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International Law and OrganizationsInternational Law and Organizations
Chapter 2
© 2002 West /Thomson Learning
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What is International Law?What is International Law? A rule… that has been
accepted as such by the international community in the form of . . . customary law… … international agreement… …general principles common to
the major legal systems… Restatement of the Law 3rd
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Public International LawPublic International Law Deals with relationships
between countries and applies “norms regarded as binding on all members of the international community”
Example: Vienna Convention on the Law of Treaties
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Public International Law Pacta sunt servanda: “every
treaty in force is binding upon the parties to it and must be performed in good faith.”
Ius cogens: “preemptory norm of international law” (example: proscriptions against torture and genocide)
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Impact of treaties on business?
Impact of treaties on business?
Treaties involve public law but can apply to private transactions Tax treaties Law of the Sea convention Convention for the International
Sale of Goods(CISG)
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International Court of JusticeInternational Court of Justice Known as the World Court 15 judges serving 9 year term UN General Assembly and Security
Council elect Based in The Hague, Netherlands Only states can be parties and state must
have accepted the court’s jurisdiction Hears cases brought under UN Charter or
treaties, or questions of international law Case Examples:
Liechtenstein v. Guatemala Nicaragua v. United States
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United Nations in Public International Law
United Nations in Public International Law
General Assembly (1 country, 1 vote)
Security Council (15 members) 5 permanent members: China,
France, Russia, U.K. and the U.S. 10 non permanent members
elected every 2 years Permanent members have a veto
over non-procedural issues
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International Criminal Law
International Criminal Court – 1998 Rome Statute 108 signatories – not the U.S. Hears 3 categories of crimes
Genocide Crimes against humanity War crimes Cases must be referred by national
govt. or UN Security Council
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International Criminal Law
Principles of International Criminal Jurisdiction Territoriality
Subjective Territorial Jurisdiction Objective Territorial Jurisdiction
Nationality The Protective Principle Passive Personality Universality
Case Concerning Arrest Warrant of 11 April 2000 Belgian arrest warrant conflicts with immunity of
foreign ministers Court refuses to recognize universal jurisdiction in
absentia
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Private International LawPrivate International Law Conflict of laws Central role of different
national legal systems Civil law & Common Law Socialist & Islamic law Comparative law
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Public and Private International LawPublic and Private International Law
Convention for the Sale of Goods (CISG)
A convention or treaty that affects private transactions
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The Role of International Organizations
The Role of International Organizations
International Monetary Fund World Bank GATT and WTO OECD
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The Role of Codes of ConductThe Role of Codes of Conduct Examples from NGO (non
governmental organizations)- OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
World Diamond Congress – agt. to limit trade in “blood diamonds”
Governmental examples - U.S. Model business Principles
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The Role of EthicsThe Role of Ethics
How to define what is ethical? The problem of “first world
standards in the third world” Business attempts to address Codes of Conduct
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Human Rights, Ethics and Business Practices
Increasingly complex Do we agree on “Universal
Human Rights, or “animal rights?”
History: business role in change in South Africa?
Do we need more conventions? Likelihood of agreement?
What should the role of business be in this debate?
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Cases: Chapter 2Cases: Chapter 2
The Paquette Habana Sosa v. Alvarez-Machain Renkel v. United States Case Concerning Arrest
Warrant of 11 April 2000 Liechtenstein v. Guatemala M. Aslam Khaki v. Syed
Mohammad Hashim
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Paquette HabanaPaquette Habana
Facts: Coastal fishing boats seized by U.S. as prizes of war
Issue: Absent a treaty, does customary international law exempt fish vessels from capture as prizes of war?
Decision: Yes, the Court took judicial notice of customary international law and concluded peaceful fisherman are exempt from capture.
Note the Court’s review of historical precedent
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Sosa v. Alvarez - MachainSosa v. Alvarez - Machain
Facts: A was kidnapped in Mexico, sues S under Alien Tort Claims Act [ACTA]
Issue: Does ATCA create cause of action for torts in violation of international law?
Decision: No. ATCA only confers jurisdiction on US courts to hear certain cases
Reasons: At time of passage of ATCA, common law recognized torts in violation of int. law
Three specific offenses recognized Violation of safe conducts Infringements of rights of ambassadors Piracy
A must show claim based on violation of similarly specifically defined norm of international law
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Renkel v.United States
Facts: R sued US alleging inadequate medical care in military prison violated the Convention Against Torture
Issue: Is Convention Against Torture a self-executing treaty?
Decision: No, it is not self-executing, so doesn’t create cause of action
Reasons: Look to treaty as a whole – does it evidence intent to be self-executing?
US Senate, when consenting to Convention, declared Arts.
1 – 16 not self-executing So doesn’t create private right of action R must base cause of action under some domestic
law No legal authority for action for torture in US R hasn’t shown right of action for violation of
peremptory norm of international law
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Case Concerning Arrest Warrant of 11 April 2000 Facts: Belgian law gives courts jurisdiction over
genocide and war crimes Belgian court issued arrest warrant for Y, Congo
Minister of Foreign Affairs Congo brought case before ICJ to establish
diplomatic immunity for foreign minister of sovereign state
ICJ discussed principles of diplomatic immunity Full immunity required to enable minister to
perform duties of position Don’t distinguish between official capacity and
private capacity Customary international law doesn’t recognize
exception for war crimes or crimes against humanity But some limits to immunity:
Not immune from arrest in own country State may waive immunity Immunity ceases when person ceases to hold
office May be subject to action of international criminal
courts Concurring Opinion: Only recognize universal
jurisdiction for piracy
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Liechtenstein v. Guatemala
Facts: N born in Germany but resided in Guatemala; granted citizenship by Liechtenstein under special procedure; Guatemala seized N’s property during WWII; L sues G seeking damages
Issue: Does ICJ have jurisdiction over case here?
Decision: No; L can’t bring claim on behalf of N against G
Reasons: G not required to recognize L’s grant of citizenship to N; L can’t bring claim for N against G in ICJ
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M. Aslam Khaki v. Syed Mohammad HashimM. Aslam Khaki v. Syed Mohammad Hashim
Facts: Pakistani banks appeal on ban on riba (interest) on loans and deposits
Payment of interest involves injustice Money not a commodity under Islamic principles – it is
medium of exchange, not meant for trade in money itself
Injustice to use money for other purposes Interest allows earning return without taking part in
real economic activity Islam doesn’t recognize loans as income-generating
transactions Shariah only permits borrowing money in cases of dire
need Interest means loan becomes profitable trade – turns
economy into debt- oriented – mankind under “slavery of debt”
Islamic financing based on profit and loss sharing – any profit earned is reward for bearing risks of business
2002 – Pakistan Supreme Court held above decision based on errors; rules against interest don’t apply to non-Muslims