Concepts in International Law

1. INTERNATIONAL BUSINESS LAW
Legal Environment of International Trade

2. INTERNATIONAL LAW – 3 KINDS OF
RELATIONSHIPS:
 The relationships between states and
states (i.e. nations)- Public International
law
 The relationships between states and
persons (Quasi-public)
 The relationships between persons and
persons – Private International Law

3. THE BODY OF INTERNATIONAL LAW IS
IMMENSE:
• International Customs
• International Agreements
• International Treaties and Accords
• Charters (Such as the United Nations)
• Protocols
• Tribunals
• Memoranda
• Legal Precedents of the International Court of Justice (ICJ)

4. INTERNATIONAL LAW INCLUDES:
• Common Law (Sometimes called “case
law”
• Civil Law (Statutes Created by Governing
Bodies)
• Includes substantive law, procedural law
and remedies

5. THREE MAIN LEGAL PRINCIPLES IN
INTERNATIONAL LAW
• Act of State Doctrine: Respects that a nation is sovereign in its own
territory and its official domestic actions may not be questioned by the
judicial bodies of another country. It dissuades from deciding cases that
would interfere with a country’s foreign policy
• Doctrine of Sovereign Immunity: Deals with actions brought in the court of
one nation against another foreign nation and prevents the sovereign state
from being tried in court without its consent. In the U.S. this is governed
by the Foreign Sovereign Immunities Act (FSIA) of 1976
• Principle of Comity: In the instance where two nations share common
policy and ideas, one of them submits to the laws and judicial decrees of
the other.

6. Example 1: Comity – Ignacio Sequihua v.
Texaco, Inc.
 Plaintiffs were residents of Ecuador – they filed suit against Texaco in
Texas State Court . They asserted a variety of causes of action arising out
of the alleged contamination of the air, ground and water in Ecuador.
 The asked for an injunction (court order) requiring Defendant s (Texaco
and others) to return the land to its former condition and for a “trust
fund” to be administered by the Court.
 The case was “removed” to federal Court – which the Court found
procedurally proper in the circumstances
 Defendants made a motion to dismiss .
 The Court used the principle of “comity” to rule for Defendants.
 Comity states that a court should decline to exercise jurisdiction in certain
circumstances in deference to the laws and interests of another country.

7. WHY COMITY? WHAT DOES THIS MEAN?
 The challenged activity and the “harm” complained of in this
case by the citizens of Ecuador occurred entirely in Ecuador
 The Plaintiffs are all residents of that country
 Defendants are not residents of Texas
 Enforcement of any order of THIS court in Ecuador is
questionable at best
 The challenged conduct is regulated by the country of Ecuador
which has expressed objection to the exercise of jurisdiction
by this court and this must be respected under Comity

8. BASIS OF JURISDICTION
 The basis of jurisdiction in the foregoing case is territorial
 Another basis for jurisdiction is nationality – If U.S. companies
do certain acts in foreign states (i.e. countries), they may still
be accountable in U.S. courts under the principle of
nationality
 If foreign companies act in ways that directly affect a state
(country) other than their own, they may be held accountable
by the other state (country) and this is known as the principle
of objective territoriality

9. THE MAKKING OF INTERNATIONAL LAW
 Within nations law is made by
legislatures, courts and other agencies of
government
 At the international level no formal law
making machinery exists
 International law comes into effect only
when states (countries) consent to it

10. CONSENT IS FOUND IN STATE PRACTICE:
 The conduct and practices of states (countries) in their
dealings with each other;
 Statements or evidence of general consent can be found in:
 Decisions of the International Court of Justice (or its predecssor the
Permanent Court of International Justice
 Resolutions passed by the General Assembly of the United Nations
 Multilateral Treaties
 Conclusion of International Conferences and
 Bilateral Treaties (between two nations) – in some instances

11. CONSENT OF A PARTICULAR STATE (NATION)
 Consent of a particular state (country) can be
found in:
 The declarations of its government
 In its domestic legislation
 In its court decisions
 In treaties to which it is a party

12. SOURCES OF INTERNATIONAL LAW
 Article 38(1) of the Statute of the International Court of Justice lists
the sources that the Court is permitted to use and most legal
writers in this area agree that this list is reasonably complete:
 International Conventions whether general or particular establishing rules
expressly recognized by the contesting states (i.e., countries)
 International custom, as evidence of a general practice accepted as law
 The general principles of law as recognized by civilized nations
 Judicial decisions, and the teachings of the most highly qualified publicists
of the various nations as a subsidiary means of determining the rules of
law
[THIS LIST IS IN ORDER OF PREFERENCE – TOP TO BOTTOM]

13. TREATIES AND CONVENTIONS
 In International Law TREATIES and CONVENTIONS are the
equivalent of legislation
 Treaties are legally binding agreements between two or more states
(countries)
 Conventions are legally binding agreements between states sponsored
by organizations such as the United Nations
 BOTH ARE BINDING UPON STATES BECAUSE OF A SHARED SENSE OF
COMMITMENT AND
 BECAUSE ONE STATE FEARS THAT IF IT DOES NOT RESPECT ITS
PROMISES, OTHER STATES WILL NOT RESPECT THEIR PROMISES

