Introduction To International and Comparative Law: © 2009 Pearson Education Inc. Publishing As Prentice Hall

Chapter 1
INTRODUCTION TO
INTERNATIONAL AND
COMPARATIVE LAW
© 2009 Pearson Education Inc. publishing as Prentice Hall 1-1

CHAPTER 1
INTRODUCTION TO INTERNATIONAL
AND COMPARATIVE LAW
Topics for this chapter:
Defining International Law
Making International Law
Sources of International law
Scope of International Law in Practice
International Persons
Individual Rights Under International Law
Comparison of Municipal Legal Systems
© 2009 Pearson Education Inc. publishing as Prentice Hall 1-2

What is International Law?
 Historically, dealt with the rules and
norms regulating the relationships
between states (countries)
 This law between nations is called
public international law
 With 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 Hall 1-3

Schools of Thought Defining The
Basis of International Law (IL)
 Cosmopolitans argue that IL is based

upon universal human rights.
 Positivists say that IL is based on the
sovereign equality of all states and state
consent to IL through treaties or custom.
 Hobbesians claim that states will make
agreements and abide by IL only when it
suits their self-interests.

Examples of Public and
Private International Law

Goodwill and Civility
Between States: Comity
 Republic 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.
Case 1-1
Ignacio Sequihua v. Texaco Inc.
 Comity applied to private dispute.
 Court in Texas declined to exercise
jurisdiction over activity and harm that
occurred in Ecuador.
 Taking jurisdiction in U.S. would have
interfered with Ecuador’s sovereign right
to control its own environment.
 Case dismissed under the doctrine of
comity of nations.
U.S. Courts Apply Comity and
Refuse to Take Jurisdiction When:
 The defendant is a sovereign
state
 Defendant has insufficient
contacts with the U.S.
 Another judicial forum is more
convenient
 Congress did not intend U.S.
statute to apply extraterritorially
 Case concerns act of sovereign
state on its own territory
The Making of International Law
 Generally, IL comes into effect only when states
consent to it.
 General consent found in state practice – the
conduct and practices of states in their dealings
with each other.
 Evidence of general consent:
• Decisions of the International Court of Justice
• Resolutions passed by the UN General Assembly
• Multilateral treaties, conclusions of international
conferences, and provisions repeated over and over
again in bilateral treaties

Sources of International Law
1. Treaties or  This list, as

conventions contained in Article
2. International custom 38(1) of the Statute
3. General principles of of the International
law recognized by Court of Justice,
civilized nations implies a hierarchy,
or order, in which
4. Judicial decisions these sources are to
and teachings of be relied on.
highly qualified legal
writers
Treaties and Conventions
 Equivalents 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.
Custom As Source of
International Law
 Custom – 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.

General Principles of Law and
Jus Cogens
 Courts will often rely upon general principles
of law that are common to the legal systems of
the world to solve international disputes.
 Jus cogens is a peremptory norm of general
international law, recognized by the
international community as a norm from which
no derogation is permitted.
 Jus 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.

Scope of International
Law in Actual Practice
 International tribunals regard municipal
law as subservient to international law.
 States have obligation to bring their
municipal law into compliance with
international norms.
 Municipal courts often balk at this
obligation based upon strong feelings of
nationalism and belief in priority for the
sovereign state’s own law.

Practice in Municipal Courts
 In municipal courts, international law generally

treated as correlative.
 If 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.
 Minority of courts - doctrine of transformation
• Customary IL is applicable domestically only after
adopted by legislation, court decision, or local usage.
Municipal Court Reception Rules
Found in Treaties – Two Factors
1. 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.
Case 1-2
Sei Fujii v. State
 Examines whether provisions of UN Charter
promoting fundamental freedoms without
distinction as to race are self-executing or not.
 California appellate court ruled that land
purchased by Fujii, a Japanese alien, violated
alien land law and escheated to state.
 CA 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.,
Fujii’s money returned.
 States
• Independent states
• Dependent states
• Inchoate states
 International Organizations
• Intergovernmental
organizations (IGO)
• Nongovernmental
organizations (NGO)

International Persons - States
 State - 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.
 An independent state is sovereign and
operates independently internationally.
 A dependent state (Puerto Rico) has formally
surrendered some aspect of their political and
governmental functions to another state.
 An inchoate state lacks attributes of
independent state, such as territory or
population.
Case 1-3
Matimak Trading Co. v. Khalily and
D.A.Y. Kids Sportswear Inc.
 Matimak, a Hong Kong
corporation, sued in federal court
in NY under diversity jurisdiction
as a citizen of foreign state.
 Though not formally recognized
by executive branch, Matimak
argued de facto recognition of
Hong Kong.
 Ruling: 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.

