International Law

BUSINESS LAW AND REGULATIONS

INTERNATIONAL LAW - INTRODUCTION

Prison escapee, high-stakes politician, shipwreck survivor, Grotius was a remarkable man who led a remarkable life. As a person of power in the government which was overturned in a coup staged by rebels in 1618, Grotius was sentenced to life imprisonment. in March 1621, Grotius and his wife Maria plotted an escape by placing himself in a large trunk that Maria had shipped to him, and having it carried out on the pretence that it contained a number of books. He fled to Antwerp and thence to Paris, where his family eventually joined him. He began composition of De iure belli ac pacis (On the law of war and peace), which was published by a Parisian press in 1625.

Hugo Grotius 1583 1645 Father of International Law

INTERNATIONAL LAW - NATURE

Sum of rules accepted by civilized states - either explicitly or tacitly Determines conduct towards each other and each others subjects. Law of war and peace

Comprises rights and duties of states (States are subjects of international law)
Unbounded by political and geographical constraints

INTERNATIONAL LAW - IMPORTANCE

Impossible to live in isolation States must face reactions of and interactions with other states. States must improve cooperation and avoid confrontation Global public opinion has gained significance Development of a new progressive social order (equality, social justice, etc)

INTERNATIONAL LAW - DEFINITIONS

law of nations or international law is the name for the body of customary and treaty rules which are considered legally binding by civilized states in their intercourse with each other. -Oppenheim International law consists in certain rules of conduct which modern civilized states regard as binding on them in their relations with one another -Hall International law is the body of the principles and rules which civilized states consider as binding upon them in their mutual relations. It rests upon the consent of sovereign states - Hughes

INTERNATIONAL LAW - SOURCES

According to Lawrence there is only one source of international law consent of the states, which may either be explicit or tacit. According to open Oppenheim sources of law are two fold i.e., (1) express consent, through entering into treaties and (2) tacit consent, expressed through implied consent or consent by conduct (adoption of customs) According to Brierly the main sources of international law are custom and reason According to Westlake custom and reason are two primary sources along with roman law as a subsidiary source

INTERNATIONAL LAW SOURCES CONTD

According to Article 38 of the Statute of the International Court of Justice, UN Charter 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

INTERNATIONAL LAW INTERNATIONAL TREATIES

International treaties and conventions form the most important source of International Law. Types 1. Bilateral and Multilateral (With its own secretariat) 2. Law Making Treaties and Contractual Treaties Law Making treaties involve both a legislative operation as well as a contractual part.

INTERNATIONAL LAW CUSTOM

Older and Original Source of International law "evidence of a general practice accepted as law. - Statute of the International Court of Justice Therefore customary law exists where: a certain legal practice is observed and the relevant actors consider it to be law

INTERNATIONAL LAW GENERAL PRINCIPLES

When there is no provision in an international treaty or statute nor any recognized customary principle of international law available for application in an international dispute, the general principles of law can be used to fill the gap.

They may arise either through municipal law or through international law, and many are in fact procedural or evidential principles or those that deal with the machinery of the judicial process

INTERNATIONAL LAW OTHER SOURCES

Judicial Decisions of various International Tribunals Decisions of Municipal Courts Prize Courts Opinion of Writers, Jurists and commentators International Comity International State Papers (Other than treaties) State instructions for its own officers Judicial reasoning The United Nations

Principles of International Law

INTERNATIONAL LAW

STATES
Definitions1. Lawrence defines state as a political community, the members of which are bound together by the tie of common subjection to some central authority whose commands the bulk of them habitually obey. 2. According to Holland a state is a numerous assemblage of human beings, generally occupying a certain territory, amongst whom the will of the majority, or of ascertainable class of persons, is by the strength of such a majority, or class, made or prevail against any of their number to oppose it. Ingredients People Country Government Soverign

STATES
Sovereignty, Independence and Equality 1. Sovereignty is the right to exercise therein to the exclusion of any other State , the functions of a State a) External Sovereignty b) Internal Sovereignty 2. Independence is a fundamental principle of International law inasmuch as no state can, without its consent, be compelled to submit its disputeswith other states either to mediation or to arbitration or to any other kind of pacific settlement 3. States, although unequal in respect of territory, population, power etc., are nevertheless considered equal as subjects of international law. According to Oppenheim, this has four consequences a) Any question of consent Each state has only one vote b) Legally although not politically Each vote has equal weight c) No state can claim jurisdiction over another Only foreign Courts. d) The courts of one state cannot rule on the validity of the official acts of another.

RECOGNITION OF STATES
Recognition of State is the act by which another state acknowledges that the political entity recognized possesses the attributes of statehood.

-Jessup

Reasons for the inconsistency in adopting different principles of recognition 1. Recognition is more a question of policy than of law, governed by the principle of protecting its own interests, which lie in maintaining proper relations with the new state or government. 2. There are several distinct categories of recognition, it should be understood

what type of recognition is to be conferred, de jure or de facto. This

depends on the attitude of the recognizing state towards the new state.

