Chapter 25 International and Comparative Law

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Chapter 25International and Comparative Law

Chapter 25International and Comparative Law

Copyright © 2006 by Pearson Prentice-Hall. All rights reserved. 25 - 2

International Law (1 of 2)

Law that governs affairs between nations Law that regulates transactions between

individuals and businesses of different countries

No single legislative source of international law All countries of the world (and numerous international

organizations) are responsible for enacting international laws


International Law (2 of 2)

No single world court responsible for interpreting international law

Several courts or tribunals hear and decide international legal disputes of parties that agree to appear before them

No world executive branch that can enforce international laws Nations do not have to obey international law enacted by

other countries or international organizations


Sources of International Law Sources of international lawSources of international law – those things that

international tribunals rely on in deciding international disputes

Article 38(1) of the Statute of the International Court of Article 38(1) of the Statute of the International Court of JusticeJustice lists four sources of international law: Treaties and conventions Custom General principles of law Judicial decisions and teachings

Sources of international lawSources of international law – those things that international tribunals rely on in deciding international disputes

Article 38(1) of the Statute of the International Court of Article 38(1) of the Statute of the International Court of JusticeJustice lists four sources of international law: Treaties and conventions Custom General principles of law Judicial decisions and teachings


Treaties and Conventions

TreatiesTreaties The first source of

international law Agreements or contracts

between two or more nations that are formally signed by an authorized representative and ratified by the supreme power of each nation

TreatiesTreaties The first source of

international law Agreements or contracts

between two or more nations that are formally signed by an authorized representative and ratified by the supreme power of each nation

ConventionConvention Treaty that is sponsored by

an international organization e.g., United Nations

Conventions normally have many signatories

ConventionConvention Treaty that is sponsored by

an international organization e.g., United Nations

Conventions normally have many signatories


Custom (1 of 2)

The second source of international law

Custom describes consistent, recurring practices followed by two or more nations when dealing with each other over a period of time that have become recognized as binding

Customs that have been recognized for some period of time are often codified in treaties


Custom (2 of 2)

Two elements must be established to show that a practice has become a custom:

1. Consistent and recurring action by two or more nations over a considerable period of time

2. Recognition that the custom is binding because of legal obligation


General Principles of Law (1 of 2)

The third source of international law

Consist of principles of lawprinciples of law recognized by civilized nations

These are principles of law that are common to the national lawnational law of the parties to the dispute


General Principles of Law (2 of 2)

The general principles of law may be derived from: Constitutions Statutes Regulations Common Law Other Sources of National Law


Judicial Decisions and Teachings The fourth source of international law

Consist of judicial decisions and teachingsjudicial decisions and teachings of the most qualified legal scholars of the various nations involved in the dispute

International courts are not bound by the doctrine of stare decisisstare decisis


The United States and Foreign Affairs(1 of 3)

The Constitution gives the federal government most of the power to deal with foreign affairs of this country: Foreign Commerce ClauseForeign Commerce Clause – Article I, Section 8, clause 3

vests Congress with the power “to regulate commerce with foreign nations.”

Treaty ClauseTreaty Clause – Article II, Section 2, clause 2 states that the president “shall have power, by and with advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.”



Any state or local law that unduly burdens foreign commerce is unconstitutional under the Foreign Commerce ClauseForeign Commerce Clause

The president is the agent of the United States in dealing with foreign countries



Under the Treaty ClauseTreaty Clause, only the federal government may enter into treaties with foreign nations

Under the Supremacy ClauseSupremacy Clause of the Constitution: Treaties become part of the “law of the land” Conflicting state or local law is void


The United Nations (UN) International organization created by

multinational treaty in 1945

Goals of the United Nations (U.N.): Maintain peace and security in the world Promote economic and social cooperation Protect human rights


Governance of the United Nations(1 of 3)

The United Nations is governed by:

The General AssemblyThe General Assembly Composed of all member nations The legislative body of the U.N. Adopts resolutions which have limited force Resolutions are usually enforced through

persuasion and sanctions



The Security CouncilThe Security Council Composed of 15 member nations

Five are permanent members Ten are chosen for two-year terms

Primarily responsible for maintaining international peace and security

Has authority to use armed forces



The SecretariatThe Secretariat Administers the day-to-day operations of the

United Nations Headed by the Secretary-GeneralSecretary-General, who is

elected by the General Assembly The Secretary-General may refer matters that

threaten international peace and Security to the Security Council and use his office to help solve international disputes


International Court of Justice The judicial branch of the United Nations Also called the World CourtWorld Court Located in The Hague, the Netherlands Only nations (not individuals or businesses) may

have cases decided by this court A nation may seek redress on behalf of an

individual or a business that has a claim against another country


UN Agencies The U.N. is also composed of various

autonomous agencies that deal with a wide range of economic and social problems: UNESCO UNICEF IMF World Bank International Monetary Fund IFAD


Regional International Organizations(1 of 6)

The European Union (EU)The European Union (EU) Comprises many countries of Western and

Eastern Europe

Created to promote Peace and security Economic, social, and cultural development



The European Union (EU)The European Union (EU) (continued)

The EU treaty creates open borders for trade between members

The EURO is the single monetary unit European Court of Justice – the judicial

branch of the EU European Court of First Instance (CFI)



The North American Free Trade Agreement The North American Free Trade Agreement (NAFTA)(NAFTA)

An international treaty that creates a regional free-trade zone consisting of the United States, Canada, and Mexico

Eliminates or reduces most of the duties, tariffs, quotas, and other trade barriers between the members



Latin, Central, and South American Latin, Central, and South American Economic CommunitiesEconomic Communities

Central American Common Market MERCOSUR Common Market Caribbean Community Andean Common Market



African Economic CommunitiesAfrican Economic Communities Economic Community of West African States Economic and Customs Union of Central

Africa East African Community Organization of African Unity African Economic Community



Asian Economic CommunitiesAsian Economic Communities Association of South East Asian Nations

(ASEAN)

Middle Eastern Economic CommunitiesMiddle Eastern Economic Communities Organization of Petroleum Exporting

Countries (OPEC) Gulf Cooperation Council


World Trade Organization (WTO) International organization of more than 130

member nations Created to promote and enforce trade

agreements among member nations WTO members have entered into many trade

agreements among themselves By enforcing trade agreements among its

members, the WTO has become the world’s most important trade organization


WTO Dispute Resolution One of the primary

functions of the WTO is to hear and decide trade disputes between member nations

One of the primary functions of the WTO is to hear and decide trade disputes between member nations

Panel

Dispute Settlement Body

Appellate Body

Panel

Dispute Settlement Body

Appellate Body


National Courts Decide International Disputes (1 of 3)

The majority of commercial litigation involving international business transactions are heard by national courtsnational courts of individual nations

Judicial ProcedureJudicial Procedure Choice of forum clauseChoice of forum clause – designates the judicial or arbitral

forum that hear and decide the case Choice of law clauseChoice of law clause – designates the law to be applied by

the court or arbitrator in deciding the case



Act of State DoctrineAct of State Doctrine Judges of one country cannot question the

validity of an act committed by another country within that other country’s borders

Based on the principle that a country has absolute authority over what transpires within its own territory



The Doctrine of Sovereign ImmunityThe Doctrine of Sovereign Immunity A doctrine that states that countries are granted

immunity from suits in courts of other countries Foreign Sovereign Immunities ActForeign Sovereign Immunities Act – exclusively

governs suits against foreign nations that are brought in federal or state courts in the United States


International Law Jewish Law and the Torah

Islamic Law and the Koran

Hindu Law – Dharmasastra

Jewish Law and the Torah

Islamic Law and the Koran

Hindu Law – Dharmasastra

Chapter 25 International and Comparative Law

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