Case 1-4
The Trail Smelter Arbitration
 State with territorial sovereignty still

subject to negative servitudes, preventing
it from causing injury to a second state.
 Smelting plant in Canada was polluting
air and water in State of Washington.
 “A state owes at all times a duty to protect
other states against injurious acts by
individuals from within its jurisdiction.”

Territorial Sovereignty After The
Rio de Janeiro Conference - 1992
 Modernly, states have adopted negative
servitude as formal part of international law.

Changes in Territorial Sovereignty
 With 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 Republic
• Moving Boundaries Rule – treaties of state
absorbing new territory become effective within
absorbed territory.
Changes in Territorial
Sovereignty (continued)
• Ex: France’s 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 predecessor’s treaties.
• Ex: When the Soviet Union split in 1991, the 12
republics were bound by the existing treaties of the
Soviet Union.
- International Organizations
 According to the United Nations Charter, there are
two kinds of international organizations:
1. Intergovernmental organizations (IGO)
2. Private or nongovernmental organizations (NGO)
 IGO is a permanent organization set up by two or
more states to carry on activities of common
interest.
 NGO is an international organization made up of
organizations other than states.
• May be nonprofit NGO or for-profit multinational
enterprise (MNE).
- IGOs
 IGO charter (Ex: UN Charter) sets out its
• Aims
• Objectives
• Internal structure
• Resources
• Express powers
 IGO must be recognized to have legal
capacity – the qualification or authority to
deal with other international persons
- IGOs
- The United Nations
 Most important IGO

 Its charter is a multilateral treaty
 Operates 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.

United Nations System
 Name given to various autonomous organizations (also
IGOs) that have entered into agreements with the UN to
be UN agencies.

- IGOs
- The European Union
 The European Union is a 25-member IGO

created by the founding states in order to
integrate their economies and political
institutions.
 The European Treaty in 1992 established a:
• political union
• common citizenship for nationals of member states
• Social Charter
• monetary union
• Central Bank, and
• common currency (the euro).
EU Powers
 EU has supranational powers.
 Supranational 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, and
Ex: Commission v. Belgium held that Belgium must
change its laws to prevent discrimination against
lumber produced in other states
2. 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.
Case 1-5
Commission of the European
Communities v. Fed. Rep. of Germany
 Germany prohibited the importation and marketing
of meat products from other member states that did
not comply with its Meat Regulation law.
 National 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.
 Held: Germany must conform to EU law and the
principle of free movement of goods between
member states.
Institutions of the EU
- The European Commission
 The main institutions of the EU are the:
 European Commission – EU’s executive branch
with some legislative function comprised 27
individuals appointed by Parliament.
 Duties are to:
1.Ensure that EU rules are respected
2.Propose measures to the European Council
3.Implement EU policies
4.Manage the funds that make up the EU budget
See http://ec.europa.eu/index_en.htm

- Council of the European Union
 Main decision-making body of the EU.
 Exercises co-decisions with Parliament.
 Role is to:
1. Adopt legislation (with Parliament)
2. Adopt annual budget (with Parliament)
3. Adopt international agreements
4. Coordinate the economic policies of the
member states
See http://www.consilium.europa.eu
- European Parliament
 Co-legislative body and main supervisory
institution of the EU.
 786 members elected every five years.
 Arranged by political parties, not by nationality.
 Three main roles:
1. Oversight authority over all EU institutions
2. Shares legislative power with Council of the
EU
3. Determines the EU’s annual budget with
Council

- European Court of Justice
 Is the supreme tribunal of the EU.
 Comprised of 27 judges and 8 advocates general.
 Advocate general briefs case for judges and
suggest how case should be decided.
 Sits in chambers of three to five judges.
 Hears four kinds of cases:
1.appeals from the Court of First Instance
2.complaints brought by the commission or by one
member against another member
3.complaints brought by member against EU institution
4.complaints to annul EU legal measure
- other IGOs
 General IGOs that are devoted to political
cooperation, security, & promotion of economic,
social, and cultural development include:
• Council of Europe, African Union, Arab League,
Organization of American States, Commonwealth of
Independent States (former republics of the Soviet
Union).
 Specialized IGOs deal with issues of mutual
interest such as European Space Agency and
International Criminal Police Agency (INTERPOL).
 Free Trade Areas are cooperative economic IGOs.
These include the North American FTA (NAFTA).

- Nongovernmental Organizations (NGOs)
 Nonprofit NGOs serve as coordinating

agencies for private national groups.
• Include International Bar Assoc., Amnesty
International, and the International
Committee of the Red Cross.
 For-profit NGOs, known as transnational
corporations or multinational enterprises
(MNEs), are businesses operating joint
ventures in multiple countries. These joint
ventures by states have included space and oil
exploration.