RECOGNITION OF STATES

FORMS OF RECOGNITION 1. Express and Implied 2. Conditional Recognition 3. Collective Recognition

4. De Facto and De Jure Recognition

5. Premature Recognition Casus Belli Bangladesh - 1972

TREATIES - CONCEPT
An agreement or contract between two or more states undertaking to carry out obligations imposed on each of them. 1. Agreement 2. Written Form 3. Governed by International law Important Source of International law

TREATIES - KINDS
According to Oppenhiem Lawmaking Treaties and Other Treaties According to Vattel Real and Personal Equal and Unequal

According to their objects Political, Commercial, Social, treaty of

guarantee, treaty of neutrality, treaty of cession and treaty of extradition According to McNair Considered to be the most perfect classification 1. Treaties having the character of a conveyance 2. Treaties having the character of a contract 3. Treaties akin to Charters of Incorporation (Universal Postal Union - 1874) 4. Law Making treaties

Treaties creating constitutional law (Statute of the ICJ)

Pure law making treaties (International labour conventions)

TREATIES STEPS TOWARDS CONCLUSION OF TREATIES

1.Accrediting of representatives
2.Negotiation 3.Signature 4.Ratification 5.Coming into force

6.Registration
7.Incorporation into state law

INTERNATIONAL ORGANIZATION - UNO

Founded in 1945 after the Second World War by 51 countries committed to maintaining international peace and security, developing friendly

relations among nations and promoting social progress, better living

standards and human rights

INTERNATIONAL ORGANIZATION - ORGANS

The General Assembly is the main deliberative organ of the United Nations and includes all its Members. It may discuss any matter arising under the UN

Charter and make recommendations to UN Members (except on disputes or

situations which are being considered by the Security Council). In the Assembly, each nation, large or small, has one vote and important decisions are taken by a two-thirds majority vote.

INTERNATIONAL ORGANIZATION - ORGANS

The Security Council has primary responsibility under the Charter for maintaining peace and security. It can be convened at any time, whenever peace is threatened. Member States are obligated to carry out its decisions. When a threat to peace is brought before the Council, it usually first asks the parties to reach agreement by peaceful means. If fighting breaks out, the Council tries to secure a ceasefire. It may then send peacekeeping missions to troubled areas or call for economic sanctions and embargoes to restore peace.

INTERNATIONAL ORGANIZATION - ORGANS

The Economic and Social Council (ECOSOC) is the central body for coordinating the economic and social work of the United Nations and the UN

family of organizations. It has 54 member nations elected from all regions. As

much as 70 per cent of the work of the UN system is devoted to promoting higher standards of living, full employment, and conditions of economic and social progress and development.

INTERNATIONAL ORGANIZATION - ORGANS

The Trusteeship Council was assigned under the UN Charter to supervise the administration of Trust Territories former colonies or dependent territories

which were placed under the International Trusteeship System.

INTERNATIONAL ORGANIZATION - ORGANS

The International Court of Justice (ICJ) is the UNs main judicial organ. Presiding over the ICJ, or World Court, are 15 judges, each from a different nation, elected by the General Assembly and Security Council. The Court settles legal disputes between nations only and not between individuals, in accordance with international law.

INTERNATIONAL ORGANIZATION - ORGANS

The Secretariat is made up of an international staff

working at UN Headquarters in New York, as well as

UN offices in Geneva, Vienna, Nairobi and other locations. It consists of departments and offices with a total staff of around 16,000, drawn from some 175 countries. The Secretariat is headed by the Secretary-General. He is appointed by the General Assembly on the recommendation of the Security Council for a fiveyear term. As the chief administrative officer of the Organization, the Secretary-

General directs its work. He is also responsible for implementing decisions

taken by the various organs of the United Nations.

PRINCIPLES OF INTERNATIONAL LAW - JURISDICTION

A State has Jurisdiction over all persons and things within its territory. Its jurisdiction also extends over its ships, harbours and territorial waters,
1. Jurisdiction on open sea/ high seas Public ships Piracy Fisheries Sea Bed Sub Soil under the sea Atomic tests over High Seas 2. Peaceful uses of the sea bed 3. Peaceful uses of outer space 4. Imperial Jurisdiction 5. Civil and Criminal Jurisdiction 6. Position of Foreigners 7. Sovereign Immunity 8. Diplomatic Immunity

9. Doctrine of Comity

PRINCIPLES OF INTERNATIONAL LAW - ACT OF STATE

The Act of State Doctrine states that every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government's acts done within its own territory
In other words The "Act of State Doctrine" says that courts should not decide cases that would interfere with their country's foreign policy.

