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

2. 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

3. 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

4. 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)

5. 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)

6. 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

7. 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

8. 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

9. 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

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

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

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

13. 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

14. 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

15. 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?

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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