国际商法雷奥古斯特.pptx

2009 Pearson Education Inc.publishing as Prentice Hall1-1Chapter 1INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW 2009 Pearson Education Inc.publishing as Prentice Hall1-2CHAPTER 1INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAWTopics for this chapter:Defining International LawMaking International LawSources of International lawScope of International Law in PracticeInternational PersonsIndividual Rights Under International LawComparison of Municipal Legal Systems 2009 Pearson Education Inc publishing as Prentice Hall1-3What is International Law?lHistorically,dealt with the rules and norms regulating the relationships between states(countries)lThis law between nations is called public international lawlWith growth of relationships between persons and corporations in different states,private international law developed to govern their conduct 2009 Pearson Education Inc publishing as Prentice Hall1-4Schools of Thought Defining The Basis of International Law(IL)lCosmopolitans argue that IL is based upon universal human rights.lPositivists say that IL is based on the sovereign equality of all states and state consent to IL through treaties or custom.lHobbesians claim that states will make agreements and abide by IL only when it suits their self-interests.2009 Pearson Education Inc publishing as Prentice Hall1-5Examples of Public andPrivate International Law 2009 Pearson Education Inc publishing as Prentice Hall1-6Goodwill and Civility Between States:Comity lRepublic 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.2009 Pearson Education Inc publishing as Prentice Hall1-7Case 1-1Ignacio Sequihua v.Texaco Inc.lComity applied to private dispute.lCourt in Texas declined to exercise jurisdiction over activity and harm that occurred in Ecuador.lTaking jurisdiction in U.S.would have interfered with Ecuadors sovereign right to control its own environment.lCase dismissed under the doctrine of comity of nations.2009 Pearson Education Inc publishing as Prentice Hall1-8U.S.Courts Apply Comity and Refuse to Take Jurisdiction When:lThe defendant is a sovereign statelDefendant has insufficient contacts with the U.S.lAnother judicial forum is more convenientlCongress did not intend U.S.statute to apply extraterritoriallylCase concerns act of sovereign state on its own territory 2009 Pearson Education Inc publishing as Prentice Hall1-9The Making of International LawlGenerally,IL comes into effect only when states consent to it.lGeneral consent found in state practice the conduct and practices of states in their dealings with each other.lEvidence of general consent:Decisions of the International Court of JusticeResolutions passed by the UN General AssemblyMultilateral treaties,conclusions of international conferences,and provisions repeated over and over again in bilateral treaties 2009 Pearson Education Inc publishing as Prentice Hall1-10Sources of International Law1.Treaties or conventions2.International custom3.General principles of law recognized by civilized nations4.Judicial decisions and teachings of highly qualified legal writers lThis 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.2009 Pearson Education Inc publishing as Prentice Hall1-11Treaties and ConventionslEquivalents 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.2009 Pearson Education Inc publishing as Prentice Hall1-12Custom As Source of International LawlCustom a long-established tradition or usage that becomes customary law if it is:1.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.)2.Recognized by those states observing it as a practice that they must obligatorily follow.2009 Pearson Education Inc publishing as Prentice Hall1-13General Principles of Law and Jus CogenslCourts will often rely upon general principles of law that are common to the legal systems of the world to solve international disputes.lJus cogens is a peremptory norm of general international law,recognized by the international community as a norm from which no derogation is permitted.lJus 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.2009 Pearson Education Inc publishing as Prentice Hall1-14Scope of International Law in Actual PracticelInternational tribunals regard municipal law as subservient to international law.lStates have obligation to bring their municipal law into compliance with international norms.lMunicipal courts often balk at this obligation based upon strong feelings of nationalism and belief in priority for the sovereign states own law.2009 Pearson Education Inc publishing as Prentice Hall1-15Practice in Municipal CourtslIn municipal courts,international law generally treated as correlative.lIf 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.lMinority of courts-doctrine of transformationCustomary IL is applicable domestically only after adopted by legislation,court decision,or local usage.2009 Pearson Education Inc publishing as Prentice Hall1-16Municipal Court Reception Rules Found in Treaties Two Factors1.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.2.