Case Study - Banco Nacional de Cuba v. Sabbatino

PRINCIPLES OF INTERNATIONAL LAW - ACT OF STATE

1. A US sugar distributor, Farr Whitlock and Co. contracted with a US-owned sugar producer in Cuba, Compania Azucarera Vertientes-Camaguay de Cuba (CAV), to import sugar into the US. 2. As part of a trade dispute, the government of Cuba nationalized their sugar industry and seized the assets of several US-owned sugar producers, including CAV. 3. CAV still made the delivery, but Farr didn't send the payment to the Cuban government, instead they paid CAV's legal representative in the US, Sabbatino. 4. Banco National de Cuba (BNC) sued Sabbatino in US Court to get them to hand over the money for the sugar.

PRINCIPLES OF INTERNATIONAL LAW - ACT OF STATE

5. BNC argued that the Cuban nationalization was an official Act of State and should be honored by the US. 6. The Act of State Doctrine says that the propriety of decisions of other countries relating to their internal affairs would not be questioned in US courts. 7. Sabbatino argued that the Act of State Doctrine was inappropriate because: 8. The act in question was a violation of international law; 9. The doctrine should not be applied unless the Executive branch asks the court to do so; 10.Cuba had brought the suit as a plaintiff and had given up its sovereign immunity.

PRINCIPLES OF INTERNATIONAL LAW - ACT OF STATE

11.The Trial Court found for Sabbatino. BNC appealed. 12.The Appellate Court affirmed. BNC appealed. 13.The US Supreme Court reversed. 14.The US Supreme Court found that the policy of US Federal courts would be to honor the Act of State Doctrine. 15.The Court found that the Cuban seizure did not violate international law, because there was no clear international opinion that a seizure of land or property in a country by the government of that country was illegal.

PRINCIPLES OF INTERNATIONAL LAW - ACT OF STATE

16.The Court found that there was no need for the Executive branch to ask the courts to apply the Act of State Doctrine. 17.The Court found that it should be assumed to apply because if even a single court made a mistake and failed to apply it, it could mess up US relations with other countries. 18.The Court found that the Act of State Doctrine still applied, even thought the State was a plaintiff. 19.Similar to the idea of sovereign immunity where States can sue, but cannot be sued. 20.In response to this decision, Congress passed the Second Hickenlooper Amendment (aka the Sabbatino Amendment) that revoked the presumption in favor of

PRINCIPLES OF INTERNATIONAL LAW - ALIENS

An alien who is legally permitted to remain in a country. On specified terms, this kind of alien may be called a legal alien of that country. This

is a very broad category which includes tourists, guest workers, legal

permanent residents and student visa resident aliens. An alien who has temporary or permanent residence in a country may be called a resident alien of that country. This is a subset of the aforementioned legal alien category. An alien who is visiting a country be called a non resident alien of that country. This is a subset of the aforementioned legal alien category. An alien who is present in a country unlawfully or without the country's authorization is known as an illegal alien of that country.[2] An enemy alien is an alien who is a national of an enemy country.

PRINCIPLES OF INTERNATIONAL LAW - ALIENS

Treatment of Aliens
When a State admits into its territory foreign investments or foreign
nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified

PRINCIPLES OF INTERNATIONAL LAW - ALIENS

In 1985, the United Nations proclaimed the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live. Articles 5 10 of the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live sets out the rights of noncitizens (referred to as aliens in the Declaration): Aliens must receive the same treatment as nationals of the country in which they live with regard to the following rights: The right to life and security of the person, including freedom from arbitrary arrest or detention Protection against arbitrary or unlawful interference with privacy, family, home or correspondence Equality before the courts, including the free assistance of an interpreter The right to choose a spouse, to marry, and to found a family Freedom of thought, opinion, conscience and religion The right to retain language, culture and tradition The right to transfer money abroad

PRINCIPLES OF INTERNATIONAL LAW - ALIENS

The following rights must be granted to aliens so long as they do not interfere with national security, public safety, public order, public health or morals or the rights and freedoms of others: The right to leave the country The right to freedom of expression The right to peaceful assembly The right to own property individually or in association with others Liberty of movement and freedom to choose their place of residence within the borders of the country The right of spouse and minor or dependent children to join a lawful alien, as provided by national law

PRINCIPLES OF INTERNATIONAL LAW - ALIENS

Aliens lawfully residing in the country must be granted the following rights so long as they observe the countrys laws and respect the customs and traditions of the people:

The right to safe and healthy working conditions, fair wages, and equal pay for equal work
The right to join trade unions

The right to social services, health care, education, and social security

PRINCIPLES OF INTERNATIONAL LAW - ALIENS

The following additional rights of aliens are particularly enumerated in the Declaration:

Protection from torture or cruel, inhuman, or degrading punishment

Freedom from being subjected to medical or scientific experimentation without the aliens free consent

Protection against arbitrary or unlawful expulsion from the country

The right to defend oneself from expulsion, except where compelling reasons of national security require otherwise

Protection from being arbitrarily deprived of lawfully acquired assets

The right to communicate at any time with the consulate or diplomatic mission of the country of which he or she is a national