 principles of jurisdiction.

• Example: The Foreign Corrupt Practices Act (US) makes it illegal for US firms to bribe foreign officials outside of the US.

General Concepts• Comity – a judicial doctrine where courts of

one country will defer to the courts of another out of courtesy and in a spirit of reciprocity.

• Sovereign Immunity – courts will not allow suits against a state unless that state permits it or unless the state is engaged in a commercial activity.

• Act of State Doctrine – a doctrine of domestic, not international, law, where a court will not inquire into legislative or executive acts of

another nation.

United Nations Bodies• The International Court of Justice hears

cases brought under the UN charter, treaties, conventions, international law, etc. Enforced by public opinion and diplomacy.

• The International Labour Organization has written standards and recommendations pertaining to workers’ rights.

• UN Commission on Int’l Trade Law• UNCTAD• WIPO• Plus many others

Codes of Ethical and Socially Responsible Conduct

• The OECD – 30 industrial nations adopted voluntary recommendations pertaining to MNCs.

• UN Global Compact – a partnership of MNCs, public interest groups, and UN agencies totaling some 3,800 members promoting basic principles of environmentalism and corporate social responsibility.

• The Coalition for Environmentally Responsible Economies (CERES) – primarily a network or US companies and environmental groups committed to following the CERES Principles.

• Individual company codes.

Global Legal Systems• Common Law Systems – peculiar to the

English-speaking world; arose in England after the Norman Conquest.

• Civil Law Systems – derived from ancient Roman law.

• Islamic Law – Sharia or “divine law” derived from the Koran and the written record of the teaching of the prophet Mohammad.

• Mixed Systems – i.e. Japan, an amalgam of German civil and criminal law, US constitutional and administrative law, and Japanese culture.