International Law

Prepared by :-

Musbri Mohamed DIL; ADIL ( ITM ) Pursuing MBL ( UKM )

International Law


GATT/WTO Regional Agreements NAFTA – free trade EU – trade plus “ever closer union” Do member states give away their sovereignty when they join arrangements like these? If so, how?

Unlike federal or state statutory law, judgemade common law, or administrative law, international law is not created by a sovereign. That is, international laws are not effective until ratified by sovereign national governments. However, their indirect effect (through national enforcement) can be significant and profound.


What is international law?
Treaties (e.g., Law of the Sea; GATT), and Rules developed by international organizations created by treaties (e.g., U.N.; WTO) How is international law enforced? Is it different in some fundamental way from other “sources” of law like constitutions, statutes, regulations, and common law?


Most generally, international law consists of the body of rules & procedures that are intended to govern relations between nations or states. International law has traditionally been based on the notion of state sovereignty, but that concept has been breaking down because of the globalization. Interactions between states have become more complicated, involving a wide array of issues that require them to give up some of their sovereignty in order to have effective relations with each other.


Art. 38(1) of the Statute of the I.C.J. defines customarily recognized sources: “Disputes submitted to the court should be decided by applying treaties, international customs, general principles of law, judicial decisions, and the teachings of international law scholars…” Among many international organizations, the United Nations facilities international diplomacy, the World Health Organization coordinates international public health protection, and the International Labor Organization monitors and fosters workers’ rights around the world.


International Organisations
1. UN a. Structure/Security Council b. Kyoto c. Hazardous Waste 2. EU a. Structure b. Environment (Waste or Nature Conservation). 3. WTO a. Structure b. Conflict Trade/Environment


What is Law?
Set of rules of conduct Made by an organised entity (i.p. a state) Governing the relationships between people and organisations Providing means of enforcement and / or punishment of those who do not comply with the rules.


Law is not necessarily congruent with -Justice -Morality


Purpose of Law
To allow people to coexist by providing an enforceable set of rules and thus making other people’s conduct foreseeable and setting a frame for a person’s own conduct.


Position of Law within the Whole
The law does not stand alone but interacts with :-the political system -the economical system -society


Why is Law Binding?
Formally: because it is made in accordance with the applicable rules (e.g. an act made by parliament in accordance with the provisions of the constitution) Practically: because it is considered binding by a majority.


Public International Law: regulates the relations between national states. Now, through conventions, it also recognizes the rights of individuals and, thus, governs relations between a state & citizens of other states. Private International Law: consists of those rules and practices that determine where and by whose law controversies involving more than one state are resolved, and how foreign judgments are enforced.


“International custom” & “General principles”:
Concordant practice by a number of States with reference to a type of situation falling within the domain of international relations; Continuation or repetition of the practice over a considerable period of time; Conception that the practice is required by, or consistent with, prevailing international law; General acquiescence in the practice by other States. Stated by Judge M.O.Hudson of the Int’l Law Commission for establishment of Art.24.


Approaching a Research Problem in Int’l Law: Begin with a reference work (e.g. bibliography), a law review article, or a treatise for general information or for help analyzing the issues. Next, determine whether there are Treaties in Force.If so, the legislative history of the treaty & its interpretation by the courts may be important. If there is no treaty, the researcher should explore national practice, evidences of “international custom” and “general principle of law”.

Public Law (the law governing the relationship between individuals and the state or between states). (Public) International Law (the law that regulates the relationships between states and international organisations). Constitutional Law (the law that governs the fundamental principles of the organisation of a state and of its relationship to the individuals (e.g. government bodies, legislative procedure, civil rights). Administrative Law (the law dealing with the decision-making and control of administrative units of government, sub-categories are e.g. police law, local government, tax law).

Private Law (the law governing the relationship between individuals). General Private Law (i.p. contract, tort). Specific Private Law (e.g. commercial law, company law, competition law, employment law). Private International Law (the branch of law regulating all lawsuits involving a foreign law element where a difference in result will occur depending on which laws are applied).


Criminal Law (the law that deals with crime and the legal punishment of criminal offences). Annex to each field: Procedural Law (e.g. civil litigation, criminal procedure). Areas touching more than one field (e.g. environmental law = public environmental law + private environmental law + environmental criminal law). Areas overlapping with other humanities (e.g. legal theory, philosophy of law, criminology).