Rights of Individuals Under
International Law
 Individuals have no direct rights under traditional view of IL.
 State allowed to seek compensation for injury to its nationals
under the law of state responsibility.
 Individual may assert claim for violation of basic human
rights intended to protect all people from cruel and inhuman
treatment, threats to their lives, and persecution.

Case 1-6
De Sanchez v. Banco Central De
Nicaragua
 Individual sued Banco

Central in U.S. court for
breach of contract for not
honoring a check.
 Held: An individual who is a
national of a foreign state
may not sue an agency of
that foreign state in another
state’s courts for breach of
contract.
Comparison of Municipal
Legal Systems
 Study of different municipal law

systems is known as comparative law.
 Three major legal system types are:
• Romano-Germanic civil law
• Anglo-American common law
• Islamic law

Romano-Germanic Civil Law
 Civil law set out in national law codes.
 Civil law deals only with rights of private citizens as
opposed to public law that deals with constitutional
and administrative issues.
 Guidance for decisions comes only from the civil
code, not court decisions.
 Developed from many sources, including the jus
commune or common law of Europe and the lex
mercatoria (merchant law) of the Renaissance.
 Led to development of the French Civil Code of
1804 and the German Civil Code of 1896 which
are followed by many countries today.
Anglo-American Common Law
 Common law is based primarily on court-made

rules of precedent.
 Developed fundamental doctrine of supremacy
of the law. All persons, including the
sovereign, are subordinate to the rule of law.
 Precedent used prior acts or instances as a
model for deciding later similar cases.
 Equity courts based upon being just, impartial,
and fair in circumstances not covered by rules
of law have now merged with law courts.
Contrasting Civil and Common Law

Islamic Law
 The Islamic legal system is known as
Shari’a.
 Shari’a is derived from the following sources
and are listed in order of importance:
1.The Koran
2.The Sunna or teachings and practices of the
Prophet Mohammad
3.The writings of Islamic scholars
4.Consensus of the legal community
Case 1-7
Libyan American Oil Co. (LIAMCO) v.
Govt. of the Libyan Arab Republic
 LIAMCO had concessions for oil
exploration and extraction.
 1969 military coup lead to
nationalization of LIAMCO’s rights
with no compensation to LIAMCO.
 LIAMCO sought arbitration but Libya
said Islamic law contrary.
 Arbitrator found customary IL &
Islamic law recognize that states can
be bound to arbitration agreements.

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Chapter 1

© 2009 Pearson Education Inc. publishing as Prentice Hall 1-1

© 2009 Pearson Education Inc. publishing as Prentice Hall 1-2

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 Cosmopolitans argue that IL is based

© 2009 Pearson Education Inc publishing as Prentice Hall 1-4

© 2009 Pearson Education Inc publishing as Prentice Hall 1-5

© 2009 Pearson Education Inc publishing as Prentice Hall 1-9

1. Treaties or  This list, as

 Equivalents of legislation in IL are:

© 2009 Pearson Education Inc publishing as Prentice Hall 1-12

© 2009 Pearson Education Inc publishing as Prentice Hall 1-13

© 2009 Pearson Education Inc publishing as Prentice Hall 1-14

 In municipal courts, international law generally

© 2009 Pearson Education Inc publishing as Prentice Hall 1-18

© 2009 Pearson Education Inc publishing as Prentice Hall 1-20

 State with territorial sovereignty still

© 2009 Pearson Education Inc publishing as Prentice Hall 1-21

© 2009 Pearson Education Inc publishing as Prentice Hall 1-22

 Most important IGO

© 2009 Pearson Education Inc publishing as Prentice Hall 1-27

© 2009 Pearson Education Inc publishing as Prentice Hall 1-28

 The European Union is a 25-member IGO

© 2009 Pearson Education Inc publishing as Prentice Hall 1-32

© 2009 Pearson Education Inc publishing as Prentice Hall 1-34

© 2009 Pearson Education Inc publishing as Prentice Hall 1-36

 Nonprofit NGOs serve as coordinating

© 2009 Pearson Education Inc publishing as Prentice Hall 1-37

© 2009 Pearson Education Inc publishing as Prentice Hall 1-38

 Individual sued Banco

 Study of different municipal law

© 2009 Pearson Education Inc publishing as Prentice Hall 1-40

 Common law is based primarily on court-made

© 2009 Pearson Education Inc publishing as Prentice Hall 1-43

© 2009 Pearson Education Inc publishing as Prentice Hall 1-45

© 2009 Pearson Education Inc publishing as Prentice Hall

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