International Law and Organizations

Chapter 2

© 2005 West Legal Studies in Business/Thomson Learning

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What is International law?

• “A rule… that has been accepted as such by the international community..”

• Includes :– Customary international law– International treaties and agreements– General principles common to major legal

systems

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International Law Encompasses

• Public International Law

• Private International Law

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What is Public International Law?

• Involves relationships between countries and applies “norms regarded as binding on all members of the international community”

• Examples of issues: when is it appropriate for a country to use force?

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The Paquette Havana

• A Spanish citizen’s boats were seized by the U.S. The citizen was unaware of the Spanish American war and of the blockade of Cuba. He had no weapons. The Federal District Court and the Court of Appeals found for the U.S.

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The Paquette Havana

ISSUE:

• Absent a treaty, does customary international law exempt fishing vessels from capture as a prize of war?

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The Paquette Havana

• Holding: Yes, the Court took judicial notice of customary international law and concluded that peaceful fishermen are exempt from capture (reversing the two lower courts).

• How did the court arrive at this decision?• Look at their review of history searching

for the way different countries throughout time treated the issue

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Treaties

• Treaties are binding agreements between two or more nations

• Convention is a treaty

• Bilateral vs. multilateral treaties

• Protocol is an agreement on matters less significant than those addressed in a treaty

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Treaties

• Vienna Convention of the Law of Treaties: codified in 1980 the customary law regarding treaties

• Pacta sunt servanda: “the pact must be respected” and be followed in good faith

• Jus cogens: there are certain fundamental rights or minimum standards that should be respected

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Why is the treaty for the International Criminal Court controversial?

• Why won’t China and the U.S. sign?

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Interpretation of a treaty: U.S. v Alvarez

• Facts: Dr. Alvarez was suspected of assisting in the torture of a DEA agent in Mexico. DEA arranges for individuals to abduct Alvarez and present him at the border to U.S. agents where he was arrested. Mexico argued that his arrest violated the existing Extradition Treaty between the U.S. and Mexico.

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U.S. v Alvarez

• Issue: Does a criminal defendant abducted to the U.S. from a country with which it has an extradition treaty have a defense to the jurisdiction of the U.S. courts?

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U.S. v Alvarez

• Holding: No. The treaty did not expressly prohibit abduction nor did general principles of international law prohibit such action.

• Was this a wise decision? What was the focus of the dissent?

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What impact do treaties have on business?

• Treaties involve public law but can apply to private transactions

• Tax treaties

• Example: the Convention for the International Sale of Goods

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International Court of Justice

• Also known as the World Court or the I.C.J.

• 15 judges serving 9 year terms

• Based in The Hague, Netherlands

• Only states can be parties and states must have accepted the Court’s jurisdiction

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Case example: Liechtenstein v. Guatemala

• Facts: Nottebohm, born in Germany, moved to Guatemala in 1905. He worked there until 1939, when he decided to take advantage of his brother’s home country, Liechtenstein's, offer to waive the three year residency process to become a citizen. He became a citizen but continued to live and work in Guatemala. In 1943, Guatemala entered the war against Germany and seized assets of the enemy in Guatemala including Nottebohm’s. Nottebohm was also interned. When he was released in 1946, he tried to get his property back but could not. Liechtenstein filed a “memorial” with the court on his behalf.

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Liechtenstein v. Guatemala

• Issue: Must Guatemala recognize Liechtenstein's claim on behalf of Mr. Nottebohm?

• Holding: No. the claim was not admissible because Guatemala did not have to recognize the citizenship granted by Liechtenstein. The court said that test for nationality “real and affective nationality”

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Liechtenstein v. Guatemala

• Do you think politics are in play here?

• What relevance is the date of the decision 1955?

• What has happened since this decision with regard to actions taken during World War ll and the Japanese-Americans in California?

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Liechtenstein v. Guatemala

• What happened in the Nicaragua case?

• What are examples of more recent ICJ action?

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The Role of the United Nations in Public International Law

• General Assembly ( each country has one vote)

• Security Council ( 15 members, including 5 permanent members ( China, U.S. Russia, France and U.K.) and 10 members who rotate on a staggered basis every 2 years. The 5 permanent members have veto power over non procedural issues

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The Role of the United Nations in Public International Law

• What is the impact of the veto power?

• What problems do you see with this structure?

• What role did the Security Council play during the Cold War? Gulf War I? Bosnia? Afghanistan? Iraq?

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Private International Law

• Conflict of laws: “domain of rights, duties, and disputes between and among persons from different places”

• Comparison between national legal systems

• Common and civil law

• Socialist law and Islamic law

• Comparative law

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How have different countries treated jurisdiction over the Internet?

• French court decision in Yahoo! Case exerted their national boundaries on the Internet by imposing French law on sales over the Internet to French buyers

• However, the U.S. court in a declaratory judgment stated that they would not enforce such an order in the United States referring to an earlier case, Matusevitch.

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Differences Between Two Common Law Countries

• Matusevitch v. Telnikoff• Facts: Matusevitch (U.S. citizen) wrote a

letter to a London paper criticizing an earlier letter by Telnikoff which criticized the BBC for hiring “Russian minorities.” Matusevitch claimed that the term" minorities” was an anti-Semitic reference. Telnikoff was awarded $416,000 in the UK and was now trying to collect the judgment in the U.S.

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Differences Between Two Common Law Countries

• Issue: Would enforcement of a U.K. libel judgment where the plaintiff did not have to prove malice as he would have in the U.S. deprive the U.S. respondent of his Constitutional rights under the First and Fourteenth Amendment?

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Differences Between Two Common Law Countries

• Holding: Yes. The U.S. court concluded that because of the different libel standards (it is easier to prove libel in the U.K.), the enforcement of the judgment would deprive Matusevitch of his Constitutional rights.

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Differences Between Two Common Law Countries

• How did the Australian court handle the concept of jurisdiction via an internet transaction over Dow Jones?

• How differently do countries approach the concept of privacy?

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A Mixture of Public and Private Law?

• Convention for the International Sale of Goods (CISG)

• A convention that affects private transactions

• A new direction?

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The Role of International Organizations

• Already looked at the UN

• International Monetary Fund

• World Bank

• GATT and WTO

• OECD: Anti- Bribery Convention

• WIPO: World Intellectual property Organization

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Human Rights, Ethics and Business’ Response?

• Should businesses be concerned about human rights?

• What is the purpose of Codes of Conduct?

• Do you think they are effective?

• How to define ethics?

• The problem of “first world standards in the third world”?

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What Is the Exposure of Business on Human Rights Issues?

• Public relations issues

• Legal ramifications: update on Unocal case and the Alien Tort Claims Act

• Is there agreement on what are universal human rights? Rights of women? Animal rights? Do we need more treaties? Likelihood of agreement?

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What Is the Exposure of Business on Human Rights Issues?

• What should the role of business be in the debate about human rights and ethical business practices in a global environment?

• More discussion will follow in chapters dealing with trade.