INTERNATIONAL LAW Satu Pitkänen 2015

The effectiveness of a legal order is based on The norms SOURCES OF LAW §§ that govern the behavior SUBJECTS of the members of a particular society The effectiveness of a legal order is based on sanctions

WHAT IS INTERNATIONAL LEGAL ORDER? Subjects of law Who are the participants in international legal order? States, international organizations (sometimes private individuals) Horizontal system of sovereign states Where is the law, who makes it? No formal machinery => law comes into effect by general consent of states Sanctions => What is the basis of obligation? States consider international law binding

CONCEPT OF INTERNATIONAL LAW Different ways to approach: Public international law Comparative law Private international law

1. PUBLIC INTERNATIONAL LAW

International law, traditional approach STATE A STATE B ”International Law is the body of rules generally recognized by civilized nations as governing their conduct towards each other and towards each other’s subjects.” (Collins English Dictionary)

EXAMPLES OF PUBLIC INTERNATIONAL LAW Sources of international law Scope of international law International personality State territory State succession State responsibility to aliens Law of the sea Environmental law International dispute settlement Law of war

SUBJECTS OF PUBLIC INTERNATIONAL LAW States Prerequisites of statehood: Territorial sovereignty A population A government capable of controlling the territory and the people entering into international relations International organisations

THE UNITED NATIONS (1) Members: 193 states (5/2015) Goals Maintenance of peace and security in the world Promotion of world wide economic and social co-operation Promotion of the protection of human rights Achievements by universal respect for international law

THE UNITED NATIONS (2) Organs General Assembly Security Council Secretariat Economic and Social Council International Court of Justice Resolves legal disputes between sovereign states Issues advisory opinions asked by international organizations UN General Assembly Security Council chambers Peace Palace, seat of the ICJ

WORLD TRADE ORGANISATION History Bretton Woods Conference 1944 => General Agreement on Tariffs and Trade GATT 1947 1986 -1994 Uruguay Round The World Trade Organisation Agreement 1994

WTO Members: 161 states (5/2015) Targets of the WTO Implement the WTO Agreement and its annexes Act as a forum for ongoing multilateral trade negotiations Serve as a tribunal for resolving disputes Review the trade policies and practices of member states

WTO AGREEMENT Valid from 1994 Consists of multilateral trade agreements on Trade in Goods (GATT) Trade in Services (GATS) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Settlement of Disputes (DSU) Trade Policy Review Mechanisms (TPRM)

SOURCES OF INTERNATIONAL LAW International conventions International customary law General principles of law Judicial decisions Teachings of the most highly qualified publicists of various nations Art 38(1) of the Statute of the International Court of Justice:

2. COMPARATIVE LAW

Comparative approach §§ STATE A §§ STATE B

MUNICIPAL LEGAL SYSTEMS 2. ANGLO-AMERICAN COMMON LAW 1. CIVIL LAW THE ROMANO GROUP THE GERMANIC GROUP 2. ANGLO-AMERICAN COMMON LAW = CASE LAW 3. ISLAMIC LAW SYSTEM

HISTORY OF ROMANO-CERMANIC CIVIL LAW SYSTEM ROME 12 tables 450 B.C. Corpus Iuris Civilis 528-534 A.D. CATHOLIC CHURCH > Canon law GLOSSATORS, COMMENTATORS, STUDENTS, 1000-1100 A.D. Effects on the English law Ius Commune (Common law of Europe) GUILDS, MERCHANTS Lex Mercatoria Legal nationalism 1500-1600 A.D. Followed by: Austria, Czech Republic, Slovakia, Greece, Hungary, Switzerland, Turkey, Japan, South Korea, Scandinavian countries… Followed by: The Netherlands, Belgium, Poland, Spain, Portugal, Latin America, Indochina, sub-Saharan Africa, Indonesia… Effects on national jurisdictions German Civil Code 1896 Code Napoleon 1804

Lex Mercatoria consists of common trade practices and norms of customary law among international trading partners. It dates back to the Renaissance. Its main principles are that a merchant must deal in good faith, contracts are binding and resorting to arbitration tribunals .

ANGLO-AMERICAN COMMON LAW SYSTEM 1066 Normans conquered England William the Conqueror began to centralize the governmental administration King’s courts represented the common custom of the realm => COMMON LAW EQUITY: complementary and supplementary norms ADMIRALTY: law and court with jurisdiction over marine affairs

SOURCES CIVIL LAW - COMMON LAW Sources of law: Codes Statutes Prescribed texts Sources of law: Court decisions, precedents

CHARACTERISTICS OF RULINGS: INTERNATIONAL ACCEPTANCE: COMPARISON BETWEEN CIVIL LAW COMMON LAW BASIC SOURCE: Codified law, abstract principles Specific circumstances => precedents => case law FACT FINDER: Judge Jury CHARACTERISTICS OF RULINGS: Predictability, consistency, uniformity Unpredictability, flexibility, procedural emphasis EFFECTS ON BUSINESS: Contracts can be lacking in detail Contracts must be comprehensive and detailed INTERNATIONAL ACCEPTANCE: Focus on national issues Refined to cope with issues of international trade

Ray August. International Business Law. 2000. Prentice Hall. New Jersey

ISLAMIC LAW SYSTEM Main source of Shari’a is Koran Other sources: Sunna: traditional teachings and practices of the Prophet Muhammad Writings of Islamic scholars who derived rules by analogy from the principles established in the Koran and the Sunna Consensus of the legal community No evolution of Islamic law since the 10th century A.D. Shari’a is primarily a moral code

3. PRIVATE INTERNATIONAL LAW ”International law is the body of rules and norms that regulates activities carried on outside the legal boundaries of states”. (Ray August)

International law, wider approach STATE A STATE B

EXAMPLES OF PRIVATE INTERNATIONAL LAW ISSUES Contracts and sales Transportation Money and banking Financing Securities regulations Intellectual property Taxation Torts Inheritances Nationality Marriage and divorce