Sources of Law
Levels: Local government State within a federal state / province National Supranational (e.g. EU) International ( no universal hierarchy within national law; priority is a matter of definition)


Common law Term: 1. Opposite of civil law (here relevant). 2. Opposite of statutory (written) law. Spread: Mainly UK, Ireland, North America, Australia, New Zealand (mix of common and civil law in Scotland and Quebec (CA)). Origin: Development since the Norman rule from 1066 A.D. (no major impact of Roman law). Country of origin = England. Characteristics: Traditionally no codification of law (now more and more statutes)law mainly made by judges in court through development of general principles by comparision of cases focused on practical needs, i.p. of trade strict rules on departure from previous judgements (precedents) on same issue.


Civil law Term (2 different meanings): 1. Opposite of common law (here relevant). 2. Synonym for private law. Spread: Mainly continental Europa, Latin America; also parts of Asia, Africa. Origin: Roman law (500 A.D.); adopted in Europe from Middle Ages. Characteristics: Codification of law (e.g. French „Code Civile“ (1804), German , Bürgerliches Gesetzbuch“ (1900)) -> law made by parliament. Very abstract + systematic. Development of general principles mainly through writing of legal scholars. Function of judges = application of law; precedences not binding. Sub-categories: Romanistic family (French impact; more directly based on Roman law). Germanic family (based on reception of Roman law in German speaking countries in medieval times).


Islamic law Term: = Sharia (devine rules of conduct, covering all areas of life) Spread: Near East, parts of Africa, Pakistan, Malaysia, Indonesia (often as part of a mixed system). Origin: Emergence of Islam from the 6th century. Characteristics: Based on islamic religion. Main source = Qur‘an (7th century; will of Allah revealed to mankind through prophet Muhammed)not man made, but made by Allah -> Unchangable by men rules cover private life also (e.g. drinking, prayers). Applies to all Muslims regardless of nationality or residence.


Indigenous law Term: = traditional law of local or regional native groups. Spread: Nowadays nearly everyway replaced by more modern law (e.g. law of the Inuits or Polynesians). Origin: Earliest form of law everywhere in the world. Characteristics: Not in writing (oral transmission). Gradual development depending on social needs (factors: time, place, way of life). Not very complex. Originally based on consensus (no means of enforcement). Application limited to group of people without state quality.


Conflict of Laws
Because the dividing lines between the different sources of law are not always unambiguous, conflicts between different laws may arise (e.g. between different national laws) Therefore rules / mechanisms needed to solve conflicts (e.g. Private International Law = PIL)


Problem: private law = national law (i.e. every state has its own legal system) but in practice often legal situations that touch more than one state (e.g. international trade; marriage of citizens of different states) Possible solutions: Application of one national private law to be chosen by conflict of laws principles. Creation of universal laws / rules applicable regardless of national borders (see lessons on international commercial contracts and arbitration). Harmonisation / unification of national laws (e.g. EU). Definition: Conflict of laws (= private international law, PIL) = the legal discipline that determines what national private law applies to a case that involves a foreign law element.

Specification: Courts can apply the law of a foreign state. Question is not the courts of what state are competent (usually there is a choice between the courts of all states touched). Question is if the domestic court has to apply foreign law. Sometimes combination of different foreign laws or foreign and domestic law necessary. Traditionally, conflict of law rules are national law, not international law (i.e. every state has its own rules stipulating when a court has to apply foreign law). But similar principles can be identified (harmonisation efforts, i.p. The Hague Conference on PIL, founded in 1893).

Possible criteria for choice of law (Principles are based on considerations of reason, convenience, utility) : Place of court (lex fori). Nationality of parties (lex patriae). Domicile/residence of parties (lex domicilii) Place of event in question (lex loci actus; e.g. conclusion of contract, marriage, tort, fulfilment of duty). Place of object in question (e.g. goods; if land = lex situs). Will of parties -> what criterion actually prevails in a given case depends on its specific legal issues.


Execution and Enforcement of Law
For law to be efficient, means are needed to ensure that it is executed and if necessary enforced. Such means are: A well-organised system of executing bodies (i.p. in administrative law). A functioning court system incl. procedural rules. Sanctions for non-compliance (e.g. loss of rights, fines, imprisonment).