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.2009 Pearson Education Inc publishing as Prentice Hall1-17Case 1-2Sei Fujii v.StatelExamines whether provisions of UN Charter promoting fundamental freedoms without distinction as to race are self-executing or not.lCalifornia appellate court ruled that land purchased by Fujii,a Japanese alien,violated alien land law and escheated to state.lCA 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.2009 Pearson Education Inc publishing as Prentice Hall1-18International PersonslStatesIndependent statesDependent statesInchoate stateslInternational OrganizationsIntergovernmental organizations(IGO)Nongovernmental organizations(NGO)2009 Pearson Education Inc publishing as Prentice Hall1-19International Persons-StateslState-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.lAn independent state is sovereign and operates independently internationally.lA dependent state(Puerto Rico)has formally surrendered some aspect of their political and governmental functions to another state.lAn inchoate state lacks attributes of independent state,such as territory or population.2009 Pearson Education Inc publishing as Prentice Hall1-20Case 1-3Matimak Trading Co.v.Khalily and D.A.Y.Kids Sportswear Inc.lMatimak,a Hong Kong corporation,sued in federal court in NY under diversity jurisdiction as a citizen of foreign state.lThough not formally recognized by executive branch,Matimak argued de facto recognition of Hong Kong.lRuling: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.2009 Pearson Education Inc publishing as Prentice Hall1-21Case 1-4The Trail Smelter ArbitrationlState with territorial sovereignty still subject to negative servitudes,preventing it from causing injury to a second state.lSmelting plant in Canada was polluting air and water in State of Washington.l“A state owes at all times a duty to protect other states against injurious acts by individuals from within its jurisdiction.”2009 Pearson Education Inc publishing as Prentice Hall1-22Territorial Sovereignty After The Rio de Janeiro Conference-1992lModernly,states have adopted negative servitude as formal part of international law.2009 Pearson Education Inc publishing as Prentice Hall1-23Changes in Territorial SovereigntylWith 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 RepublicMoving Boundaries Rule treaties of state absorbing new territory become effective within absorbed territory.2009 Pearson Education Inc publishing as Prentice Hall1-24Changes 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.2009 Pearson Education Inc publishing as Prentice Hall1-25International Persons -International OrganizationslAccording to the United Nations Charter,there are two kinds of international organizations:1.Intergovernmental organizations(IGO)2.Private or nongovernmental organizations(NGO)lIGO is a permanent organization set up by two or more states to carry on activities of common interest.lNGO is an international organization made up of organizations other than states.May be nonprofit NGO or for-profit multinational enterprise(MNE).2009 Pearson Education Inc publishing as Prentice Hall1-26International Persons -IGOslIGO charter(Ex:UN Charter)sets out itsAimsObjectivesInternal structureResourcesExpress powerslIGO must be recognized to have legal capacity the qualification or authority to deal with other international persons 2009 Pearson Education Inc publishing as Prentice Hall1-27International Persons -IGOs -The United NationslMost important IGOlIts charter is a multilateral treatylOperates 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.2009 Pearson Education Inc publishing as Prentice Hall1-28United Nations SystemlName given to various autonomous organizations(also IGOs)that have entered into agreements with the UN to be UN agencies.2009 Pearson Education Inc publishing as Prentice Hall1-29International Persons -IGOs -The European UnionlThe European Union is a 25-member IGO created by the founding states in order to integrate their economies and political institutions.lThe European Treaty in 1992 established a:political unioncommon citizenship for nationals of member statesSocial Chartermonetary unionCentral Bank,andcommon currency(the euro).2009 Pearson Education Inc publishing as Prentice Hall1-30EU PowerslEU has supranational powers.lSupranational powers are powers surrendered by member states to an IGO.EU law is superior to the laws of member states.This means:1.The member states are required to bring their internal laws into compliance with EU law,andEx:Commission v.Belgium held that Belgium must change its laws to prevent discrimination against lumber produced in other states2.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.2009 Pearson Education Inc publishing as Prentice Hall1-31Case 1-5Commission of the European Communities v.Fed.Rep.of GermanylGermany prohibited the importation and marketing of meat products from other member states that did not comply with its Meat Regulation law.lNational 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.lHeld:Germany must conform to EU law and the principle of free movement of goods between member states.2009 Pearson Education Inc publishing as Prentice Hall1-32Institutions of the EU -The European CommissionlThe main institutions of the EU are the:lEuropean Commission EUs executive branch with some legislative function comprised 27 individuals appointed by Parliament.lDuties are to:1.Ensure that EU rules are respected2.Propose measures to the European Council3.Implement EU policies4.Manage the funds that make up the EU budgetSee http:/ec.europa.eu/index_en.htm 2009 Pearson Education Inc publishing as Prentice Hall1-33Institutions of the EU -Council of the European UnionlMain decision-making body of the EU.lExercises co-decisions with Parliament.lRole is to:1.Adopt legislation(with Parliament)2.Adopt annual budget(with Parliament)3.Adopt international agreements4.Coordinate the economic policies of the member statesSee http:/www.consilium.europa.eu 2009 Pearson Education Inc publishing as Prentice Hall1-34Institutions of the EU -European ParliamentlCo-legislative body and main supervisory institution of the EU.l786 members elected every five years.lArranged by political parties,not by nationality.lThree main roles:1.Oversight authority over all EU institutions2.Shares legislative power with Council of the EU3.Determines the EUs annual budget with Council 2009 Pearson Education Inc publishing as Prentice Hall1-35Institutions of the EU -European Court of JusticelIs the supreme tribunal of the EU.lComprised of 27 judges and 8 advocates general.lAdvocate general briefs case for judges and suggest how case should be decided.lSits in chambers of t