14. VIENNA CONVENTION ON THE LAW OF TREATIES
 This came into force in 1980
 It only applies to treaties after a party ratifies the agreement
 Its wide-spread acceptance by states and its codification of customary rules have
made it the usual standard for interpretation.
 Article 2(1)(a) of the Vienna Convention states “’Treaty’ means an international
agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or two or more
related instruments and whatever its particular designation”
 This definition excludes certain agreements, such as oral promises, unilateral
promises, agreements relating to international organizations, agreements
governed by municipal law and agreements not intended to create a legal
relationship

15. CUSTOM
 SOME RULES HAVE BEEN AROUND SO LONG OR ARE SO GENERALLY
ACCEPTED THAT THEY ARE DESCRIBED AS CUSTOMARY LAW
 INTERNATIONAL CUSTOMARY LAW IS NOT FIXED
 DEVELOPMENT OF INTERNATIONAL CUSTOMARY LAW IS IN A STATE OF
CONSTANT FLUX
 EXAMPLE: RULES THAT GOVERN THE “ART OF WAR” ARE REVISED AT THE
END OF PRACTICALLY EVERY MAJOR CONFLICT TO REFLECT THE
CIRCUMSTANCES OF A CHANGED WORLD.
Example: The present rule that requires a soldier to fight only with
combatants is rather outdated in today’s world of terrorism and guerilla
warfare and will likely change in the near future.

16. CUSTOM (Cont’d)
 To show customary practice has become customary law, to elements must
be established – one behavioral and the other psychological:
USUS: Requires consistent and recurring action (or lack
thereof) by states. Evidence can be found in the statement
of governments, including diplomatic correspondence, policy
statements, press releases
OPINIO JURIS SIVE NECESSITATIS: The psychological
element must show that states observing the custom must
regard it as binding

17. GENERAL PRINCIPLES OF LAW
 When courts are required to decide international disputes, they
frequently rely on general principles of law that are common to the
legal systems of the world. In the world today there are over 200
states (countries) yet there are really only TWO MAJOR LEGAL SYSTEMS:
THE ANGLO-AMERICAN COMMON LAW SYSTEM
THE ROMANO-GERMANIC LEGAL SYSTEM
These two systems are remarkably similar in their basic
procedures and substantive rules. It is this similarity that provides
courts with the general principles they use in deciding many
problems that arise in the international community.

18. JUS COGENS
 The idea of international jus cogens as a body of higher law for the
international community has achieved some currency in the late
twentieth century.
 It was first embodied in the 1969 Vienna Convention on the Law of
Treaties.
 The doctrine of international jus cogens was developed under the strong
influence of natural law concepts. In contrast to positivists, who
predicate international law on freedom of contract, naturalists (or
cosmopolitans) believe that states (countries) cannot be absolutely free in
their contractual relations but must respect certain fundamental
principles deeply rooted in the international community.
 Legal Norms that override a state’s sovereignty because they are so basic

19. SOME TERMINOLOGY
• Custom – A usage or practice common to many or to a particular place or
class OR habitual with an individual
• International Agreements – Agreements concluded between states in
written form and governed by international laws, whether embodied in a
single instrument or two or more related instruments; while considered
binding, international agreements may lapse on expiration, through war or
denunciation or when a fundamental change in circumstance occurs.
Multilateral Agreements are usually open to all nations; Plurilateral
Agreements involve a restricted number of nations; Bilateral Agreements
are private agreements between two nations.
• Municipal Law – “Local” law – as opposed to broader international

20. MORE TERMINOLOGY
• Treaties – Formal agreements between two or more sovereign nations. In
the United States, the President negotiates treaties with foreign nations
and these agreements must be ratified by the United States Senate
(Article II, Section 2.2 – two-thirds of the senators must concur)
• Protocols – The etiquette of diplomacy and affairs of state: these are rule
which guide how an activity should be performed; they are not usually
written down; they establish generally accepted conduct in diplomacy
• Tribunals – Any person or institution with authority to adjudicate
• Memorandum – A document which describes a bilateral or multilateral
agreement. A document that expresses a convergence of will between
nations which indicates a common intended action in a situation with no
legal commitment implied

21. INTERNATIONAL LAW IN ACTUAL PRACTICE
 International Tribunals generally regard municipal (i.e., local law) as
subservient to international law. [e.g., in relation to states who are
contracting parties to a treaty, the provisions of their municipal [sic local]
law cannot prevail over those of the treaty]
 International Tribunals also would regard states as having the obligation
to bring their municipal law into compliance with international norms.
 However, given the nature of sovereignty and nationalism, it must be
admitted that municipal courts may chafe at the notion that there is a law
that is higher than the sovereign state’s own law
 In The U.S. there are disagreements about whether our Supreme Court justices should
take international law or standards into account in deciding cases involving only U.S.
citizens

22. THE PRACTICE IN MUNICIPAL [LOCAL]
COURTS
 In municipal [i.e., local] courts International Law is treated as correlative. Once a
court determines International Law is applicable in a particular case, the law will
be treated as law and not as fact.
 The main question becomes: Whether the international law has been received
into the local jurisprudence. How the court will answer this question depends on
whether the law is based on customary practice OR is contained in a treaty.
 In most countries customary international law is received in accordance with the
Doctrine of Incorporation – customary international law is treated as adopted to
the extent it is not inconsistent with prior municipal legislation or judicial decisions
of final authority.
 A minority of courts follow the doctrine of transformation – customary
international law is NOT applicable until clearly adopted by legislative action,
judicial decision or established local usage.

