International Law and Organizations Chapter 2 © 2002 West /Thomson Learning

What is International Law? A rule… that has been accepted as such by the international community in the form of . . . customary law… … international agreement… …general principles common to the major legal systems… Restatement of the Law 3rd

Public International Law Deals with relationships between countries and applies “norms regarded as binding on all members of the international community” Example: Vienna Convention on the Law of Treaties

Public International Law Pacta sunt servanda: “every treaty in force is binding upon the parties to it and must be performed in good faith.” Ius cogens: “preemptory norm of international law” (example: proscriptions against torture and genocide)

Impact of treaties on business? Treaties involve public law but can apply to private transactions Tax treaties Law of the Sea convention Convention for the International Sale of Goods(CISG)

International Court of Justice Known as the World Court 15 judges serving 9 year term UN General Assembly and Security Council elect Based in The Hague, Netherlands Only states can be parties and state must have accepted the court’s jurisdiction Hears cases brought under UN Charter or treaties, or questions of international law Case Examples: Liechtenstein v. Guatemala Nicaragua v. United States

United Nations in Public International Law General Assembly (1 country, 1 vote) Security Council (15 members) 5 permanent members: China, France, Russia, U.K. and the U.S. 10 non permanent members elected every 2 years Permanent members have a veto over non-procedural issues

International Criminal Law International Criminal Court – 1998 Rome Statute 108 signatories – not the U.S. Hears 3 categories of crimes Genocide Crimes against humanity War crimes Cases must be referred by national govt. or UN Security Council

International Criminal Law Principles of International Criminal Jurisdiction Territoriality Subjective Territorial Jurisdiction Objective Territorial Jurisdiction Nationality The Protective Principle Passive Personality Universality Case Concerning Arrest Warrant of 11 April 2000 Belgian arrest warrant conflicts with immunity of foreign ministers Court refuses to recognize universal jurisdiction in absentia

Private International Law Conflict of laws Central role of different national legal systems Civil law & Common Law Socialist & Islamic law Comparative law

Public and Private International Law Convention for the Sale of Goods (CISG) A convention or treaty that affects private transactions

The Role of International Organizations International Monetary Fund World Bank GATT and WTO OECD

The Role of Codes of Conduct Examples from NGO (non governmental organizations)- OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions World Diamond Congress – agt. to limit trade in “blood diamonds” Governmental examples - U.S. Model business Principles

The Role of Ethics How to define what is ethical? The problem of “first world standards in the third world” Business attempts to address Codes of Conduct

Human Rights, Ethics and Business Practices Increasingly complex Do we agree on “Universal Human Rights, or “animal rights?” History: business role in change in South Africa? Do we need more conventions? Likelihood of agreement? What should the role of business be in this debate?

Cases: Chapter 2 The Paquette Habana Sosa v. Alvarez-Machain Renkel v. United States Case Concerning Arrest Warrant of 11 April 2000 Liechtenstein v. Guatemala M. Aslam Khaki v. Syed Mohammad Hashim

Paquette Habana Facts: Coastal fishing boats seized by U.S. as prizes of war Issue: Absent a treaty, does customary international law exempt fish vessels from capture as prizes of war? Decision: Yes, the Court took judicial notice of customary international law and concluded peaceful fisherman are exempt from capture. Note the Court’s review of historical precedent

Sosa v. Alvarez - Machain Facts: A was kidnapped in Mexico, sues S under Alien Tort Claims Act [ACTA] Issue: Does ATCA create cause of action for torts in violation of international law? Decision: No. ATCA only confers jurisdiction on US courts to hear certain cases Reasons: At time of passage of ATCA, common law recognized torts in violation of int. law Three specific offenses recognized Violation of safe conducts Infringements of rights of ambassadors Piracy A must show claim based on violation of similarly specifically defined norm of international law

Renkel v.United States Facts: R sued US alleging inadequate medical care in military prison violated the Convention Against Torture Issue: Is Convention Against Torture a self-executing treaty? Decision: No, it is not self-executing, so doesn’t create cause of action Reasons: Look to treaty as a whole – does it evidence intent to be self-executing? US Senate, when consenting to Convention, declared Arts. 1 – 16 not self-executing So doesn’t create private right of action R must base cause of action under some domestic law No legal authority for action for torture in US R hasn’t shown right of action for violation of peremptory norm of international law

Case Concerning Arrest Warrant of 11 April 2000 Facts: Belgian law gives courts jurisdiction over genocide and war crimes Belgian court issued arrest warrant for Y, Congo Minister of Foreign Affairs Congo brought case before ICJ to establish diplomatic immunity for foreign minister of sovereign state ICJ discussed principles of diplomatic immunity Full immunity required to enable minister to perform duties of position Don’t distinguish between official capacity and private capacity Customary international law doesn’t recognize exception for war crimes or crimes against humanity But some limits to immunity: Not immune from arrest in own country State may waive immunity Immunity ceases when person ceases to hold office May be subject to action of international criminal courts Concurring Opinion: Only recognize universal jurisdiction for piracy

Liechtenstein v. Guatemala Facts: N born in Germany but resided in Guatemala; granted citizenship by Liechtenstein under special procedure; Guatemala seized N’s property during WWII; L sues G seeking damages Issue: Does ICJ have jurisdiction over case here? Decision: No; L can’t bring claim on behalf of N against G Reasons: G not required to recognize L’s grant of citizenship to N; L can’t bring claim for N against G in ICJ

M. Aslam Khaki v. Syed Mohammad Hashim Facts: Pakistani banks appeal on ban on riba (interest) on loans and deposits Payment of interest involves injustice Money not a commodity under Islamic principles – it is medium of exchange, not meant for trade in money itself Injustice to use money for other purposes Interest allows earning return without taking part in real economic activity Islam doesn’t recognize loans as income-generating transactions Shariah only permits borrowing money in cases of dire need Interest means loan becomes profitable trade – turns economy into debt- oriented – mankind under “slavery of debt” Islamic financing based on profit and loss sharing – any profit earned is reward for bearing risks of business 2002 – Pakistan Supreme Court held above decision based on errors; rules against interest don’t apply to non-Muslims