Construction / Interpretation of Law
= the process of determining how the provisions of the general law relate to a specific legal case Necessary because acts, contracts, judgements etc. are not always unambiguous (e.g. due to compromises in the course of enactment, unforeseen situations, change in meaning). The rules apply similarly to acts and contracts (there are specific rules on the treatment of judgements in common law).


= the process of determining how the provisions of the general law relate to a specific legal case. Necessary because acts, contracts, judgements etc. are not always unambiguous (e.g. due to degree of abstractness, compromises in the course of enactment, unforeseen situations, change in meaning). Similar rules apply to acts and contracts (there are specific rules on the treatment of judgements in common law)


Established rules / approaches: Ordinary meaning rule (= words must be given their plain, ordinary and literal meaning). Systematic approach (= a provision must be looked upon in its systematic context, e.g. position within the act, interaction with other provisions). Purposive approach (= the purpose of the provision has to be taken into account). Historical approach (= the situation at the time the provision was made and subsequent developments have to be considered).


Method of IL Your Expectations / Ideas / Proposals
Combination of theory and practice. Case studies / examples (from different countries and sectors). Discussions. Students‘ presentations. Group work. Assignments. Materials to prepare for class (e.g. texts to read). Games, moot court, mock UN conference.


Topics of IL Your Expectations / Ideas / Proposals
General ideas + structure of law; basic definitions System of International Law Different national laws EU law Int. environmental law + law of resources (e.g. Kyoto Protocol, emissions, climate change, carbon credits, logging, pollution, renewable energies, energy conflicts, water, environmental damages). Company law / commercial law Property law / land law / intellectual property Quality standards for products


Criteria for the Assessment of Presentations
Content of presentation (handling of topic, structure, understandability, focus on important points). Difficulty of topic. Slides (reasonable amount + structure of information; not design). Way of presentation (rhetorical quality, not just repeating the slides, use of own words, facing of audience, involvement of audience).


Technological change, basically improvement in communications (Internet), accelerated the progress of globalization Firms were able to access market knowledge quicker Most economists are convinced that this wave of globalization is a natural evolution of the Ricardian law of comparative advantage, the cornerstone of international trade Ricardian theory says that countries should only produce goods and services in which they have a comparative advantage over other countries, and buy those in which they are at a comparative disadvantage. Gains from trade will outweigh losses from non-employment And so international law will be acting as tools to international trade.


The scope and authority of international law have thus expanded dramatically during the era of globalization. Historically, international law addressed only relations between states in certain limited areas (such as war and diplomacy) and was dependent on the sovereignty and territorial boundaries of distinct countries (generally referred to as “states”). But globalization has changed international law in numerous ways. For example, as globalization has accelerated, international law become a vehicle for states to cooperate regarding new areas of international relations (such as the environment and human rights), many of them requiring states to rethink the previous notions of the inviolable sovereign state. The continued growth of international law is even more remarkable in this sense, since states, having undoubtedly weighed the costs and benefits of the loss of this valuable sovereignty, have still chosen to continue the growth of international law.


What Is International Law? Basically defined, international law is simply the set of rules that countries follow in dealing with each other. But this basic definition must be supplemented with three more complex explanations—Is international law really law, the way the laws of the United States, enforced by courts and police, are? Where do we find the rules of international law? Are they written down somewhere? Finally, how is international law enforced, if there is no world government?


Is International Law Really “Law”? There are several ways to think about law. In the domestic legal system, we think of law as the rules that the government issues to control the lives of its citizens. Those rules are generally created by the legislature, interpreted by the judiciary, and enforced by the executive branch, using the police, if necessary, to force citizens to obey. What is law for the international community if there is no one legislature, judiciary, executive branch or police force?


What Are the Sources of International Law? Since there is no world government, there is no world Congress or parliament to make international law the way domestic legislatures create laws for one country. As such, there can be significant difficulty in establishing exactly what is international law. Various sources, however— principally treaties between states—are considered authoritative statements of international law. Treaties are the strongest and most binding type because they represent consensual agreements between the countries who sign them. At the same time, rules of international law can be found, as stated in the statute of the International Court of Justice (ICJ), in customary state practice, general principles of law common to many countries, domestic judicial decisions, and the legal scholarship. Thank you.


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