23. SELF-EXECUTING vs.NON-SELF-EXECUTING
TREATIES
 A self-executing treaty is one that contains a provision that
the treaty will apply to the parties without their having to
adopt any domestic enabling legislation
 A non self-executing treaty has no such provision
 In the U.S., for example, the Constitution gives the President
authority to negotiate treaties but they must be ratified by
the Senate.
 This is cumbersome and has lead the U.S. to develop two kinds of
treaties: constitutional treaties and executive agreements. As
external matters, these both have the same effect (commitments
which impose binding international obligations on the United States
but as to internal matters a different rule

24. SEI FUJII vs. STATE
 Mr. Sei Fujii, a Japanese alien, purchased real estate in
California after World War II
 Because he was ineligible for citizenship under U.S.
naturalization laws, a trial court held his ownership of the
land violated California’s alien land law and that the land
purchased by him escheated to the State of California
 Mr. Fujii appealed; an intermediate appellate court held that
this law violated the United Nations Charter’s human rights
provisions and reversed the decision of the trial court. The
State of California appealed to the Supreme Court of
California

25. FUJII DECISION
 The United Nations Charter is a Treaty and our federal Constitution provides that
treaties made under the authority of the United States are part of the supreme law
of the land and that judges in each state must follow them
 A treaty does not automatically supersede local law which are inconsistent with it
unless the treaty provisions are self-executing.
 In determining whether a treaty is self-executing courts look to the intent of the
signatory parties as manifested by the language of the instrument and if this is not
clear then recourse may be had to the circumstances surrounding its execution.
 In order for a treaty provision to be operative without the aid of implementing
legislation and to have the force and effect of a statute, it must appear that the
framers of the treaty intended to prescribe a rule that, standing alone, would be
enforceable in the courts.
 This treaty is NOT self-executing

26. INTERNATIONAL PERSONS
 States – Political entities that have a territory, a population, a government
capable of entering into international relations and a government capable
of controlling its peoples.
 Included :
 Independent States which are free from the control of other states and
free to enter into agreements with other international persons
 Dependent States – these are states which have formally surrendered
some aspects of their political and governmental functions to another
state
 Inchoate States – States which lack some attribute required to be
treated as a fully independent state; most commonly they lack
territory or population

27. WHICH COUNTRY’S LAW APPLIES?
• In the U.S., for example, where there is a SALE OF GOODS, the Uniform
Commercial Code (UCC) is usually the law that applies (with some
variations between the states); however
• When the sale is INTERNATIONAL, it’s necessary to determine whether it’s
the LAW OF THE EXPORTING COUNTRY or the LAW OF THE IMPORTING
COUNTRY that applies.
• The Parties often resolve that question as part of their agreement by using
a Choice of Law Clause.
• Sometimes a treaty between two countries may be in force spelling out
how the citizens of the countries will be treated when certain types of
transactions are in play.
• Conflicts of Law must often be resolved by determining the significance of
contacts with regard to one or both states involved in a controversy.

28. RECOGNITION
 Recognition comes about by a unilateral declaration and it can be explicit
or implicit – for a state to exist in the international community, it must be
recognized by other states
 Once recognition is given, it implies that the recognized state or
government is entitled to the rights and privileges granted by
international law
 Recognition of government is different from recognition of a state – a
state is recognized when an identifiable government, people and territory
first come into existence. If the government later changes, it may not be
recognized even though recognition of the state continues

29. THEORIES FOR WHEN A GOVERNMENT
SHOULD BE RECOGNIZED
 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
 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

30. MATIMAK TRADING CO. v. KHALILY, et. al.
 This Case is summarized on page
13 of your Text. I have also
posted the complete case in
“Instructor Files” on the Course
Home Page

31. INTERNATIONAL PERSONS
 States (Countries) and their
subdivisions
 International Organizations
 Businesses
 Individuals

32. CLASSIFICATION OF STATES (COUNTRIES)
 Independent States are free from the political control
of other states (countries) and free to enter into
agreements with other international persons
 Dependent States have formally surrendered some
aspect of their political and governmental functions
to another state
 Inchoate States lack some attribute required to be
treated as a fully independent state; most
commonly they lack territory or population

33. RECOGNITION
 For a state to exist in the international community, it must be recognized
by other states
 Recognition comes about by a unilateral declaration and it can be either
explicit or implicit (tacit)
 Once given it implies that the recognized state or government is entitled
to the rights and privileges granted by international law
 Recognition of a government is different from recognition of a state

34. INDIVIDUALS AND INDIVIDUAL RIGHTS
UNDER INTERNATIONAL LAW