CHAPTER 2

INTERNATIONAL LAW
 INTERNATIONAL LAW
• is a system of treaties and agreements between nations that governs
how nations interact with
- other nations,
- citizens of other nations, and
- businesses of other nations.
• two different categories.
- Private international law: deals with controversies between private
entities, such as people or corporations, which have a significant
relationship to more than one nation. 
- Public international law: concerns the relationships between nations.
 SOURCES OF INTERNATIONAL LAW
• Sources of international law include:
-  international customs  and conventions (general state practice
accepted as law), 
- treaties, and
- general principles of law recognized by most national legal systems
• International law differs from state-based legal systems in that:
- primarily applicable to countries, rather than to individuals,
- operates largely through consent (no universally accepted authority
to enforce it upon sovereign states).
 TREATIES
• International treaty law comprises obligations expressly and
voluntarily accepted by states between themselves in treaties.
• The Vienna Convention on the Law of Treaties:
• “treaty” means an international agreement concluded between States
in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments and
whatever its particular designation”
 INTERNATIONAL CUSTOM
• customary international law: a general practice accepted as law".
•  This is generally determined through two factors:
- the general practice of states and
- what states have accepted as law
SOURCES
sources of international public law

(Formal) sources of international public law (ius

gentium):
- Treaties
- Customary law, general principles of law
- Decisions of international organisations
- Soft law
SOURCES
Treaties (categories)

- parties: bilateral, multilateral

- domain: commerce, war & peace, diplomatic relations, foreigners ...
- legal form: traité-convention (mutual obligations) / traité-loi (introducing legal
rules).
Some important types:
* FNC (friendship navigation commerce); free trade zone or economic union,
customs, GATT and other WTO treaties ...
* founding international organisations
* investment treaties, state loans
* judicial cooperation (e.g. extradition, evidence)
* « demarcation » e.g. double taxation avoidance treaties; jurisdiction and
enforcement; conflict of law rules
* unification of law; minimum standards (esp. human rights)
 SOURCES
Treaties: unification of law

Domain:
- either limited to transnational relationships (international sales, international transport, ...)
- or also applicable to domestic ones (e.g. bills of exchange)
Sometimes different versions (creating confusion)
How to interpret:
- General rules in the Vienna Convention in the Law of Treaties
- In many conventions a clause demanding autonomous interpretation (eg art. 7 CISG, see
Ch. 4)
- usually no institution with the authority to give a uniform interpretation
- exceptions: Benelux Court, Court of Justice EU, OHADA Common Court (Abidjan),
Caribbean Court of Justice (Caricom), etc.
- exchange of information (Lugano Treaty, CLOUT and CISG Digest, …)
SOURCES
International customary law
Conditions
- objective element: (widespread) general practice
- opinio iuris: accepted as law
Sometimes extended to « general principles of law » as a new kind of natural law

Importance
- limited in the field of international economic law
- more important in other fields (rights & immunities of states; war & peace; human
rights (aspects of), …)
 SOURCES
The national legal order
National law includes international public law (and other international
sources) as far as « received » (conditions for reception and possible
« direct effect » are determined by national constitutional law)

National public law and private law may have sources of international
origin (eg human rights ...)

Application of foreign national law in transnational relationships ?

SOURCES
Effects of national / foreign public law
Public law includes: administrative law, tax law, criminal law, competition
law and other economic public law (e.g. import & export regulation, valuta
exchange regulation; supervision of financial institutions and markets,
expropriation, ...)
Starting point: each country applies only its own public law according to its
own criteria of applicability
- application is usually territorial, sometimes extraterritorial (e.g. taxes,
competition,…). demarcation by treaties (e.g. double tax avoiding treaties;
criminal jurisdiction, etc.)
Exceptions (states applying foreign public law): cooperation treaties in
matters of public law, e.g. assistance in enforcing criminal sanctions,
collecting taxes, extradition, …
PLAYERS
States as rule-makers
State as legislator / rulemaker (government):
- direct (national sources of national law)
- creating international sources: concluding treaties, etc.
- ratifying and implementing international sources (incl. uniform
law)
- founding of, and taking part in international organisations

State as contracting party to conventions of international

public law engaging itself in obligations (e.g. commodity
agreements, bilateral or multilateral trade agreements, ...)
States as trade partners
Purpose: contracts to obtain or sell goods an services for use
by the government of by its citizens
Methods: directly as contracting partner or through state
companies or mixed enterprises / joint venture (many
gradations)
Regulation of the international trade (see WTO law, e.g. public
procurement opened to foreign business)
State as contracting party: corruption risk; international rules
to fight corruption esp. on the active side. I.a. UNCAC (UN
Convention against corruption, in force 2005) (since 2017 also
Japan ratified), next slide
State as contracting party: determine the applicable law(s)
States - sovereignty
Starting point of the international public law:
- sovereignty also regarding the economic order;
- equality of rights under international law, also in relation to
(participation in) international trade

Many international treaties provide benefits for « developing

countries »
Disputed « right »
Infra: immunities
 States – immunity of jurisdiction
Immunity from jurisdiction for foreign states before national
courts
- Starting point: immunity, unless waived
- Many restrictions (national law, treaties).
States - enforcement immunity
Immunity from enforcement for foreign states

Starting point: immunity

Waiver of immunity of jurisdiction is not yet a waiver

of immunity of enforcement against state property